ARF18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 621
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ARF18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 621
File number: MLG 393 of 2018 Judgment of: JUDGE BLAKE Date of judgment: 20 July 2023 Catchwords: MIGRATION - Judicial review – alleged breach of section 424A of the Migration Act 1958 (‘Cth’) – where First Applicant’s claim heard together with separate claims by his son – where son provided information to the Administrative Appeals Tribunal (‘Tribunal’) while the First Applicant was out of the room – where the Tribunal used the information provided by the son to form an adverse view of the First Applicant’s credibility – whether the information provided is properly to be regarded as information – whether the information had previously been supplied by the First Applicant – HELD the statements of the son were information and had not previously been provided – jurisdictional error established. Legislation: Migration Act 1958 (Cth) ss 424A, 424A(1), 424(1)(b), 424A(3)(b), 424AA, 426A(1F), 441A. Cases cited: CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155
MZWPK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256
M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131
SAAP v Minister for Immigration ad Multicultural and Indigenous Affairs (2005) 228 CLR 294
SZBYR v Minister for Immigration and Citizenship and Anor (2007) 235 ALR 609
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 230 ALR 1
SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1138
SZGGT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 435
SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
Division: Division 2 General Federal Law Date of hearing: 29 May 2023 Place: Melbourne Number of paragraphs: 57 Date of hearing: 29 May 2023 Place: Melbourne Counsel for the Applicants: Ms Chan Solicitor for the Applicants: Holding Redlich Counsel for the Respondents: Mr Dour Solicitor for the Respondents: Mills Oakley
Table of Corrections 21 July 2023 In paragraph 38 the Applicants son’s name has been replaced with ‘Applicants son’ throughout the quote of the Transcript. ORDERS
MLG 393 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ARF18
First ApplicantARS18
Second ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE BLAKE
DATE OF ORDER:
20 JULY 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The decision of the Administrative Appeals Tribunal made on 24 January 2018 in matter number 1602455 be set aside.
3.The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
4.The First Respondent pay the Applicants costs of the proceeding fixed in the sum of $8,371.30.
AND THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 17.05(2)(g) of the Federal Circuit and Family Court Rules (Division 2) (General Federal Law) Rules 2021 on 20 July 2023.
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 BLAKE:
This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 24 January 2018. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the First Applicant and the Second Applicant (‘the Applicants’) a protection (Class XA) visa (‘visa’).
For the reasons that follow, I have decided to grant the application for review.
BACKGROUND
The Applicants are Pakistani nationals. The Applicants arrived in Australia on 25 September 2013 on a visitor visa with two of their six children, which included their youngest son (Court Book (‘CB’) 216).
The First Applicant applied for the visa on 10 February 2014 (CB 17). The Second Applicant applied for the visa on the basis that she was the First Applicant’s wife, and a member of the same family unit (CB 51).
On 9 February 2016, a delegate of the Minister ('delegate') refused to grant the Applicants the visa (CB 378).
On 26 February 2016, the Applicants applied to the Tribunal for review of the delegate's decision. Pre-hearing submissions were submitted by the Applicants former legal representative on 9 December 2016. A further pre-hearing submission was submitted on 12 December 2016 by the Applicants former legal representative.
On 13 December 2016 a hearing was held at the Tribunal. The Tribunal heard the Applicants application for review together with their son’s application for review in relation to a separate decision made by the delegate (CB 533). The First Applicant, his son, and his legal representative attended the hearing. The Second Applicant was not present at the hearing.
On 29 June 2017, the Applicants legal representative submitted a post-hearing submission to the Tribunal.
On 24 January 2018, the Tribunal affirmed the decision not to grant the Applicants the visa (‘Reasons’) (CB 532).
The Applicants filed their application for review along with a supporting affidavit in this Court on 16 February 2018. The Applicants subsequently filed an Amended Application on 12 May 2023 (‘Application’).
The Applicants rely on the Application, the written outline of submissions filed 11 May 2023, the affidavit of the First Applicant filed 16 February 2018, a bundle of authorities, and an affidavit of Hoang My (Jenny) Nguyen filed 11 May 2023 that attaches a copy of the transcript of the proceedings before the Tribunal. The Minister filed a Court Book, and relied on a written outline of submissions filed 25 May 2023.
THE APPLICATION
Ground 1
The first Ground of Review in the Application is:
In having regard to information given by the applicants’ son to make adverse findings as to the first applicant’s credibility, the Tribunal failed to comply with the obligations in s 424A(1) of the Migration Act 1958 (Cth) and thus fell into jurisdictional error.
This Ground of Review is advanced on the basis that there has been a contravention of section 424A of the Migration Act 1958 (Cth) (‘Act’).
Section 424A of the Act provided as follows:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non‑disclosable information.
(4)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
Section 424A of the Act is often described as reflecting the codification of the natural justice hearing rule. It requires the Tribunal to put certain adverse information to a review applicant for comment. The obligations contained in section 424A are described as ‘imperative duties’, and failure to comply with the duties contained therein constitutes jurisdictional error: see SAAP v Minister for Immigration ad Multicultural and Indigenous Affairs (2005) 228 CLR 294 (‘SAAP’) at [72]-[77] (McHugh J), [173] (Kirby J) and [208] (Hayne J).
In order to address this Ground of Review, it is necessary to understand the background.
The Applicants application for review before the Tribunal was listed on 13 December 2016. The hearing was combined with a hearing for the Applicants son, who was also a review applicant in relation to a separate application for review of a decision made by a delegate of the Minister (see paragraph [4] of the Reasons). The Tribunal also noted at paragraph [4] that the Applicants representative had indicated that the Applicants and their son had agreed to attend a combined hearing because ‘their claims arise from the same factual basis, although they may have individual experiences of harm’.
The Tribunal summarised the Applicants claims at paragraphs [12]-[16] of its Reasons.
At paragraphs [17]-[22] of its Reasons, the Tribunal summarised the pre-hearing submissions. Among other things, the Tribunal noted the submission of the First Applicant dated 9 December 2016, the further statutory declaration of 6 December 2016, and various other documents at paragraph [17]. At paragraph [18] the Tribunal noted detailed submissions had been provided to the Department on 1 May 2015 on behalf of the Applicants son, and that a copy of this submission had also been provided to the delegate for consideration in relation to the Applicants case. The Tribunal noted that the material was on the Applicants Departmental file.
At paragraphs [23]-[33], the Tribunal summarised evidence given to it during the hearing.
At paragraphs [34]-[36], the Tribunal summarised post-hearing submissions of the First Applicant.
Commencing at paragraph [37], the Tribunal set out its findings and reasons. Among other things:
(a)the Tribunal accepted the Applicants were citizens of Pakistan and confirmed their identities (at [39]);
(b)the Tribunal considered the principles relating to findings about credibility at paragraphs [40]-[44];
(c)the Tribunal stated that it had significant concerns regarding the First Applicant’s credibility at [46];
(d)the Tribunal did not accept the First Applicant faced a real chance of serious harm solely on the basis of his name and identity as a Shia Muslim of the Taqvi clan (at [49]);
(e)the Tribunal accepted that the First Applicant’s family were well-known, that he was one of the trustees of the local Khairul Amal trust, that he may have fronted processions and that he may have had a higher profile outside his local Shia community, however, did not accept that this made the family ‘prominent’ Shias in a broader sense (at [50]);
(f)the Tribunal concluded that the Applicants son does not have a high public profile as a ‘noha khawan’ at [57], and did not accept he had been targeted for harm at [58];
(g)the Tribunal considered various incidents of harm targeted at the First Applicant and family members from paragraph [59] onward before concluding that there were three key reasons why the Tribunal did not accept that the First Applicant and his family were targeted for harm by extremists (at [61]);
(h)the Tribunal considered in detail the claimed payments to extremists by the First Applicant at paragraphs [62]-[65], and the various trips back to Pakistan by the Applicants son at [66]-[74]. The Tribunal made a number of adverse findings or comments about evidence concerning the Applicants son;
(i)the Tribunal stated that on the basis of the preceding paragraphs, it found the First Applicant was not a credible witness, and considered that he had concocted key elements of his claim. The Tribunal did not accept that the First Applicant and/or his children have been targeted for harm in Pakistan by extremist groups (at [76]);
(j)the Tribunal considered the risk of serious harm from anti-Shia extremist groups at paragraphs [77]-[91];
(k)the Tribunal considered the First Applicant’s claims both individually and cumulatively, and concluded that he does not have a well-founded fear of persecution, and therefore he does not satisfy the refugee criterion in the Act (at [92]); and
(l)the Tribunal did not accept that there is a real chance that the First Applicant will face serious harm under the complimentary protection criterion at [93]-[95].
The essential complaint by the Applicants under this Ground is that the Tribunal rejected the First Applicant’s claims because it had significant concerns about his credibility (see paragraphs [46] and [76] of the Reasons). In reaching the conclusion that the First Applicant was not credible, the Applicants contend that the Tribunal took account of information given by the Applicants son, and considered that information to be relevant when concluding that the First Applicant lacked credibility. The particular information identified by the First Applicant relating to his son that was used by the Tribunal to assess that the First Applicant was not credible included the following:
(a)the son’s delay in applying for a protection visa (see paragraph [46] of the Reasons);
(b)the son’s work history in Australia (see paragraph [46] of the Reasons);
(c)the son’s reasons for coming to Australia (see paragraph [66] of the Reasons);
(d)the son’s evidence that during a visit to Pakistan in August 2012, after receiving a letter from LeJ at his sister’s house, the son moved to a hotel in order to finish recording an album (see paragraph [68] of the Reasons); and
(e)the son’s evidence in relation to an incident that occurred in September 2013 (see paragraph [74] of the Reasons).
Two issues arise from the contentions advanced by the Applicants. The first issue is whether what is set out above is properly to be regarded as ‘information’ for the purposes of section 424A. The second issue is whether any information fell within the bounds of subsection (3) of section 424A such that there is no obligation on the Tribunal arising under subsection (1) of section 424A.
On the first issue, the Minister submitted that the claims of the Applicants are interwoven with incidents that occurred to family members which necessarily entailed an assessment of credibility. On the question of whether there is ‘information’ for the purposes of section 424A of the Act, the Minister submitted that the Tribunal failing to put its credibility concerns to the First Applicant is not information for the purposes of the section. The Minister submitted that disbelief of the First Applicant’s evidence is not ‘information’ within the meaning of section 424A(1) of the Act: see SZBYR v Minister for Immigration and Citizenship and Anor (2007) 235 ALR 609 (‘SZBYR’), and that information is the knowledge or acts communicated about a particular subject, event, intelligence or news (at [18]).
In SZBYR, the appellant was questioned by the Refugee Review Tribunal (‘RRT’) about discrepancies between his oral evidence to the RRT and his written claims contained in a statutory declaration made in support of the protection visa, and invited to comment. The appellant offered no comment or explanation. The RRT did not accept the appellants claims. An appeal to the High Court ultimately ensued. The issue before the Court turned on the proper construction of section 424A, with the appellants contending that section 424A of the Act had not been complied with.
A majority of the High Court noted that in written submissions, the appellants appeared to focus on the requisite ‘information’ as being ‘inconsistencies’ between their statutory declaration and oral evidence. However, in oral argument, the Court noted that they focused on the provision of the relevant passages in the statutory declaration itself from which the inconsistencies were later said to arise.
The High Court, in dismissing the appeal, noted four points about the appellants submission. First, it had been accepted by both sides that information ‘that the applicant gave for the purpose of the application’ did not refer back to the application for the protection visa itself, and thus did not encompass the appellants statutory declaration. Second, the appellants assumed, but did not demonstrate, that the statutory declaration ‘would be the reason, or a part of the reason, for affirming the decision that is under review’. The High Court noted that it is difficult to see why the relevant passages in the appellants statutory declaration would itself be ‘information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review’. The High Court further noted that if the contents of the submissions were to be believed, they would have been a relevant step, one might have thought, towards rejecting, and not affirming, the decision that was sought to be reviewed. Third, the Court considered that if the reason why the RRT affirmed the decision under review was the RRT’s disbelief of the appellants evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting ‘information’ within the meaning of paragraph (a) of section 424A(1) of the Act, and noted the comments of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 that the word ‘information’ does not ‘encompass the tribunal’s subjective appraisals, thought processes or determinations… nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc…’. Fourth, the Court noted that the appellants argument suggested that section 424A was engaged by any material that contained or tended to reveal inconsistencies in an applicant’s evidence. Such an argument gives section 424A an anomalous temporal operation.
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 230 ALR 1 (‘SZEEU’) was a matter in which a number of appeals were heard together. In the matter of SZBMI, two pieces of information were said not to have been provided to the appellant. The first was a statement by the appellant that he had fled overseas which was contained in his written statement in support of his protection visa application. In its decision, the RRT drew on the statement as well as what the appellant had said about when and in what circumstances he had left Bangladesh. It appears that these matters had been drawn to the appellants attention at the hearing, however, written particulars were not given in writing. The second piece of information was that the RRT had received essentially the same claims in the same words from several other applicants who had used the same migration agent. No particulars of this were provided in writing to the appellant under section 424A.
In SZEEU, Allsop J considered extensively the terms of section 424A and the meaning of ‘information’. His Honour noted at paragraph [215] that in light of the decision in SAAP, the question to ask by reference to the RRT’s reasons is whether the information in question was a part (that is, any part) of the reason for affirming the decision. His Honour (with whom Weinberg J agreed) concluded that both pieces of information were part of the reasons for the RRT affirming the decision. At paragraph [221], His Honour stated:
[221]I do not regard the operation of s 424A(1) as limited to circumstances where the information imports some positive factual finding. To the extent that cases such as MZWPK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256 at [14] and SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1138 [19]-[23] say as much, in my respectful view, they limit too narrowly the operation of the section. That, of course, is one way that the information is a part of the reason. Another would be the inconsistency between the information and what was now being said. If the Tribunal considers that inconsistency relevant to the assessment of the claims, it may be that the information would be part of the reason. If a Tribunal says that it does not believe an applicant for reasons that can be seen to include the fact that one thing was said in the prior statement and another at the hearing, or the fact that if what is now being asserted at the hearing is true it would have been in the prior statement in that form, the information would be part of the reason. The information is the knowledge imparted to the Tribunal of a prior statement in a particular form. The significance given to it by considering it in the light of evidence is the product of mental processes. This significance and those mental processes are not information, but rather, are why the information is relevant for s 424A(1)(b).
In reaching that conclusion, His Honour also stated at paragraph [222]:
[222]In my view, it is necessary to exercise care in applying what was said in VAF by Finn J and Stone J at [24](iii) that the word “information” does not:
…extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc...
Turning then to the present case, there is little doubt that the Tribunal had regard to a range of information, including information identified by the Applicants earlier, in reaching its conclusion that the First Applicant lacked credibility. In my view, the effect of the information considered by the Tribunal, taken together, led the Tribunal to express disbelief as to the First Applicant’s claims. The information identified by the First Applicant did play a part in the reasoning of the Tribunal, and was part of its reasons. That there was a conclusion as to the cumulative effect of the information does not alter the true character of the information as ‘information’. In my view, the information identified by the Applicants as set out earlier is ‘information’ for the purposes of section 424A(1) of the Act.
The next issue is whether the information was not subject to the obligation set out in subsection (1) of section 424A because it fell within the exception set out in subsection (3)(b).
The Minister submitted, in essence, that the Applicants expressly relied on information and submissions that were put before the delegate, and therefore subsection (3)(b) was enlivened. It is true that in the lead up to the Tribunal hearing, the Applicants had expressly submitted both before the delegate and the Tribunal that the information or claims supplied by the youngest son were also submitted in favour of the Applicants claims for protection. Evidence of that can be seen from the following examples, among others:
(a)the Applicants representative had requested the youngest son’s submission to the delegate on 1 May 2015 (CB 290) be taken into account before the delegate (CB 362);
(b)the submission of the Applicants son of 1 May 2015 referred to a range of information lodged by the youngest son as well as claims made by him, and was information that was contained on the file held by the Department about the Applicants (CB 586);.and
(c)in a submission dated 9 December 2016, the Applicants representative submitted that the Applicants relied on the youngest son’s submissions in support of his claims (CB 419).
The above, however, is not sufficient to dispose of the issue. Consideration needs to be given to each aspect or part of the information identified by the Applicants.
The Applicants accepted that the information set out at paragraphs [23](a) - (d) were provided to the delegate. I will return to the issues concerning those paragraphs momentarily. For the moment, it is necessary to focus on the information contained at paragraph [23](e) above. That is the information in respect of an incident that occurred in September 2013, and involved the Applicants son. The Tribunal dealt (in part) with this issue at paragraph [74] of its Reasons where it stated, among other things:
[74]The Tribunal notes that the applicant's son wrote in his statement that the claimed incident on 18 September 2013 was an attempt on his life and the assailants were shouting shoot him, kill him, he is Shia. At the hearing, however, he said that two guys came and one said he is Shia, just grab him. He said they did not shoot and were trying to kidnap him.
Ultimately, the Tribunal examined in paragraph [74] other evidence it had before it in relation to the September 2013 incident before stating that ‘the Tribunal does not accept that this indicates that the incident occurred, only that the applicant’s son has gone to some trouble to create a number of false or misleading documents to support his claims’.
The transcript of what occurred at the hearing reveals the following exchange in relation to the 2013 incident:
MR WINDSOR: So 18 September 2013 you say an attempt was made on your life.
Can you tell me what happened?
[Applicants son]: Yes. I was coming back from the studio and then to the street –there’s a famous street where there’s a sweet shop, so I thought I’m going to go and buy some sweets and I was in a taxi. And then there was, you know – when I was getting into the taxi there was, like, two guys came in front of my car and they start, you know – and one has pointed a gun at me and he said that he’s Shia, just grabbed me. And then I run away from – straight away, then he didn’t open a fire - - -
MR WINDSOR: Sorry?
[Applicants son]: He didn’t open a – he didn’t open a fire on me.
MR WINDSOR: Why do you think they didn’t open fire on you?
[Applicants son]: I don’t know. I think I need to go back and ask them.
MR WINDSOR: Did they know who you were? Was it a target – were you targeted? Was it just then?
[Applicants son]: Yes, it was targeted, so I know – I mean, the thing was that he came too – the guy came too close – toward as well, because they’re just trying to kidnap me. That was the main concern was, that they were – there was a few things happening in my mind as well. One is they’re trying to – maybe they wanted to kill me or kidnap me, but my main thing was to save myself. So what I did was from a different door I just start running into a hotel, and I went inside the hotel and then I start screaming as well while I was going there.
It can be seen from the above that at the hearing, the Applicants son told the Tribunal that he was approached by two men who said ‘he is Shia, just grab him’. This was very different from what he claimed in his written documentation. In his submission dated 1 May 2015, the Applicants son claimed that ‘the attackers specifically referred to his Shia religion while stating that they wanted to kill him’. In other words, in his written submission he claims there was a threat to shoot him but his evidence to the Tribunal contained no such threat.
I have reviewed the material in the Court Book. I am unable to see any prior reference or statement to the effect of what the Applicants son told the Tribunal. The Minister seemed to accept there was no prior reference to such a statement – his representative did not suggest otherwise. It is also an accepted fact that the statement given by the Applicants son referred to above was given when the First Applicant was out of the room.
The Minister’s submission on this was that there was no contravention of section 424A(1) for the following reasons. First, the Minister contended that the September 2013 incident was covered in detail in the submissions of the First Applicant. I accept that the submissions relied on by the Applicants did make detailed reference to the incident in September 2013. However, the information obtained from the Applicants son during the hearing (that the assailants told the Applicants son ‘he is Shia, just grab him’) is not to be found in any of the written submissions.
The Minister next submitted that properly characterised, the Tribunal was engaged in paragraphs [73]-[74] in assessing the credibility of the claim that was in the written submissions concerning the 2013 incident. Of course what the Tribunal was doing was assessing the credibility of claims relating to the September 2013 incident. That does not change the fact, however, that information was provided by the Applicants son during the hearing, and that information (which the First Applicant did not hear) was used by the Tribunal to assess the credibility of the claims. A proper reading of paragraph [74] of the Reasons reveals that the Tribunal placed weight on the answer given by the Applicants son during the hearing. The fact that the information provided during the hearing was inconsistent with what had been provided earlier was, in my view, clearly used by the Tribunal to not accept the incident occurred.
Of course, in paragraph [74], the Tribunal was dealing with a claim advanced by the Applicants son, and the credibility of the Applicants son. It is clear, however, that the assessments made by the Tribunal at paragraph [74] were used by the Tribunal to conclude that the First Applicant was not a credible witness. So much can be seen from the opening words of paragraph [76] where the Tribunal states ‘On the basis of the foregoing, the Tribunal finds that the applicant is not a credible witness and considers that he has concocted the key elements of his claims’.
This case, in my view, is similar to what occurred in SAAP. In SAAP, the appellant and her younger daughter applied for protection visas. The Tribunal took evidence from the first appellant’s daughter in the absence of the first appellant, having asked the first appellant to leave the hearing while the evidence was given. The Tribunal then raised with the first appellant several matters about which the elder daughter had given evidence, and which were potentially adverse to the first appellant’s case, and invited the first appellant to respond orally. In the context of that case, McHugh, Kirby and Hayne JJ held that section 424A of the Act required the Tribunal to give to the first appellant particulars of the information obtained from the evidence of the daughter, and that the particulars and the invitation to comment were required to be given in writing.
Having regard to the above, I am satisfied that the Applicants son provided information to the Tribunal during the hearing about what his assailants allegedly said to him in September 2013. That information was new information. It was not information that the First Applicant gave for the purpose of the application for review as contemplated by subsection (3)(b) of section 424A of the Act.
It is then necessary to return to the other information identified by the Applicants, and set out at paragraph [23](a)-(d) above. The Minister contends that this information contained in an earlier submission was expressly relied on by the Applicants in the application for review, and therefore subsection (3)(b) of the section 424A applies. In that respect, the Minister relies on M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25].
The Applicants contend that in making the submission above, the Minister has ignored later authority. The Applicants point to the statement of the Full Court in CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155 at [52] which in turn refers to the statement of Rares J in SZGGT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 435 (‘SZGGT’) at [36]. The effect of these decisions is that ‘the question whether an applicant for review has given information for the purpose of the application within the meaning of s 424A(3)(b) when it is sought to say that he or she ‘republished’ something which had been provided at a different time by him or her, it is necessary to make an objective assessment as to what a reasonable person in the position of an observer of the interchange would have understood’ (Rares J at [36] in SZGGT).
I accept that the test I am to apply is the test identified by the Applicants, and set out by Rares J. I do not accept the submission by the Applicants, however, that the circumstances of this case are similar to those that confronted Rares J. The First Applicant’s claims for protection were interwoven or at least partially based on claims advanced by his son. This is not a case in which the First Applicant blindly or generically referred to earlier submissions which he sought to rely on. The First Applicant in this case had to make a decision not just as to whether he was going to rely on his own earlier submissions, but also as to whether he was going to rely on claims being advanced by another applicant. He did so. That was a choice that was strategically open to him. In my view, an objective assessment as to what a reasonable person in the position of an observer would conclude is that the First Applicant intended to rely on the claims advanced by his son and the information contained therein, including the information identified by the Applicants at paragraphs [23](a)-(d) above.
It follows from what I have said above that the Applicants have made out Ground One of the Grounds of Review. The information identified by the Applicants at paragraph [23](e) was information for the purposes of section 424A, and was therefore subject to the obligation in section 424A(1). It was also information that is not caught by the exception in subsection (3). The Tribunal was required to, inter alia, provide clear particulars of that information to the First Applicant and it failed to do so.
Ground 2
The second Ground of Review in the Application is:
The Tribunal failed to complete its jurisdictional task by failing to consider whether the second applicant (ARS18 – “the wife”) would face a real chance of persecution or real risk of significant harm if returned to Pakistan.
The Second Applicant completed a Form 866D which is an ‘Application for a member of the family unit’ who, relevantly, ‘does NOT have their own claims for protection, but is included in the application’ (CB 51).
Under this Ground, it was contended that a person can be both a primary applicant and a secondary applicant for a visa in reliance on SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487 (‘SZGME’) at [73], [86]-[87], [90], [93] (Black CJ and Allsop J). It was submitted that the Tribunal ought to have appreciated the existence of the Second Applicant’s claims to fear significant harm that had been articulated on her behalf. Those claims were said to be as follows. First, the claim from her husband (the First Applicant) where he said ‘My wife, my daughter and I are now also applying for Protection because of the risk to our lives in Pakistan’ (CB 216). Second, the claim from the Second Applicant’s representative who stated that the Second Applicant also fears ‘harm in Pakistan on account of her religion and her membership of her family, including particularly her husband and son who are respected and active member[s] of the Shia Community’ (CB 420). It was also contended in the Applicants outline of submissions that the Second Applicant’s position raised different issues ‘given that women in Pakistan constitute a particular social group for Convention purposes’ and that the rejection of the First Applicant’s claims ‘is by no means determinative of the wife’s particular risk profile as persecution may arise from a mixture of social, religious, political and other motives’. This particular latter claim was said to arise tolerably clearly given the Second Applicant is a woman.
SZGME is of limited assistance in the present matter. In SZGME, the Full Court held that a person can change the basis of their claims from being a member of the family unit to being a primary claimant. There must, however, be a change in the basis of the claims for protection. There was such a claim in SZGME. There was no such claim in this case. In fact, in their submissions to the Tribunal dated 9 December 2016, the representatives for the Second Applicant made it clear that she was not pursuing any independent claim. In that submission, they stated ‘Please note [the Second Applicant] is quite unwell and has not made her own claims so it is not intended that she will provide evidence to the Tribunal unless requested to do so by the Member’ (CB 418). Later, in the same letter, the representatives stated, relevantly that ‘Due to her health and frailty and the strength of the main applicants claims, [the Second Applicant] has not made her own claims as part of this application but she also fear[s] harm in Pakistan on account of her religion and her membership of her family, including particularly her husband and son who are respective and active member[s] of the Shia community’ (CB 420).
The extracts above make clear that the Second Applicant claimed to fear harm on the basis of claims made by others, not her own.
As to the claim that the Second Applicant fears persecution by reason of her membership of a particular social group of women in Pakistan, that may be simply dealt with. A review of the claims advanced discloses that no such claim was made by the Second Applicant. No evidence was given by the Second Applicant about these matters. It is not a claim that can be said to arise tolerably clearly from the materials, notwithstanding that the Second Applicant is a woman. The Second Applicant’s claims for protection were dependent on the First Applicant’s claim for protection, and a finding by the Tribunal that the Second Applicant is a member of the same family unit as the First Applicant.
For all of these reasons, I dismiss Ground Two of the Grounds of Review.
CONCLUSION
The Applicants have made out Ground One of the Grounds of Review. Orders will issue that the decision of the Tribunal be quashed, and the matter be remitted to the Tribunal requiring it to determine the application according to law.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 20 July 2023
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