ANN18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 560

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

ANN18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 560

File number:

MLG 291 of 2018

Judgment of:

JUDGE LADHAMS

Date of judgment:

24 June 2024

Catchwords:

MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal to affirm a decision not to grant the applicant a protection visa – where the Tribunal placed no weight on a document from Nepal provided by the applicant in part because document fraud exists in Nepal – whether the Tribunal acted unreasonably by failing to consider the seriousness of an allegation of fraud against the applicant – no jurisdictional error – application dismissed.  

Legislation:

Migration Act 1958 (Cth) ss 476, 477

Cases cited:

ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12

Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 12

Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485; [2010] FCAFC 50

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30

Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; [2014] FCAFC 93

Division:

Division 2 General Federal Law

Number of paragraphs:

42

Date of hearing:

11 June 2024

Place:

Perth

Counsel for the Applicant:

Mr S Sharify

Counsel for the First Respondent:

Ms K Chan

Second Respondent:

Submitting appearance by the second respondent, save as to costs

Solicitor for the Respondents:

Sparke Helmore Lawyers

ORDERS

MLG 291 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ANN18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE LADHAMS
DATE OF ORDER:	24 JUNE 2024

THE COURT ORDERS THAT:

1.The application is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LADHAMS:

INTRODUCTION

1. The applicant is a citizen of Nepal who applied for a protection visa in Australia. A delegate of the Minister refused to grant the applicant a visa and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision. The applicant seeks judicial review of the Tribunal decision in the exercise of the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).

2. The applicant’s sole ground of application asserts that the Tribunal fell into jurisdictional error by failing to apply the principle in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw) when determining allegations of fraud against the applicant. In the applicant’s submissions, this ground was addressed as an assertion that the Tribunal acted unreasonably by failing to consider the seriousness of the allegation of fraud levelled against the applicant in relation to documents he provided in support of his application.

3. For the reasons explained below, the applicant has not established that the Tribunal made a jurisdictional error in its decision. The application for judicial review is therefore dismissed.

   VISA HISTORY AND ADMINISTRATIVE DECISIONS

4. The applicant entered Australia on a tourist visa in July 2013.

5. The applicant applied for a protection visa on 17 October 2013. Relevant to the judicial review application before the Court, one of the claims advanced by the applicant in a statutory declaration provided with his visa application was that he feared harm as an active member of the United Marxist-Leninist Party (UML Party).

6. On 27 February 2014 the applicant attended an interview with an officer of the Department to discuss his claims for protection.

7. A delegate of the Minister refused to grant the applicant a protection visa on 10 March 2014.

8. On 28 March 2014 the applicant applied to the Tribunal for merits review of the delegate’s decision. The Tribunal purported to affirm the delegate’s decision on 4 November 2014. However, on 12 December 2016 the Federal Circuit Court quashed the Tribunal’s decision of 4 November 2016 and remitted the matter to the Tribunal for redetermination according to law. The Order made by the Court notes that the Minister conceded that the Tribunal made a jurisdictional error by failing to consider a claim raised squarely on the material before the Tribunal, namely that the applicant faced a real chance of persecution on return to Nepal at the hands of Madhesis on the basis of his Pahadi ethnicity.

9. Following the remittal of the matter, on 27 September 2017 the applicant, accompanied by his representative, attended a hearing before the Tribunal to give evidence and present arguments.

10. The Tribunal, differently constituted, affirmed the delegate’s decision on 9 January 2018. Those parts of the Tribunal decision that are relevant to this judicial review application are referred to in the consideration of the grounds below.

    JUDICIAL REVIEW APPLICATION

11. On 5 February 2018 the applicant filed his application for judicial review of the Tribunal’s decision of 9 January 2018, and the application was therefore made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.

12. The applicant relies on an amended application filed on 11 June 2024 which advances a single ground of application:

    The Tribunal failed to apply the Briginshaw principle in determining allegations of fraud against the Applicant.

    Particulars

    a.The Tribunal found that the documents referred to at [36] of its decision may have been fraudulently created without considering the gravity of such an allegation.

    b.By doing so, the Tribunal failed to perform its statutory function of determining the necessary facts on which its decision was based.

13. As mentioned above, and addressed further below, in submissions the ground was pressed as an assertion that the Tribunal acted unreasonably by failing to consider the seriousness of the allegation of fraud it levelled against the applicant in relation to documents that the applicant provided in support of his application.

14. The evidence before the Court comprises the court book filed on behalf of the Minister on 28 November 2018.

15. The applicant was represented at the hearing by Mr Sharify of Counsel, who appeared on behalf of the applicant pursuant to a pro bono referral made by the Court. The Court expresses its sincere gratitude to Mr Sharify for agreeing to act in this matter on a pro bono basis following the referral by the Court.

    CONSIDERATION OF THE APPLICANT’S GROUND

    Relevant findings of the Tribunal

16. The specific finding impugned by the applicant is the Tribunal’s finding at [36] of its reasons made in the course of considering the applicant’s claims to have been actively involved in the UML Party and to have faced past harm on account of his involvement.

17. It is important to consider this finding in the context of the Tribunal’s consideration of the applicant’s claims based on his involvement with the UML Party.

18. The Tribunal, before considering the supporting documents provided by the applicant, expressed several concerns about the applicant’s claim to have been actively involved with the UML Party in Nepal and to have suffered threats and harm as a result. These concerns included that:

    (a)the applicant’s oral evidence about the UML Party was vague and his knowledge of the Party was limited;

    (b)the applicant’s oral evidence about the threats he allegedly received from Madhesi rebels was vague and confused at times and changed over the course of the hearing;

    (c)the applicant’s oral evidence about the alleged threats directed to his parents was somewhat vague;

    (d)the applicant raised new claims before the Tribunal as constituted following the remittal, which cast doubt as to their veracity;

    (e)the applicant’s oral account of the attack against him by Madhesi rebels in 2013 was inconsistent in some respects with information contained in a letter from the rehabilitation centre that he provided to the Department; and

    (f)there were inconsistencies in the applicant’s evidence concerning his claim to have been attacked by Madhesi rebels in 2013, including inconsistencies between his oral accounts of the incident to the Tribunal as constituted following the remittal and the previous Tribunal and in his statutory declaration to the Department.

19. The Tribunal gave specific examples explaining each of the concerns expressed.

20. The Tribunal then addressed the documents provided by the applicant in support of his claims at [35] and [36] of its reasons. In these paragraphs, the Tribunal said (emphasis added, footnote omitted):

    35.As discussed at the hearing, the Tribunal also has concerns with the authenticity of some of the supporting documents provided by the applicant to the Department. For example:

    a.The copy of the threat letter demanding two lakh rupees within three days is unsigned, undated, and does not provide any letterhead or identifying features. It is also written in English, which seems odd. At hearing the applicant said the letter was given to his parents, he thinks after he came to Australia, and was translated in Nepal and sent to him. He said letters like that ‘always’ do not mention the writer’s identity. When asked why he was threatened in this letter, the applicant said because he had become the ‘hot topic’ or ‘central focus’ because he was popular in the region, and because of his political awareness programs and publicity with youth membership programs with the UML various people were getting upset. However for reasons above and below the Tribunal does not accept his claims in this regard.

    b.The letter from the rehabilitation centre in Nepal referring to his treatment contains a number of inconsistencies with the applicant’s oral evidence to the Tribunal about his injuries and treatment, as set out above.

    c.A copy of a translated newspaper article which refers to the applicant’s purported attack in the New Sristi Daily, which the applicant described as a local newspaper at hearing. The first Tribunal was unable to find any reference to the publication in its search for local newspapers and the copy presented by the applicant does not bear identification of the newspaper such as the masthead, date, or publication details, which casts doubt as to its authenticity. The applicant said the article was about how he was assaulted and how Madhesi rebels oppress people with Pahadi backgrounds. It was based on an interview with his father (his father sent him the original, a copy of which is on the Departmental file, untranslated). When asked how the journalist found out about the attack, the applicant said the village population is small so everyone knows everything.

    36.Given these concerns, the Tribunal gives these documents little weight. It notes other documents have been provided to the Department in support of the applicant’s claims including a translated copy of an All Nepal Farmer Union membership card dated … and a translated copy of a typed letter from the Chairperson, ‘Nepal Communist Party (UML) Village Committee’… to the applicant assigning him the responsibility for the financial development progression of the farmers. However these documents do not overcome the significant credibility concerns the Tribunal has with the applicant’s claims in this respect, as discussed above. The Tribunal also notes, as did the delegate and first Tribunal (and mentioned at hearing) that country information indicates that document fraud exists in Nepal. For these reasons the Tribunal gives these documents little weight.

21. The Tribunal then expressed its conclusion about the relevant aspects of the applicant’s claims at [38], where it said:

    For the reasons above the Tribunal does not accept the applicant’s claims to have been a member, supporter or employee of the UML party in Nepal in the past, or that he undertook any of the claimed activities for the UML party. Nor does it accept he was a member of the All Nepal Farmer Union. It follows that it does not accept that he was ever threatened or attacked by Madhesi rebels or anyone else because of his support and work with the UML party…

22. Based on the way that the ground has been addressed by the parties, the Court understands that that the two documents provided by the applicant that are the subject of the complaint in the applicant’s ground are an All Nepal Farmer Union membership card and a letter from the Chairperson of the UML Party Village Committee to the applicant assigning him the responsibility for the financial development progression of the farmers.

    The Briginshaw principle

23. In Briginshaw, Dixon J said at 362:

    The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.

24. It is now common practice to refer to the Briginshaw principle as an evidentiary principle that the more serious the allegation, the more substantial the evidence that may be required to prove the allegation on the balance of probabilities.

25. Although the ground is pleaded as an allegation that the Tribunal made a jurisdictional error by failing to apply the Briginshaw principle, Counsel for the applicant accepted at the hearing that the Briginshaw principle is a rule of evidence that is not binding on the Tribunal. This is consistent with the position adopted in the Minister’s submissions and several cases cited by the Minister. For example, in Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; [2014] FCAFC 93 (Sullivan), Flick and Perry JJ said at [115]:

    The attempt on the part of Mr Sullivan to side-line the fundamental importance of provisions such as ss 2A, 33 and 39 of the Administrative Appeals Tribunal Act – and to shift the focus of attention to the ultimate task of the Tribunal in making the “correct or preferable” decision as to whether it is “satisfied” for the purposes of reg 269(1)(d) of the Civil Aviation Regulations – should be soundly rejected. Such a submission, with respect, fails to recognise that:

    •the rule in Briginshaw is a rule of evidence derived from curial proceedings;

    •the Tribunal is not “bound by the rules of evidence”; and

    •a party to proceedings before the Tribunal has no “onus of proof”, let alone an “onus” to establish facts to any particular or pre-determined standard.

    Moreover, the submission fails to also recognise the fact that the procedure of the Tribunal is within its own discretion.

26. I understand from the concession made by Counsel for the applicant at the hearing that the ground is not pressed insofar as it amounts to a simple assertion of jurisdictional error on the basis that the Tribunal was required to, but did not, apply the Briginshaw principle. In any event, the ground is not established because the Tribunal was not bound to apply the Briginshaw principle in determining whether the applicant met the criteria for a protection visa: see Sullivan at [16], [29] (Logan J), [115], [122] (Flick and Perry JJ); Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 12 (Mailau) at [91] (Colvin and Halley JJ).

    Unreasonableness

27. In his submissions, as indicated above, the applicant addressed the ground as an unreasonableness ground. In his oral submissions, Counsel for the applicant relied on Mailau, which the Minister cited in his written submissions, to support the proposition that the requirement for the Tribunal to act reasonably applies even if the Briginshaw principle does not. In Mailau, Colvin and Halley JJ said at [91]:

    As to the terms in which the case was put on appeal, the proposition advanced on appeal to the effect that the Tribunal is bound to apply the reasoning in Briginshaw must be rejected: Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 226 FCR 555 at [108]‑[122]. Facts can be fairly found by administrative decision-makers without demanding adherence to the rules of evidence: Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty [2010] HCA 32; (2010) 241 CLR 390 at [15]. Therefore, the merits of the contentions advanced must be evaluated on the basis that they amount to a claim of unreasonableness solely on the basis of the finding concerning the future intentions of Mr Mailau’s mother. The reasonableness of the reasoning must also be evaluated having regard to the way in which the case was put to the Tribunal in the course of a procedure where Mr Mailau was legally represented and made submissions.

28. In his oral submissions, Counsel for the applicant described the allegation of unreasonableness in the following way:

    The claim of the applicant is that he was a member of the UML, the United Marxist Leninist Party. He was an active member of it. The findings that go to his credibility do not challenge his membership. What they do is challenge his involvement. So, for instance, he did not speak at rallies, for instance, he was not threatened. But they don’t actually go to his membership of that party or the associated party. So my submission is that it is not reasonable in these circumstances for the tribunal to have rejected the membership claim, which it does specifically … at paragraph 38…

    …

    But none of the credibility findings actually go to his membership. So my submission is when there are concerns about fraud in relation to a key document that could prove membership that go to a claim, which is that he was a member, and there’s no indication that – for instance, that the possibility of a finding of fraud was even put to the applicant. To not consider the seriousness of that allegation is a jurisdictional error, because it means the tribunal has acted unreasonably in making that finding.

29. In assessing the ground based on unreasonableness, it is appropriate to bear in mind that the Tribunal decision turned on whether or not it was satisfied that the relevant statutory criteria were met. As the Minister submitted, findings of fact were not necessarily required to support a state of non-satisfaction, as the Tribunal was obliged to affirm the delegate’s decision refusing to grant him a visa if it was not affirmatively satisfied that the criteria were met.

30. Further, the Tribunal’s adverse credibility findings in relation to the applicant can be relevant to the assessment of whether the approach of the Tribunal in relation to the two documents was unreasonable. As the Minister submitted, relying on the High Court’s decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 at [12], the Tribunal is entitled to reject corroborative evidence, even though there is no separate or independent ground for its rejection apart from the reasons given for forming an adverse view of the applicant’s credibility. Counsel for the applicant also accepted this proposition in his oral submissions.

1. A similar view was expressed by the Full Court in Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485; [2010] FCAFC 50, where the Court said at [36]:

   In circumstances where the provenance of the document is unproved, but it is proffered by a witness whose credibility has been destroyed, the document has no more credit than the person proffering it.

2. As can be seen from [36] of the Tribunal’s reasons, the Tribunal gave ‘little weight’ to the All Nepal Farmer Union membership card and the letter from the Chairperson of the UML Party Village Committee for two reasons:

   (a)the documents did not overcome the significant credibility concerns that the Tribunal had already expressed in relation to the applicant’s claims to have been an active member of the UML Party; and

   (b)country information indicated that document fraud exists in Nepal. 

3. I acknowledge that many of the Tribunal’s adverse credibility findings went to the applicant’s activities with the UML Party and claimed past harm, rather than specifically relating to his membership of the Party. However, although the subject matter of the Tribunal’s adverse credibility findings summarised above largely related to the applicant’s claimed activities and claimed past harm, it was open to the Tribunal to treat those adverse credibility findings as impacting its assessment of the applicant’s claims about the harm he feared on account of his active membership of the UML Party more generally. I do not consider that the resolution of this ground turns on the distinction that Counsel for the applicant drew in his oral submissions between the applicant’s membership of the UML Party and the activities he performed as a member of the UML Party.

4. The applicant’s claim to be a member of the UML Party and his claim to be actively involved with the party were inextricably linked. For example, in his statutory declaration that accompanied his visa application, the applicant said:

   I am an active member of UML Party (United Marxist-Leninist Party) and have been actively working for the social welfare of Farmers in … under All Nepal Famer Union which is the Sister Organisation of UML Party since 19-May-2011. The Madheshi Rebel group did not like me getting involved in the social awareness program that I was working against the racial and ethnic discrimination.

5. In the submission the applicant’s representative provided to the Tribunal before the hearing, the applicant summarised that his claims included a claim to fear harm on account of his ‘actual or imputed political opinion as a member of the Unified Marxists-Leninist Party’. However, this was not elaborated on in any way and, when viewed in context, this appears to be a short-hand description of the relevant claim rather than any meaningful attempt to distinguish between membership of the party and active membership of the party.

6. Further, at least one of the documents discussed at [36] of the Tribunal’s reasons relates to the applicant’s activities for the UML Party. The letter from the Chairperson of the UML Party Village Committee purports to allocate responsibility to the applicant for particular activities. The distinction that Counsel for the applicant draws between membership and active membership could not therefore apply to this document in any event.

7. In my view, it was open to the Tribunal to rely on the adverse credibility findings that it made in respect of the applicant’s claimed activities and past harm in placing little weight on the two documents.

8. I then turn to the applicant’s submission relating to the Tribunal’s statement that document fraud exists in Nepal. On the evidence before me, I am unable to make a finding that the Tribunal failed to put to the applicant the possibility that it may make a finding based on document fraud. There is no transcript of the Tribunal hearing in evidence before me. The applicant bears the onus of proof in this judicial review proceeding: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 at [10]. In the absence of a transcript showing what was and was not said to the applicant at the hearing, it is difficult to be satisfied that something was not raised with the applicant. Counsel for the applicant submitted that I should infer that it was not raised from the failure of the Tribunal to state in its reasons that it put to the applicant the possibility of document fraud. I do not accept this submission for two reasons. First, the Tribunal is not required to give reasons addressing the procedure it adopted in making its decision. Second, the Tribunal’s reasoning at [36] indicates that the applicant may well have been on notice of the possibility of a finding based on document fraud from the delegate’s decision and the first purported Tribunal decision, and also refers to this as being something that was ‘mentioned at hearing’, although I acknowledge that it is unclear as to whether this is a reference to a hearing before the Tribunal as constituted for the purposes of this decision, or as previously constituted.

9. Further, on the materials before me, there is no evidence that the Tribunal did not understand the significance of its finding that no weight should be afforded to the two documents because document fraud exists in Nepal.  

10. I am satisfied that the Tribunal’s findings about the weight to be given to the two documents discussed at [36], including for the reason that document fraud exists in Nepal, were open to the Tribunal on the evidence before it. The high threshold for unreasonableness in fact finding, discussed in cases such as ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 at [47], is not met.

11. To the extent that the applicant’s ground is based on an assertion of unreasonableness, it is not established.

    CONCLUSION

12. The applicant has not established that the Tribunal made a jurisdictional error in reaching its decision. The application to this Court must therefore be dismissed.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

Associate:

Dated:       24 June 2024