AQP16 v Minister for Immigration
[2018] FCCA 1225
•18 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AQP16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1225 |
| Catchwords: PRACTICE & PROCEDURE – Proposed amended application attached to written submissions filed before the hearing – leave sought to rely on the proposed amended application – factors considered – leave refused. |
| Legislation: Migration Act 1958 (Cth), ss.424AA, 424A, 476 |
| Cases cited: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405, Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 |
| Applicant: | AQP16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 677 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 19 and 23 March 2018 |
| Date of Last Submission: | 23 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 18 May 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Mr M McGovern of Clayton Utz |
ORDERS
The application to amend the substantive application made on 23 March 2018 is refused.
The application made on 23 March 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 677 of 2017
| AQP16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 23 March 2016 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 1 March 2016, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”). Also in evidence is the affidavit of Toufic Laba Sarkis, Interpreter, made on 27 June 2016, which annexes a transcript (“T”) of the hearing before the Tribunal.
Before the Court
The parties first appeared before a Registrar of the Court on 5 May 2016. Orders were made, by consent, which amongst other things, gave the applicant the opportunity to file any amended application and any evidence by way of affidavit by 2 June 2016. The applicant filed an affidavit after this date on 28 June 2016.
The parties appeared before a Registrar of the Court again on 6 October 2016. Orders were made that, amongst other things, the parties file written submissions and the matter be listed for final hearing.
On 7 March 2018, less than 14 days prior to the final hearing, the applicant filed written submissions. The written submissions were filed by counsel on the applicant’s behalf. They attached an amended application for which the applicant’s counsel indicated he would seek leave on which to rely (at the final hearing). The Minister filed written submissions on 12 March 2018.
On 19 March 2018, at the final hearing, counsel who had filed written submissions on behalf of the applicant did not attend. Enquiries were made, and it was confirmed that counsel was no longer retained in the matter. The hearing was adjourned to ensure that the applicant, who was now appearing in person, had the assistance of an interpreter.
The final hearing resumed on 23 March 2018. The Minister was represented by a solicitor and the applicant appeared in person with the assistance of an Arabic interpreter.
Background
The applicant is a citizen of Lebanon (CB 54.3). She arrived in Australia on 12 November 2013 on a visitor visa (CB 2). She applied for a protection visa which was received by the Minister’s department on 28 November 2013 (CB 1 to CB 38).
The applicant set out her claims to fear harm in her protection visa application (CB 6 to CB 10). She claimed to fear harm on the basis of an incident that occurred in her home village in Lebanon. She claimed that she had allowed a family of refugees from Syria to stay with her at her home, and that the “husband” in the family had “attacked” her and raped her on multiple occasions (CB 8). She claimed that the Syrian family now occupied her house and that she was fearful that the “Syrian family”, especially “the husband”, would harm her if she returned to Lebanon (CB 9 and CB 10).
The applicant also claimed to have initially come to Australia for the purpose of visiting her mother, who had a “serious medical condition” (CB 6). She was initially refused a visitor visa but one was ultimately granted after a bond was paid ([4] at CB 95).
The applicant had previously applied, and been refused, a carer visa and a prospective spouse visa to come to Australia ([4] at CB 95 and see footnote 1 at CB 95).
The applicant was invited to, and attended, an interview with the delegate on 19 March 2014 (CB 45 to CB 47 and CB 55.8). The delegate refused the application for a protection visa on 2 April 2014 (CB 48 to CB 67).
On 22 April 2014, the applicant applied to the Tribunal for review of the delegate’s decision (CB 68 to CB 73). On 21 July 2014 the applicant provided the Tribunal with a copy of a psychological evaluation in relation to herself (CB 76 to CB 81).
The applicant was invited to, and attended, a hearing before the Tribunal on 9 February 2016 (CB 82 to CB 83 and [7] at CB 96). She provided the Tribunal with a letter from a registered psychologist dated 1 February 2016 (CB 86 to CB 87 and [6] at CB 96).
The Tribunal affirmed the decision not to grant the applicant a protection visa on 1 March 2016 (CB 93 to CB 114).
The Minister’s written submissions, filed on 12 March 2018 contain a fair summary of the Tribunal’s analysis and findings. For the purposes of this judgment I adopt the relevant paragraphs as follows ([15] – [21] of the Minister’s written submissions):
“[15] The Tribunal affirmed the Delegate’s decision not to grant the applicant a protection visa. The Tribunal found that the applicant did not meet the refugee criterion in s 36(2)(a) of the Act or the complementary protection criterion ins 36(2)(aa) of the Act.
[16] The Tribunal found that the applicant was not a credible witness and ‘had fabricated accounts of events, as well as claimed fears, upon which she based her protection claims.’ In coming to this conclusion, the Tribunal expressed concerns about:
(a) inconsistent evidence concerning her previous relationship, which had formed the basis of an earlier application to come to and remain in Australia. The applicant repeatedly denied that she had had a relationship since her divorce, despite this being inconsistent with her application which noted that the Department had refused her a prospective spouse visa. The Tribunal indicated that this undermined her credibility and indicated that she was prepared to make a false application to the Department in order to come to Australia;
(b) evidence given at an interview in November 2012 in support of her prospective spouse application. The applicant was unaware of basic information about her sponsor who was her prospective spouse, and the sponsor’s evidence was contradictory to [the] applicant’s evidence. The Tribunal did not find the applicant’s response to this information to be persuasive, and considered the contradictory evidence to undermine the applicant’s credibility;
(c) the claim that she was living alone in her home in Lebanon The applicant’s claim that she had not lived with her son since November 2011 was inconsistent with the Departmental notes of the interview held on 27 November 2012 for the purposes of her prospective spouse application. Those notes recorded that the applicant stated that she was currently residing with her son in Majdala, Lebanon. Further, before the Tribunal, the applicant changed her evidence about receiving the house from her husband in the divorce settlement. The Tribunal indicated that this, cumulatively, undermined the applicant’s credibility, as well as the credibility of her assertion that she was living alone and vulnerable nine months later, when she took the Syrian refugee family into her home. This, in turn, undermined her claims about the harm she suffered in Lebanon because she was living alone;
(d) the applicant’s changing evidence about the Syrian refugees. The applicant claimed in her application to have heard from the family about what had happened to them. However, in the Tribunal interview, she was only able to give first names and ages of the children and the area they came from. Further, the applicant gave changing evidence as to the date the family moved in and also regarding the sexual assaults perpetrated by the male Syrian refugee. The Tribunal found that his undermined her claims that she allowed a Syrian refugee family into her home and that she suffered harm as a result;
(e) the applicant's evidence concerning her lack of action to stop the sexual assaults and to remove the Syrian family from her home. The applicant stated that she avoided being further assaulted by the Syrian man in the two months prior to coming to Australia by going out when the man’s wife was out. The Tribunal found it difficult to accept the applicant’s claim that in the periods before the alleged second and third assaults, it did not occur to her to avoid further assaults by deciding to go out when the Syrian man’s wife left the house. The Tribunal put to the applicant its concerns that she took no steps to have the Syrian family removed from her house while she was there, and even after she had left. It did not accept her purported explanations for not approaching the authorities for state protection, and was further concerned that the applicant raised new claims about violence perpetrated by Syrian refugees against her father and his neighbour, and contradictory evidence about the availability of the authorities to assist a person in her position. The Tribunal considered that her ‘changing evidence, depending on the claim she was making to the Tribunal, undermines her credibility’;
(f) evidence that the applicant planned to return to Lebanon, despite the Syrian family still living in her home.
[17] On the basis of the adverse credibility finding, the Tribunal rejected the applicant’s claims regarding her living arrangements in Lebanon. It did not accept that the applicant lived alone and invited a Syrian family into her home, nor that she was sexually assaulted by the Syrian refugee in her home, nor that the Syrian family have continued to reside in her home, nor that any of the associated claims were true.
[18] On the evidence before it, the Tribunal considered that the applicant made the prospective spouse visa application in an attempt to remain in Australia, and that the Protection visa application claims were ‘fabricated ... as a continuation of her attempts to remain in Australia ...’
[19] The Tribunal found that the applicant will return to live with her son and his family in Madjala. It found that even if she was not to work in the future in Lebanon, she has had and will continue to have sufficient financial support from her extensive family in the future.
[20] Although the applicant gave evidence that she only feared harm from the one Syrian man, the Tribunal considered the risk of violence or other harm facing her upon return. On the basis of country information and the applicant’s evidence, it found that the applicant does not face a real risk of harm from Syrian refugees, cross-border attacks by Syrian authorities or for any other reason.
[21] The Tribunal considered the two psychologists reports and was prepared to accept the diagnosis that in 2014, the applicant suffered from major depressive disorder and that in 2016 she continues to have ‘psychological difficulties’. However, it was not prepared to give weight to the psychologist’s assertion that the applicant suffered trauma in Lebanon (including that she had been sexually assaulted) given that the reports appeared to be based on self-reporting, and given inconsistencies between the reports and the applicant’s claims. The Tribunal noted that the applicant would be able to access healthcare in Lebanon.”
[Footnotes omitted]. [Emphasis in original].
The Application to the Court
The application to the Court filed on 23 March 2016 contains the following grounds:
“1. The Tribunal misunderstood my case and had no basis not to accept my claim concerning the rape by Syrian man.
2. The Tribunal also has no basis to make a finding that I am not a credible witness.
3. The Tribunal while accepted the Psychologist Report its conclusion is wrong because I see my Psychologist as a result of the trauma and rape I suffered in Lebanon.
4. The Tribunal had reports and based on those reports and the significant influx of Syrian refugees since 2011 yet failed to accept that rape took place and as a result of that I have been seeing a Psychologist.
5. The Tribunal must accept my evidence that I am prepared to return back home as soon as the Government can return refugees to Syria because my fear and harm is the result of the Syrian who harmed me and as long as he continues to occupy my home my life continues to be at risk if I return.
6. I am therefore a credible witness and the Member was bias and made a finding contrary to the facts presented.”
[Errors in original.]
The proposed amended application to the Court contains one ground in the following terms:
“The Tribunal failed to comply with s 424A of the Migration Act
Particulars
(1) The Tribunal used as part of a reason for affirming the decision under review the fact that the applicant had previously made an application for a prospective spouse visa. This application was material evidence that, in combination with other evidence the Tribunal accepted, led to the making of a finding of fact that by itself contradicted or undermined an essential element of the applicant’s claim.”
Consideration
At the resumption of the final hearing, the applicant submitted, and confirmed, that she wished to press both the grounds of the original application and the ground of the proposed amendment (as drafted by counsel). The Minister opposed the leave sought by the applicant to rely on the amended application.
The applicant then read from a prepared statement. This repeated her claims to fear harm from the Syrian man because of the claimed sexual assault. These were matters raised before the Tribunal.
Further, the applicant asserted that she did not “lie” before the Tribunal. This assertion does not, in the circumstances, assist her in revealing jurisdictional error.
The Tribunal’s ultimate conclusion on the applicant’s lack of credibility was based on a number of antecedent findings which were all reasonably open to it and for which the Tribunal gave intelligible and cogent reasons (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405, Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 and CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 70 AAR 413).
The applicant also submitted before the Court that the Tribunal asked “tough questions”, and that she forgot relevant dates.
As set out above, the applicant sought leave to amend the grounds of her application by adding an additional ground.
The proposed ground asserts a breach of s.424A of the Act. The written submissions prepared by counsel also assert that the Tribunal failed to comply with s.424AA of the Act. The immediate issue for the Court is whether leave should be granted for the amendment of the application to the Court.
The Tribunal’s obligation under s.424A(1) of the Act is to give to an applicant for comment or response, information that it considers would be the reason, or a part of the reason, for affirming the delegate’s decision.
In the current case, the written submissions prepared by counsel on the applicant’s behalf, direct attention to the following findings made by the Tribunal ([17] at CB 98 and [2] of the applicant’s written submissions):
“…The Tribunal considers that her failure to mention her prospective spouse when asked if she had a relationship after her divorce undermines her credibility, and indicates that she was prepared to make a false application to the Department I order to come to Australia”.
The argument appears to be as follows. The Tribunal considered the applicant’s claims were undermined because of the prior prospective spouse visa application made by the applicant. It was therefore a part of the reason for affirming the delegate’s decision. Specifically, that the prospective spouse visa application contradicted the applicant’s evidence that she had had no further relationships since her divorce.
The “information” which the applicant says engaged s.424A(1) of the Act was therefore the fact that she had previously made a prospective spouse visa application.
The applicant’s submissions in explanation of the proposed ground make no reference to s.424A(3)(b) or (ba) of the Act. These exempt certain information from the obligations in s.424A(1) of the Act.
The applicant gave the “information” about the prospective spouse visa in her protection visa application (CB 7.4). Therefore, this was information given “during the process that led to the decision that is under review”, and was in writing. Section 424A(3)(ba) of the Act operates in these circumstances to exempt the Tribunal from its obligation pursuant to s.424A(1) of the Act in relation to this information.
On the evidence before the Court, the applicant also gave this information to the Tribunal for the “purposes of the review” (s.424A(3)(b) of the Act). At [16] (at CB 98) of its decision record, the Tribunal noted that the applicant “said that she had also made an application on the basis of engagement” (see also T25 at lines 9 - 12). Section 424A(3)(b) of the Act is therefore also engaged.
In this light, it was not necessary for the Tribunal to utilise s.424AA of the Act, which is a mechanism by which it may discharge its obligation pursuant to s.424A(1) of the Act at the hearing (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415).
For the sake of completeness, is also the case that the inconsistency in the information provided by the applicant, and her evidence at the hearing before the Tribunal, is not “information” for the purposes of section s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609; (2007) 81 ALJR 1190)
There is no merit in the proposed amendment to the ground of the application. Nor, it must be said, has the applicant provided any evidence to explain the significant delay in raising this proposed amendment in the written submissions, or before the Court.
As noted above, the application to the Court was made on 23 March 2016. Orders were made for the conduct of this case by a Registrar of the Court on 5 May 2016. On 6 October 2016, the matter was set down for a final hearing on 19 March 2018. The applicant had been on notice of the final hearing for over 17 months. She took no steps to provide any evidence to explain the delay in seeking leave to amend the grounds of the application. In all, leave to amend the application is refused.
That leaves the grounds of the application to the Court filed on 23 March 2016. Grounds one and two of the application are mere general assertions. No particulars whatsoever are provided. In the circumstances, that alone would justify finding that they cannot be made out (WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]).
In any event, there is nothing in the evidence before the Court to even indicate that the Tribunal misunderstood the applicant’s claim to fear harm. Her claim was that she feared harm in Lebanon from a Syrian man who had previously assaulted her. On the evidence before the Court, she confirmed this to the Tribunal at the hearing as the only basis for her feared harm ([7] at CB 96 to CB 97 and T31).
Further, the Tribunal did have a basis for rejecting her claim regarding the claimed assault. This was the applicant’s own evidence to it which led to its adverse finding as to her credibility.
The Tribunal’s conclusion as to her lack of credibility was based on a series of findings which were all reasonably open to it to make on what was before it. Further, the Tribunal’s reasons were probative of the evidence before it.
As the Minister submits, the Tribunal’s adverse conclusion on the applicant’s credibility was based on rational grounds. The Tribunal was not required to uncritically accept the applicant’s claims and evidence (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs(1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1). Before the Court in her prepared statement, the applicant’s complaint, at its highest, was simply that she told the truth, and that it was not open to the Tribunal to find otherwise.
In the circumstances, grounds one and two of the application merely seek to cavil with the Tribunal’s conclusions and the antecedent findings which informed it. The grounds seek impermissible merits review. They are not made out.
Grounds three, four and five of the application are also expressions of disagreement with the Tribunal’s findings. The complaint appears to be that the Tribunal should have accepted the applicant’s claim to fear harm from the Syrian man, because she had provided reports from a psychologist which arose from the “trauma” of events in Lebanon and the applicant having been raped (“the psychological reports”).
The Tribunal specifically, and it must be said extensively, considered the psychological reports provided by the applicant. It also considered the applicant’s evidence about the psychological reports and the events to which they were said to relate (see [62] at CB 107 to [71] at CB 108).
The Tribunal reported in its decision record that at the hearing it put certain inconsistencies to the applicant between what was stated in the psychological reports, and her evidence to the Tribunal (see also T47 at line 7 to T48 at line 19 and T57 at line 6 to T61 at line 19).
In this context, it is of note that the applicant gave evidence that “what was written in the 2016 report was incorrect” ([66] at CB 107 and T59 at line 14 to T61 at line 19). The Tribunal found a number of such inconsistencies between the psychological reports and the applicant’s evidence ([67] at CB 107 to CB 108 to [69] at CB 108).
The Tribunal accepted some of what was written in the psychological reports. However, this could not overcome its adverse findings as to the applicant’s credibility, and the consequential rejection of her claim to having been sexually assaulted by the Syrian man.
In all, grounds three, four and five seek impermissible merits review. They do not reveal jurisdictional error in the Tribunal’s decision and are not made out.
Ground six asserts the Tribunal was biased in finding that the applicant was not a credible witness, and made findings “contrary to the facts presented”.
Bias is a serious allegation to make against an administrative
decision-maker. This is because it seeks to challenge the integrity of the decision-maker. Therefore, for this reason, it must be clearly alleged and distinctly proven (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 178 ALR 421). It is rare that bias can be made out with reference only to the Tribunal’s decision record (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668, SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 and Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303).
In the current case, the applicant has provided a transcript of the Tribunal hearing. There is nothing in that transcript to support the assertion of bias. Nor for that matter, has she identified any particular aspect of the Tribunal’s findings that indicate, let alone reveal, any
pre-judgment on the part of the Tribunal member.
As noted above, the Tribunal’s findings were reasonably open to it. It gave cogent reasons for those findings which were probative of the material before it. Ground six is not made out.
Conclusion
In all, leave to amend the application is refused. The grounds of the application to the Court do not reveal jurisdictional error. It is appropriate to dismiss the application made to the Court. I will make the appropriate orders.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 18 May 2018
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