BAJ15 v Minister for Immigration
[2018] FCCA 130
•25 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAJ15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 130 |
| Catchwords: MIGRATION – Application for review of former Refugee Review Tribunal decision – whether the Tribunal erred by equating the migration agent’s submissions with evidence from the applicant upon which to base adverse credibility findings – whether the Tribunal made findings without providing reasons for those findings – whether the Tribunal breached s.424A and 424AA of the Act by not informing the applicant on a second occasion that he could seek further time to comment on or respond to the relevant information – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.424AA, 424A, 430, 476 |
| Cases cited: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 |
| Applicant: | BAJ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1616 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 8 August 2017 |
| Date of Last Submission: | 8 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 25 January 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr J R Young |
| Solicitors for the Applicant: | Shiba Legal |
| Solicitors for the Respondents: | Ms S Burnett of Clayton Utz Lawyers |
ORDERS
The application made on 16 June 2015 and amended on 26 August 2015 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1616 of 2015
| BAJ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 16 June 2015, and amended on 26 August 2015, seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) which, on 18 May 2015, affirmed a decision of the Minister’s delegate to refuse a protection (Class XA) visa to the applicant.
The evidence before the Court is as follows:
a)A bundle of relevant documents filed by the Minister and tendered by the applicant (“the Court Book” – “CB”, “AE1”).
b)The affidavit of Samir Shiba of Shiba Legal, made on 26 August 2015 which annexes a transcript (“T”) of the hearing before the Tribunal.
c)Pages 41 and 46 of the hearing before the Tribunal were tendered by the applicant at the hearing, as those pages were not included in the annexures to the affidavit of Samir Shiba (“AE2”).
Background
The applicant is a citizen of Iran and is of Arab ethnicity and Shia Muslim religion (CB 33). He arrived in Australia as an “irregular maritime arrival” on 22 July 2012, and applied for the protection visa which was received by the Minister’s department on 7 February 2013 (CB 20 to CB 96). The applicant’s claims to fear harm were contained in a Statutory Declaration made by him on 21 December 2012 and included in the application for the visa (CB 47 to CB 49).
The applicant claimed to fear harm from the Iranian authorities, including the Basij (a paramilitary organisation functioning under the Islamic Revolutionary Guard), on the basis that he was a member of the “ethnic minority Ahwazi Arab” in Iran. The applicant claimed that this ethnic minority is “discriminated against … in all areas and levels of government and public services” including education, employment and health services. Further, that they are not given access to “adequate” water or sanitation ([3] – [5] at CB 47).
The applicant also claimed to have been “continually harassed and humiliated” in public and at work by the Basij. The applicant claimed that in 2011, he was at a park waiting for his girlfriend which was raided by the Basij, and he was forced to lie on the ground and was “kicked and insulted”, and the Basij placed a baton in his mouth and made “sexual gestures” which humiliated the applicant “in front of the public” ([6] at CB 47).
The applicant claimed that in 2012, he was stopped by the Basij at a checkpoint while riding his motorbike, and they then asked to see “the documents for [his] motorbike”. The applicant complied, but then one member of the Basij said that he could not pass as he was wearing a “short sleeve t-shirt”. The applicant was then physically assaulted and “beaten with batons on [his] legs, chest/ribs and head”. He claimed that he was “bleeding so badly” as a result, that passers-by took him to the hospital where he received 11 stitches to his head and was forced to take a week off work ([7] at CB 48).
The applicant also claimed to have been discriminated against at work on the basis of his ethnicity since 2007, and after returning to work after the incident in 2012, “the harassment became even worse”. As a result, the applicant was forced to leave his employment “without severance pay” although he was “very skilled” at his job ([8] – [10] at CB 48).
In mid-June 2012 four Ahwazi Arabs were accused of murdering an Iranian official. Three of them were subsequently executed and one was sentenced to life imprisonment. The applicant claimed that 1,500 people went to their tombs to pray for them, however he did not go as he was too scared. The applicant then claimed that they were filmed by “informers to the Basij” and the following night 40 of the people who went to pray were arrested and the applicant did not know what happened to them ([11] at CB 48). The applicant claimed to have then fled Iran “due to the continual verbal and physical harassment by the Basij and [the] Sepah” and the “discrimination” he suffered “in all aspects of his life” ([11] – [12] at CB 48).
The applicant attended an interview with the delegate on 2 September 2013 (CB 118.5). The delegate considered the applicant’s claims on the basis of race and imputed political opinion as a result of having sought asylum in Australia (CB 122.6). The delegate refused the grant of the visa on 16 October 2013, and the applicant was notified by letter of the same date sent to his representative authorised to receive correspondence on his behalf (CB 110 to CB 130).
The applicant applied for review to the Tribunal on 15 November 2013 (CB 131 to CB 137). The applicant was invited to, and attended, a hearing before the Tribunal on 16 January 2015 (CB 168 to CB 174). The applicant’s representative sent written submissions and further supporting documentation to the Tribunal prior to the hearing on 31 March 2014 and 23 September 2014 (CB 141 to CB 167). The applicant’s representative also sent post-hearing written submissions to the Tribunal on 13 February 2015 (CB 183 to CB 188).
The Tribunal affirmed the delegate’s decision on 18 May 2015 and the applicant was notified by letter sent to his representative authorised to receive correspondence on his behalf on 19 May 2015 (CB 189 to CB 211). The Tribunal noted that the applicant claimed to fear harm on the basis of race, political opinion and membership of a particular social group (failed Iranian asylum seeker), and further, at the hearing before the Tribunal, the applicant made a new claim to have converted to Christianity ([16] at CB 194 to [18] at CB 194 to CB 195). Further, the applicant’s supporting documents sent to the Tribunal on 23 September 2014, also indicated that the applicant’s brother had been detained in Iran and questioned about the applicant’s whereabouts, and that his brother was subsequently beaten by the authorities but released ([17] at CB 194 and [64] at CB 202 to [70] at CB 203).
The Minister’s written submissions, filed on 4 August 2017, contain a summary of the Tribunal’s decision. I am satisfied that it is a fair summary and I adopt the relevant paragraphs for the purposes of this judgment as follows ([10] – [16] of the Minister’s written submissions):
“[10] The Tribunal did not accept that the applicant was a truthful witness. It considered that the applicant fabricated some of his claims and embellished others for the purpose of the application for protection. It also found the applicant’s evidence in relation to his conversion to Christianity and in relation to his brother’s arrest unconvincing, and that his claims for protection as a failed Iranian asylum seeker were not supported by country information.
[11] As to his claims regarding his Arab ethnicity, the Tribunal:
(a) did not accept that the applicant was unable to obtain employment in the public sector in Iran because of his Arab ethnicity. Although the Tribunal accepted that the applicant was not allowed to speak Arabic at work and that people made derogatory comments to him, it did not accept that the applicant was singled out for harassment by the Basij at work or that they made false reports against him. It also did not accept that the Basij invited the applicant to join them. Nor did it accept that the applicant had no option but to leave his job because of harassment from the Basij, or, alternatively, that his employment was terminated by the Basij;
(b) did not accept that the applicant arranged to meet his girlfriend in the park in 2011. Accordingly, it did not accept any of the applicant’s claims in relation to the incident involving the Basij;
(c) accepted that the applicant was stopped by the Basij at a checkpoint in February 2012. It also accepted that he was harassed by one of the Basij in relation to what he was wearing. However, it did not accept that he was stopped or harassed because of his Arab ethnicity. It also did not accept that he was severely beaten or that he was forced to take a week off work because of the assault;
(d) did not accept that the applicant’s brother was arrested, detained and tortured for the purpose of obtaining information about the applicant and his sister;
(e) accepted that the applicant has been discriminated against because of his Arab ethnicity. However, it was not satisfied that any discrimination the applicant was subjected to because of his Arab ethnicity amounted to persecution. It also did not accept that the applicant left Iran because of this harassment by the Basij, Sepah or any other Iranian authority. Nor did it accept that the applicant is of adverse interest to the Iranian authorities because of his Arab ethnicity.
[12] As to the applicant’s actual or imputed political opinion, the Tribunal:
(a) accepted that he did not participate in any political activities in Iran or in Australia. It also accepted that he was not involved in the June 2012 incident involving the murder of an Iranian official. Although the Tribunal accepted that the applicant was frightened by the potential consequences of the incident, it did not accept that he made arrangements to leave Iran because he feared persecution after this incident;
(b) did not accept that the applicant would be imputed with being anti-governmental or a political activist because:
(i) of his Arab ethnicity; and/or
(ii) he is an Arabic speaker; and/or
(iii) he left Iran and was outside Iran for a number of years; and/or
(iv) he sought asylum in Australia.
(c) therefore did not accept that the applicant was of adverse interest to the Iranian authorities by reason of his actual or imputed political opinion.
[13] As to the applicant’s claims regarding his interest in Christianity, the Tribunal:
(a) accepted that the applicant attended Church on several occasions and was curious about Christianity and interested in ‘researching’ it. However, it did not accept that he was a genuine convert to Christianity and that he had a commitment to practising Christianity in Australia or in Iran;
(b) did not accept the he informed his family or his friends that he is a Christian. The Tribunal also did not accept that he had been threatened by friends because of his alleged conversion to Christianity. It therefore did not accept that the applicant would be persecuted for his conversion to Christianity if he returns to Iran.
[14] As to the applicant’s claim that he will be persecuted as a failed asylum seeker if he returned to Iran, the Tribunal considered independent country information and:
(a) found that the applicant did not leave Iran for the reasons he claimed and that he was not of adverse interest to the Iranian authorities for the reasons he claimed;
(b) accepted that the Iranian authorities may suspect that the applicant had sought asylum in Australia in light of his long absence from Iran. However, it did not accept that the Iranian authorities would necessarily impute him with an adverse profile or opinion for this reason;
(c) accepted that the applicant may be detained for a short period and questioned at the airport as he would be returning on a different travel document to the one on which he left the country. However, it was not satisfied that this detention would constitute persecution under the Refugees Convention. It was therefore not satisfied that the applicant would face serious harm by reason of his membership of a particular social group, being a failed asylum seeker returning to Iran.
[15] Having considered the applicant’s claims, individually and cumulatively, the Tribunal was not satisfied that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real chance or a real risk that he will suffer harm on the grounds of his race, actual or imputed political opinion, religion, or membership of a social group or any other Refugee Convention reason if he returns to Iran now or in the reasonably foreseeable future.
[16] Accordingly, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia owes protection obligations in accordance with sections 36(2)(a) or (aa) of the Act.”
[Footnotes omitted.]
Before the Court
The applicant, through his representative, appeared before a Registrar of the Court on 9 July 2015 and 4 February 2016. By orders made by consent on 9 July 2015, amongst other things, the applicant was given the opportunity to file any amended application. The applicant did so on 26 August 2015. By orders made by consent on 4 February 2016, the matter was set down for final hearing before me on 30 March 2017, and both parties were required to file written submissions prior to the hearing. The matter was subsequently relisted for hearing on 8 August 2017, and the time for the filing of written submissions was extended by consent, by orders made on 28 July 2017.
The Application to the Court
The grounds of the amended application to the Court are in the following terms:
“1. The Second Respondent made jurisdictional error by equating submissions of a migration agent with evidence of the Applicant on which to base credibility findings in relation to inconsistencies.
Particulars:
Paragraphs [32], [34] and [37] at CB 107 (pg 7 of 21) and CB 108 (pg 8 of 21).
2. The Second Respondent made jurisdictional error by engaging in capricious and unreasoned fact-findings.
Particulars:
Throughout the Decision Record, the Second Respondent states that it accepts some claims or evidence, or that it does not accept some claim or evidence. In the absence of any underpinning reason, such decision-making is capricious.
3. The Second Respondent failed to consider whether discrimination against the Applicant (which it accepted) could amount to persecution pursuant to section 91R(1) and (2) of the Migration Act 1958 (“The Act”).
4. The Second Respondent constructively failed to exercise jurisdiction in relation to the Applicant’s claims under the complementary protection provisions and thereby made jurisdictional error.
5. The Second Respondent made jurisdictional error in that it failed to comply with the requirements of sections 424 A and 424 AA of The Act by failing to:
c. Provide clear particulars (at transcript 40 and following) of the information.
d. Explain the relevance and consequences of the information being relied upon other than to state that the information could lead to a conclusion that the applicant was not a refugee.
e. At the point which was appropriate (being when the applicant was asked to comment) advise the applicant that he could seek additional time.”
At the hearing, the applicant was represented by counsel and the Minister by a solicitor. The applicant indicated that he would not be pressing grounds three and four of the amended application.
Consideration
Ground one is based on the proposition that there is, for the purposes of review by the Tribunal, a difference between evidence given by an applicant, and submissions made on his behalf by a migration agent.
In the current case, the applicant argues that the Tribunal fell into jurisdictional error because it treated submissions made by his migration agent as being “akin” to evidence given by the applicant.
The applicant submits that the Tribunal compared certain submissions made by the applicant’s representative, with evidence given by the applicant, and found inconsistencies. It is submitted that the Tribunal then used these inconsistencies to find adversely to the applicant’s credit ([4] of the applicant’s written submissions filed on 28 July 2017).
The applicant’s submissions directed attention to [32] (at CB 197), [34] (at CB 197) and [37] (at CB 198) of the Tribunal’s decision record ([4] of the applicant’s written submissions).
At [32] (at CB 197) the Tribunal compared post-hearing written submissions made by the applicant’s migration agent dated 13 February 2015 (CB 184 to CB 186), with “previous” written submissions made by the agent on 31 March 2014 (CB 143 to CB 159), in relation to the circumstances of the applicant leaving his employment (see in particular [2] at CB 184 and [19] at CB 146).
In short, in the written submissions dated 31 March 2014, the assertion was that the applicant was “fired” from his employment after refusing to join the Basij. In the later written submissions (13 February 2015), the assertion was that he left his employment voluntarily. These inconsistencies raised concerns for the Tribunal in relation to the credibility of the applicant’s claims as indicated at [32] (at CB 197), [34] (at CB 197) and [37] (at CB 198).
At [34] (at CB 197) the Tribunal again compared the two sets of written submissions and found inconsistency as to the reason for the applicant losing his employment.
At [37] (at CB 198) the Tribunal found inconsistency in what the applicant claimed in his visa application, regarding the denial of employment opportunities for Arabs in Iran, and the written submissions of 31 March 2014, by his migration agent, which asserted that the applicant commenced employment with a government organisation in January 2007.
The applicant’s submission now is that such comparisons involving submissions made by his migration agent, provide a basis to find legal error. This is particularly in circumstances where the Tribunal relied on the inconsistencies to find adversely to the applicant’s credit.
The applicant’s submission sought to draw a qualitative distinction between on the one hand, a comparison by the Tribunal of an applicant’s own evidence upon which to base an adverse credibility finding, and on the other, the comparison by the Tribunal of submissions by a migration agent from which inconsistency arises.
The applicant argues that the Tribunal fell into jurisdictional error in making an adverse credibility finding against the applicant, by relying on inconsistencies said to arise from submissions made by his migration agent.
In short, the legal error is said to be that the Tribunal considered the migration agent’s submissions as if they were given in evidence by the applicant himself, and found adversely to his credit on this basis. The finding as to the applicant’s credit was a finding “personal” to the applicant. That is, it went to the matter of his integrity. The argument was that an applicant’s credit should not be impugned on the basis of material provided by another person.
In his submissions before the Court, the applicant acknowledged that in the context of considering an applicant’s claims to fear harm, the Tribunal must have regard to claims made in written submissions, including by a migration agent. This is consistent with authorities such as Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 and Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67.
However, the applicant’s argument sought to draw a distinction between that circumstance (above at [28]) and the current case, where the Tribunal did not rely on evidence given personally by him to find adversely to his credit, but relied on something said by his migration agent. The Tribunal failed to differentiate between the migration agent’s submissions, and the applicant’s evidence, to make findings impugning the applicant’s integrity.
The applicant also explained in submissions before the Court that while the Tribunal is entitled to assume that the migration agent’s submissions were made on the basis of “authority” from the applicant, it is not entitled to treat submissions made by a migration agent, and evidence by the applicant, as being the same see ([5] – [6] of the applicant’s written submissions).
This was explained as being because there is always the possibility of a mistake or “misunderstanding” where a third party (the migration agent) makes statements about an applicant’s claims or evidence.
The applicant was unable to refer to any authority to support the underlying proposition in his argument, or the various elements of that argument.
I do not agree with the applicant that the Tribunal’s approach in the current case reveals jurisdictional error.
First, the applicant emphasised in his argument that the Tribunal’s findings were findings about him personally, that is, involving his integrity. However, the actual relevant findings made by the Tribunal at [32] (at CB 197) and [34] (at CB 197) (the final sentence of each paragraph are identical) were as follows:
“These inconsistencies raise concerns in relation to the credibility of the applicant’s claims”.
That is, the Tribunal properly understood that the migration agent was seeking to make submissions about the applicant’s claims. Its findings were directed to the credibility of those claims.
At [37] (at CB 198) the Tribunal’s relevant finding is expressed as:
“This inconsistency raises concerns in relation to the applicant’s credibility”.
This finding is about the applicant, as opposed to his claims. However, at [37] (at CB 198), the comparison giving rise to the inconsistency was not as in [32] (at CB 197) and [34] (at CB 197) as between two sets of written submissions, but between what the applicant himself claimed in his protection visa application, and the migration agent’s written submissions dated 31 March 2014.
First, and in relation to [37] (at CB 198), and in context, there was no error in assessing the applicant’s own stated claims in relation to employment opportunities for Arabs in Iran, in light of submissions made on his behalf by his migration agent.
Second, and relevant to all of the findings of inconsistency, there is nothing in the evidence before the Court to say that the migration agent acted contrary to instructions given to her by the applicant.
Third, the Minister took the Court to a reproduction of a signed “Declaration” made by the applicant as follows (CB 159):
“Declaration regarding submission
See paragraphs 6 and 9 of RRT Practice Direction (September 2013)
I declare that the submission dated 31 March 2014 set out on the preceding 16 pages has been read or explained to me and that it accurately and completely presents my claims. This declaration extends to new / varied / developed claims set out in this submission (if any).
Date: 31/3/2014
[Signature]
…………..
[Name of applicant]
The submission dated 31 March 2014 set out on the preceding 16 pages and the above declaration was read or explained to the above named with the assistance of an interpreter from the Translating and Interpreting Service (TIS National) (‘TIS’) identified below.
Interpreter’s TIS ID: 6481
TIS job number: 140291081.”
In short, the applicant adopted, confirmed, and endorsed, the migration agent’s written submissions of 31 March 2014. Therefore, to the extent that the Tribunal relied on the submissions in each of [32] (at CB 197), [34] (at CB 197) and [37] (at CB 198), the Tribunal was entitled to proceed on the basis that what was said in those written submissions represented the applicant’s claims, and “evidence”.
Fourth, at [37] (at CB 198), the Tribunal compared what was said in the written submissions of 31 March 2014 (adopted and confirmed by the applicant), with what was contained in his protection visa application.
In this regard, the transcript of the Tribunal hearing provided to the Court by the applicant reveals as follows (T11 line 32 to T12 line 5):
“[Member]: Now, you lodged an application for a protection visa on the 7th of February 2013. Did your migration agent prepare your visa application?
[Applicant]: Yes.
[Member]: Did you provide your migration agent with the information to do so?
[Applicant]: Yes.
[Member]: And is the information you provided true and correct?
[Applicant]: Yes.
[Member]: Are you satisfied that your visa application is accurate and complete?
[Applicant]: Yes. That is my lawyer I trust.
[Member]: Do you want to make any changes to your visa application?
[Applicant]: No. That is my application.”
Therefore at [37] (at CB 198), the Tribunal was “comparing” “like with like”. That is, comparing written submissions with written submissions, and oral evidence with oral evidence (that is, not comparing written submissions with oral evidence).
Fifth, as set out above, at [32] (at CB 197) and [34] (at CB 197) the Tribunal also referred to post-hearing written submissions dated 13 February 2015 to find inconsistency, which led to concerns about the credibility of the applicant’s claims (see CB 184 to CB 186).
The answer to the applicant’s argument now is to be found with reference to the following.
At the hearing, the Tribunal raised with the applicant its concerns it had with certain aspects of his claims. In particular, the inconsistencies that the Tribunal found in the applicant’s claims and evidence.
The migration agent was present at the hearing, and recognised that the Tribunal considered the inconsistencies to be relevant to its consideration as follows (T46 lines 30 to 43):
“[Migration agent]: Thank you. Could I ask for some time just to speak with my client, not necessarily now, but just to go over the concerns that you’ve put to him today and see whether there was anything further that he wanted to add to that and provide that to you in writing by two weeks time?
[Member]: That’s fine. I will give you till the 30th of January to make those submissions.
[Applicant]: 13?
[Member]: 30. So, Mr [applicant], I’ve given your migration agent two weeks from today to – if she wishes to talk to you and provide any further submissions, it has to be done by the 30th of January. So I won’t make any decision until after that date. Thank you…”
The written submissions of 13 February 2015, although written by the applicant’s migration agent, begin with the words (see [1] at CB 184):
“Further to his Tribunal hearing of 16 January 2015, the Applicant would like to provide the following information in support of his application for a Protection (Class XA) visa.”
Those words speak for themselves. There is no evidence before the Court now to say that the migration agent did any more than attempt to put before the Tribunal the applicant’s own explanation for the inconsistencies put to him at the hearing. I agree with the Minister that this also represents “evidence” given by the applicant to the Tribunal, albeit through his migration agent.
Ultimately, the Tribunal’s findings impugned by ground one were all reasonably open to the Tribunal to make on what was before it. In the circumstances set out above, given the confirmation or endorsement of what was set out in the written submissions by the applicant, the distinction the applicant’s argument seeks to raise does not assist in making out ground one. Ground one does not reveal jurisdictional error.
Ground two asserts that the Tribunal’s decision is affected by jurisdictional error because it made “capricious and unreasoned” findings of fact. The particulars explain that throughout its decision record, the Tribunal stated that it “accept[ed] some claims or evidence”, or “[did] not accept some claim (sic) or evidence”. The complaint is that it did so in the absence of any “underpinning” reasoning, thus rendering the decision “capricious”.
The applicant’s written submissions directed attention to [90] (at CB 207) to [98] (at CB 208) and [100] (at CB 208) to [101] (at CB 208 to CB 209). The argument was that under the heading of “Findings” (at CB 207.2), the Tribunal set out a series of paragraphs that simply state whether the Tribunal accepted, or did not accept, various aspects of the applicant’s claims and evidence.
The applicant submitted that s.430 of the Act obliges the Tribunal to give reasons for its findings of fact, and to identify the material on which those findings of fact are based. In short, the applicant submits that the Tribunal has not done so. The inference that can be reasonably drawn is that it has failed to engage in an “active intellectual process” in relation to the applicant’s claims and evidence.
The applicant explained that there may have been material before the Tribunal on which to base its findings, but each of the impugned paragraphs does not provide any link to that material.
The applicant further explained that while those paragraphs made reference to “having considered the above claims and evidence” ([96] and [99] (at CB 208) and [102] (at CB 209)) there is no direct link, or explanation, in any of the paragraphs, to those claims or evidence.
In cases of this type, it is often the case that references are made to the High Court’s statement in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”) at [31] as follows:
“…the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court…”
[Footnotes omitted.]
Before the Court, the applicant’s submissions appeared to confine the understanding of what the High Court said in Wu Shan Liang to matters of “mere looseness of language” or “unhappy phrasing” (see Wu Shan Liang at [30] – [31]) .
While in Wu Shan Liang the High Court did refer to such language in Tribunal decisions as indicated above (at [58]), I respectfully understand that the essence of what was said by the High Court was that Tribunal decisions are to be read fairly. This includes holistically, such that any “looseness” of language is to be understood in the context in which it appears. Of course, this does not mean that a fair reading can excuse any ambiguity as explained in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26] as follows (see also AHX15 v Minister for Immigration and Border Protection [2015] FCA 1183 at [24]):
“The Minister urged a ‘beneficial’ construction of the Tribunal’s reasons and referred to comments made in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, in particular at 271-272. The phrase ‘beneficial construction’, as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal’s reasons be resolved in the Tribunal’s favour. Rather, the construction of the Tribunal’s reasons should be beneficial in the sense that the Tribunal’s reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a ‘beneficial’ approach to the Tribunal’s reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal’s comments suggest that the issue was overlooked.”
I do not agree with the applicant’s proposition that the Tribunal’s decision does not reveal the basis for the conclusions expressed at the impugned paragraphs. The Tribunal’s conclusions arise from the materials set out previously in the decision record from [12] (at CB 193 to CB 194) to [88] (at CB 207).
The heading at Court Book page 193.4 is expressed as: “Consideration of Claims and Evidence and Findings”. The Tribunal then proceeds to set out a summary of the applicant’s claims, including what was put before the delegate, and various written submissions ([12] at CB 193 to CB 194 to [20] at CB 195). Having properly addressed the question of nationality (see [21] - [23] at CB 193), the Tribunal then set out its consideration of whether Australia had protection obligations to the applicant, firstly, under the Refugees Convention.
The consideration under each of the following headings in relation to that question, addresses the various claims (and evidence) given by the applicant: “[d]iscrimination against ethnic Arabs” (CB 196.2), “[i]mputed political opinion” (CB 199.3), “[c]onversion to Christianity” (CB 199.9), “[f]ailed asylum seeker” (CB 202.1), “[d]etention of his brother in Iran” (CB 202.2), “[c]ountry information” (CB 203.5) and “[f]indings” (CB 207.3).
The “active intellectual process” that the applicant says is missing from the impugned paragraphs is to be, in my view, plainly found under each of these headings.
The Tribunal was not required to repeat in detail in the impugned paragraphs, what it had clearly and comprehensively set out previously.
A breach of s.430 of the Act does not of itself reveal jurisdictional error (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham[2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407 at [70] and Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 at [85]). Nor did the applicant submit this to be the case. Rather, the applicant relied in part on s.430 of the Act to demonstrate that the Tribunal had failed to engage in an “active intellectual process” in relation to its tasks, thus revealing “capricious and unreasoned” decision-making.
However, on a plain, let alone a fair reading of the Tribunal’s decision record, the Tribunal did comply with s.430 of the Act. It set out its decision on the review in a written statement (s.430(1)(a) of the Act). It set out the reasons for the decision (s.430(1)(b) of the Act and see [1] (at CB 192) to [118] (at CB 211)). It set out its findings of fact (s.430(1)(c) of the Act and see [89] at CB 207 to [118] at CB 211). At [12] (at CB 193 to CB 194) to [88] (at CB 207) the Tribunal sets out the evidence and material on which the findings of fact were based (s.430(1)(d) of the Act). For the sake of completeness, I note that s.430(1)(c) of the Act does not apply, and the Tribunal complied with s.430(1)(e) of the Act (CB 191).
Contrary to the applicant’s submissions, the relationship between the findings of fact and the evidence and material on which they were based, is clear. This is particularly so when regard is had to the various subheadings at [12] (at CB 193) to [88] (at CB 207), and the actual subject matter of each of [89] (at CB 207) to [118] (at CB 211). Ground two is not made out.
Ground five asserts that the Tribunal failed to comply with the requirements of s.424A and s.424AA of the Act. The particulars directed attention to what is said to be “the information” at “transcript [page] 40”.
It is important to set out however, the entire part of the Tribunal hearing relevant to this “information” as follows (T40 line 8 to T42 line 9):
“[Member]: No? Okay. I want - now, I talked to you at the beginning of the hearing about the three – I’m doing this case in three stages. I’m now at the third stage. I want to talk to you about something important now, and I’m going to explain to you first why it’s important.
[Applicant]: Sorry, could you repeat the second part of that?
[Member]: I’d like you to – I’m going to talk to you about something important and I’m going to explain to you why it’s important. I have information before me which would be the reason or part of the reason for affirming the decision made by the Department of Immigration. This information is important because it could lead me to the conclusion that you are not a refugee and you are not owed protection under complementary protection. If I come to this conclusion, I would have to make the same decision that the Department of Immigration made. It would mean that your application to the tribunal would not be successful and you would not be entitled to a protection visa. I will tell you what the information is and I will give you an opportunity to comment on or respond to that information. You are not obliged to do so immediately. You can ask for additional time to do so. If you ask for additional time, I will consider whether or not I should adjourn this review to give you that additional time. So I’ll tell you what the information is. Please listen carefully, and then you can respond once I’ve finished.
You were interviewed by an officer of the Department of Immigration on the 2nd of December 2013 in relation to your application for a protection visa. During that interview you said that you lost your job in Iran because the Basij wanted you to join their political group and be with them, and you refused to do so.
[Applicant]: Sorry, because Basij has asked you to join ---
[Member]: Their political group and be with them, and you refused to do so.
[Applicant]: Yes.
[Member]: A year prior to that you were interviewed by another officer from the Department of Immigration on the 27th of September 2012. During that interview you were asked why you left Iran. In your answer you said the Basij started making your life difficult at work until you left your job. You said you had to work in difficult and dangerous locations. Today you told me you left your job because of the harassment from the Basij. So you have given very different versions of what happened in relation to you leaving your job. These inconsistencies in your evidence raise concerns for me in relation to your credibility and the credibility of your claims. Would you like to make any comment or response to that?
[Applicant]: Yes.
[Member]: Please go ahead.
[Applicant]: Whatever I have claimed, it had happened at the workplace. But I have made it very summarised when I said I left the job. It is equal to dismissing me from the job. It is in the colloquial conversation that I have said, but in general they have dismissed me from my job, and until now they have not paid the money that they – they owed to me – they had to pay to me.
[Member]: There’s a very big difference between voluntarily leaving your job and being dismissed from your job.
[Applicant]: I did not like to leave my job, but when there was too much pressure I was subject under by them then I had no choice to leave my job.
[Member]: Okay.
[Applicant]: Because this is generally dismissing.
[Member]: In your – I have a number of concerns about your case. Now, in your visa application you claim that you were being harassed by the Basij because you are an Arab. If they harassed you for that reason, it seems implausible to me that they would then invite you to join their party and be one of them. If they wanted you to be one of them, I find it difficult to accept that they would be harassing you and making life difficult for you.
[Applicant]: To be forced because – so I become forced to go and become one of them, and become equal to them, and then they would leave me alone.
[Member]: Well, that’s not consistent with your claims that you were being harassed because you were an Arab. So, for example, if they didn’t like you because you are Arab, why would they want you to be one of them?
[Applicant]: Because they wanted me to be one of them to help them to gather information for them; what this person is doing, or what the other person – or where the other person is and so on. And that is just being a spy.
[Member]: Now, you claim that you were persecuted because of your Arab ethnicity, yet you were able to go to school and get an education. You did not complete your high school, because you chose to leave and work. And you got a job, and you worked after you left school. Then you did your military service, and then you got another job and worked until you left – shortly before you left to come to Australia, and you chose to leave that job.
[Applicant]: Can I answer now?
[Member]: Please.
[Applicant]: I was going to a private school, and I was working and paying for my education. I had to pay monthly, and it was pressure on me.”
The applicant’s argument is that the Tribunal was purporting to “act” under s.424AA of the Act, but did not comply with all of the requirements of that section.
Before the Court, the applicant acknowledged that at T40 line 23 to line 27, the Tribunal told the applicant that he could “comment on or respond to [the] information” immediately, or he could ask for additional time to do so (the “first” invitation).
However, the asserted breach of s.424AA of the Act (and therefore s.424A of the Act) was said to be that the Tribunal set out the information at some length, it then addressed another matter, and only then asked at T41 line 2: “[w]ould you like to make any comment on or response to that?” (the “second” invitation).
The applicant’s argument was that the Tribunal was dealing with a person who was under “stress” and faced an “inherent difficulty” in giving evidence through an interpreter. Further, that there was a passage of time between the Tribunal’s statements at T40 line 23 to 27 and T41 line 2. That is, between the “first” and “second” invitations to the applicant to comment or respond to the relevant “information”. The “second” invitation was deficient in the applicant’s view, because it did not advise the applicant that he may seek additional time to comment on or respond to the relevant “information” as the “first” invitation had. Therefore, the Tribunal failed in its procedural fairness obligation, because it did not comply with the requirements of s.424AA of the Act. In context, and in particular, this appeared to be a reference to s.424AA(1)(b)(iii) of the Act.
The applicant’s ground five is not made out.
First, in his written submissions, the Minister referred to SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 229 FCR 90 (“SZTGV”) at [55] as follows (and see [33] of the Minister’s written submissions):
“The extracts from the transcript set out above disclose that the Tribunal asked the appellant’s representative whether she wished to ‘make a submission today’ or ‘rely on your submission that’s dated 14 June’ or ‘did you want time to put something in writing’. These questions were not put to the appellant’s representative in the immediate context of the information under s 424A. Nor were they understood by the appellant’s representative to relate to that information. Later in the hearing, the appellant’s representative sought and was granted more time in respect of a mental health issue which she wished to explore.”
In the current case, the Tribunal did tell the applicant that he could seek more time in the “immediate context of the information under s.424A [of the Act]” (SZTGV at [55]).
Second, in the circumstances presented, I do not agree with the applicant’s submission that the Tribunal was required to repeat, at that part of the hearing set out at T41, what had already been put to the applicant as revealed at T40.
The applicant’s argument also appears to be that the applicant was denied procedural fairness because the Tribunal did not repeat at T41 what it said at T40. That is, on each occasion, the Tribunal is required to “recite” the provisions of s.424AA(1)(b) of the Act to the applicant.
Third, there is nothing in the transcript, or indeed otherwise in the evidence, to support the proposition that the applicant was so “stressed” that he could not understand what the Tribunal had put to him, just prior to explaining the “information” to him at T40. Nor is there any evidence to support any proposition that the applicant was prevented from participating in the hearing in a meaningful way, through any inadequacy with the interpretation.
The passage of time as represented by T40 and T41, was not of such length that the applicant could be said to have been confused as to the “information” to which the opportunity for further time to comment, or respond to, was directed.
Fourth, and as the Minister submits, Justice Flick in SZNKO v Minister for Immigration and Citizenship [2010] FCA 297; (2010) 184 FCR 505 (at [29]) explained that:
“Compliance with s 424AA(b)(iii) and/or (iv), does not require a Tribunal Member to repeat the very words employed in s 424AA(b)(iii) in some ritualistic or “parrot-like recantation”. Indeed, cases may be envisaged where to do so may not meaningfully convey to an applicant the opportunity sought to be secured by those provisions. Compliance with those provisions must necessarily depend upon the facts and circumstances of the claims being advanced before the Tribunal, the ability of any particular applicant to properly avail himself of the opportunity to be heard before the Tribunal, and the limited procedural protections prescribed by the Commonwealth legislature.”
In the current case, the Tribunal’s question at T41, when seen in context of what it had previously said at T40, was sufficient to comply with s.424AA(1)(b)(iii) of Act.
Fifth, the transcript also reveals that the applicant’s representative, who was present at the hearing, was given the opportunity to make further submissions within two weeks of the hearing (T46 lines 35 to 37).
The applicant’s representative asked for this opportunity so that she could “go over” the Tribunal’s “concerns” as expressed at the hearing with the applicant (T46 lines 30 to 34). Those “concerns” included the Tribunal’s “concerns” regarding inconsistencies in the applicant’s evidence, arising from the “information” the Tribunal put to him at the hearing. That is, his evidence about how he left his job in Iran, and the reasons for it (see T40 line 47 to T41 line 1).
It is to be remembered that “inconsistencies” in an applicant’s evidence are not “information” for the purposes of s.424A of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190). As such, in relation to the inconsistencies, s.424A of the Act was not engaged, and therefore any error in applying s.424AA of the Act does not reveal jurisdictional error.
In summary, in the circumstances presented, and in any event, the Tribunal complied with the obligation in s.424AA(1)(b)(iii) to inform the applicant of the options of responding to or commenting on the relevant “information” immediately, or to seek further time. There is no jurisdictional error revealed by ground five.
Conclusion
The grounds of the amended application do not reveal jurisdictional error. It is appropriate to dismiss the application. I will make the appropriate order.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 25 January 2018
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