AVX16 v Minister for Immigration and Anor (No.2)
[2020] FCCA 2824
•15 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AVX16 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2020] FCCA 2824 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal failed to give proper, genuine and realistic consideration to the Applicant's claim to fear harm – whether the Tribunal misunderstood the Applicant’s evidence – whether the Applicant was afforded procedural fairness – no jurisdictional error established – application dismissed with costs. |
| Legislation: Migration Act 1958, s 425. |
| Cases cited: Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 |
| Applicant: | AVX16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 755 of 2016 |
| Judgment of: | Judge Blake |
| Hearing date: | 13 July 2020 |
| Date of last submission: | 20 August 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 15 October 2020 |
REPRESENTATION
| Counsel for the applicant: | Dr McBeth |
| Solicitors for the applicant: | Clothier Anderson & Associates |
| Counsel for the respondents: | Mr Yuile |
| Solicitors for the respondents: | Sparke Helmore Lawyers |
ORDERS
The Application filed on 14 April 2016 and amended on 9 November 2018 be dismissed.
The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 755 of 2016
| AVX16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 21 March 2016. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a protection (Class XA) visa (‘visa’).
For the reasons that follow, I have decided to dismiss the application for review.
Background
The Applicant is an Iranian national. He arrived in Australia on 1 August 2012 as an unauthorised maritime arrival and applied for the visa on
5 December 2012.
On 14 August 2013, the Applicant attended a Protection Visa interview. On 14 October 2013, a delegate of the Minister (‘delegate’) refused to grant the Applicant the visa.
On 21 October 2013, the Applicant applied to the Refugee Review Tribunal (as the Tribunal was then known) for review of the delegate’s decision.
A hearing was held at the Tribunal on 21 May 2015. The Applicant and his legal representative attended the hearing. On 7 July 2015, the matter was reconstituted to a different Tribunal member as the original member was no longer available.
On 10 September 2015, a further hearing was held at the Tribunal. The Applicant and his legal representative again attended the hearing.
On 21 March 2016, the Tribunal affirmed the decision not to grant the Applicant the visa.
The Applicant filed his Application for judicial review of the Tribunal’s decision, and affidavit in support, in this Court on 14 April 2016.
On 14 September 2018, the Applicant filed a notice of address for service indicating that he was now represented. An Amended Application (‘Application’) and affidavit of Catherine Jane Farrell, the Applicant’s solicitor, was filed on 9 November 2018. The affidavit of Ms Farrell annexed transcripts of the hearings held at the Tribunal on 21 May 2015 and 10 September 2015 respectively.
The final hearing was ultimately listed to be heard before me on 13 July 2020. Due to current circumstances surrounding the global pandemic of COVID-19, the matter proceeded before me by way of Microsoft Teams. Each party relied on written submissions filed prior to the hearing, as well as submissions made orally during the course of the hearing.
The Grounds of Review
The Application contains four grounds of review. When the matter came before me for hearing, the Applicant indicated that Ground 3 of the Grounds of Review was no longer pressed. I therefore turn now to deal with the remaining grounds of review.
Ground 1
The first ground of review in the Application is:
‘The decision of the Tribunal was affected by jurisdictional error in that the Tribunal failed to give proper, genuine and realistic consideration to the applicant's claim relating to fear persecution because of his association with people of the Baha'i faith.
Particulars
a) The applicant claimed that as a consequence of his association with people of the Baha'i faith while in Australia, he would be perceived in Iran as having abandoned his Shia Muslim religion, and would also face persecution for associating with Baha'i independently of any perception of whether he had himself converted to the Baha'i faith.
b) The Tribunal dismissed the applicant's claim on the basis that he was not a convert and did not intend to convert to Baha'i.
c) The Tribunal failed to give proper, genuine and realistic consideration to the applicant's claim to fear persecution because of his association with Baha'i followers, independently of the issue of whether he would be perceived to have converted.’
The Applicant’s contention is that he made two distinct claims to fear harm relating to the Baha’i faith. The first was a claim to fear harm on the basis of having left the Muslim faith and therefore to be perceived to have converted to the Baha’i faith. The second was a claim to fear harm on the basis of having associated with members of the Baha’i faith in Australia. The Applicant contends that there was a failure by the Tribunal to properly consider the second limb of the claim above. It is submitted by the Applicant that the Tribunal failed to engage actively with the substance of the claim, and conflated the two claims by failing to appreciate the Applicant was making a distinct claim to fear persecution by associating with the Baha’i in Australia independently of whether he had converted to the religion, or was perceived to have converted to the religion.
In support of this proposition, the Applicant points to paragraph [110] of the decision of the Tribunal. Paragraph [110] of the Tribunal’s decision is said by the Applicant to be demonstrative of both the way in which the Tribunal conflated the two claims, and of the Tribunal’s failure to give genuine consideration to the claim to fear harm from being associated with the Baha’i religion in Australia. Paragraph [110] of the decision of the Tribunal is in the following terms:
‘The applicant has claimed that if he were to return to Iran, his association with people of the Baha'i faith will be questioned. The applicant's representative provided information from Gooy News that people associating with Baha'i peoples were being harassed by the authorities. The article referred to indicates that the conduct by the Department of Intelligence in questioning people who associate with Baha'i people is not new and has been the practice for many years in different cities in Iran. The Tribunal accepts the country information which indicates that people of the Baha'i faith in Iran are viewed with suspicion, harassed and singled out by officials. However, the applicant has claimed not to have converted to the Baha'i religion and has also conveyed this message to his family and friends. As stated earlier, the applicant's evidence is that since being in Australia he has not taken any steps to learn more about the Baha'i faith and he has not considered converting as well as his firm repudiation to his family and friends in Iran that he is interested in converting, the Tribunal accepts he is not a convert. Given the applicant's evidence and his denial that he is interested in converting and that he has not found out more about the Baha'i faith the Tribunal does not accept that he will be harassed, detained or questioned by the authorities for his association with people of the Baha'i' faith in Australia’.
The Applicant’s articulation of the claims referred to are set out in a Statutory Declaration prepared by him on 6 May 2015, and contained at Court Book 203 onwards. The Applicant’s claim, as originally articulated in the Statutory Declaration of the 6 May 2015, discloses the following:
a)the Applicant had been practising martial arts in Australia with a group of students who are all members of the Baha’i faith;
b)people in Iran have come to know of his association with members of the Baha’i faith in Australia;
c)members of his family have interpreted his relationship with Baha’i students in Australia as him having converted to become a Baha’i;
d)the Applicant is concerned that if he goes back to Iran ‘because of my past problems, this would be used against me to further discriminate against me and persecute me’.
e)in Iran, Muslims are discouraged from associating with the Baha’i and those who are in contact with them are interrogated and intimidated. The Applicant goes on to state that he knows through news sources persons who have been interrogated and threatened because of their association with individuals of the Baha’i faith.
The claim articulated above is a claim to fear harm on the basis of the Applicant’s associations with Baha’i members in Australia, and also because his association with them ‘has been interpreted as conversion’ to the Baha’i faith. The claim advanced by the Applicant is not a claim that he will continue to associate with the Baha’i in Iran.
The evidence before the Tribunal in relation to the treatment of the Baha’i in Iran, and those who associate with them, appears to have come principally from two sources. The first, is an article that was reproduced at Court Book 214. In the article entitled ‘Baha’i International Commu… Current Situation of Baha’is in Iran’, the writer deals at length with the situation confronting the Baha’i in Iran (‘Article 1’). It is not an article that deals at any length with the risks faced by Muslims who associate with the Baha’i, save for one brief paragraph contained at Court Book 221 which refers in a generic and brief way to the ‘intimidation of Muslims who associated with the Baha’is’.
The second piece of evidence is a translation of an article that occurred during the hearing before the Tribunal on 21 May 2015 (‘Article 2’). The relevant evidence is contained on pages 33-34 of the Transcript of that hearing, which is contained at Annexure CJF-1 of the affidavit of Catherine Jane Farrell filed on 9 November 2019. There, the interpreter reads from Article 2 which indicates, inter alia, persons were summoned ‘who had continued associations with…Bahai citizens’ and that the ‘summoned people were disrespected, threatened and demeaned and they were told do not have the right to socialise or have any dealings with Bahai’s’ (sic). Later in the transcript, on page 34, the interpreter also refers to Muslims being ‘told that they should discontinue their relations with Bahais and if they don’t do so they were threatened there will be problems for them and their families in terms of employment and employability for them or for the children’. (sic)
What can be seen from what I have set out thus far is the following. First, as noted earlier, the aspect of the Applicant’s claim to fear harm on the basis of his association with the Baha’i was based upon his association or dealings with the Baha’i in Australia. Second, a close look at the evidence called in aid of that claim discloses the following. First, Article 1 deals principally with the treatment of the Baha’i in Iran by the authorities, and dealt only in a very minimal way with how Muslims who associate with Baha’i in Iran are treated. Second, both articles deal only in general terms with how Muslims are treated. Individuals are variously described as being mistreated or threatened, but there is not much detail beyond those descriptions. Third, the articles deal with Muslims who associate with Baha’i in Iran.
It is against the background above that the Tribunal’s findings in relation to this claim need to be considered. I have reviewed the Tribunal’s reasons. The following is relevant:
a)The Tribunal was acutely aware of the Applicant’s claim regarding his association with members of the Baha’i faith. It expressly recognised the claim at paragraph [83] of its reasons. It also expressly recognised at paragraph [110] the Applicant’s claim that if he were to return to Iran, his association with people of the Baha’i faith will be questioned;
b)at paragraphs [102] to [108], the Tribunal squarely addressed the Applicant’s claim to fear harm on the basis of an imputed conversion to the Baha’i religion;
c)at paragraph [110], the Tribunal squarely address the Applicant’s claim to fear harm on the basis of his association with the Baha’i in Australia, stating that ‘the Tribunal does not accept that he will be harassed, detained or questioned by the authorities for his association with people of the Baha’i faith in Australia’.
Paragraph [110] of the decision of the Tribunal is one that, to some extent, contains observations or findings that are nuanced. In my view, when the paragraph is read, the following emerges:
a)the Tribunal recites in the opening sentence the Applicant’s claim that his association with people of the Baha’i faith will be questioned if he were to return to Iran;
b)the Tribunal recites information that in Iran, people associating with the Baha’i are being harassed by the authorities;
c)the Tribunal accepted that ‘people of the Baha’i faith’ are viewed with suspicion and may be harassed and singled out. Its observation here is consistent with the evidence (which I have articulated earlier) which was before it;
d)the Tribunal recounts the Applicant’s evidence that, inter alia, he has not taken any steps to learn about the Baha’i faith, has not considered converting, and has told his friends and family in Iran that he is not a convert to the Baha’i faith;
e)in light of all of the above, the Tribunal reaches a conclusion on the material before it that there is not a risk that the Applicant will be harassed, detained or questioned by the Iranian authorities for his association with the people of the Baha’i in Australia.
The Applicant contends that what is contained within paragraph [110] of the Tribunal’s decision is evidence of the Tribunal conflating the two claims the Applicant made in respect of his dealing with the Baha’i in Australia. I am not convinced that this necessarily follows. The Tribunal was dealing in paragraph [110] of its reasons, inter alia, with the Applicant’s claim to suffer harm because of his association with the Baha’i in Australia. In considering that question, there is nothing unusual or irrational about the Tribunal considering or referring to the issue of whether the Applicant would be seen to be a convert to the Baha’i faith in Iran. The two issues are closely linked.
The Applicant also submitted that his claim to fear harm on the basis of his association with persons of the Baha’i faith was dismissed on the basis of the Tribunal’s findings that the Applicant had not converted to the Baha’i faith, and had conveyed that message to family and friends. A proper review of the Tribunal’s reasons however, discloses that other findings were made. The non-acceptance of the Applicant’s claim was also based on findings that, inter alia, the Applicant did not claim to have converted to the Baha’i faith, had not taken any steps in Australia to learn about the Baha’i faith, had not considered converting to the Baha’i faith, and had denied he was interested in converting to the Baha’i faith. It was all of these findings that ultimately underpinned the express finding of the Tribunal that the Applicant would not be harassed, detained or questioned by the authorities for his association with people of the Baha’i faith in Australia.
There is one other finding that underpins the conclusions of the Tribunal. That finding is set out at paragraph [112] of its reasons and is to the effect that, among other things, there was not a real chance the Applicant would continue to associate with members of the Baha’i faith in Iran. Paragraph [112] is important in understanding the approach taken by the Tribunal. I have set it out in full below:
‘As the Tribunal finds the applicant is not a convert to the Baha'i faith and has informed his friends and family of this and would not pursue further information about this faith if he were to return to Iran, it is satisfied he would not be perceived or regarded as one if he returns to Iran, and therefore there is no real chance he would be persecuted for reasons of religious or imputed religious beliefs. His fear of harm in respect of his claimed association with people of the Baha'i faith is therefore not well founded. Further, the applicant's evidence was that he knew of some people who were Baha'i in Iran but did not have any friends who were Baha'i. The evidence before the Tribunal is that prior to coming to Australia he did not socialise with anyone from the Baha'i faith and only knew some in passing and at a superficial level. While in Australia, the applicant has given evidence that he has associated with people of the Baha'i faith as they happened to be members of the same sporting club he attends. He has given evidence that he has found them not to be the way they have been portrayed by the Iranian authorities but he has not given evidence wishing to convert or of having made close personal friendships that he intends to continue if he returns to Iran, further as already stated, he has repudiated any intention of conversion. The Tribunal considers that in light of this, there is no real chance that he will continue to associate with or seek out people of the Baha'i faith any more than he did before he came to Australia.’
The findings I have adverted to above, in my view, all underpin the ultimate finding by the Tribunal that it did not accept that the Applicant would be harassed, detained, etc., because of his association with the Baha’i in Australia.
For the reasons above, I am satisfied that the Tribunal engaged in an active intellectual process in considering the Applicant’s claim to fear harm by reason of his association with members of the Baha’i faith in Australia, and that there was evidence that supported the Tribunal’s findings. For all of the above reasons, ground one of the grounds of review must be dismissed.
Ground 2
The second ground of review in the Application is:
‘The decision of the Tribunal was based on a misunderstanding of the applicant's evidence, namely that the applicant had categorically denied any interest in converting to the Baha'i faith on his Facebook page, with the consequence that the Tribunal misunderstood the scope of the applicant's claim and failed to give proper consideration to that claim.
Particulars
a) The applicant's evidence before the Tribunal was that he had posted on Facebook, “Yes, most of my friends are Bahai and they are very good to me but I haven't converted to Bahai yet.”
b) The Tribunal's finding at [109] that the applicant would not be imputed as converting to the Baha'i faith was based on the misapprehension of his evidence as to his Facebook post.’
The Applicant under this ground takes issue with the finding in paragraph [109] of the Tribunal’s reasons. That paragraph provides as follows:
‘The Tribunal notes that the applicant is not a convert to the Baha'i faith because of posts on Facebook and he has denied any conversion to those who are recipients of his posts. He has also not given any evidence that, despite his stated interest in that faith, that he has explored the Baha'i faith while in Australia. He has simply associating with people from that faith through his sporting club. Given his categorical denial to people in Iran via his Facebook and in telephone conversations, the Tribunal does not accept that the applicant will be imputed as converting to the Baha'i faith because of his association with people from that community.’
The Applicant submits, inter alia, that the Tribunal’s characterisation of him having categorically denied conversion to the Baha’i faith to people in Iran, or any interest in conversion to the Baha’i faith, reflects a misunderstanding of the evidence actually given by the Applicant. The Applicant makes a similar point in relation to the statements made by the Tribunal at paragraphs [110] and [112] of its reasons. At paragraph [110] the Tribunal refers to the Applicants ‘firm repudiation to family and friends in Iran that he is interested in converting’. At paragraph [112], the Tribunal says ‘he has repudiated any intention of conversion’.
To make good the submission above, the Applicant points to an exchange that occurred during the Tribunal hearing when the Applicant indicated to the Tribunal Member that he had not converted to the Baha’i faith ‘yet’. The relevant part of the transcript, which follows an exchange concerning what the Applicant’s family and friends know of his association with the members of the Baha’i faith in Australia, is as follows:
‘INTERPRETER: They call it Pinglish, do you want me to - which is they write it in English but (indistinct) hello thank you, this is from Masoud, hello thank you, I'm fine, yes. Yes, most of my friends are Bahai and they are very good for me but I haven't converted to Bahai yet.
MS PANATEDIS: Yet?
INTERPRETER: Yet. No. Yes, yet. I haven't converted to Bahai yet.’
The Applicant submits that the ultimate finding made by the Tribunal at paragraph [112] that there was no real chance he would be persecuted for an actual or imputed religious belief was expressly premised on the finding that he was not a convert and did not intend to convert to the Baha’i faith. However, it is submitted that this ignores the evidence given by the Applicant during the hearing (set out above). The Applicant therefore says the scope of his claim was misunderstood and an error of the type identified by the High Court in Dranichnikov v Minister for Multicultural Affairs (2003) 197 ALR 389 has occurred.
In order to assess whether the contention advanced by the Applicant is correct, it is necessary, to have regard to all of the evidence that was before the Tribunal.
The first thing to note about the exchange between the Applicant and the Member set out above is that the Tribunal was clearly alert to the possibility of the Applicant converting. The word ‘yet’, upon which so much emphasis is placed by the Applicant, was queried by the Tribunal. It was answered by the Applicant in the same manner. The evidence, in my view, also supports a finding that there was no claim by the Applicant that he had converted up to that point in time.
Second, despite the fact that the Applicant did not provide further information beyond his answer of ‘yet’ to the clarifying question put to him by the Tribunal Member, the Tribunal did not let the matter rest, but pursued it. The Tribunal Member later on, during the second hearing before the Tribunal on 20 September 2015, directly asked the Applicant a question about whether he intended to convert to the Baha’i religion. That exchange, which occurred at page 28 of the Transcript of 10 September 2015 from lines 14 to 20, as contained at Annexure CJF-2 to the affidavit of Catherine Jane Farrell affirmed on 1 February 2019, is as follows:
‘MS PANATEDIS: Yes, I know, I thought she said symmetry, I misunderstood. So they're not treated very well at all. I know that we have quite a community here in Australia. Are you interested in converting to Bahaism?
INTERPRETER: I haven't actually participated in their ceremonies and gatherings but I do have interest to learn about it more and I do like their faith.’
It can be seen from the above, that when directly asked about whether he intended to convert, the Applicant did not indicate an intention to change religion. He said no more than that he had an interest in the religion, and that he liked the faith. This answer reflects the broader material before the Tribunal. From what I have reviewed, the Applicant did not contend that he was considering converting or intended to convert to the Baha’i faith. In my view, what the exchanges to which I have referred show is that when confronted with two opportunities to articulate whether he intended to convert, the Applicant declined to do so. This evidence does not support a claim that he intended to convert to the Baha’i faith in the future.
There is then the evidence that the Applicant gave to the Tribunal in relation to what he had told his family and friends about his conversion to Baha’i. He was asked directly about what he had told his family and friends. In response, he indicated to the Tribunal member on 10 September 2015 at Transcript page 24, lines 35 – 45, that he had told his family and friends that he had not converted.
When the above matters are considered, in my view, the Tribunal did not misunderstand the Applicant’s evidence. The Tribunal’s findings were open to it.
For all of the above reasons, I dismiss ground two of the grounds of review.
Ground 4
The fourth ground of review in the Application is:
‘The Tribunal failed to afford the applicant procedural fairness and/or failed to provide a meaningful hearing within the meaning of s 425 of the Migration Act.’
This ground of review relates to the Applicant’s claim to, among other things, fear harm on the basis that he had a relationship with a married woman. The women’s husband was a high ranking official of the Seppah. The Applicant says the husband threatened to kill him once he found out about the affair. The Tribunal, inter alia, expressed reservations about this claim, ultimately finding it to be implausible. Among other things, the Tribunal stated that it had ‘great difficulty in accepting the applicant’s version of events and finds that the applicant has either fabricated or embellished his experiences in Iran in an attempt to bolster his claims for protection in Australia’ (at [98] of the Tribunal’s reasons).
The Applicant’s submission in respect of this ground may be summarised as follows. The Applicant attended a hearing before the Tribunal on 21 May 2015 (‘First Hearing’). The Applicant was subsequently invited to and did attend a second hearing on 10 September 2015 (‘Second Hearing’). The constitution of the Tribunal changed between the time of the First Hearing and the Second Hearing. The Applicant says he was not afforded procedural fairness, or was not provided with a meaningful hearing as required by section 425 of the Migration Act 1958 (‘Act’) because, inter alia:
a)the Applicant’s claims in relation to his relationship with the married woman were examined at length during the First Hearing. The Member conducting the First Hearing had the opportunity to observe the Applicant giving his evidence in respect of this claim;
b)the credibility of the Applicant in relation to his claims of an affair with a married woman was central to the Tribunal’s disposition of the claim. It can be inferred that the adverse credibility findings made by the Tribunal against the Applicant were at least influenced by the Applicant’s demeanour during the hearing;
c)the Applicant lost the opportunity to impress upon the ultimate decision-maker (the Member conducting the Second Hearing) the truthfulness of his account given that account was tested most rigorously during the First Hearing;
d)the Member conducting the Second Hearing stated that she had only listened to ‘most’ of the audio recording of the First Hearing (see lines 17-22 on page 2 of the Transcript dated 10 September 2015). It is to be understood from this that she did not listen to all of the audio recording of the First Hearing.
On the basis of the above, the Applicant says he was denied procedural fairness, or not given a meaningful hearing.
It is convenient to deal with the last point in relation to the failure to listen to all of the audio recording, first. During the Second Hearing, the Member indicated at the outset the purpose of the Second Hearing and the state of her preparation. Among other things, she indicated that at that time, she had ‘listened to most of the recording but there were I think some gaps that I need to fill in and I need to be able to speak to you directly to get that information…’ (lines 17-22 on page 2 of the Transcript dated 10 September 2015).
The above is not, however, the end of the matter. At paragraph [4] of the Tribunal’s decision, the Tribunal Member stated ‘The Member listened to the recording of the hearing held on 21 May 2015’.
It is not uncommon for decision-makers not to have read or considered all of the material before them prior to commencing an oral hearing. It is not desirable to speculate on all the reasons why this might occur. What is important, however, is that whatever the state of a decision-maker’s knowledge during the oral hearing, a decision-maker, if he or she has not considered all of material before the hearing, retire and properly consider the material and evidence at the conclusion of the hearing.
In this matter, the Member stated expressly in her final reasons that she had listened to the recording of the First Hearing. Having done so, I accept that she has listened to the entirety of the recording prior to making a final decision. This point does not advance the Applicant’s contentions under this ground.
There is then the question of the Tribunal conducting two hearings, with each hearing constituted by different members of the Tribunal. The Applicant urged me to accept that the course undertaken by the Tribunal in the circumstances of this case had the effect of denying the Applicant procedural fairness, or denying the Applicant the opportunity of a meaningful hearing as required by section 425 of the Act, for the reasons I have identified above.
During the hearing, I was not taken to any authority to support the proposition that there is a rule or principle to the effect that an administrative tribunal that conducts a single hearing in a matter presided over by two different members of the tribunal necessarily results in a denial of procedural fairness, or in the failure to provide a meaningful hearing. The Applicant did, however, seek to rely on two authorities in support of his contentions. Those authorities are Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 (‘WZARH’), and NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 (‘NAIS’).
In WZARH, a delegate of the Minister made an adverse assessment of the respondent’s claim for refugee status. He sought a review. He was interviewed by a reviewer. At some later point, another individual assumed responsibility for completion of the review. The second reviewer did not interview the claimant, but based the decision on a consideration of written materials and a recording and transcript of the interview with the first reviewer.
The High Court of Australia held that the claimant had been denied procedural fairness. In doing so, the High Court stated as follows:
‘[37] In the present case, the respondent had been afforded an interview with the concomitant advantage that the individual responsible for making a recommendation to the Minister in relation to his claim to refugee status would be able to use all the information provided by him, including impressions gained from his demeanour at the interview, in coming to a conclusion as to the genuineness of his account.
...
[40] … An interview in the course of the IMR process provides the reviewer with opportunities for direct questioning of the applicant; for clarification of areas of confusion or poor understanding on both sides; and for the observation of the demeanour of the applicant. Impressions formed by a decision-maker from the demeanour of an interviewee may be an important aspect of the information available to the decision-maker.
[41] The opportunity for a decision-maker to clarify areas of confusion or misunderstanding, and to form an impression based on personal observation as to whether an applicant is genuinely confused or seeking deliberately to mislead, may be especially important to a fair assessment of a claim to refugee status when English is not the applicant’s mother tongue and he or she is obliged to seek to communicate through an interpreter. …’
The comments of the High Court in relation to opportunities for questioning and direct observation are important. There are, however, important distinctions between what occurred in WZARH and what occurred here. The first and most obvious factual difference is that WZARH is a case in which no opportunity was given to the respondent to appear at a second interview. That is a fundamental difference from the present matter. In the present matter, the Applicant had the opportunity to attend for an interview at the Second Hearing before the Member who decided the matter. The comments of the High Court need to be seen in that light.
The second point to note about WZARH is that it proceeded on the basis that a second hearing is not always required. So much is apparent from what the High Court said at paragraph [33] and paragraph [38] of its reasons. At paragraph [33], the High Court stated that ‘…there is no general rule that procedural fairness requires an administrative decision-maker to afford a person affected by the decision an oral hearing in every case’. Further, at paragraph [38] of the decision, the High Court stated ‘it may be accepted that, as the Minister argued, the respondent was not entitled to insist upon the observance of a particular form of decision-making process.’ Accordingly, there is no general principle enunciated in WZARH that a tribunal is always required to conduct a full rehearing of a matter when a reviewer or a presiding member changes.
In NAIS, the appellants had their protection visa application refused. They applied for a review to the Refugee Review Tribunal, as it then was, (‘RRT’) on 5 June 1997. The RRT held oral hearings on 6 May 1998 and 19 December 2001. The RRT finally handed down its decision on 14 January 2003. The RRT did not accept as credible certain claims made by the appellants. The High Court found for the appellants on the basis that, among other things, the delay in handing down the decision created a risk that the Tribunal’s capacity to assess the claims was impaired, thus denying the appellants a fair hearing.
In the course of its reasons, the High Court considered the use of notes by the RRT Member to overcome any issue in relation to recollection of the evidence given the delay. In his judgment at paragraph [109], Kirby J opined that ‘re-reading transcript years after oral evidence is given and even listing to sound recorded evidence (assuming that this occurred) cannot substitute for contemporaneous experience and evaluation’.
Once again, while the observations of the High Court in relation to the use of notes and the ability to rely on them are important, the comments were made in circumstances that are very different to the present circumstances. Self-evidently, the focus of the High Court’s attention in NAIS is the extraordinarily lengthy delay in the handing down of the decision and the use of notes by the RRT to deal with that delay. This is a case where there is minimal delay. Further, as noted above, this is not a case where the Member conducting the Second Hearing was reliant only on the notes and audio recording from the First Hearing. The Member also had the opportunity to witness first-hand the responses given by the Applicant.
Subsequent to the hearing, the Minister sought to put on additional submissions in relation to the question of whether there is a rule or principle that a requires a complete re-hearing to take place if there is a need to reconstitute the Tribunal. Ultimately, both parties made further submissions. Consequent upon those submissions, it seems clear that there is not an obligation on a tribunal to invite an applicant to a further hearing simply because the Tribunal has been reconstituted. Rather, in every case, a Tribunal will need to consider whether there exists a reason why a fresh invitation to a second hearing should be extended: see AEK15 v Minister for Immigration and Border Protection (2016) 244 FCR 328 at [61].
In light of the above, the relevant issue then becomes whether the circumstances of this case required the Tribunal to conduct a more wide ranging second hearing than the one that was held. The Applicant submits, inter alia, that he lost the opportunity to impress the ultimate decision maker, including by the Tribunal not being able to observe his demeanour when credibility was an issue.
I accept that the Applicant’s claims were tested during the First Hearing. However, this is a case in which an invitation to a second hearing was issued. When regard is had to the conduct of the Second Hearing, it becomes apparent that the Applicant’s claims in relation to his affair with a married woman were also tested during the course of the Second Hearing. A review of the Transcript of the Second Hearing discloses that the Tribunal Member presiding at the Second Hearing did hear directly from the Applicant about his claims in relation to the harm he feared he may suffer because of his relationship with a married woman. Starting on page 9 of the Transcript of the Second Hearing on 10 September 2015, the Applicant was asked a series of questions relating to the affair. Those issues included the following:
a)when he had last had contact with her (Transcript page 8, line 44);
b)how and where he met her (Transcript page 9, line 6 and following);
c)their first date (Transcript page 9, line 37);
d)his request to marry her (Transcript page 11, lines 31 – 37);
e)her age and living arrangements (Transcript page 12, lines 1 – 20);
f)what she did when she was not with him (Transcript page 13, line 18 and following);
g)the length of the relationship (Transcript page 13, line 41);
h)her stays with his family (Transcript page 14, line 12).
The exchanges above were not insignificant. In my view, when considered in context, they afforded the Member conducting the Second Hearing an opportunity to evaluate for herself, directly, evidence given by the Applicant in relation to the affair. Having done so, the Member was not just relying on notes or an audio recording. The Applicant had the opportunity to impress the decision maker by the giving of his evidence. I consider that it cannot be fairly said that the Applicant lost the opportunity to impress the ultimate decision-maker with his account of events.
When the submissions of the Applicant are considered alongside the authorities above, much of the Applicant’s concerns relate to what he claims was the inability of the Tribunal to assess his demeanour in the hearing, while nevertheless holding concerns about his credibility. Given what I have stated above about the fact that the Second Hearing occurred, and given the content of that Second Hearing, I am of the view that the Applicant cannot make good that proposition. However, if I am wrong about this, I add the following.
The Tribunal’s analysis and reasons as to why it did not accept the Applicant’s claim to have left Iran because he had a relationship with a married woman commence at paragraph [88] of the Tribunal’s reasons and continue through to paragraph [97] of the Tribunal’s reasons. In those paragraphs, the Tribunal’s reservations about accepting the Applicant’s claim stem, inter alia, from the following:
a)inconsistencies between what the Applicant had included in his Statutory Declaration and his evidence before the Tribunal, in respect of when he learned that the married woman’s husband was in the Seppah (see paragraph [88] of the Tribunal’s decision);
b)the apparent unlikeliness, or implausibility of the Applicant not contacting the married woman to make enquiries as to the actual circumstances that had arisen (see paragraph [89] of the Tribunal’s decision);
c)the inconsistent claims by the Applicant in relation to the amount of time he had spent in Shiraz (see paragraph [90] of the Tribunal’s decision);
d)the unlikeliness, or implausibility of, the Applicant’s failure to clarify with his friend what enquiries the Seppah had made about him in Shiraz (see paragraph [90] of the Tribunal’s decision);
e)the Applicant’s statement that he had not been in contact with the married woman, despite the length and seriousness of the relationship (see paragraph [91] of the Tribunal’s decision);
f)inconsistencies in the Applicant’s evidence in relation to his family having heard from the married woman after the Applicant’s departure from Iran (see paragraph [93] of the Tribunal’s decision);
g)inconsistencies in relation to the Applicant’s departure from Iran. In his statutory declaration, the Applicant claimed he had departed Iran at the beginning of June 2012, having received a phone call from the married woman in March 2012. However his evidence before the Tribunal was that he left Iran a week after the phone call from the married woman.
The point of setting out the analysis above is as follows. The Applicant emphasises that he was subject to adverse credibility findings in circumstances where the Member who decided the matter did not get to observe him at the First Hearing. The above analysis shows, however, that the Tribunal, when the decision is read in full and in context, identified and placed significance on inconsistencies in the Applicant’s own evidence. When read fairly, in my view, what the above discloses is that the Applicant was found to be not credible because of inconsistencies that emerged from his own evidence. Any concerns the Tribunal expressed about the Applicant’s ‘credibility’ are, in my view, to be read and understood having regard to what is set out above.
The Applicant argues that, inter alia, it can be inferred that the adverse credibility findings or observations made by the Tribunal were influenced by the Applicant’s demeanour. I do not accept that proposition. The Tribunal had the opportunity to assess demeanour in the Second Hearing. Moreover, it is clear, from what I set out above, that the Tribunal’s conclusion was based on the inconsistencies that arose in the Applicant’s own evidence. Further, there is nothing in the Tribunal’s reasons that indicates that the Applicant’s demeanour was in any way a factor in reaching its conclusions. To the extent that demeanour might have been important, as I have indicated above, the Member had the opportunity to consider that for herself at the Second Hearing.
For all of the reasons above, the Tribunal did not fail to afford the Applicant procedural fairness. Nor did the Tribunal fail to provide a meaningful hearing to the Applicant within the meaning of section 425 of the Act. I dismiss this ground of review.
In all the circumstances, the Application for review must be dismissed. I will award costs to the Minister fixed in the sum of $7,467.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 15 October 2020
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