AZAAF v Minister for Immigration
[2008] FMCA 1533
•14 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AZAAF v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1533 |
| MIGRATION – Judicial review of Refugee Review Tribunal decision – application for a protection visa – applicant rejected on credit grounds – whether jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.91R, 422B, 424A, 425, 474 & 476 Penal and Criminal Proceedings Laws (Egypt), Article 77 |
| Craig v The State of South Australia (1995) 184 CLR 163 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SZILQ v Minister for Immigration & Citizenship (2007) 163 FCR 304 N1202/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 94 |
| Applicant: | AZAAF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | ADG 58 of 2008 |
| Judgment of: | Lindsay FM |
| Hearing date: | 20 June 2008 |
| Date of Last Submission: | 20 June 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 14 November 2008 |
REPRESENTATION
| Counsel for the Applicant: | Dr Churches |
| Solicitors for the Applicant: | Bourne Lawyers |
| Counsel for the Respondents: | Mr Roder |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Amended Application for Judicial Review filed on 3 June 2008 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 58 of 2008
| AZAAF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of Migration Act 1958 (Cth) (“the Act”) seeking a review of a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate of the Minister not to grant the applicant a protection visa. Section 474 of the Act provides that the Tribunal’s decision is a privative clause decision and therefore not liable to be set aside unless it can be demonstrated to have been vitiated by jurisdictional error as that concept was explained by the High Court in cases such as Craig v The State of South Australia (1995) 184 CLR 163.
The hearing before the Tribunal was the second application for a review from the decision of the delegate of the Minister. The delegate’s decision was made on 30 September 2005. The first decision of the Tribunal (delivered on 9 February 2006) was set aside as having been reached in jurisdictional error by this Court on 5 July 2007.
The second decision, the one the subject of this Application, was handed down by the Tribunal on 14 February 2008.
In relation to this second decision, the Tribunal recorded in its Reasons the summary of the evidence given and claims made before the Tribunal prior to the first decision and to the delegate. There was also a considerable amount of country information before the Tribunal. There were three written submissions made to the Tribunal prior to the oral hearing. Oral evidence was taken from the applicant at the hearing. There was a further written submission received on behalf of the applicant following the oral hearing.
The transcript of both oral hearings was placed in evidence before me.
The applicant is a citizen of Egypt who arrived in Australia on 10 May 2005 on a student visa. He made his application for a protection visa on 24 June 2005.
He claimed that he was entitled to a protection visa because he had a well-founded fear of persecution because of his religion - he was a Coptic Christian; because of his imputed political opinion which arose from his involvement in the conversions of Muslims to Christianity contrary to Sharia Law; and on account of his membership of social groups which were identified as proselytiser to Muslims and his family membership. An additional well-founded fear of persecution on account of imputed political opinion was said to arise from his having applied for the protection visa in Australia as an Egyptian citizen.
The Tribunal, in an exceptionally detailed set of Reasons, rejected the applicant’s claims on credibility grounds. He was disbelieved in relation to a range of issues which were significant to his claim. I do not see any utility in setting out in my reasons the various factual matters over which the Tribunal’s reasons ranged. I will deal with them only in so far as they arise for consideration having regard to the grounds of review that were argued before me on behalf of the applicant.
The applicant relied upon a further Amended Application filed on 3 June 2008. Five grounds were alleged.
The first ground was that the Tribunal fell into jurisdictional error by ignoring relevant information concerning the deaths of the applicant’s father, grandfather and uncle. The applicant’s grandfather was killed in 1988 by the family of a child whom the grandfather had converted from Islam to Christianity. The facts relating to it are summarised at CB 210. The applicant’s uncle helped the niece of his wife who had been taken by force and married to a Muslim. He was arrested and detained and badly treated in prison. Following his release, he died in 2001 (see CB 211). The facts relating to the uncle and grandfather are also referred to in the summary of evidence before the first Tribunal at CB 174-175.
The essential facts of the death of these two family relations were accepted by the Tribunal but it did not consider that either of them gave rise to a well-founded fear of persecution, whether because of membership of the social group of proselytisers or of this particular family. Both of the stories were of individual difficulties arising from involvement with Muslim people in Egypt. However, on the applicant’s own account his own difficulties did not arise until he was aged twenty-five years (in 2004), some sixteen years after the death of his grandfather and three years after the death of his uncle.
The Tribunal said the following at CB 211:
The Tribunal has duly considered the potential cumulative relevance of the evidence regarding the Applicant’s grandfather and uncle. The Tribunal has considered the Applicant’s general claim about being persecuted as a Coptic Christian and has considered whether he might face treatment in Egypt above and beyond that which a Coptic Christian in Egypt might face as a result of his grandfather’s and uncle’s activities accumulating with his own status as a Coptic Christian, or as their relative, or as a combination of his being both, and whether such treatment might amount to persecution.
On the evidence before it, the Tribunal is not satisfied that the Applicant’s situation in Egypt was significantly affected by his grandfather’s or uncle’s situation. On the Applicant’s evidence, his significant problems did not arise until 2003 when he himself became involved with an individual case of assisting perceived apostates from Islam. For reasons given below, the Tribunal gives no weight to those claims. The Tribunal is not satisfied on the Applicant’s evidence that he faces a risk of persecution above and beyond the risk faced by other Coptic Christians for reasons of his status as a Coptic Christian accumulating with his family background and, in particular, his late grandfather’s and late uncle’s past activities.
There was nothing before the Tribunal to indicate that the deaths of either of these family relations had any consequences for the applicant himself. It is not a question of their deaths not having been considered, it is a question of the Tribunal not finding them to be matters to which significant or any weight should be attached in grounding the application for refugee status.
The position with the applicant’s father was rather more controversial. The applicant’s father had died in the period between the first Tribunal hearing and the hearing under review. A death certificate was put before the Tribunal indicating the cause of death as a brain haemorrhage (see CB 111-112). His father had died a little over a year before the applicant gave his oral evidence at the second hearing. The applicant maintained that his father had been arrested, taken to the police station, suffered a beating and had then died at home. A number of important aspects of his account of his father’s death and his knowledge of it were the subject of criticism by the Tribunal. Ultimately the Tribunal accepted that the death certificate was genuine and was “prepared to accept in principle” (see CB 215) that such a cause of death could arise in respect of a beating administered some hours earlier and it did not attach significance to the fact that the death certificate did not purport to deal with the circumstances in which the father died, but the Tribunal otherwise rejected the applicant’s case relating to his father’s death as “concocted” (see CB 215-216).
Questions of weight (his uncle and grandfather) and credibility (his father) are part of the function of the Tribunal and not of this Court. As McHugh J said in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [423], after summarising the claim by the prosecutor that the Tribunal had failed to set out its reasons in that case:
However, this was essentially a finding as to whether the prosecutor should be believed in his claims - a finding on credibility which is a function of the primary decision maker par excellence. If the primary decision maker stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that events had occurred as alleged.
Dr Churches, who appeared on behalf of the applicant, said everything that could have been reasonably expected to have been said on behalf of the applicant in seeking to categorise these weight and credibility findings as being indicia of a failure by the Tribunal to undertake its statutory tasks but, having listened attentively to him and having read the Reasons and the transcript of the second hearing carefully, I cannot view these findings as to the three family members as other than those that were made within jurisdiction and therefore outside the scope of review by this Court.
The Tribunal explained in some detail its reasons for its rejection of the applicant’s account of his father’s death and for its inability to give any weight to the death of his uncle and grandfather. No jurisdictional error arises in respect of the way in which the Tribunal dealt with these issues.
Complaint is made in grounds two and three of the applicant’s Amended Application that the Tribunal failed to make findings as to the likelihood of persecution of the applicant as a member of the social group of Christian proselytisers in Egypt attracting Muslim apostates or that of a social group described as members of a family of Christian proselytisers attracting Muslim apostates.
Particular criticism was directed to the passage at CB 211:
The Tribunal has considered the Applicant’s general claim about being persecuted as a Coptic Christian and has considered whether he might face treatment in Egypt above and beyond that which a Coptic Christian in Egypt might face as a results of his grandfather’s and uncle’s activities accumulating with his own status as a Coptic Christian, or as their relative, or as a combination of his being both, and whether such treatment might amount to persecution.
The complaint was that this was an approach which ignored the applicant’s own proselytising activities. It was looking at the narrower sub-set of the social group, namely the family, but not the broader group of proselytisers of Muslims.
I do not think that to be a fair representation at all of the way in which the Tribunal went about its task. The Tribunal made a key finding at CB 215 that it did not accept that the applicant faced or faces significant relevant harm from Muslim fundamentalists in his community. It reached that conclusion following a series of findings as to the inconsistency of the evidence of the applicant as to the interest of the authorities in him and in relation to a host of other issues significant to his claim.
At CB 211, and shortly following the passage cited above about which complaint is made, the Tribunal finds:
On the Applicant’s evidence, his significant problems did not arise until 2003 when he himself became involved with an individual case of assisting perceived apostates from Islam. For reasons given below, the Tribunal gives no weight to those claims. The Tribunal is not satisfied on the Applicant’s evidence that he faces a risk of persecution above and beyond the risk faced by other Coptic Christians for reasons of his status as a Coptic Christian accumulating with his family background and, in particular, his late grandfather’s and late uncle’s past activities
On the applicant’s own account, his difficulties with the authorities come to a head in September 2004 following the incident which is referred to in significant detail in the summary of the evidence from the earlier Tribunal at CB 175. This is the evidence that leads to the departure of the applicant and his brother from their village, the brother to a monastery and the applicant to a location from which he says he returns from time to time to help out on his father’s farm. It is not as if his status as an individual proselytiser is ignored. His account is acknowledged but rejected on credit grounds.
I should deal at this point with a specific argument advanced by Dr Churches under the aegis of ground one, but which more likely comes under ground two or three or may be a separate ground altogether. It relates to his contention that one of the principal contentions advanced by the applicant - that he suffered torture at the hands of the police in 2004 - was simply not addressed.
The claim is set out at various points in the Court Book. It is in the written submission of the applicant’s agent of 15 August 2007 at CB 95:
After intervention from their lawyer the applicant’s father and Fozy were released but the applicant was held for another 10 days and severely tortured. He required medical assistance on his release.
It is in the summary of the claims of the applicant to the delegate at the first review hearing set out at CB 175 in the second review hearing:
When the applicant returned to the village his father and the convert had been taken by police and when the applicant went to ask about them he was taken too. They did not take his brother who was a monk. A lawyer secured the release of the father and the convert but the applicant was detained for 10 days. He was tortured badly and needed medical attention when released.
It is summarised at CB 207, under the heading of “Findings and Reasons” as follows:
He claims he and his father continued to be targets of police harassment until he himself hid with his brother.
At CB 199 the following claim is noted:
The Applicant claims that one of the beatings he received from the police permanently damaged his hearing.
The reference at CB 207, referred to above at [27], is hardly an indication of the Tribunal responding to that issue specifically. It is not dealt with specifically anywhere in the Reasons. So much must be acknowledged.
But, beginning especially at CB 212, where the “elements of plausibility” in the account of 2004 events which lead to the torture are noted (an account of general events it shared with much of the independent reports of country information), the entire claim of the applicant as to having suffered persecution is scrutinised and rejected. That same passage at CB 212 ends with the words:
However, there are inconsistent and implausible claims in this case, relating in particular as to how the Applicant behaved after he supposedly found himself in trouble with the police and Muslim fundamentalists, that cause the Tribunal significant concern.
I have already eschewed any intention to catalogue the carious components of the claim that are rejected on credit grounds, but they include:
a)changing accounts of the applicant’s father’s involvement in proselytising activities;
b)Father Issahq’s immunity from persecution;
c)the account of the brother’s avoidance of persecution;
d)his account of his post-torture behaviour as a fugitive within Egypt;
e)the circumstances in which his passport was issued;
f)the varying accounts of whether the risk of persecution by police was “local” or otherwise;
g)the inconsistency of his coming to Australia for student visa purposes; and
h)the accounts of the circumstances of the father’s death.
These issues (and others I have not mentioned) culminate in the Tribunal’s findings at CB 218:
On the evidence before it the Tribunal finds that the Applicant is not a witness of truth.
There is a specific finding at CB 215 that:
Due to the Applicant’s lack of credibility in this matter, such as with his evidence about the nocturnal visits to the farm, the Tribunal does not accept that he faced or faces significant relevant harm from Muslim fundamentalists in his community.
It would have been preferable if a specific finding of non-acceptance of having faced or facing significant harm from the police had been specifically addressed but that the aspect of the account of the 2004 events relating to the two girls (their rescue, the arrests and the flight of the brother and the applicant) focussing upon the arrest and torture is noted but rejected cannot seriously be in doubt. It is manifest from the rejection of the whole of the applicant’s account of having suffered persecution or being at risk of further persecution.
The application of the “what if I am wrong” test arising from the decision of the Federal Court in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 (see [60] to [67] in particular) does not arise in the circumstances of this Tribunal, where the rejection of the applicant’s account was whole-hearted and explained in some detail. A reading of the Tribunal’s Reasons does not indicate any real doubt being entertained by the Tribunal such as would require the positing of such a test.
But Dr Churches’ point is broader than that and relies upon a later decision of the Full Court of the Federal Court in N1202/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 94.
That was a case in which one of the applicant’s claims as to fear of persecution related to his role in the conversion of his wife from Islam to his faith of Al-Haqq. The Tribunal did not find positively that the wife had not been converted.
The Full Court of the Federal Court say at [45]:
In determining whether the appellant’s fear that he would suffer persecution, if returned to Iran, was well-founded, the Tribunal had to look at all matters relevant to these issues and ask itself whether there was a real risk that such persecution may occur. Notwithstanding that the Tribunal may not have been persuaded that past facts relied upon by the appellant as the grounds of his fear of persecution had occurred as claimed by the appellant, an assessment of the degree of risk of persecution facing the appellant in future had to have regard to the degree of probability that those past events had occurred as claimed. That is to say, the Tribunal could not exclude relevant matters from its consideration. (See: Kalala v Minister for Immigration & Multicultural Affairs [2001] FCA 1594 per Madgwick and North JJ at [25] - [26].)
And further at [48] and [49]:
Of course, if, by reason of patent inconsistencies of dishonest statements in an applicant’s account, the Tribunal forms a positive view that the applicant is not a credible witness in respect of claimed events, the Tribunal is not bound, as it otherwise would be, to consider whether, if those events had occurred as claimed, there was a real chance that the persecutory events feared by the applicant may occur in the future. (See Abebe per Gleeson CJ and McHugh J at [85]; Guo per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ at 576.)
The question whether the Tribunal has made a decision as required by the Act does not involve inquiry into whether the Tribunal has made correct findings of fact, or has failed to make findings at all. The obligation on the Tribunal is to assess whether there is a real risk that an applicant may suffer persecution in future taking into account the possibility that the applicant may have experienced the events claimed before the Tribunal. Only if the Tribunal has reached a positive conclusion that such events did not occur, supported by reliance upon material that justifies that conclusion, may the Tribunal refuse to consider at all material that would otherwise be relevant to the assessment of whether there was a real chance that the applicant may suffer persecution and whether the applicant’s fear of persecution was a well-founded fear.
This leads to the conclusion at [57]:
The ultimate question that the Tribunal should have addressed was whether there was a real risk of future persecution. (See: Abebe v Commonwealth [1999] HCA 14; [1999] 197 CLR 510 per Gummow, Hayne JJ at [192], [199].) Given the quantified way in which the Tribunal dealt with claimed past events, the law required the Tribunal to consider possible eventualities for the appellant if the asserted events were assumed. For example, the Tribunal had to consider what the reaction of the authorities would be to the appellant’s role in converting his wife from Islam to Al-Haqq or indeed, having regard to the circumstances as otherwise found by the Tribunal, whether the authorities would come to know of his wife’s conversion and of his role. If there was a risk that the authorities may learn of the wife’s conversion and the role of the appellant would they view it as a matter of some seriousness? If so, what would the authorities do to the appellant? Might they inflict harm amounting to persecution? The Tribunal does not discuss any of these matters and it is to be concluded that it did not consider them. (Yusuf per Gleeson CJ at [10].) Its failure to do so evidences a misunderstanding of the law and a failure to have regard to relevant considerations and ground for review arises under s.476(1)(b), (c) or (e) of the Act. (Yusuf per McHugh, Gummow and Hayne JJ at [85].)
The applicant’s point is that by focussing upon strident criticism of certain aspects of the applicant’s case - the father’s death, the role of the priest, for example - the Tribunal overlooked its principal task of answering the question as to whether this applicant faced persecution on account of his membership of the proselytisers of apostates group or proselytisers of apostates family group. It is not so much the recognition of a need to ask “what if I am wrong” about a particular aspect of the claim advanced, so much as not allowing those matters to lead to a failure to ask the more fundamental questions relating to the applicant’s claim for refugee status.
It is in this sense that claims not accepted make their way back into the equation by the possibility of them being true being posited against the background of the broader task of asking if a risk or persecution exists by reason of membership of the group.
But, even so understood, I am not persuaded that there is force in that argument here. There is none of the ambiguity such as was associated with the Tribunal’s findings in N1202/01A v Minister for Immigration & Multicultural Affairs (supra) as to the applicant’s role in the wife’s conversion. The Tribunal in that case had some doubt as to its findings in that regard and only rejected it, in any event, as an “additional” risk. The Tribunal in that case did not address its rejection of the relevant evidence in any detail.
Quite the opposite maintains here. The rejection of the applicant’s claims are thorough-going and severe. It culminates in a rejection of him as “a witness of truth” (CB 218). It is a general rejection of his account following upon a very detailed rejection of individual pieces of his story. It is not to the point to decry the “nit-picking” of the applicant’s account or the “nibbling away” of the applicant’s story by the Tribunal when it is the degree of rejection of his account - how many different aspects there are which are not accepted - which is the very heart of the rejection of the basis claim for refugee status itself. As the passage from N1202/01A v Minister for Immigration & Multicultural Affairs (supra) itself makes clear (see [39] above), there is no need in such circumstances to ask the “what if true” question.
Grounds two and three are not made out.
The fourth ground of alleged jurisdictional error was related to the suggestion that the applicant would be at risk from harm on account of his having applied for refugee status whilst an Egyptian national. The relevant section of the penal and criminal laws in Egypt is set out at CB 100-101. In material provided with the written submission of 15 August 2007 the applicant provides an opinion of a Mr Morcos who is described as a former senior lawyer in Egypt’s High Court of Appeals and Court of Administrations. The lawyer’s opinion is summarised at CB 197 as follows:
It is our opinion that by claiming refugees status one is directly implying the State is not fulfilling its responsibilities to its citizens and that this can be interpreted that you are slandering the state.
The relevant part of the Penal and Criminal Proceedings Laws (Egypt), is Article 77 Section D(1), which provides:
… anyone who seeks refuge with a foreign country or any party that is working for that [country’s] interest or has become an informer for that country or that party and as a result causes harm to the military, political, diplomatic or economic standing of Egypt will be punished by imprisonment if [the] crime [is] committed during peace time or hard labour (temporary) if [the] crime [is] committed during war.
This claim is addressed in the Reasons at CB 209 and rejected. The Tribunal was not prepared to assume in the absence of evidence that the Egyptian authorities would be aware of his having sought refugee status and, fairly in my view, characterised the risk to the applicant as “largely speculative”.
But, in any event, the way in which this matter was raised before me was on account of unfairness said to be related to the fact that it was not a matter that had been dealt with by the delegate of the Minister in the original determination. It was a matter that arose for the first time at the second hearing. Effectively the complaint was that the applicant did not have the opportunity to answer to a matter that concerned the Tribunal but which was not raised before the delegate. Reliance was placed upon the High Court decision of SZILQ v Minister for Immigration & Citizenship [2007] FCA 942. That was a decision of a single Judge of the Federal Court allowing a review (and an appeal from a Federal Magistrate dismissing the review) on account of a failure to allow an applicant to give evidence and make arguments in relation to a finding by the Tribunal pursuant to s.91R(3) of the Act that he had begun to practise Christianity in Australia in order to advance his claim for a protection visa.
Buchanan J in the Federal Court reached his conclusion notwithstanding his finding at [24] as follows:
Ultimately the burden under s.91R(3) lay on the appellant to satisfy the RRT about his motivation before the RRT was permitted to pay any regard to his conduct in Australia, which is the issue upon which the appeal has been focussed. The second ground of appeal cannot be sustained either, having regard to the terms of s.91R(3). It was, as I have said, ultimately a matter for the appellant to satisfy the RRT about his motivation.
He reached his decision on account of his understanding of the Tribunal’s obligation under s.425 of the Act.
Section 425(1) of the Act provides:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arsing in relation to the decision under review.
His Honour concludes at [32]:
On the authority of SZBEL, where a matter is one of ‘the issues arsing in relation to the decision under review’ s.425(1) of the Act requires an invitation to appear ‘to give evidence and present arguments relating to’ the issue. The question of the appellant’s motivation was obviously an issue in the case because, although he evidently wished his claimed practice of Christianity in Australia to be taken into account, s.91R(3) required his conduct in Australia to be disregarded unless he satisfied the RRT about his motivation. The opportunity to give evidence and present arguments at an oral hearing was not afforded in the present case in relation to that issue… An additional element then emerged, in respect of which the appellant had not been given an opportunity to give evidence and present arguments at an oral hearing. In those circumstances the obligations under s.425(1) were not fully met.
Incidentally, His Honour was not troubled by s.422B in coming to this conclusion. He says at [35]:
I am satisfied in this case that the RRT failed to afford procedural fairness to the appellant. The question is not foreclosed by s.422B (which codifies the ‘natural justice hearing rule’ for the purpose of the RRT proceedings) because the obligation to afford procedural fairness arose from the terms of, and interaction between, s.91R(3) and s.425(1).
All of this is far removed from the circumstances of this case. Firstly, the argument was pitched as a failure to comply with s.424A. That section provides:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reasons, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies - by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention –by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non-disclosable information.
Clearly s.424A(3)(b) applies. This was information supplied to the Tribunal on behalf of the applicant.
No s.425(1) issue arises as the claim that the applicant would suffer persecution on account of having applied for a protection visa was advanced squarely by the applicant himself. It was advanced and rejected.
In any event, s.422B(1) deals with any procedural fairness issue arising on account of the provisions dealing with the conduct of the hearing:
This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
There are now two separate Full Court decisions clarifying the purpose of the provision: Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214 and SZCIJ v Minister for Immigration and Multicultural Affairs & Anor [2006] FCAFC 62.
Ground four is not made out.
The last ground argued is reliant on a reading of the transcript of the oral hearing conducted by the Tribunal on 4 April 2008. (The transcript of both hearings was before me.) It is submitted that a reading of the transcript indicates a failure on the part of the Tribunal to actually conduct the hearing that is contemplated by s.425 of the Act. It is not a submission suggesting apprehended bias or actual bias as such; certainly, the applicant says that both forms of bias are apparent at times - an actual predisposition to find against the applicant or one that a reasonable observer could infer. It is, rather, a submission to the kind of failure to actually conduct the hearing that the Tribunal was obliged to conduct, which failure is discussed by the Full Court of the Federal Court in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264, and, in particular, by Allsop J in an especially trenchant passage at [136].
This was especially evidenced, it was submitted, by the way the Tribunal dealt with the issue of the death of the applicant’s father and the conclusion it drew about the apparent immunity of the local priest - Father Issahq, who wrote a letter about the father’s death - from persecution by the authorities.
Father Issahq’s letter is referred to at CB 216-217. It is said not to add any “plausible, detailed information” to the account of the father’s death. The critical contention in the letter - that the father died as a consequence of police brutality - is said to be “not argued in convincing detail”.
The letter itself is set out at CB 119. I do not think the Tribunal’s summary of the effect of the letter is so unusual or extraordinary as to be an index of a failure to conduct a proper hearing, or that it even contributes in any way to such an impression. That part of the letter dealing with the death of the father is lacking in detail. Other members of the Tribunal may not have come to the same conclusion or expressed themselves in the same way. But it does not indicate error, let alone jurisdictional error.
The letter is also referred to at CB 217 in a different context. The Tribunal during the oral hearing makes much of Father Issahq being (apparently) able to operate free from persecution by the authorities. This general criticism of the role of the priest in the applicant’s case is set out at CB 213. The letter is referred to at CB 217 as indicating the author’s apparent removal from participating in the events he was describing.
The role of the priest and that role being inconsonant with his immunity from persecution is a matter that the Tribunal gives particular attention. The transcript indicates that fact clearly - though I should note that I do not necessarily think that the reference at CB 213 to the priest being a person whom police and fundamentalists held “responsible” for conversions and kidnappings is based upon the applicant’s own use of that word at page 10 of the transcript (see CB 195 for earlier references to the involvement of the priest). Others may think that the Tribunal gave this issue inordinate weight. It does not impress me as having the singular impact the Tribunal thought it had, but that is not the test here. I am not reviewing the decision on merits. I can see the issue as being a matter that properly drew the attention of the Tribunal, even if I disagree about the weight given to it.
The same can be said about what the transcript reveals of the weight the Tribunal gave to the applicant’s lack of knowledge of how long his father was held at the police station prior to his going home and dying. More weight is given to it than seems appropriate. But the matter itself is not an irrelevant consideration.
Those matters must be seen in their cumulative impact, too, to do justice to Dr Churches’ submissions on this point but, even doing that, I do not see those matters as evidencing a failure to carry out the fact-finding task contemplated by s.425 of the Act. They were not isolated credit criticisms. Many other aspects of the applicant’s case were also rejected on credit grounds.
Ground five is not made out.
No ground of jurisdictional error having been made out, the application will be dismissed.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate: Ms N. Julius
Date: 14 November 2008
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