AYW15 v Minister for Immigration
[2016] FCCA 2113
•17 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AYW15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2113 |
| Catchwords: MIGRATION – Judicial review – protection visa – Tribunal’s treatment of credibility – breach of s425 – use of untranslated document. |
| Legislation: Migration Act 1958 (Cth), ss.36(2),348, 412, 414, 425 |
| Cases cited: Minister of Immigration and Citizenship v SZIAI (2009) 259 ALR 429 Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323 Shah v Minister for Immigration & Anor [2014] FCCA 624 Craig v South Australia [1995] HCA 58 |
| Applicant: | AYW15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 506 of 2015 |
| Judgment of: | Judge Harland |
| Hearing date: | 15 June 2016 |
| Date of Last Submission: | 15 June 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 17 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hughan |
| Solicitors for the Applicant: | AMBI Associates |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
A writ in the nature of certiorari be issued to quash the decision of the Second Respondent dated 28 May 2015.
A writ in the nature of mandamus be issued directing the Second Respondent to reconsider and determine the matter according to law.
That the first respondent pay the applicant’s costs fixed in the sum of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
BRG 506 of 2015
| AYW15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review. Both parties were represented. The issues in this case turned on an analysis of the construction of the Tribunal’s decision and particular passages in the transcript of the proceedings.
The applicant is a Sri Lankan citizen. He is from eastern Sri Lanka. He left Sri Lanka in 2012, arriving in Australia as an irregular maritime arrival in August 2012. He filed a application for a protection visa in November 2012. He is a Tamil and a Hindu.
The applicant filed an application for review on 9 June 2015. He relies on the grounds set out in his further amended application filed on 25 May 2016 which are:
1. The Tribunal misunderstood its jurisdiction and/or misdirected itself by asking itself the wrong question when it determined that first of the issues for consideration on the application for review before it was "Is the applicant credible?"
2. The Tribunal failed to comply with s 425 of the Act in that it did not give to the Applicant a proper invitation to appear before it "to give evidence and present arguments relating to the issues arising in relation to the decision under review. "
3. The Tribunal erred in failing to exercise the jurisdiction conferred upon the Tribunal by s 414 of the Act to review the delegate's decision:
•)
Particulars
a) The Tribunal found that a 'police report' in a foreign language provided by the Applicant dated 711212011 was "lacking in credibility" because it contained a reference to "2002" within it.
b) The Tribunal assumed that the reference to 2002 was a reference to an earlier incident of which the Applicant complained he had been abducted.
c) The lack of credibility of the document was one of the reasons the Tribunal rejected the Applicant’s claim that he had been abducted in 2011.
d) The Tribunal could have easily obtained a translation of the document, but did not do so.
e) The Tribunal thereby failed to exercise its power to review the primary decision.
The applicant’s claims
The applicant claimed in his statutory declaration accompanying his visa application that he left Sri Lanka because he is fearful that as a Tamil male he will be imputed with a political opinion that he had some involvement with the Liberation of Tigers of Tamil Eelam (“LTTE”). He describes his problems as beginning in 2001 when he says he was abducted on his way to class. His abductors asked him if he had any involvement with the LTTE. He says he escaped and after that his father made complaints the police. He says his family moved after that and in November 2011 four armed men in his parents’ home beat and locked his parents in a room and beat and abducted him. He was released after his father paid ransom to the abductors. After that his father decided that he was not safe in Sri Lanka and arranged for him to leave Sri Lanka covertly. He says he cannot relocate anywhere within Sri Lanka.
The Delegate’s decision
The delegate issued the decision of 24 December 2013 refusing the applicant’s visa application.
The delegate accepted that the applicant was abducted in 2001 finding there is evidence consistent with his claim and are consistent with country information which indicates a “white van” abduction phenomenon in Sri Lanka.[1]
[1] Court Book (“CB”) 230 – 231.
The delegate rejected the applicant’s claim that he would be perceived to have LTTE links because of connections with family members who were members of the LTTE between 1990 and 1996.[2]
[2] CB 231 – 232.
The delegate set out the claims he accepted which included:
a)The applicant was abducted and questioned in 2001 in relation to having LTTE links;
b)The applicant was abducted in 2011 and his father was extorted by armed persons of the Karuna group;
c)Three family members were involved with the LTTE between 1990 and 1996;
d)The applicant’s father is employed with the State Timber Corporation since 1982 and his mother operates a coconut business in Sri Lanka;
e)Since the applicant left Sri Lanka the SLA inquired about his whereabouts after conducting a census of his family.
The delegate then set out the claims he did not accept being:
a)That the applicant or his father had been imputed with pro LTTE associations reasons relating to three family members associations with the LTTE between 1990 and 1996;
b)That he was abducted in 2011 the reasons relating to perceived pro-LTTE associations;
c)The applicant’s claim that persons in a white van visited his mother’s home and assaulted her in early 2013.
The Tribunal proceedings
The applicant filed an application for review of the delegate’s decision and had the assistance of a migration lawyer.
By a letter dated 6 March 2015 the applicant was invited to appear before the Tribunal to give evidence to provide a written submission setting out all claims made and maintained by the applicant. His lawyers filed lengthy written submissions and supporting documents.
Ground One
The complaint under the first ground in part arises out of paragraph 4 of the Tribunal decision which appears as the first paragraph under the heading:
Considerations of Claims and Evidence
The issues in this case are:
a.Is the applicant credible?
b.Does Australia have protection obligations under the Refugee Convention?
c.Does Australia have protection obligations under the complementary protection criterion?
The applicant complains that by setting out the credibility issue in this way it has erred in elevating credibility to a primary consideration. He says that this is not part of the considerations set out in s.36(2) of the Migration Act 1958 (Cth) (“Migration Act”) which the Tribunal is required to apply.
Decision writers adopt different styles of writing. One style is to identify the issues the decision maker is required to determine. The decision maker is not limited to issues identified by the parties. Often the issues identified by the decision writer are not limited to the issues identified by the parties.
The issue of credibility is not an important factor in every case. In some cases it is important particularly in the absence of corroborating evidence. This is the position of many applicants for protection visas. It is reading too much into paragraph 4 to suggest that the Tribunal has asked itself the wrong question or elevated the issue of credibility.
The Tribunal set out standard statements about assessing credibility at paragraphs 20 and 21. The first respondent says that is the Tribunal had imposed an onus on the applicant to show he was credible that would be an error but the Tribunal did not do that.
I do not accept the applicant’s submissions with respect to ground one. It would be artificial to deal with credibility in the way the applicant suggests.
Ground one is not made out.
Ground two
The applicant complains that he was not put on notice that his version of the events in 2001 and 2011 were in issue as they were accepted by the delegate.
To the extent that there is a complaint that the applicant was not put on notice in advance of the hearing, this cannot be sustained when it is apparent that the Tribunal member was concerned with inconsistencies with his evidence given during the course of the Tribunal hearing. I accept the first respondent’s submissions in this regard. However the applicant’s complaint goes beyond this.
The applicant relies on the well-known High Court decision of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] 228 CLR 152 (“SZBEL”).
The applicant draws attention to paragraphs 33 to 36 of SZBEL:
The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review". The reference to “the issues arising in relation to the decision under review” is important.
Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision maker will have given reasons.
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
[Footnotes omitted]
Where there is substance in the complaint about how the Tribunal member dealt with the applicant’s evidence during the course of the hearing.
One of the criticisms the Tribunal made of the applicant’s evidence appears at paragraph 15 of the Tribunal’s decision which reads as follows:
The Tribunal noted his account of the abductions were very different to his statement and that he had added a third incident where he was assaulted but not taken. The applicant said he was not clear about it but was telling the truth and who only two abductions and not a third incident.
At page 8 and following off the transcript the Tribunal member asked the applicant about the abduction which took place in late 2011. The Tribunal refers to it as taking place in 2012 but nothing turns on this as the Tribunal identified the time line during the course of the hearing by asking the applicant to indicate how long it took place before he left Sri Lanka. The applicant said it happened six months before he left. The applicant’s counsel submits that where the Tribunal refers to abduction in 2012 it is the same abduction incident which the applicant refers to in his submissions as occurring in 2011.
At pages 13 and 14 of the transcript the Tribunal member addresses the abduction again. The Tribunal member misquotes the applicant’s statutory declaration with respect to the 2002 abduction when she says that the applicant said he was taken with 3 other boys. He did not say that.[3]
[3] See the applicant’s statutory declaration at CB 574.
It is also apparent from this portion of the transcript that the applicant was confused about which incidents the Tribunal member was asking about. He expressed his confusion. The Tribunal member did not clarify this. In addition to mischaracterising his earlier evidence the Tribunal member asked the applicant double barrelled questions. As a result it is not clear which part of the question the applicant was answering.
The applicant says that the transcript shows that the Tribunal has failed in its obligations pursuant to s.425. There are points during the hearing at page 13 of the transcript where the Tribunal member does put her concerns to the applicant about his evidence but the problem is she mischaracterises his evidence and asks double barrelled questions.
The applicant refers to the end transcript of the hearing. The Tribunal member does not identify the issues that concern her and does not give the applicant an opportunity to address it. This does not fall into the category of the Tribunal not being required to reveal its thought processes rather it is a failure to put its concerns pursuant to s.425 and SZBEL’s case. Having read the transcript and the decision record I find that the Tribunal has failed in in its obligations pursuant to s.425 as articulated by the High Court in SZBEL.
The first respondent correctly submitted that even where the Tribunal is confused about the evidence and makes an error of fact that may be an error within jurisdiction. He argues that it is only confusing when you consider the isolated part of the transcript rather than the transcript as a whole.
I am satisfied that the Tribunal has made a jurisdictional error. Of particular concern is the mischaracterisation of the applicant’s evidence which lead to part of the Tribunal’s adverse credibility findings. This is clear from paragraphs 26 and 27 of the Tribunal’s decision. This misunderstanding of the evidence and the confusing nature of the questions has resulted in part of the adverse credibility findings against the applicant. It is not possible to discern how much weight this aspect of the evidence was given and whether or not this would have led to a different result.
Ground Two is made out.
Ground Three
The last complaint focuses on the Tribunal’s use of an untranslated document the applicant supplied with his application for a protection visa. The applicant makes the point that it was not provided to the Tribunal. In my view this is irrelevant. Clearly documents the applicant supplies, whether to the department or the Tribunal, are documents the Tribunal is properly able to consider. Indeed Tribunal decisions often refer to the initial entry interviews applicants give.
The difficulty arises because the document was not translated. There is no obligation on the Tribunal to translate documents. That is the obligation of the applicant. If the Tribunal did not have regard to the document at all, the applicant could not complain in the absence of providing a translation of the document. The untranslated document appears at Court Book (“CB”) 551 and 552. The Tribunal refers to a date in that document and raises concerns about the document. The applicant argues that in this context the Tribunal has failed to make an obvious enquiry by obtaining a translation of the document.
The other option open to the Tribunal was to require the applicant to provide a translation of the document however the Tribunal was not obliged to do so. It is clear from page 16 of the transcript that the Tribunal member is concerned about this document and is seeking to decipher it. The applicant says he could read much of it. If the Tribunal member had ignored the document the applicant could not complain in circumstances where the applicant did not supply a translation of the document.
I accept the respondent’s submission that there is no general obligation to investigate an applicant’s claim and that the circumstance where such an obligation arises is rare. In his regard the respondent relies on paragraph 25 of the High Court decision of Minister of Immigration and Citizenship v SZIAI (2009) 259 ALR 429:
25. Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
The applicant also referred to this case and the decision of Shah v Minister for Immigration & Anor [2014] FCCA 624. After considering SZIAI, Judge Manousaridis said the following at paragraphs 30 to 35:
30. The plurality did not identify the circumstances in which a failure by the RRT to make an obvious inquiry may result in a jurisdictional error. Two clues, however, are given. The first is that the failure to make an obvious inquiry of a critical fact must be one which provides “a sufficient link to the outcome to constitute a failure to review”. The “failure to review”, as this expression was employed by the plurality, is synonymous with “a constructive failure to exercise the power” reposed in the RRT, or a “purported but not a real exercise of [the decision-maker’s] functions”. And there will be a constructive failure to exercise such power or functions if the RRT precludes itself from exercising the power or function according to law. A decision-maker purports to, but does not really exercise his or her functions if the decision-maker “misconceived what in law was involved in the exercise of that power”. Thus, a failure to make an obvious inquiry of a critical fact will result in jurisdictional error if the decision can fairly be characterised as one in which, because of the failure to inquire, the RRT did not exercise its functions according to law.
31. The second clue given by the plurality in SZIAI is that a failure to make an obvious inquiry of a critical fact may result in the decision “being affected in some other way that manifests itself as jurisdictional error”.
32. From these two clues a positive principle may be advanced. Whether or not in any given case the MRT or the RRT have committed a jurisdictional error because they did not make an obvious inquiry into the existence or non-existence of a critical fact must be determined by reference to whether the proper exercise of their jurisdiction to review in the circumstances of the case required them to make the inquiry, or whether the making of the inquiry was otherwise necessary to prevent them from making a jurisdictional error. The answer to these inquiries in any given case will depend in part on the express provisions of the Act obliging the MRT or the RRT to obtain information, and, in part, whether the RRT or the MRT made inquiries pursuant to powers conferred on each of them to obtain information.
33. I first turn to the express obligations imposed on the MRT and the RRT to make inquiries. The principal obligation is that imposed by s.348 and s.414 of the Act, namely, that the MRT and the RRT respectively must “review” the decision the subject of the application before them. That is a duty to inquire into the existence or non-existence of facts relevant to the RRT or MRT determining whether to affirm or set aside the decision under review. As noted by the plurality in SZIAI, however, the extent to which the MRT and RRT are required to inquire before it could be said that the MRT or the RRT has properly reviewed a decision is qualified:
[P]roceedings before the Tribunal are inquisitorial, rather than adversarial in their general character. There is no joinder of issues as understood between parties to adversarial litigation. The word “inquisitorial” has been used to indicate that the Tribunal, which can exercise all the powers and discretions of the primary decision-maker, is not itself a contradictor to the cause of the applicant for review. Nor does the primary decision-maker appear before the Tribunal as a contradictor. The relevant ordinary meaning of “inquisitorial” is “having or exercising the function of an inquisitor”, that is to say “one whose official duty it is to inquire, examine or investigate”. As applied to the Tribunal “inquisitorial” does not carry that full ordinary meaning. It merely delimits the nature of the Tribunal’s functions. They are to be found in the provisions of the Migration Act. The core function, in the words of s 414 of the Act, is to “review the decision” which is the subject of a valid application made to the Tribunal under s 412 of the Act.
34. These limits on the MRT’s or the RRT’s obligation to inquire flow from cases that have held that, although the MRT and RRT review decisions by making inquiries, it is for the applicant to satisfy the MRT or the RRT that the criteria for the granting of the relevant visa are met. This feature of the nature of the review the Act requires the MRT and the RRT to carry out has been stated in different ways. Thus, it has been said that “it is for the applicant for a protection visa to establish the claims that are made”; it is “for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason”, and that the “Tribunal must then decide whether that claim is made out”; the “function of the Tribunal . . . is to respond to the case that the applicant advances”; and the RRT “is required to deal with the case raised by the material or evidence before it”.
35. Nevertheless, within these limits, circumstances can be imagined where the MRT and RRT may constructively fail to review the decision because they failed to make inquiries. For example, the MRT or the RRT, after inviting the applicant to a hearing to present evidence, may not have questioned the applicant or may have done so in a perfunctory manner. From that failure, it might be inferred the MRT or the RRT did not undertake the review they were required to undertake. Another example may be where the MRT or the RRT fail to make inquiries of the applicant about an essential element of the applicant’s claim. From that failure, it might be inferred the MRT or the RRT failed to properly consider the applicant’s claim or they assessed the applicant’s claim on a mistaken view of what the Act required the MRT or the RRT to consider when reviewing the decision in question. And a third example is where the MRT or RRT fail to inquire of the applicant about a matter which was accepted by the delegate, but which the RRT or MRT did not accept, and on which the MRT or RRT relied to affirm the decision.
This discussion does not advance the applicant’s case because of the circumstances.
The Tribunal addresses the report at paragraph 37.
That is very clear from the authorities is that the duty to enquire only arises in very limited circumstances where the enquiry is an obvious one going to a critical issue. The respondent submits that without knowing what the document actually says, it is not possible to know whether it went to a critical issue. The applicant has not provided a translation of the document to the Court.
It is impossible to determine whether or not the Tribunal has failed to exercise its power because one cannot make the connection between jurisdiction and its exercise of power. There is no translation of the document before the Court. This is considerable force in the first respondent’s submission.
The question then is, did the Tribunal’s treatment of the document fall into another category of jurisdictional error. The categories of jurisdictional error are not closed. The High Court made a useful statement about jurisdictional error in Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323 at paragraphs 82 and 83:
It is necessary, however, to understand what is meant by ''jurisdictional error'' under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia (77), if an administrative Tribunal (like the Tribunal) "falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it".
"Jurisdictional error can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive (78). Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law (79).
In so far as the applicant makes a procedural fairness complaint about the use of the document, the difficulty is that the applicant was asked about the document and what it said. He had the assistance of a migration agent at the hearing. He said he asked for the opportunity to translate the document. Given the exchange which occurred at page 16 of the transcript the applicant and her migration agent, who attended the hearing by telephone were clearly on notice that the Tribunal was concerned about the document.
Ground three is not established.
As the applicant has been successful with respect to the second ground I will order that the matter be remitted to the Tribunal for a rehearing by a differently constituted Tribunal.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 17 August 2016
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