AQT15 v Minister for Immigration
[2017] FCCA 1079
•26 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AQT15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1079 |
| Catchwords: MIGRATION – whether Tribunal denied Applicant procedural fairness because he was not afforded an opportunity to give evidence at the Tribunal hearing – held no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.424AA, 425, 430 |
| Cases cited: ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 Muin v Refugee Review Tribunal (2002) 190 ALR 601 |
| Applicant: | AQT15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 975 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 8 March 2017 |
| Date of Last Submission: | 27 April 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 26 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Aleksov |
| Solicitors for the Applicant: | Carina Ford Immigration Lawyers |
| Counsel for the Respondents: | Ms Lucas |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The Applicant’s Application for judicial review filed 5 May 2015 be dismissed.
The Applicant pay the First Respondent’s costs in a fixed amount.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 975 of 2015
| AQT15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and Background
This decision is in relation to an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 1 April 2015, affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”) not to grant the Applicant a Protection (Class XA) visa (“the visa”).
The Applicant is a citizen of Pakistan, originating from Karachi.
The Applicant claimed that he developed an interest in car racing in about 2008 or 2009, which later developed into buying and selling cars for himself and his family and friends. The Applicant claimed to fear for his life in Pakistan following a number of interactions with members of the Pakistani Taliban in Karachi and Quetta, during which time he claims members of the Taliban sought to recruit him to their organisation so that they could utilise his skills in buying and selling cars (CB 270). The Applicant’s claims to fear harm if he returned to Pakistan were based on claimed incidents of past harm at the hands of the Taliban and Pakistani police in Karachi and Quetta.
The Applicant claims that he was first attacked in November 2010 after winning a car race against a member of the Taliban (by the person whom he defeated), as a result of which he claims to have a large scar on his right shoulder.
The Applicant also claimed that he was attacked on three other occasions, all of which occurred after this attack (in January 2012, September 2012 and May 2013).
Tribunal decision
The Tribunal rejected the Applicant’s claims to have been assaulted and/or threatened by the Taliban and did not accept any part of the Applicant’s account of his interactions with the Pakistani Taliban. Rather, the Tribunal considered that the Applicant’s claims had been “manufactured in their entirety” (CB 272 at [25]). The basis for the Tribunal’s rejection of the Applicant’s claims, was that it found his evidence to be implausible and internally inconsistent in a number of respects (CB 270 at [14]). For example, the Tribunal found that it was implausible that seven to eight Taliban had travelled 12 hours from Karachi to Quetta to approach the Applicant to tell him to work with them, when they could have had that conversation with the Applicant in Karachi (CB 271 at [19]). Further, the Tribunal pointed to instances where the Applicant’s evidence before the Tribunal was inconsistent with his earlier written claims (CB 271 at [18]). In relation to one internal inconsistency, the Tribunal considered that the Applicant had changed his evidence at the hearing to counter the delegate’s expressed concern about the plausibility of the Applicant’s claims (CB 271-272 at [21]). Noting that the Applicant had stayed in Pakistan for more than three years after he was first attacked by the Taliban in 2010 and had not sought to leave earlier, the Tribunal did not accept the Applicant’s explanation that it was impractical for the Applicant to lodge an application for a student visa earlier (CB 272 at [24]).
Relevantly, the Tribunal stated, at [16] of its decision record (CB 270):
The applicant claims that he was first attacked by a man in November 2010 after he won a car race against his attacker, whom he had previously identified as a member of the Taliban from his manner of dress as his father had told him to beware of such people. The applicant told the Tribunal that his attacker did not speak during the attack or give any reason for stabbing him in the arm with a knife after the race, showing the Tribunal a scar on his right shoulder. He said his friends witnessed the attack but did not intervene for fear his attacker had a gun. The Tribunal accepts that the applicant has a large circular scar on his right shoulder, noting that there is no medical evidence before it as to the timing or cause of that injury. Given the apparent seriousness of the claimed attack by a member of a terrorist group and the applicant’s evidence that his father had repeatedly warned him against such people, the Tribunal considers it implausible that the applicant would not tell his family the truth about his injury or report the incident to the police, rather his evidence is that he told his family that he sustained the injury in another manner and returned to the race track and continued racing for about 3-4 weeks after the attack, experiencing no further difficulties over the next year.
Judicial Review
In his application filed on 5 May 2015, the Applicant identified four grounds of review. At the hearing of his application, Counsel for the Applicant informed the Court that the Applicant intended to prosecute only ground 4, which is as follows:
4. The Second Respondent committed jurisdictional error by misleading the applicant into assuming that he need not obtain medical records in respect of a claimed stabbing by a Taliban attacker and/or that the timing and cause of the injury were not issues which arose in relation to the review.
In addition to his written Contentions of Fact and Law, the Applicant relied on the following affidavits:
a)an affidavit affirmed on 20 January 2017 by Siran Jennifer Nyabally, which has, in annexure SJN-1, a copy of the transcript of the Tribunal hearing held on 26 March 2015;
b)an affidavit affirmed by the Applicant on 25 January 2017 in relation to the Tribunal hearing; and
c)an affidavit affirmed by the Applicant on 27 February 2017, which has, in annexure AQT-1, copies of medical records the Applicant says he has obtained subsequent to the Tribunal hearing in relation to the claimed 2010 attack and which he says he would have provided the Tribunal had the Tribunal allowed him the opportunity to obtain the medical records.
The Applicant’s starting point for his submissions is s.430 of the Migration Act 1958 (Cth) (“the Act”), which, he contends, requires that the matters set out in the Tribunal’s statement of reasons fulfil the Tribunal’s obligation to give a written statement that:
a)sets out the decision on the review;
b)sets out the reasons for the decision;
c)sets out the findings on any material questions of fact; and
d)refers to the evidence or any other material on which the findings of fact were based.
The Applicant submits that, in its decision record, the Tribunal indicated that a material question of fact was whether or not the November 2010 incident was true. The Applicant points to the fact that at [16] of its decision record (see the full extract of this paragraph at [7] above) the Tribunal refers to the Applicant’s evidence about this incident, refers to the evidence of the Applicant having a scar, and refers to the absence of medical records about that scar. The Applicant then reasons that, in light of the obligation under s.430 of the Act, it follows that each of these matters (the scar, the Applicant’s evidence, the absence of medical records) were “evidence or other material” on which findings of fact were decided in the review. For this proposition, the Applicant relies on the High Court decision in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, at [35] and [37] per Gaudron J and at [69] per Gummow and Hayne JJ. Thus, the Applicant submits, paragraph [16] of the Tribunal’s decision record reveals that the Tribunal considered that the absence of medical records in relation to the Applicant’s scar was material to the finding ultimately made by the Tribunal, that the November 2010 attack did not happen (see CB 272 at [25]).
The Applicant then submits that sub-s.425(1) of the Act obliges the Tribunal to provide the Applicant with a real and meaningful opportunity to give evidence and present arguments at a Tribunal hearing. The Applicant argues that the content of the opportunity which the Tribunal is obliged to provide the Applicant at the hearing can be informed by reference to decisions in Re Refuge Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [103], [128] and [212]; Muin v Refugee Review Tribunal (2002) 190 ALR 601 at [61]-[63] and [257] and Re Minister for Immigration and Multicultural Affairs; Ex parte Hieu Trung Lam (2003) 214 CLR 1 (“Lam”) at [34]. Counsel for the Applicant took the Court specifically to an extract in the judgement of Gleeson CJ in Lam, in which His Honour said (at [34]):
… the content of the requirements of fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed. So, for example, if a decision-maker informs a person affected that he or she will hear further argument upon a certain point, and then delivers a decision without doing so, it may be easy to demonstrate that unfairness is involved. But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. …
Counsel for the Applicant submitted that the principles which flowed from the decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (“SZBEL”) must be considered in this context; namely, that an issue which is dipositive to the Tribunal’s final decision may develop during the course of the hearing. It is submitted that this is what occurred in this matter, because of the questions of the Tribunal, as is evident from the following exchange at pp 10-11 of of the transcript (Exhibit SJN-1 to the affidavit of Siran Jennifer Nyabally dated 20 January 2017):
MEMBER: Do you still have the scar on your arm?
APPLICANT: Yes.
MEMBER: Do you want to show me? So, are you saying that’s a knife wound?
APPLICANT: Yeah.
MEMBER: I mean it doesn’t look like a cut wound.
APPLICANT: It was a knife wound and if you want to examine that that it proves [Unintelligible 0:36:12.6] you can tell it is.
MEMBER: Did you go to hospital?
APPLICANT: I didn’t go to the hospital but there was one of my friends, he took me to the doctor. I didn’t go to the hospital because I just thought that my parents they will come to know about this incident.
MEMBER: What sort of medical treatment did you get from the doctor?
APPLICANT: He just did some stitches, temporary. I remember that I had one injection also.
….
MEMBER: So, you said the doctor put temporary stitches on; did you get further medical treatment?
APPLICANT: I did not at the time. I went to Liaquat National Hospital after that.
MEMBER: And what treatment did you get in the hospital?
APPLICANT: The did proper like treatment and proper stitches and clean it up and then provide me with some medication, and I don’t know if it was antibiotic or any other medicine but they provided me medication also.
MEMBER: And do you have any medical records relating to that treatment?
APPLICANT: I call there and ask them to give me any kind of like history, so I can do that, just to ask them for any medical record. I don’t have anything right now with me but if I want to ask them that I need some records or any medical history so they can - I can find but it’s very hard to. Hospital is - it’s near to a hospital, a very famous hospital, Liaquat National Hospital, just side to side.
MEMBER: So, I understand you’re saying you haven’t asked for the medical records but you can do?
APPLICANT: Yes.
Counsel for the Applicant notes that immediately after this exchange, the Tribunal member went on to other matters. Counsel for the Applicant submitted that it is evident from this exchange that, within the context of the Tribunal dealing with the issue about whether the Applicant’s claimed injury in 2010 happened, another issue arose. This issue was whether the Applicant’s scar was consistent with his claims to having been stabbed. Counsel for the Applicant stated that this is clear from the Tribunal’s statement towards the bottom of page 10 of the transcript that, “I mean, it does not look like a cut wound”. Counsel for the Applicant submits that a further issue arose, which was whether the Applicant had corroborative material to support his claims about the nature of his injury. This issue, it was argued, was relevant to the timing and cause of the injury. Further, as argued earlier, Counsel for the Applicant submitted that these issues were material, because the Tribunal made it clear they were so in its decision record, when it referred to the scar and noted that there was no medical evidence before it as to the timing or cause of the injury.
In his affidavit affirmed on 25 January 2017, the Applicant deposed that, at the Tribunal hearing, he “tried to explain to the Member many times that if she wanted evidence then I could get it for her. For example, when the Member asked me about the time that I was stabbed by the Taliban in 2010, I told her that I could get medical records from the hospital which treated me if she needed it. I did not provide it with these records as the Member’s body language suggested that she didn’t care about what evidence I could provide, and that she was not interested in me getting anything for her”.
The Applicant submits that the conduct of the Tribunal during the course of the hearing had the effect of misleading the Applicant into thinking that the existence or not, and the availability or not, of medical records, would not be material to the outcome of the review. This is because the Tribunal raised the question whether the Applicant had medical records, noted that he did not have those records, and left the issue on that note, moving on to another topic. By acting in this way, in not giving the Applicant any indication that the medical records may be material to the outcome of the review, the Applicant argues, he justifiably assumed that there was no need to take steps to obtain these materials.
The Applicant submits that, in the circumstances, where he was misled by the Tribunal about the necessity to take steps to obtain the medical records: for example, by requesting time to do so, he lost the opportunity to seek an adjournment to obtain and submit those medical records.
Counsel for the Applicant relies in particular on a decision of Justice Bromberg in Bains v Minister for Immigration and Citizenship [2012] FCA 649 (“Bains”) at [40] where his Honour said:
A denial of procedural fairness may be established where a Tribunal misleads a party in the course of a hearing. The case dealt with by the High Court in AALA provides an example of a case where a party was misled by a Tribunal into believing that the Tribunal had taken into account certain material. The decision of the Tribunal was quashed for want of procedural fairness, because a credibility finding adverse to the party misled might not have been made if that party had not been misled and thereby taken the opportunity to answer the adverse inferences made by the Tribunal, which had led to the adverse credibility finding. In that case, the misleading conduct resulted in the denial of a proper opportunity to be heard and it could not be said that the denial of that opportunity made no difference to the outcome of the proceeding: See in particular Gleeson CJ at [4]; Gaudron and Gummow JJ at [80] and Kirby J at [128]-[133].
Counsel for the Applicant submitted that the Tribunal’s finding, which flowed from the absence of medical evidence in relation to the claimed injury in 2010, had an impact on the further findings of the Tribunal regarding the Applicant’s credibility. Counsel for the Applicant noted that in Bains, Bromberg J said at [38]:
… As Kirby J said in Applicant NAAF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 660 at [81], decision-making is a complex mental process and the disbelief of a person’s credibility on one matter has the potential to impact upon a decision-maker’s disbelief of the same person on other matters. If a decision-maker was conscious that an initial disbelief on one matter was erroneous, that decision-maker might well be convinced to look at the person’s entire evidence in a new light. See further, AALA at [4] (Gleeson CJ).
Counsel for the Applicant further argued that the question of whether or not the Tribunal was at fault, in circumstances where the Court found that the Applicant was not afforded the opportunity he was entitled to under sub-s.425(1) of the Act, is irrelevant. The proper question to be decided by the Court is whether the Tribunal provided the Applicant with the opportunity to give evidence and present arguments in relation to issues arising out of the decision under review: O’Sullivan v Repatriation Commission [2003] FCA 387 at [49]-[60].
The Minister’s submission that Ground 4 does not give rise to jurisdictional error is, in summary, as follows:
a)the issue of the lack of medical evidence was an issue raised in the decision of the delegate refusing to grant the Applicant the visa;
b)it ought to have been evident to the Applicant from the Tribunal’s statements and questions at the Tribunal hearing that his evidence may not be accepted;
c)the Applicant’s evidence regarding the Tribunal’s conduct at the hearing does not assist his argument that the overall conduct of the hearing was unfair: AZAEY v Minister for Immigration and Border Protection & Anor [2015] FCAFC 193 (“AZAEY”) at [23] and [49];
d)the Applicant’s complaint is more properly characterised as the Tribunal’s failure to enquire of the Applicant whether he needed further time to obtain the medical evidence. This incorrectly imports an additional obligation under sub-s.425(1) of the Act; and
e)while the Tribunal accepted that the Applicant’s injury had been sustained, it simply noted at [16] of its decision record that it did not have evidence before it as to the timing or cause of that injury. This was not a finding dispositive to its decision.
In relation to the first two arguments, the Minister submits that the Applicant was put on notice that the Tribunal might not believe the Applicant’s claims in respect of his interactions with members of the Pakistani Taliban, and his claims to have been physically assaulted and threatened by them. Relevantly, the Minister submits that the Applicant had been put on notice, at least since the delegate’s decision, of issues concerning his credibility, which extended to the Applicant showing the delegate the scar on his arm that he alleged was sustained in the November 2010 incident. The Minister notes that the delegate made an express finding that she was “unable to determine how and why the applicant sustained this injury” (CB 240).
The Minister argues that the Applicant’s complaint is more properly characterised as the Tribunal’s failure to enquire of the Applicant whether he needed further time to obtain the medical evidence. Thus, the Minister submits, the Applicant’s argument attempts to import an additional requirement into s.425 of the Act, namely to require the Tribunal to ask the Applicant whether he required further time to obtain medical records. This is not a requirement, the Minister argues, imposed by s.425 of the Act.
In reply, Counsel for the Applicant submitted that the Applicant does not argue that the Tribunal was required to ask the Applicant whether he required further time to obtain medical records as, for example, the Tribunal might have been obliged to if s.424AA of the Act had been engaged. Rather, the Applicant submits that the issue of the absence of the medical records was not drawn to his attention by the Tribunal. Accordingly, the Applicant argues, as this was a dispositive issue, the Applicant was denied procedural fairness. Counsel for the Minister concedes that the Applicant may well have asked the Tribunal for time to provide the medical evidence, had the issue been drawn to his attention. However, it is submitted that his argument is that he was denied procedural fairness by the Tribunal because he was not given an opportunity to give evidence on a dispositive issue, because the Tribunal failed to draw to his attention that it may be a dispositive issue.
Consideration
The Applicant’s ground of review is, in reality, an argument that the Applicant was denied the opportunity to give evidence about an issue which was dispositive to the Tribunal’s ultimate decision. This issue is identified by him as his failure to provide medical evidence regarding a scar on his shoulder, which he claims was the result of a stabbing injury from an attack by the Taliban in 2010.
This argument derives essentially from the decision in SZBEL, where the High Court relevantly said at [33]-[36]:
33. The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review.” The reference to “the issues arising in relation to the decision under review” is important.
34. Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language “arising in relation to the decision under review” is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision‑maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision‑maker will have given reasons.
35. The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review.” That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision‑maker identified as determinative against the applicant.
36. It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
(footnotes omitted)
The High Court held that the Tribunal failed to draw to the Applicant’s notice an issue which was dispositive to its decision, thus denying him the opportunity to give evidence on this issue and thereby denied him procedural fairness. The High Court also observed, however, at [47]‑[48]:
47. First, there may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
48. Secondly, as Lord Diplock said in F Hoffmann‑La Roche & Co AG v Secretary of State for Trade and Industry:
“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
(footnotes omitted)
I accept the Applicant’s argument that an issue under review may develop during the course of the hearing. Further, there seems to be no dispute, and it is undoubtedly correct, that what was dispositive on review can only be discerned from the Tribunal’s statement of reasons or its decision record.
The Court is not assisted by the Applicant’s affidavit filed on 25 January 2017 and I do not understand Counsel for the Applicant to rely on this affidavit in support of the argument that the Applicant lost an opportunity to respond to an issue; namely, the absence of medical records. In AZAEY, the Full Court said at [23]:
In the present proceeding there has been made available to the Court both a transcript of the hearing before the Tribunal and a recording of that hearing. A video of the hearing was not available to either the Federal Circuit Court or this Court. An assessment is thus not possible as to whether the Tribunal member “rolled her eyes” or otherwise exhibited by her “body language” an unwillingness to entertain the Applicant’s claims on their merits. Any assessment is necessarily confined to inferences that can be drawn from the transcript and the audio recording of the hearing. The onus, it is to be recalled, rested upon the Applicant to make out her claims to a reasonable apprehension of bias: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [45]. The absence of any video recording limited the available submissions open to the Applicant to advance in reliance upon what only a video recording could reveal.
At [49] the Full Court concluded:
… In the absence of a video recording of the hearing, it is not possible to give any real content to the Applicant’s submission that the “body language” of the Tribunal member evidenced an unwillingness to entertain her claims. Constrained by the absence of a video recording, and limited to a mere reading of the transcript and a review of the recording of the hearing, no basis emerges to question the overall fairness of the hearing afforded to the Applicant. …
I am bound by this decision of the Full Court in AZAEY. Absent any video recording, I have not had regard to the Applicant’s sworn evidence about the Tribunal’s member’s body language and the Applicant’s interpretation of the member’s conduct and its impact on him. The only cogent evidence about the conduct of the proceedings before the Court is the transcript of the proceedings. I have had regard to this.
I note that the Applicant relies on copies of medical records he says he has obtained subsequent to the Tribunal hearing, in relation to the claimed 2010 attack (annexure AQT-1 to his affidavit filed on 27 February 2017). He deposes that he would have provided copies of these records to the Tribunal, had the Tribunal allowed him the opportunity to obtain the medical records. Counsel for the Applicant made it clear that the Court did not need to determine the corroborative value of the medical evidence that has been put on affidavit evidence by the Applicant. It is evident that this material cannot assist the Court to determine whether the Applicant was denied procedural fairness by the Tribunal.
I also note that Counsel for the Applicant argues that it is not part of the Applicant’s case that the Tribunal ought to have asked the Applicant whether he wanted to provide the medical evidence, or to adjourn the hearing to obtain the medical evidence. As developed by Counsel, the Applicant’s argument was that that the absence of the medical evidence relating to the scar was not drawn to the Applicant’s attention as an issue which may be dispositive to the Tribunal’s decision on review. Consequently, the Applicant was not given an opportunity, as required by sub-s.425(1) of the Act, in a real and meaningful way, to give medical evidence with respect to the scar.
Turning first to the extract from the Transcript of the Tribunal hearing relied on by the Applicant (set out at [13] above), it is evident that:
a)the Tribunal member raised the question with the Applicant about the scar on his arm;
b)the Tribunal member, having viewed the scar, indicated to the Applicant that it did not look like it was a from a “cut wound”;
c)the Applicant asserted the scar was from a cut wound;
d)the Tribunal member asked the Applicant about any medical treatment he received;
e)the Applicant responded to this question;
f)the Tribunal member asked the Applicant if he had any medical records relating to the medical treatment;
g)the Applicant responded;
h)the Tribunal member clarified with the Applicant whether he was saying he had not asked for the medical records but that he could do so; and
i)the Applicant responded “Yes”.
I am satisfied, from this transcript, that the Tribunal raised the topic of the Applicant’s scar, which the Applicant had claimed arose from being stabbed by the Taliban in 2010. I am also satisfied that the Tribunal made it perfectly clear to the Applicant that it doubted the scar was the consequence of a cut or stab wound. I must say that, it seems to me, that at this point the Applicant, having been put on notice that the Tribunal member doubted the scar was caused by being stabbed, was then allowed an opportunity to give evidence about the cause of the injury. The Tribunal then, in my opinion, made it clear to the Applicant that it was interested in any medical treatment and corroborative evidence in relation to this wound. The Tribunal correctly summarised the Applicant’s evidence that he had not obtained the medical evidence but he could do. I fail to see how, in the context where the Tribunal member had already expressed doubt about the injury which caused the scar, the Applicant can complain he was misled that the absence of medical evidence was not material to the review. The Applicant was not represented and, I am informed, spoke reasonably competent English. To assert, as he does, that he was misled, would require the Tribunal member to have said something that indicated in terms that it was not concerned about the absence of medical evidence. Common sense dictates that the Applicant, having been informed by the Tribunal member that she doubted that the scar was a cut/stab wound, and having confirmed to the Tribunal that he did not have any medical records but could get them, that obtaining medical records would have assisted his case.
I am prepared, however, to accept that a particular issue raised by the Tribunal member during the hearing was the existence, or otherwise, of medical evidence in relation to the alleged injury which the Applicant said caused the scar.
I am further prepared to accept, for the purpose of this decision, that this issue was not expressly or adequately drawn to the Applicant’s attention.
Whether, in fact, the Applicant was misled into believing that the absence of medical evidence was a not dispositive issue about which he should have been given an opportunity to respond as contemplated by s.425 of the Act, will depend on whether the issue was a dispositive issue and whether the Applicant was on notice prior to the Tribunal hearing about this issue.
Turning to the second consideration first. The Minister argues that the Applicant was on notice of this issue as he had, during the course of giving evidence to the delegate, showed the delegate the scar on his arm that he alleged was sustained in the November 2010 incident. The Minister submits that the delegate made an express finding that she was “unable to determine how and why the Applicant sustained this injury” (CB 240).
This extract from the delegate’s decision occurs in the following context:
In or around November 2010, the applicant said he started a race and he could tell the other contestant was not a good person because he had a beard and was dressed like a member of the Taliban. He said the contestant he beat was with a group of seven to eight people and that after the race he was attacked with a knife but nothing was said to him. At interview, the applicant showed me a scar on his arm however I am unable to determine how and why the applicant sustained this injury.
The Applicant contends that this statement was not a finding by the delegate, but merely part of the delegate’s discussion of the evidence.
I am inclined to agree with the Applicant. The findings of the delegate are set out at CB 241 under the heading “Findings”. The delegate rejected the Applicant’s claim that he was harmed by the Taliban because of the implausibility of his evidence that he returned to the racecourse after a violent attack from the Taliban, thus risking further assault. The delegate also opined that, even if he accepted such an incident occurred, it would have been an isolated incident.
The real question for determination in this matter is whether or not the fact of the absence of medical evidence was dispositive to the Tribunal’s ultimate decision. The Applicant argues that it was material to the Tribunal’s adverse findings of credibility regarding the Applicant’s claims of past harm. The Applicant argues the fact that the Tribunal chose linguistically to “note” the absence of medical evidence is irrelevant. The Tribunal, it is submitted, by referring to the absence of medical evidence in its statement of reasons, made it a material to its findings of fact and ultimate decision.
Paragraph [16] of the Tribunal’s decision record is set out in full at [7] above. The relevant extract is as follows:
…The Tribunal accepts that the applicant has a large circular scar on his right shoulder, noting that there is no medical evidence before it as to the timing or cause of that injury…
In my opinion, fairly read, the Tribunal merely notes the absence of medical evidence. This cannot be said to be a finding that causes the Tribunal to doubt the Applicant’s claim regarding the alleged attack in 2010, particularly, where the Tribunal immediately proceeds to make, what are clear findings, in the same paragraph as follows:
Given the apparent seriousness of the claimed attack by a member of a terrorist group and the applicant’s evidence that his father had repeatedly warned him against such people, the Tribunal considers it implausible that the applicant would not tell his family the truth about his injury or report the incident to the police, rather his evidence is that he told his family that he sustained the injury in another manner and returned to the race track and continued racing about 3-4 weeks after the attack, experiencing no further difficulties over the next year.
It is the implausibility of the Applicant’s evidence that, notwithstanding a claimed serious attack by a terrorist group and his father’s repeated warnings, he did not tell his family about the injury or report it to the police but rather returned to the racetrack after a short period of time, again putting himself in harm’s way, which can be said, in my opinion, to be dispositive to the Tribunal’s rejection of the Applicant’s claim to have been attacked in 2010.
There were other reasons the Tribunal gave for not accepting the Applicant’s claims not related to the existence of any medical evidence: see [6] above.
I find, therefore, that the issue of the absence of any medical evidence regarding the Applicant’s scar was not dispositive to the Tribunal’s decision.
For the reasons set out above, I am satisfied that the Applicant was given an opportunity to provide evidence and accorded procedural fairness by the Tribunal during the Tribunal hearing. Accordingly, I find that the Applicant’s ground of judicial review does not give rise to jurisdictional error.
The decision of ABV16 v Minister for Immigration and Border Protection [2017] FCA 184
Following the conclusion of the hearing of the substantive matter, the Applicant’s solicitor’s, by email correspondence to my Chambers, sought leave by consent to file short supplementary written submissions in relation to the decision of Justice Bromberg in ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 (“ABV16”). Leave was granted and both the Applicant and First Respondent filed supplementary written submissions in relation to this case.
The Applicant describes the relevance of ABV16 as follows in its supplementary written submission:
2. The significance of this case is to illustrate how to judge whether an issue has arisen in a review: by examining the course of the particular review very closely, and determining whether “something” has emerged which the Tribunal should draw to an applicant’s attention to avoid the hearing becoming less meaningful in relation to that “thing”. In some situations, this will mean that the “issue” is to be articulated at a high degree of specificity for the purpose of the SZBEL principle.
3. The present is such a case. The existence of the medical records was not in issue before the delegate and was not a dispositive issue in the delegate’s decision. The applicant was entitled to arrive at the Tribunal hearing assuming that remained so. The conduct of the Tribunal during the hearing led to the impression that that continued to remain so. However, the decision record reveals that the Tribunal placed weight on the absence of the medical records in a manner that was adverse to the applicant. If the applicant was made aware that it would be an issue in the review, he would have given the Tribunal what was a complete answer to that concern in the form of the medical records themselves (which have been put before the Court and have not been challenged by the Minister).
The Minister, in his written supplementary submission, distinguishes ABV16 from the circumstances in the present proceedings, arguing that the circumstances in ABV16 were fact specific. The Minister submits that:
4. In finding that there had been a breach of s 425(1), his Honour Justice Bromberg observed that, having conducted a hearing on the basis that the Chinese government had a policy by which there were barriers to registration of “black children”, and having on that basis (and fairly at the time of hearing) invited no evidence or submission on the status of that policy or its application to the applicant, the Tribunal then came to know that the policy was no longer in force. The Tribunal in that case, did not give any notice to the applicant that the status of the policy was in issue nor invite the applicant to present evidence and make submissions at a hearing. His Honour found that having not done so, “rendered hollow, and not meaningful, whatever opportunity to respond that had been provided by the Tribunal through the holding of the first hearing” and that denial resulted in a practical injustice to the applicant: ABV16 at [30]-[31] and [33].
The Minister then argues, as was argued in the hearing, that the Applicant was already on notice, by reason of the delegate’s decision, that the delegate could not be satisfied that the scar was sustained as claimed by the Applicant. The Minister further submits that:
5. … The obligation under s 425(1) does not extend to the Tribunal having to put an applicant on notice of the sufficiency or lack thereof of his evidence relating to a particular issue. The applicant’s complaint can only be described as such.
In ABV16, Justice Bromberg said as follows:
20. Section 425(1), which is subject to exceptions not presently relevant, is in the following terms:
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
21. It was common ground that s 425 required the Tribunal to hold a hearing at which it would provide to the appellant notice of and opportunity to present material on the “issues arising in relation to the decision under review”. It was similarly uncontentious, I think, that the requirement did not operate in a once-and-for-all fashion. In other words, it was accepted that any new issues arising after the Tribunal hearing would generate new obligations on the Tribunal to hold subsequent hearings: SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1 at [100]–[103] (Besanko J).
22. In essence, the first question that falls to me for determination is whether the application of the policy to the appellant in light of the Chinese policy change gave rise to an “issue” for the purposes of s 425.
23. To make good the proposition that the requirement under s 425(1) called for “issues” to be framed at a high level of particularisation, the appellant relied primarily on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) and SZHKA (Gray, Gyles and Besanko JJ). In effect, he said that properly understood, an issue should be regarded as something which the Tribunal considers to be determinative.
…
31. That scenario is this case. Having conducted a hearing on the basis that the Chinese government had a policy by which there were barriers to the registration of ‘black children’, and having on that basis (and fairly at the time of the hearing) invited no evidence or submissions on the status of that policy or its application to the appellant, the Tribunal came into knowledge that the policy was no longer in force. It was on that basis that the Tribunal found against the appellant. In the absence of countervailing circumstances, the Tribunal was obliged by s 425(1) to give notice to the appellant that the status of the policy was now in issue, and to invite the appellant to present evidence and make submissions at a hearing. Having not done so rendered hollow, and not meaningful, whatever opportunity to respond that had been provided by the Tribunal through the holding of the first hearing. The denial resulted in a practical injustice to the appellant.
In that case, the Minister argued that the Tribunal made independent findings sufficient to dispose of the Appellant’s claims. Bromberg J rejected this contention, holding that the Tribunal made no such findings: ABV16 at [35]-[40].
I have already accepted that an issue may arise during the course of a review hearing: see [28] above.
In these proceedings, I have found that the Tribunal merely noted the absence of medical evidence and that this did not constitute a finding: see [45] above. I further found that there were independent findings which were dispositive to the Tribunal’s rejection of the Applicant’s claim that he was attacked by the Taliban in 2010: see [46] above.
I find that the decision of ABV16 does not assist the Applicant in prosecuting his claim that the Tribunal fell into jurisdictional error.
Conclusion
For the reasons set out in this Judgment, I make Orders dismissing the Applicant’s application for judicial review and requiring the Applicant to pay the Respondent’s costs in a fixed amount.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 26 May 2017
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