AUU15 v Minister for Immigration
[2017] FCCA 2220
•13 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUU15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2220 |
| Catchwords: MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – same Tribunal member hears two different applications for review – Tribunal sends letter (424A Letter) apparently pursuant to s.424A of the Migration Act 1958 (Cth) (Act) to the applicant in the other review and receives from that applicant a response to the 424A Letter – whether by sending the 424A Letter and receiving the response the Tribunal sought and got information in conducting the review within the meaning of s.424(1) of the Act – whether s.424 of the Act precluded the Tribunal from relying on information other than the other applicant’s response to the 424A Letter (Other Information) of which the Tribunal became aware in conducting the other review – whether the Other Information was “information” for the purposes of s.424A of the Act – no jurisdictional error. |
| Legislation: High Court Rules 2004 (Cth), r.41.08.1 Migration Act 1958 (Cth), ss.424, 424A |
| Cases cited: ATP15 v Minister for Immigration and Border Protection [2016] FCAFC 53 Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SZJBD v Minister for Immigration and Citizenship [2009] FCAFC 106 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 Vo v Minister for Immigration and Border Protection [2017] FCCA 1170 |
| Applicant: | AUU15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1393 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 10 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 13 September 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Chia |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1393 of 2015
| AUU15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of Pakistan, seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
The grounds on which the applicant relies arise out of the Tribunal’s making a credibility finding adverse to the applicant partly on the basis of a finding that the applicant had planned and orchestrated with another person (Ms ATP15) to travel from Pakistan to Australia to apply for a Protection visa. More particularly, the grounds arise out of the following facts or asserted facts:
a)Ms ATP15 applied to the Tribunal for review of a delegate’s decision not to grant Ms ATP15 a Protection visa (ATP15 review), and the Tribunal member who determined the applicant’s application for review also determined the ATP15 review.
b)In the ATP15 review and the review the applicant initiated (applicant’s review) the Tribunal invited Ms ATP15 and the applicant respectively to comment on particulars of information the Tribunal identified might be a basis for its concluding that the applicant and Ms ATP15 planned to apply for a Protection visa, and both the applicant and Ms ATP15 responded to that invitation.
c)When making its decision to affirm the delegate’s decision not to grant the applicant a Protection visa, the Tribunal:
i)did not consider the response Ms ATP15 gave to the particulars the Tribunal provided to Ms ATP15 in the ATP15 review; or
ii)in the alternative, took into account irrelevant considerations, namely, that both the applicant and Ms ATP15 had applied for a Protection visa on the same day using the same agent and using substantially the same form.
In her amended application for review the applicant makes the following claims:
a)By failing to refer to Ms ATP15’s response when making an adverse credibility finding based on a finding that the applicant and Ms ATP15 “planned and orchestrated” their lodgement of Protection visa applications,[1] the Tribunal made a jurisdictional error because Ms ATP15’s response was “information” within the meaning of s.424 of the Migration Act 1958 (Cth) (Act) that the Tribunal was required by that section to have regard to, or was otherwise important information the Tribunal was required to consider.
b)In the alternative to (a), Ms ATP15’s having applied for a Protection visa was irrelevant to the applicant’s review and, by taking that into account, the Tribunal took into account an irrelevant consideration.
c)The Tribunal failed to comply with s.424A of the Act because it failed to give sufficient particulars to the applicant of the respects in which a statement Ms ATP15 had provided to the Tribunal in the ATP15 review and the format of her application for a Protection visa were similar to the statement the applicant had provided to the Tribunal and the format of the applicant’s application for a Protection visa.
[1] CB156, [23], second paragraph
Relevant to the application before me are the following matters: the Tribunal, identically constituted, affirmed the delegate’s decision not to grant Ms ATP15 a Protection visa; Ms ATP15 applied for judicial review of the Tribunal’s decision relying on grounds that are the same or at least substantially the same as the first and third grounds on which the applicant relies in the case before me; the Full Federal Court in ATP15 v Minister for Immigration and Border Protection rejected those two grounds;[2] and the matters decided by the Full Federal Court in ATP15 are at the very least relevant to the second ground on which the applicant relies. Thus the fate of the application before me turns, at least in part, on the extent to which the Full Federal Court’s decision applies to the applicant’s grounds.
[2] [2016] FCAFC 53
These reasons, then, are arranged as follows. I will first describe the applicant’s claims for protection and the course of the proceeding before the Tribunal. I will then set out the Tribunal’s reasons, and the decision and reasoning of the Full Federal Court in ATP15.
Claim for protection and hearing before Tribunal
In a statement that formed part of her application for a Protection visa, the applicant claimed she was targeted by the Tehrik-i-Taliban (TTP) and Mullahs because she was teaching religious scripture to children at her home. The applicant claims she was told to tell her female students to wear the burka and to tell their parents their daughters could not attend school. The Taliban subsequently occupied her home in Karachi where they stored guns, ammunition, and drugs. The applicant fled Pakistan because she feared the Taliban would harm her or that she would be accused of being involved in the storage of guns and ammunition.[3]
[3] CB150, [2]
Before the delegate, the applicant claimed as follows:
a)In 2007, while living in Karachi, the TTP abducted one of her three sons and the applicant’s husband paid money to secure the son’s release.[4]
b)After the applicant’s husband died in 2009 Taliban militants threatened the applicant’s elder brother with death. The applicant feared for her three sons’ safety and advised them to leave Pakistan.[5]
c)In 2011 the applicant sent her last son out of Pakistan after TTP militants had beaten him because he refused to join them. The TTP militants became aware the applicant was alone at home and giving scripture classes to young students. The applicant had to rely on the Mullahs and the authorities for protection whenever militants were near her area.[6]
d)In April 2012 the police who were giving them protection were shot, and many police officers were abducted and shot. In June 2012 a group of Taliban men entered the applicant’s home and ordered the applicant to teach the female Muslim students to wear the Burka and not attend schools. The students stopped attending the applicant’s classes and, within a month, the Taliban returned to the applicant’s home and told her she should not go against the Mullahs’ orders and she should stop teaching. The applicant’s sons, who then lived abroad, advised the applicant she should stop teaching to get away from the militants.[7]
e)The militants stopped contacting the applicant, and she had no financial difficulties because her sons were sending her money regularly. The applicant started visiting relatives in other parts of Pakistan. The applicant left Pakistan to visit Australia to help her son look after his new baby. When she returned home in December 2012, she observed men unloading boxes into her house. The men told the applicant to contact the men at a nearby office. She did so, and she spoke to TTP militants who were waiting for their leaders. The men did not tell the applicant what they were storing in her home. They said the applicant should not interfere, and if she did she would be traced throughout Pakistan and killed.[8]
f)Although unhappy, the applicant agreed with the conditions the men imposed. The applicant’s brother in Lahore advised the applicant to sell her home. The applicant approached an agent to arrange for the sale of her home, and explained to him the TTP conditions.[9]
g)In April 2013 the agent came to the applicant’s home and told her the TTP militants threatened him and told him not to sell the house, and that the militants told him they planned to chase the applicant out of her house. The applicant invited people to inspect her house for the purpose of selling it, but those persons refused to negotiate because they witnessed “many goods” inside her rooms. The applicant contacted the Mullah and pleaded with him to allow her to sell the house. The militants then began to stay at her home, and told her that the boxes that were stored in her house contained arms and drugs, and that they would be impossible and dangerous to move around as and when she liked. The militants told the applicant she had a few months to move out.[10]
h)The applicant contacted her sons who advised her to leave the country and transfer the house to them. The applicant decided to flee Pakistan. She did so after a retired police officer advised her to flee without informing the militants, and after the applicant was told police officers would never protect her and warned that if she attempted to approach politicians or the police she would be falsely charged with the possession of drugs and arms, and sent to prison.[11]
[4] CB151, [6]
[5] CB151, [6]
[6] CB151, [7]
[7] CB151, [7]
[8] CB151-152, [8]
[9] CB152, [8]
[10] CB152, [9]
[11] CB152, [10]
Before the Tribunal
Near the beginning of the hearing before the Tribunal, the applicant said that five or six days before the hearing she had received a call from “a lady . . . who knows me”, and said the applicant had applied to be a refugee.[12] The applicant described the lady who called her as “my son’s brother-in-law wife”. The Tribunal member said that she thought the person who called the applicant already knew the applicant had applied for protection because the person came to Australia with the applicant, and the person and the applicant had the same immigration agent.[13] The applicant said the person “came with me to Australia”.[14] After the applicant said if “this thing is spread in Pakistan” she “will be dishonoured”, and that if she returns to Pakistan the police will catch her at the airport and beat her, the Tribunal member said “we will just proceed and I’ll talk about that a little bit later”.[15] It is common ground that the person who called the applicant was Ms ATP15, that Ms ATP15 had applied for a Protection visa which a delegate of the Minister had refused, that the Tribunal member was considering an application for review made by Ms ATP15, and that, by the time the applicant appeared before the Tribunal, Ms ATP15 had appeared before the Tribunal to give evidence and present arguments.
[12] Transcript, page 4. The transcript of the hearing is annexure “GH-1” to the affidavit of G M Hargreaves made on 24.08.2015
[13] Transcript, pages 4-5
[14] Transcript, page 5
[15] Transcript, page 5
In the course of the hearing the Tribunal put to the applicant information Ms ATP15 had given to the Tribunal in the course of Ms ATP15’s hearing. The Tribunal member put to the applicant that Ms ATP15 said the applicant lived with the applicant’s brother in Lahore,[16] and that Ms ATP15 and the applicant met at the airport in Karachi.[17] The Tribunal member asked whether the applicant knew Ms ATP15, given that the applicant had been living at the same address in Canberra as Ms ATP15 and Ms ATP15’s husband.[18] The applicant accepted she met Ms ATP15 at Karachi Airport, that she and Ms ATP15 sat next to each other on the aeroplane, and that the applicant and Ms ATP15 both went to the applicant’s son’s house at Claremont Meadows. The Tribunal Member put to the applicant that it was “an extraordinary co-incidence” the applicant and Ms ATP15 travelled together, that she and Ms ATP15 both applied for a Protection visa through the same agent, and their applications were lodged on the same day.[19]
[16] Transcript, page 11
[17] Transcript, page 12
[18] Transcript, page 8
[19] Transcript, page 21-22
After the hearing the Tribunal sent to the applicant a letter dated 20 March 2015 (applicant’s 424A letter) in which it provided particulars of information it stated would be the reason or a part of the reason for affirming the delegate’s decision.[20] The particulars included the following:
a)The applicant and Ms ATP15 both arrived in Australia on the same day; they both lodged an application for a Protection visa on the same day using the same migration agent; the statement Ms ATP15 provided in support of her application for a Protection visa was “in a very similar format” to the statement the applicant provided in support of her application for a Protection visa; and the applicant and Ms ATP15 “both made similar claims to fear harm from the Taliban in Pakistan”.
b)When, during the Tribunal hearing Ms ATP15 attended, Ms ATP15 was asked about the applicant, Ms ATP15 said the applicant is someone in the community whom Ms ATP15 calls “aunty”, and it was only later that Ms ATP15 said the applicant was Ms ATP15’s sister in law’s mother-in-law.
[20] CB141
The Tribunal stated that this information was relevant because the Tribunal may find that:
a)the applicant and Ms ATP15 attempted to mislead the Tribunal;
b)the applicant had not previously mentioned she had arrived in Australia with Ms ATP15 who travelled to Australia with the applicant and lives with the applicant at the same address in Australia;
c)the applicant’s claims in relation to living with a relative in Canberra whose full name the applicant said she did not know were false;
d)the applicant attempted to engage in deception in relation to those issues, and the applicant did so because Ms ATP15 and the applicant planned in Pakistan that Ms ATP15 and the applicant would travel to Australia together to live at the applicant’s son’s house and make claims for protection;
e)the applicant’s and Ms ATP15’s claims that it was coincidental that the applicant and Ms ATP15 were both on the same plane and travelling to the applicant’s son’s house was not truthful; and
f)the claim the applicant made at the hearing that Ms ATP15 had telephoned the applicant and told the applicant she had only just learnt from the Tribunal that the applicant had applied for protection was not truthful, and was indicative of the applicant’s continued willingness to engage in deception.
The applicant responded by letter dated 3 April 2015.[21] The applicant dealt with each particular of information the Tribunal identified in the applicant’s 424A letter, and denied she discussed with Ms ATP15 any intention of making a claim for protection in Australia.
[21] CB144
The Tribunal also sent a letter to Ms ATP15 dated 19 March 2015 (Ms ATP15’s 424A letter) that was similar to the applicant’s 424A letter;[22] and Ms ATP15 responded by letter.[23] That correspondence occurred in connection with the application for review Ms ATP15 had made of a delegate’s decision not to grant Ms ATP15 a Protection visa. Ms ATP15, in her response, denied she was aware the applicant had made an application for a Protection visa, and that it was a coincidence the applicant used “the same lawyer as ours”.
[22] Affidavit of applicant 11.07.2015, annexure “APP-3”
[23] Affidavit of applicant 11.07.2015, annexure “APP-4”
Tribunal’s reasons
The Tribunal did not accept the applicant was a truthful witness. It found the applicant “fabricated the entirety of her claims for the purpose of the application for protection”.[24] The Tribunal considered that the applicant’s claims were not supported by “the independent evidence”, and were not credible; and that the applicant gave evidence at the hearing in a “rehearsed manner” and “had considerable difficulty reverting from her prepared statement when asked by the Tribunal to do so”.[25] The Tribunal further found that the applicant’s “attempts to deflect the issues raised with her in relation to [Ms ATP15] by claiming that she was upset due to the Tribunal’s breach of her confidentiality, to be indicative of her overall poor credibility”.[26]
[24] CB153, [16]
[25] CB153, [16]
[26] CB153, [16]
The Tribunal relied on a number of matters.
a)The Tribunal found that the applicant’s travel to Australia with Ms ATP15 and their lodgement of Protection visa applications was planned and orchestrated.[27]
b)The applicant is a Sunni Muslim woman who claimed she was teaching the Koran to girls and boys, and Sunni Muslim is the religion of the Taliban. In those circumstances, the Tribunal did not accept that “even if young girls and women were not wearing the hijab or burka that this would result in the applicant, a woman in her 60s with a commitment to Sunni Islam beliefs who was volunteering to teach children the Koran in her home, being targeted by the Taliban”.[28]
c)The Tribunal considered the applicant’s claims that the Taliban had occupied her home not to be credible. The Tribunal relied on the applicant’s difficulty in answering how long before the applicant left Pakistan the Taliban had occupied her home;[29] the applicant’s inability to answer the Tribunal’s question about when she found out what was in the boxes, but instead responded by reciting her statement;[30] the applicant not immediately calling the police when the Taliban supposedly occupied her house;[31] the Tribunal’s not accepting the Taliban would inform the applicant of the context of the boxes when it had not done so for two months after they occupied her house;[32] and the Tribunal finding it difficult to accept that the applicant’s brothers in Lahore or the applicant’s sons would not have assisted the applicant to move from her home in Karachi to live elsewhere rather than live with the Taliban.[33]
[27] CB156, [23] (second paragraph)
[28] CB157-158, [25]
[29] CB158, [26]
[30] CB159, [28]
[31] CB159, [28]; CB160, [30]
[32] CB160, [30]
[33] CB159, [29]
ATP15 v Minister for Immigration and Border Protection
In ATP15 Ms ATP15 claimed she feared harm from the Taliban because her business activities of selling western style women’s clothing in Karachi had come to the attention of the local Taliban. The Tribunal member asked Ms ATP15 questions concerning her travelling and entering Australia at the same time as the applicant, Ms ATP15’s living at the same address as the applicant, Ms ATP15’s and the applicant’s having used the same migration agent, and their having made similar claims.
The Tribunal sent Ms ATP15 a 424A letter providing particulars of information relating to, among other things, information the applicant gave, and stating that, on the basis of that information, the Tribunal may find that Ms ATP15 had attempted to deceive the Tribunal about their living together at the same address in Canberra, and that the Tribunal may find that Ms ATP15 has “done so because it was planned and organised in Pakistan that [Ms ATP15] and [the applicant] would travel to Australia together to live at [the applicant’s] son’s house and make claims for protection”.[34]
[34] [2016] FCAFC 53 at [8]
Ms ATP15 responded to the letter. She said she telephoned the applicant because Ms ATP15 “was shocked to hear at my hearing from RRT Member” that the applicant had applied for a Protection visa. Ms ATP15 said she met the applicant at Karachi airport, but she did not know her personally except that she is Ms ATP15’s husband’s sister’s mother in law. Ms ATP15 said she helped the applicant because she was on a wheelchair and “we did our boarding together”. Ms ATP15 said she did not know the applicant applied for a Protection visa.[35]
[35] [2016] FCAFC 53 at [9]
The Tribunal found Ms ATP15 had fabricated her claims for protection.[36] The Tribunal relied, in part, on its not accepting Ms ATP15’s explanation of how she came to travel with the applicant on the same plane and sat next to her “in circumstances where they were both going to the same address in Sydney where [Ms ATP15’s] brother-in-law ([[the applicant’s]] son) resides with his wife ([Ms ATP15’s] husband’s sister)”.[37] The Tribunal found that Ms ATP15’s travel to Australia with the applicant and their subsequent Protection visa applications were “planned and orchestrated and her denials in relation to this is indicative of the fact that she is an untruthful and unreliable witness”.[38]
[36] [2016] FCAFC 53 at [15]
[37] [2016] FCAFC 53 at [14]
[38] [2016] FCAFC 53 at [15]
Before the Full Federal Court Ms ATP15 claimed the Tribunal failed to comply with s.424 of the Act because it did not consider the response the applicant had given to the applicant’s 424A letter. Section 424 of the Act is as follows:
Tribunal may seek information
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3)A written invitation under subsection (2) must be given to the person:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the person is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
Tracey and Griffiths JJ did not accept that ground. Their Honours held the words “[i]n conducting the review” meant that s.424 of the Act did not apply “to evidence which is sought and obtained by the Tribunal in the context of it conducting a review of an application made by someone else”, and that the information the Tribunal obtained from the applicant in response to its letter to the applicant was not information the Tribunal had sought or gotten in conducting the review of the delegate’s decision not to grant a Protection visa to Ms ATP15; it was information the Tribunal had sought and had “gotten” in conducting its review of the applicant’s case.[39] Their Honours noted that the “position might be different if the Tribunal had relied on [the applicant’s] response in rejecting” Ms ATP15’s case, but the Tribunal did not do so.[40] Their Honours said:[41]
The Tribunal’s reasons for decision confirm that it had regard to this information [i.e., information the applicant had provided] and [Ms ATP15’s] response to it in affirming the delegate’s decision . . . . Significantly, there was no reference to [the applicant’s] s 424A response letter in the Tribunal’s reasons for decision concerning [Ms ATP15’s] review. There is no basis for inferring that the Tribunal had regard to that response in affirming the delegate’s decision concerning [Ms ATP15]. In circumstances where the information contained in that response was not sought and obtained by the Tribunal for the purpose of conducting a review of [Ms ATP15’s case], s 424 was not enlivened in respect of [the applicant’s] response.
[39] [2016] FCAFC 53 at [23]
[40] [2016] FCAFC 53 at [23]
[41] [2016] FCAFC 53 at [25]
Their Honours also held that Ms ATP15’s reliance on cases that dealt with the Tribunal overlooking evidence, such as Minister for Immigration and Border Protection v SZSRS,[42] was “misplaced” because the applicant’s letter “was never in evidence before the Tribunal in its review of [Ms ATP15’s case], [and] thus it was not overlooked”.[43] Tracey and Griffiths JJ also did not accept Ms ATP15’s claim that the applicant’s response was corroborative evidence which, had it been considered, would have been significant to the Tribunal’s course of reasoning.[44] Their Honours were not satisfied the applicant’s response was arguably of critical importance to Ms ATP15’s claims.[45]
[42] [2014] FCAFC 16
[43] [2016] FCAFC 53 at [27]
[44] [2016] FCAFC 53 at [28]
[45] [2016] FCAFC 53 at [29]
Ms ATP15 also claimed before the Full Federal Court that Ms ATP15’s 424A letter did not give “clear particulars” of the information the Tribunal considered would be the reason or a part of the reason for affirming the delegate’s decision.[46] In particular, Ms ATP15 claimed that it did not give clear particulars in relation to the applicant’s statement in support of her application for a Protection visa which, the Tribunal stated, was “in a very similar format to” the statement Ms ATP15 provided in support of her application for a Protection visa and which, the Tribunal also stated, made similar claims to fear harm from the Taliban in Pakistan.[47] Tracey and Griffiths JJ held “[t]hese particulars were sufficient for the purposes of s 424A”. Their Honours said:[48]
The appellant was told in the s 424A letter that both she and [the applicant] had used the same migration agent to lodge their claims for Protection visas. It is evident from the terms of [Ms ATP15’s] response letter of 1 April 2015 that she acknowledged that she had used the same migration agent and that, although she said that she did not know whether the format for [the applicant’s] application was similar, she reasoned that because they had used the same migration agent “he could have used the same format”. [Ms ATP15] needed no further particulars in order to provide a meaningful response on this issue.
[46] [2016] FCAFC 53 at [34]
[47] [2016] FCAFC 53 at [38]
[48] [2016] FCAFC 53 at [39]
Flick J dissented. His Honour’s starting point was the natural and ordinary meanings of the word “get”, one of which is to “obtain as the result of effort or contrivance; procure, acquire for oneself or another; seek out and take”.[49] His Honour said there was no reason to confine the natural and ordinary meaning of the word “get” as it appears in s.424(1) of the Act.[50] His Honour held that the information the Tribunal had in relation to the applicant was information it got for the purpose of Ms ATP15’s review; and it was, therefore, information the Tribunal was required to consider. His Honour said:[51]
In bringing that same information within the scope of the Appellants’ review, the Tribunal obtained – or “got” – information from [the applicant]. It was certainly not information provided by the Appellants to the Tribunal. The Tribunal “got” that information from some other source. The fact that the Tribunal may initially “get” information for the purposes of conducting one review does not preclude a conclusion that it may thereafter “get” the same information for the purposes of conducting a separate review. For the purposes of conducting that separate review, the Tribunal may come into possession of information either by being provided with information by a claimant, or by invoking one or other of a number of statutory sources of obtaining information. The information initially obtained in conducting [the applicant’s] application for review was not information which properly could be regarded as being part of the accumulated expertise or knowledge of the individual Tribunal member.
[49] [2016] FCAFC 53 at [49]. The quote is from the Shorter Oxford English Dictionary (5th ed, Oxford University Press, 1993)
[50] [2016] FCAFC 53 at [49]
[51] [2016] FCAFC 53 at [59]
Flick J disagreed with Tracey and Griffiths JJ, not because his Honour construed s.424 of the Act differently from their Honours, but because Flick J found that the Tribunal did not get the applicant’s response to the applicant’s 424A letter “solely in respect to its conduct of the review of” the applicant’s application for review and not when conducting the review of Ms ATP15’s application.[52] His Honour said:[53]
It may readily be accepted that the Tribunal initially came into possession of information from [the applicant] while conducting its review of [the applicant’s] application – and, accordingly “got” such information in conducting that review. But that fact is, with respect, wholly consistent with a further conclusion that the Tribunal, once having that information in its possession, also employed that same information (or at least some of it) for the purposes of conducting its review of [Ms ATP15’s] own application for review. Whatever may have been the means whereby the Tribunal initially “got” [the applicant’s] information, the Tribunal brought some of that same information within the scope of its consideration of [Ms ATP15’s] case.
[52] [2016] FCAFC 53 at [57]
[53] [2016] FCAFC 53 at [58]
Ms ATP15 applied for special leave to appeal to the High Court from the orders of the Full Federal Court. Acting on r.41.08.1 of the High Court Rules 2004 (Cth), Gageler and Gordon JJ dismissed the application without listing it for hearing on the ground that “[t]he proposed appeal would have insufficient prospects of success”.[54]
[54] [2016] HCASL 214 (1 September 2016)
First ground of application
The applicant relies on three grounds of application. The first is as follows:
The second respondent (“Tribunal”) failed to have regard to corroborative evidence.
Particulars
By letter dated 19 March 2015, the Tribunal invited a person [that is, Ms ATP15] to give it information it considered relevant.
On or about 1 April 2015, that person [that is, Ms ATP15] gave the Tribunal information. However the Tribunal did not have regard to the information in affirming the decision under review.
The Tribunal was required to have regard to that information under subsection 424(1) of the Migration Act 1958 (“Act”) or, alternatively, in fulfilling its statutory task of considering the applicant’s claims.
Counsel for the applicant submitted:
a)the Tribunal considered that the information it sought by sending Ms ATP15’s 424A letter was relevant both to the applicant’s review and to Ms ATP15’s review;
b)because of (a), the information the Tribunal got when it received Ms ATP15’s response to Ms ATP15’s 424A letter was information the Tribunal got in “conducting the review” of the delegate’s decision not to grant a Protection visa to the applicant;
c)s.424 of the Act, therefore, applied to require the Tribunal to have regard to the information contained in Ms ATP15’s response to Ms ATP15’s 424A letter; and
d)in breach of s.424 of the Act, the Tribunal did not have regard to that information.
Counsel for the applicant also submitted the Tribunal made a jurisdictional error of the sort the Tribunal was found to have made in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs[55] and in Minister for Immigration and Citizenship v SZRKT,[56] and of the sort described by the Full Federal Court in Minister for Immigration and Citizenship v SZNSP.[57] Counsel for the applicant submitted the response Ms ATP15 gave to the Tribunal’s letter of 19 March 2015 corroborated the response the applicant gave.
[55] [2005] FCAFC 117
[56] [2013] FCA 317
[57] [2010] FCAFC 50 at [38]
The Minister, on the other hand, submitted that the material before me could not support the inference that the Tribunal got the response from Ms ATP15 to Ms ATP15’s 424A letter “in conducting the [applicant’s] review”. The Minister also submitted that Ms ATP15’s response to Ms ATP15’s 424A letter could not be characterised as “corroborative evidence which, if considered, would have been of significance to the course of reasoning that the Tribunal actually took” because the information was not critical or significant to the applicant’s claims.[58] The Minister further submitted that the Tribunal’s extensive adverse credibility findings were based not on Ms ATP15’s response to the Tribunal’s letter of 19 March 2015, but rather on “its rejection of the [applicant’s] account of the circumstances surrounding her association with [Ms ATP15] and them travelling together to Australia and the other events which then occurred”.[59]
[58] Outline of Submissions of the First Respondent [12]
[59] ATP15 v Minister for Immigration and Border Protection [2016] FCAFC 53 at [32] quoted in Outline of Submissions of the First Respondent at [13]
Counsel for the applicant accepted that, at the level of principle, ATP15 is “directly relevant” to ground 1. Although counsel submitted that the facts of the case before me are different from those in ATP15, counsel did not submit that those differences were material. In my opinion, there are no material differences between the facts in ATP15 as they concerned Ms ATP15, and the facts that are before me as they concern the applicant. For that reason alone the decision and reasoning of Tracey and Griffiths JJ in ATP15 for determining the first of the two grounds their Honours considered in ATP15 wholly determines the fate of ground 1 of the amended application that is before me. It is appropriate, however, that I explain why Ground 1 fails.
Although it can be said that by sending Ms ATP15’s 424A letter the Tribunal sought information from Ms ATP15, and that Ms ATP15’s response to that letter resulted in the Tribunal getting the information contained in the response, that is not the purpose for which the Tribunal sent Ms ATP15’s 424A letter. The Tribunal sent Ms ATP15’s 424A letter for the purpose of satisfying what the Tribunal believed to be its obligations under s.424A of the Act in conducting the ATP15 review. In other words, the Tribunal sent Ms ATP15’s 424A letter, not to seek and get information “in conducting the [applicant’s] review”, but to fulfil what the Tribunal considered to be the duty imposed by s.424A in conducting the ATP15 review. That this was the Tribunal’s purpose in sending Ms ATP15’s 424A letter is confirmed by the Tribunal’s not referring to Ms ATP15’s response to Ms ATP15’s 424A letter in its reasons for decision in relation to the applicant’s review, yet referring to other information Ms ATP15 provided to the Tribunal in the ATP15 review.
The information contained in Ms ATP15’s response to Ms ATP15’s 424A letter, therefore, did not engage s.424 of the Act in connection with the applicant’s review. It was not information the Tribunal sought and got “in conducting the [applicant’s] review”; it was information the Tribunal sought and got in connection with the ATP15 review. For that reason, the Tribunal was not required to have regard to Ms ATP15’s response to Ms ATP15’s 424A letter “in conducting the [applicant’s] review”. For that reason also Ms ATP15’s response to Ms ATP15’s 424A letter “was never in evidence before the Tribunal in its review of [the applicant’s case], [and] thus it was not overlooked” by the Tribunal.[60] Ground 1, therefore, fails.
[60] [2016] FCAFC 53 at [27]
Before I leave this ground, I wish to say something about the applicant’s submission that Ms ATP15’s response to Ms ATP15’s 424A letter corroborated, or at least was reasonably capable of corroborating, the applicant’s response to the applicant’s 424A letter. The only basis on which the applicant appears to so submit is that, in their responses, both Ms ATP15 and the applicant denied they had planned and orchestrated their coming to Australia for the purpose of them both applying for a Protection visa, and they both asserted the matters which the Tribunal considered would be the reason or a part of the reason for concluding they did so plan and orchestrate their coming to Australia were to be explained by coincidence. The denials and assertions of coincidence, however, must be viewed in the context in which they were made. They were made in circumstances where it was reasonably open to the Tribunal to find the applicant and Ms ATP15 planned and orchestrated their travel to Australia to apply for a Protection visa.
Given there was material on the basis of which it was reasonably open to the Tribunal to find the applicant and Ms ATP15 colluded by planning and orchestrating their travelling to Australia and applying for Protection visas, it is difficult to see how their denials and assertions of coincidence could reasonably have been considered to be capable of repelling the drawing of the inference of collusion that was clearly available to be drawn from the matters on which the Tribunal relied. It has not been suggested, and it is difficult to see how it could reasonably be suggested, that, if the applicant’s and Ms ATP15’s travelling together and using the same migration agent were truly a coincidence, there was no objective evidence that would easily have been available to the applicant to repel the inference of collusion. If, for example, as the applicant claimed, it was through coincidence that she met Ms ATP15 at Karachi airport, such claim was capable of being proved by evidence about whether it was the applicant or someone else who purchased the air ticket on her behalf, and when, how, and from where the applicant purchased her air ticket; and if, as the applicant also claimed, she retained her migration agent independently of Ms ATP15, such claim was reasonably capable of being proved by evidence of the circumstances in which the applicant’s migration agent had been retained, who retained the migration agent, and when and in what circumstances the applicant met the migration agent. The applicant provided no such evidence.
Ground 2
Ground 2 is as follows:
In the alterative to 1, the Tribunal had regard to an irrelevant consideration.
The applicant submits this ground is a logical implication of what the applicant submits is the construction Tracey and Griffiths JJ in ATP15 gave to the expression “may get information” in s.424(1) of the Act. In particular, the applicant submits as follows:
a)Tracey and Griffiths JJ construed s.424 of the Act as applying only to information the Tribunal sought and got in the process of “conducting the review” in question, and not to information the Tribunal may have sought and got in conducting a review other than “the review” in question;
b)when it conducted the ATP15 review, the Tribunal sought and obtained information contained in the claims Ms ATP15 made in her Protection visa application and in evidence she gave before the Tribunal (ATP15 information);
c)the Tribunal sought and got the ATP15 information “in conducting [the ATP15] review”, that is, in conducting a review other than “the [applicant’s] review”;
d)as construed by Tracey and Griffiths JJ, s.424 did not permit the Tribunal “in conducting the [applicant’s] review” to have regard to the ATP15 information.
The Minister accepts the Tribunal considered and relied on the ATP15 information, and that the Tribunal sought and got that information when conducting a review different from the applicant’s review. The Minister disputes, however, that Tracey and Griffiths JJ construed s.424 as preventing the Tribunal from seeking and getting information the Tribunal had sought and got in considering a different review. The Minister submits that, on the proper construction of s.424 of the Act, the Tribunal may seek and get information when conducting a review information the Tribunal had already sought and obtained when considering a different review.
I accept the Minister’s submission that Tracey and Griffiths JJ in ATP15 did not construe s.424 of the Act as preventing the Tribunal in conducting a review from seeking and getting information the Tribunal had already sought and gotten in the course of a different review. That is apparent from what Tracey and Griffiths JJ said and did. It is true that their Honours said that s.424 of the Act does not apply “to evidence which is sought and obtained by the Tribunal in the context of it conducting a review of an application made by someone else” and that, if considered alone, this statement would support the applicant’s submission that s.424 of the Act applies only to evidence the Tribunal seeks and gets when conducting the review in question. This, however, must be read with Tracey and Griffiths JJ’s statement that the position might have been different if the Tribunal had in fact relied on the applicant’s response to the applicant’s 424A letter in rejecting Ms ATP15’s case.[61] Although their Honours did not explain how or in what manner the position might have been different if the Tribunal had in fact relied on the applicant’s response to the applicant’s 424A letter, their Honour’s statement implies it would have been open to the Tribunal to rely on the response if it considered it appropriate to do so. Further, as noted by counsel for the Minister, Tracey and Griffiths JJ referred without criticism or other comment to the Tribunal’s relying in the ATP15 review on information the applicant provided in the applicant’s review (which did not include the applicant’s response to the applicant’s 424A letter). That, too, implies that Tracey and Griffiths JJ did not construe s.424(1) as preventing the Tribunal from seeking and getting in one review information the Tribunal has sought and gotten in a different review.
[61] [2016] FCAFC 53 at [23]
Flick J in ATP15 held that s.424 of the Act is capable of applying to information the Tribunal accesses for the purpose of a particular review even if that information had been sought and gotten by the Tribunal in a different review. As I have already set out, his Honour held that one of the ordinary meanings of “get” is to “obtain as the result of effort or contrivance; procure, acquire for oneself or another; seek out and take”,[62] and that the Tribunal’s accessing information when conducting a review which the Tribunal had already sought and got when conducting a different review could properly be characterised as the Tribunal seeking and getting the information when considering the first-mentioned review. As his Honour said:[63]
The fact that the Tribunal may initially “get” information for the purposes of conducting one review does not preclude a conclusion that it may thereafter “get” the same information for the purposes of conducting a separate review.
[62] [2016] FCAFC 53 at [49]. The quote is from the Shorter Oxford English Dictionary (5th ed, Oxford University Press, 1993)
[63] [2016] FCAFC 53 at [59]
In my opinion, that analysis applies to the application before me. The Tribunal initially got the ATP15 information while conducting the ATP15 review. It was not precluded from also seeking and getting the ATP15 information for the purposes of the applicant’s review. Having done so, the Tribunal was required to have regard to the ATP15 information in the applicant’s review.
Counsel for the Minister also submitted that, if it be correct the Tribunal did not have power to get the ATP15 under s.424 of the Act, it had power under the combined operation of s.56(1) and s.415(1) of the Act. Section 56 of the Act provides:
(1)In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa.
(2)Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way.
At the time the applicant applied for a Protection visa, s.415(1) of the Act provided:
The Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
Counsel for the Minister submitted that the combined operation of s.56(1) and s.415(1), and in particular, the presence of the words “[i]n considering an application for a visa” found in s.56(1) constitutes a broader power for seeking and getting information than that provided for by s.424(1). Given the conclusion that I have already reached, it is not necessary for me to consider this submission. I do note, however, that it is not immediately obvious that the different wording of s.56(1) would lead to its being given a construction that is different from the construction Tracey and Griffiths JJ in ATP15 gave to s.424 of the Act.
Ground 2, therefore, also fails.
Ground 3
Ground 3 is as follows:
Further or in the alternative to 1 and 2, the Tribunal did not comply with the mandatory requirements of subsection 424A(1) of the Act.
Particulars
By letter dated 20 March 2015, the Tribunal purported to give the applicant information and invite her to comment or respond to it in accordance with subsection 424A(1) of the Act.
The letter of 20 March 2015 did not give the applicant clear particulars of the information.
The information of which the applicant claims the Tribunal failed to give adequate particulars is the statements Ms ATP15 and the applicant provided in support of their applications for a Protection visa which were “in a very similar format”, and that Ms ATP15 and the applicant made similar claims to fear harm from the Taliban in Pakistan (asserted adverse information). The applicant submits that the particulars the Tribunal gave of this information was no more than a conclusion the Tribunal had arrived at in relation to Ms ATP15’s and the applicant’s statements they each submitted in support of their applications for a Protection visa. The applicant submits the Tribunal did not provide to the applicant a copy of Ms ATP15’s statement, nor explain why the Tribunal had concluded Ms ATP15 and the applicant made similar claims to fear harm from the Taliban in Pakistan. The Minister, on the other hand, submits the asserted adverse information was not “information” within the meaning of s.424A of the Act because it did not in its terms amount to a rejection, denial or undermining of the applicant’s claims to be a refugee.[64] Counsel particularly relied on three authorities.
a)The first is SZTNL v Minister for Immigration and Border Protection,[65] and counsel relied on that authority for three principles. The first is that whether or not s.424A of the Act is engaged is not to be determined by whether the Tribunal in the particular circumstances of a case believes the section is engaged.[66] Second, inconsistencies between two pieces of information do not constitute “information” for the purposes of s.424A.[67] Third, “information merely going to credibility is not within section” 424A”.[68]
b)The second authority is SZJBD v Minister for Immigration and Citizenship where Buchanan J (with whose reasons Perram J agreed) said:[69]
I feel obliged, therefore, to exclude from the concept of information under s 424A not only the intermediate findings of fact to which I earlier referred but also any process of comparison between the applicant’s answers and the factual statements with which those answers were compared. That leaves only the factual statements themselves but, shorn of the analytical context in which they played their part, they have, as counsel for the Minister contended, no feature or attribute which makes them disclosable under s 424A. The primary facts about the Falun Gong movement and its founder are neutral. They do not tend for or against affirmation or rejection of the decision of the delegate as pieces of information in their own right. They only have that significance when matched with answers given by the applicant.
c)The third case on which the Minister relies is Minister for Immigration and Border Protection v SZTJF.[70] There, the Tribunal relied on inconsistencies between, on the one hand, the visa applicant’s evidence that she had only coincidentally found out about another person having travelled to Australia and information the Tribunal had that indicated the visa applicant and the other lady were cousins. Yates J found that this was not “information” for the purposes of s.424A of the Act. His Honour said:[71]
There are two matters to note concerning the information referred to in [21] of the decision record. First, it is not information which contains a rejection, denial or undermining of the first respondent’s claims to protection as summarised in [7] above. Put another way, the information was not of “dispositive relevance” to the Convention claims advanced by the first respondent. . . . It was simply information about the first respondent’s travel arrangements and travel to Australia and her living arrangements in Australia. Secondly, as the Minister submits, the information itself is “mere inconsistency” or “evidence that [came to be] relied upon to find inconsistency”. I reject the first respondent’s submissions to the contrary.
[64] Relying on, among other authorities, SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
[65] [2015] FCA 463
[66] [2015] FCA 463 at [49], where his Honour said: “If his Honour intended to suggest that the Tribunal’s view as to whether information had to be provided pursuant to s 424A(1) was decisive, I respectfully disagree.”
[67] [2015] FCA 463 at [53]
[68] [2015] FCA 463 at [52]. The quotation is from the judgment of Heerey J in MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483 at [29]
[69] [2009] FCAFC 106 at [104]
[70] [2015] FCA 1052
[71] [2015] FCA 1052 at [31]
Counsel for the applicant submitted that the asserted adverse information was actual evidence, not subjective thought processes.
It is true the Tribunal relied on evidence; but that the Tribunal relied on evidence does not necessarily mean the evidence on which it relied was “information” for the purposes of s.424A of the Act. The evidence on which the Tribunal relied, that is, the asserted adverse information, was the format in which the applicant and Ms ATP15 submitted their claims for protection, the applicant and Ms ATP15 making similar claims to fear harm from the Taliban in Pakistan. The Tribunal did not directly rely on – that is, it did not treat as an immediate premise - the asserted adverse information to affirm the delegate’s decision not to grant the applicant a Protection visa.[72] The Tribunal relied on the asserted adverse information as follows. It compared the statements the applicant and Ms ATP15 made, and the form of their applications for a Protection visa; the Tribunal concluded that the statements were in a very similar format and that the applicant and Ms ATP15 made similar claims to fear harm from the Taliban in Pakistan; on the basis of that conclusion and other evidence, and in particular, the applicant and Ms ATP15 sitting next to each other on their flight to Australia and their both travelling to the applicant’s son’s house, the Tribunal inferred that the applicant and Ms ATP15 planned and orchestrated their travelling to Australia and applying for a Protection visa. From that inference the Tribunal further inferred that this reflected poorly on the applicant’s credibility; and on the basis of that inference, combined with other adverse inferences about the applicant’s credibility, the Tribunal concluded the applicant had fabricated her claims for protection.
[72] Vo v Minister for Immigration and Border Protection [2017] FCCA 1170 at [31]
From this, it cannot be said that the format of the applicant’s and Ms ATP15’s statements or their claims to fear the Taliban contained “in their terms a rejection, denial or undermining of the”[73] applicant’s claims. Nor can it be said that these matters served “as the immediate premise, or one of the immediate premises, on which the Tribunal”[74] intended to rely for affirming the delegate’s decision.
[73] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]
[74] Vo v Minister for Immigration and Border Protection [2017] FCCA 1170 at [31]
Ground 3, therefore, also fails.
Disposition
I propose to dismiss the application. Before I do so, I will order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 13 September 2017
11
3