BAW16 v Minister for Immigration
[2016] FCCA 2830
•21 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAW16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2830 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – review of a protection visa – applicant claiming a fear of harm in Egypt because of a blood feud – Tribunal failing to consider a written death threat – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 417, 424A, 424AA, 425, 477 |
| Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Minister for Immigration v MZYHS [2011] FCA 53 Minister for Immigration v SZRKT (2013) 212 FCR 99 Minister for Immigration v SZSRS [2014] FCAFC 16 Minister for Immigration v SZRKT (2013) 212 FCR 99 SZGIZ v Minister for Immigration (2013) 212 FCR 235 SZWCC v Minister for Immigration [2015] FCA 1402 WAEE v Minister for Immigration (2003) 75 ALD 630 |
| Applicant: | BAW16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1103 of 2016 |
| Judgment of: | Judge Driver |
| Hearing dates: | 5 October, 2 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 21 November 2016 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the time for the filing of the application under s.476 of the Migration Act is extended up to and including 5 May 2016.
A writ of certiorari shall issue removing the record of the Administrative Appeals Tribunal decision made on 3 March 2016 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to redetermine the application before it according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1103 of 2016
| BAW16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
By an application filed on 5 May 2016, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 3 March 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the Minister filed on 28 September 2016.
The applicant is a citizen of Egypt who arrived in Australia on 11 October 2007 holding a student visa. He was subsequently granted a further student visa which allowed him to stay in Australia until 15 March 2010. He failed to depart Australia, and was unlawful until being granted a bridging visa on 3 May 2011. The applicant applied for a protection visa on 19 May 2011 (the first protection visa application)[1].
[1] see Court Book (CB) 1-25
The applicant claimed to fear being killed in a revenge killing if he returned to Egypt. He claimed that his father was involved in a car accident in which a pedestrian was killed, and the applicant claimed that the family of the person killed in the accident would target the applicant as the son of his father. The applicant claimed that his family had been harassed and threatened following the car accident, and that his father's business had been attacked. He also stated that the authorities would not protect him.
The first protection visa application was refused by a delegate on 1 August 2011[2]. The applicant applied to the Refugee Review Tribunal (RRT) for review, and on 2 March 2012 the RRT affirmed the delegate's decision[3]. A copy of relevant documents from the RRT file are annexed to the affidavit of David Maxwell John McLaren made on 4 August 2016.
[2] CB 103-113
[3] CB 118-131
Following the decision in SZGIZ v Minister for Immigration[4] (SZGIZ), the applicant made a further protection visa application on 11 February 2014 (the second protection visa application)[5]. The claims made in the second protection visa application were essentially the same claims made in the first protection visa application.
[4] (2013) 212 FCR 235
[5] CB 132-158
On 2 June 2014, the delegate refused the second protection visa application[6]. On 3 July 2014, the applicant applied to the Tribunal for review of the delegate's decision[7]. The applicant appeared at a hearing before the Tribunal on 6 November 2015[8]. The applicant's father gave evidence by telephone from Egypt. On 9 November 2015, the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Migration Act)[9]. The applicant replied to this by a statutory declaration dated 7 December 2015 (which was sent to the Tribunal on 10 December 2015)[10].
[6] CB 191-200
[7] CB 201-206
[8] CB 258-260
[9] CB 263-266
[10] CB 271
On 3 March 2016, the Tribunal affirmed the delegate's decision[11].
[11] CB 278-299
Tribunal decision
The Tribunal proceeded on the basis that the applicant had standing to make his visa application following SZGIZ, and that the applicant's claims should be considered only in relation to the complementary protection criterion in s.36(2)(aa) of the Migration Act[12]. (It is noted that the applicant raises no complaint about the Tribunal's approach in this respect and that, in any event, this approach has been held to be correct[13])
[12] CB 289 at [63]
[13] see Minister for Immigration v SZVCH [2016] FCAFC 127
The Tribunal was not satisfied that the applicant was a witness of truth[14]. It found that the applicant created his claims of his father killing a young man in a driving accident and subsequently being notified of a blood feud in order to obtain the visa sought[15]. The Tribunal found that the applicant and his father provided inconsistent evidence to the Tribunal regarding the date of the driving accident[16], and did not accept the applicant's explanations for the inconsistencies in that evidence[17].
[14] CB 290 at [70]
[15] CB 290 at [70]
[16] CB 290 at [73]
[17] CB 290 at [71]–[72]
The Tribunal noted that the applicant had provided documents from Egypt that were purportedly issued by police in relation to the driving accident[18]. Having regard to information from the Department of Foreign Affairs and Trade (DFAT) and the Minister’s Department about document fraud in Egypt, as well as the inconsistency between the applicant's father's evidence regarding the date of the driving accident and the information in the purported police documents, the Tribunal was satisfied the documents had been created in order to obtain the visa sought and placed no weight on the documents[19]. The Tribunal considered that the applicant could seek state protection in Egypt if he or his family feared being killed or injured[20], and also found that the independent evidence considered does not suggest that blood feuds occur in the applicant's place of residence in Alexandria[21].
[18] CB 290 at [74]
[19] CB 291 at [75]
[20] CB 291 at [76]
[21] CB 291 at [77]
The Tribunal, being satisfied that the applicant was not a witness of truth, found that the applicant's father was not involved in a car accident in which a young man was killed, or that the applicant's family have been harassed[22]. The Tribunal did not accept that anybody in Egypt wants to kill or harm the applicant[23]. The Tribunal concluded that there was not a real risk that the applicant would suffer significant harm on return to Egypt[24]. The Tribunal therefore affirmed the delegate's decision.
[22] CB 291 at [78]
[23] CB 291 at [78]
[24] CB 292 at [80]
The current proceedings
The applicant relies upon his application filed on 5 May 2016. There are two grounds in that application:
1. The Tribunal breached a duty to inquire.
Particulars
The Tribunal failed to make inquiries of the Egyptian police to check the bona fides of the police reports that were found to be false.
2. The Tribunal failed to apply the correct standard of proof in circumstances where document fraud was alleged.
Particulars
Strict or cogent proof is required in circumstances where allegations as serious as document fraud are made. In the circumstances of this matter, the Tribunal relied on general documents alleging that document fraud was a common phenomenon in Egypt without ever putting to the Applicant that the documents he led regarding the police reports were fraudulent.
In addition to the court book filed on 4 July 2016, I have before me as evidence an affidavit by the applicant made on 2 May 2016 and the affidavit by Mr McLaren made on 4 August 2016. The applicant’s affidavit simply introduces a further copy of the Tribunal decision. The McLaren affidavit introduces a number of documents which were omitted from the court book.
The procedural history of this matter is somewhat detailed. Procedural orders were made by a registrar on 30 June 2016 to prepare the matter for a hearing on an extension of time, pursuant to s.477(2) of the Migration Act and, if necessary, a final hearing on 30 September 2016. The hearing was subsequently postponed until 5 October 2016. On that day the applicant failed to appear but the Court was successful in contacting him by telephone. He sought an adjournment due to asserted illness. I made the following orders:
THE COURT NOTES THAT
1. The applicant failed to attend Court when this matter was called this afternoon.
2. The Court was successful in contacting the applicant on a mobile phone number.
3. The applicant asserts illness and that he is waiting to see a doctor.
4. The applicant also says that he has an appointment with Legal Aid NSW on 13 October 2016.
THE COURT ORDERS THAT:
1. On condition that the applicant produces to the Court and the solicitor for the Minister a certificate or opinion from a medical practitioner that he was unfit to attend Court today, 5 October 2016, and that certificate or opinion is produced by 5pm Friday 7 October 2016, the following orders shall apply:
a. The hearing is adjourned until 2.30pm on Wednesday 2 November 2016.
b. The Court reserves the costs of today’s hearing.
c. No further adjournment application shall be granted except by application in a case supported by an affidavit.
2. Alternatively, if no certificate certifying that the applicant was unfit to attend Court is furnished before 5pm on Friday 7 October 2016, the application will be dismissed at that time by force of these Orders, with costs fixed in the sum of $6,000.
Later on the same day the applicant provided a medical certificate from Dr N Ragy of Punchbowl which I accepted as sufficient for the purposes of order 1.
The hearing resumed on 2 November 2016. The applicant again failed to appear but, once again, the Court was successful in contacting him by telephone. He said he was on his way to court but needed directions. He eventually arrived about one hour late and the hearing proceeded.
The applicant sought an adjournment on the basis that he was seeking Legal Aid. He produced a letter from Legal Aid NSW to the effect that he was not eligible for Legal Aid but he might wish to approach the Law Society. The applicant said that he had approached the Law Society which had sought information from him for the purpose of considering a request. I refused the adjournment application on the basis that the applicant’s efforts to obtain legal assistance were at a very early stage and did not call for an adjournment.
The applicant then enquired whether he could discontinue his application with a view to seeking the Minister’s intervention pursuant to s.417 of the Migration Act. Counsel for the Minister stated that leave to discontinue would not be opposed but the Minister would want his costs of the final hearing. In those circumstances the applicant, who sought leave for the purpose of avoiding an adverse costs order, decided to proceed with the hearing.
The Minister consented to an extension of time pursuant to s.477(2) of the Migration Act. I am satisfied that the interests of the administration of justice call for an extension of time and will order that the time for the filing of the applicant’s application be extended up to and including 5 May 2016.
Consideration
Only the Minister prepared written submissions in accordance with the procedural orders made by the registrar. I invited oral submissions from the applicant. He told me that a friend had prepared his application and he was not able to address the grounds in it. He said, however, that he thought that the Tribunal had acted unfairly in telephoning his father very early in the morning in Egypt and then placing weight on his uncertain reply concerning the timing of the alleged car accident. He said that he felt that the Tribunal was against him, in contrast to his experience with the earlier Tribunal which dealt with his refugee claims. He said that he felt the Tribunal member in that case was sympathetic and she had agreed to refer his case to the Minister for consideration under s.417 of the Migration Act, but that request had not been successful. Counsel for the Minister confirmed this was so.
The applicant’s concerns about the second Tribunal’s hearing and approach do not point to any jurisdictional error. The Tribunal dealt with the issue of the evidence given by the applicant’s father in its decision record at [57]-[62]. The Tribunal stated[25]:
[25] CB 288-289
I asked the applicant about 2 witnesses he wished to give evidence. He explained that they were in Egypt and he wanted them called. He said that if the Tribunal needed to call them he has no problem with that. He said they would support his claims that they are not fabricated.
The Tribunal attempted to call the 2 telephone numbers and was only able to connect with the applicant’s father.
I explained that it was the Tribunal calling during the hearing. I asked the witness if he was in an accident in about 2010. The applicant’s father said that he was driving his car and talking on his mobile phone when he hit a man. I asked when this happened. He has just woken up and is unable to concentrate. I asked again when the accident happened and he said that it was immediately after the revolution in 2012 or the end of 2011. The family’s his son died and they want revenge from one of his children as he is from South Egypt. They said they “will kill your son abroad”. After the accident he became very dizzy and found the police and wrote a report. The police told him he [the victim] was supposed to cross via the tunnel so the father was ok. He [the victim] died on the way to hospital. After the ambulance left, he went to the police station immediately to make a report on the same day. He did not go to hospital. After the accident he received threats for about a year that said as soon as his son comes back they will revenge. It was after a very long time that he told his son about the threats. He was fearful.
At the conclusion of the telephone call I put to the applicant that his father does not support his claims in relation to the date of the accident. He responded “if you want to ask him about the exact date he can look at the paper work”. I put that his father said he did not go to hospital whereas he had said that he did. He responded that his father is mistaken. The ambulance was there he might have done so, he was very stressed and had an injury to his face.
I asked what information he had wanted his brother to provide. He said that he was not at the accident.
On 9 November 2015 the Tribunal wrote to the applicant pursuant to s.424A of the Act stating as follows:
·Your father, by telephone, at the Tribunal hearing held on 6 November 2015, said that the accident in which he was involved occurred after the revolution, at the end of 2011 or in 2012.
·You advised the Department and the Tribunals that the accident occurred on 10 April 2010.
·Your father told the Tribunal that immediately after the accident he went to the police whereas you told the Tribunal that your father went to hospital immediately after the accident and the next day went to the police.
This information is relevant to the review because the evidence given by your father is inconsistent with your evidence.
·Your father by telephone, at the Tribunal hearing held on 6 November 2015 said that the accident in which he was involved occurred after the revolution, at the end of 2011 or in 2012.
·You have provided 2 Police Reports dated 15 April 2010 that state your father was in an accident on 15 April 2010.
This information is relevant to the review because it indicates you have provided bogus documents to the Department. A ‘bogus document’ is defined in s.5(1) of the Migration Act and means a document that the Minister reasonably suspects is a document that (a) purports to have been, but was not, issued in respect of the person; or (b) is counterfeit or has been altered by a person who does not have authority to do so; or (c) was obtained because of a false or misleading statement, whether or not made knowingly.
If we rely on this information in making our decision, we may find that it undermines your credibility and leads the Tribunal to conclude that you have created your claims in order to obtain the visa sought and the Tribunal would have no other option but to find that you did not meet the complementary protection criterion and would affirm the decision under review.
The applicant responded by providing a statutory declaration. He stated that his father was confused about the dates as it was too early in the morning for him. He is a 61 year old man and has been through a lot. Further the applicant had received 2nd hand information from family members and was not sure if his father went to the police station or the hospital first.
I find, based on the Tribunal’s decision record, that the applicant had the opportunity and did put to the Tribunal his concern about his father’s evidence. The applicant was clearly put on notice about the significance of that evidence. The Tribunal complied with its obligations pursuant to ss.424AA and 425 of the Migration Act.
I agree with the Minister’s submissions concerning the grounds of review raised in the application.
Ground 1
The first ground pleads that the Tribunal breached a duty to inquire. The particulars to this ground state that the Tribunal failed to make inquiries of the Egyptian Police to check the bona fides of the police reports that the Tribunal determined to be false.
It is well-established that there is no general duty to inquire in decision-making proceedings such as those in the present matter, though “... 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”[26]. There was no such duty on the Tribunal in the present circumstances. The Tribunal was not under an obligation to make inquiries to “verify” the genuineness of all the supporting documentation submitted by the applicant; nor was it obliged to accept the genuineness of such documents[27].
[26] see Minister for Immigration v SZIAI (2009) 83 ALJR 1123 at [25]
[27] see SZTPJ & Anor v Minister for Immigration [2015] FCCA 1992 at [79], citing SZTKV v Minister for Immigration [2014] FCA 903 at [25]
The first ground is not established.
Ground 2
The second ground pleads that the Tribunal failed to apply the correct standard of proof in circumstances where document fraud was alleged. The particulars to this ground contend that strict or cogent proof is required in circumstances where allegations as serious as document fraud are made; and that, in the circumstances of this matter, the Tribunal relied on general documents alleging that document fraud was a common phenomenon in Egypt without putting to the applicant that the documents he provided regarding police reports were fraudulent.
This ground appears to suggest that the Tribunal should apply a strict standard of proof in making findings on document fraud, and the reference to the Tribunal requiring “strict or cogent proof” of document fraud appears to suggest that the principle in Briginshaw v Briginshaw[28] should be applied to the Tribunal proceedings. There is no substance to this ground. As was recently noted in SZUYL v Minister for Immigration & Anor[29]:
As the Minister submitted, there is no role for the Briginshaw principles in the Tribunal’s analysis in relation to an applicant’s credibility (SCAN v Minister for Immigration & Anor [2002] FMCA 129 and NBDY v Minister for Immigration & Anor [2004] FMCA 658). Of course, an adverse credibility finding in a protection visa matter is serious. However, the Tribunal’s statutory task, and the “proceedings” before it are not adversarial, which was the context in which the Briginshaw principle emerged.
[28] (1938) 60 CLR 336
[29] [2016] FCCA 405 (at [68])
This ground appears to assert also that the Tribunal failed to give the applicant an opportunity to comment on the information suggesting that document fraud is common in Egypt, and/or to comment on the genuineness of the documents he provided. However, such information is not required to be put to an applicant for comment[30]. Further, it is apparent from the face of the Tribunal decision that the Tribunal did discuss with the applicant the issue of the genuineness of his documents[31].
[30] see s.424A(3)(a) of the Migration Act
[31] see CB 285 at [37]; and CB 291 at [75]
The second ground is not established.
An additional issue
Counsel for the Minister in his written submissions raised a further issue. When discussing documents from Egypt that were provided by the applicant[32], the Tribunal did not make specific reference to a translated letter purportedly written by the deceased person’s parents[33].
[32] CB 290 at [74]
[33] see CB 70
This may be contrasted with the decision statement of the first Tribunal which does refer to the letter (albeit obliquely) at [32] of its decision[34].
[34] CB 125
The onus rests with an applicant to prove that material placed before a decision-maker was not considered[35]. It is well established that the Tribunal need not refer to every item of evidence, and that a failure to refer to an item of evidence does not necessarily mean that it has not been considered[36].
[35] Minister for Immigration v SZGUR (2011) 241 CLR 594 at [67] and [91]–[92]; Minister for Immigration v MZYTS (2013) 230 FCR 431 at [53]
[36] WAEE v Minister for Immigration (2003) 75 ALD 630 at [46]
For present purposes, if it is found that the document purportedly consisting of a translation of a letter from the deceased person's parents was not considered, the issue is then whether such a failure constitutes jurisdictional error. While a failure to consider evidence may constitute jurisdictional error, whether this is so will depend on “the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error”[37]. That is, the question is whether the document was “substantial and consequential” or “cogent”, to make it a jurisdictional error not to have had regard to it[38].
[37] see generally Minister for Immigration v SZRKT (2013) 212 FCR 99 at [111]
[38] cf Minister for Immigration v SZRKT (2013) 212 FCR 99 at [111]–[112]; see also Minister for Immigration v MZYHS [2011] FCA 53 at [32]; and Minister for Immigration v SZNPG (2010) 115 ALD 303 at [28]–[29]
The question of what will be cogent information for these purposes is obviously heavily fact dependent, but has been considered in a number of cases dealing with different fact scenarios[39].
[39] see, eg, SZSRS v Minister for Immigration & Anor [2013] FCCA 1858 (upheld on appeal in Minister for Immigration v SZSRS [2014] FCAFC 16); SZWCC v Minister for Immigration [2015] FCA 1402 at [33]–[41]
The letter in question is reproduced in rough Arabic handwriting at CB 71 and an English translation appears at CB 70. Relevantly it states:
We will take revenge on your eldest son so that we can sleep comfortably after asking we found out that he is travelling and when he comes back he will be killed in front of you and that is our right
Parents of the slain
Plainly, the letter contains a death threat. The original is crudely written in Arabic, which is consistent with a note hurriedly written and left at the applicant’s family’s home.
At [20][40] of its reasons the Tribunal sets out what appears to otherwise be a comprehensive list of the documents submitted to the Department on 21 July 2011. At [22] the Tribunal noted additional material submitted on 27 July 2011. At [32] the Tribunal recounts the applicant saying at the hearing that his father had told him that his family were receiving threats via the phone and via messages[41].
[40] CB 280-281
[41] CB 285
There is no mention in the Tribunal’s reasons of the letter either in the discussion of what the Tribunal had before it or in the discussion of the Tribunal’s conclusions. The Tribunal rejected the purportedly official documents relating to the car accident as fabrications, on the basis of the inconsistency over the date of the accident stemming from the statements made on the telephone by the applicant’s father. It was on that basis that the Tribunal found that the applicant was not a witness of truth and rejected the entirety of his claims.
I cannot accept that, if the Tribunal was aware of and had considered the letter, it would not have mentioned it, either to reject it as a fabrication or to deal with the significance of it. It surely must have been weighed in the balance of determining the applicant’s credibility. I find, therefore, that the Tribunal overlooked the letter. The letter was plainly relevant to the outcome of the review and was not considered. Even if the Tribunal were still to reject the motor vehicle accident claim, it would have had to deal with the alleged threat against the applicant referred to in the letter which might, hypothetically, have been made for some other reason. In my view, by overlooking the letter the Tribunal fell into jurisdictional error because the letter was important, both to weigh in the balance in assessing the applicant’s credibility, and in drawing attention to a purported threat which may or may not depend on the alleged motor vehicle accident. I cannot accept the Minister’s submission that the Tribunal’s comprehensive adverse credibility findings against the applicant render the unconsidered letter unimportant. The letter corroborated the applicant’s claims that death threats had been made against him to his family and I cannot rule out the possibility that the consideration of that corroborative evidence might have made a difference to the outcome before the Tribunal.
Conclusion
I conclude that the issue properly raised by the Minister as a model litigant establishes that the Tribunal fell into jurisdictional error by overlooking relevant material. I will therefore grant the relief sought in the application.
I will hear the parties as to costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 21 November 2016
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