BCF15 v Minister for Immigration and Border Protection
[2016] FCCA 2340
•8 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BCF15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2340 |
| Catchwords: EXTENSION OF TIME – Extensive review of authorities. CLAIMS – What is “a claim” – extensive review of authorities. PROCEDURAL FAIRNESS – Mother of visa applicant a witness – Tribunal found that she embellished her evidence in order to support her son – whether the rule in Browne v Dunn applied to a migration case in the Tribunal – it does not – mother not entitled to contend that rules of procedural fairness applied to her. PRACTICE AND PROCEDURE – Rule in Browne v Dunn inapplicable to an inquisitorial proceeding in the Tribunal. |
| Legislation: 1951 Convention relating to the Status of Refugees Migration Act 1958 (Cth), ss.5, 36, 234, 414, 477 |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 Browne v Dunn (1893) 6 R 67 Douglas v Allen (1984) 1 FCR 287 Doyle v Chief of General Staff (1982) 42 ALR 283 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 Howard v Australian Electoral Commission [2000] FCA 1767 Htun v Minister for Immigration and Border Protection (2001) 194 ALR 244 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Jess v Scott (1986) 12 FCR 187 Wedesweiller v Cole (1983) 47 ALR 528 Justice Mark Weinberg, ‘Adequate, Sufficient and Excessive Reasons’, speech delivered at Judicial College of Victoria, 4 March 2014 |
| Applicant: | BCF15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1383 of 2015 |
| Judgment of: | Judge Wilson |
| Hearing date: | 22 April 2016 |
| Date of Last Submission: | 22 April 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 8 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr A.F. Solomon-Bridge |
| Solicitors for the Applicant: | Victoria Immigration Lawyers |
| Counsel for the First Respondent: | Ms C. Symons |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.
The applicant pay the costs of the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1383 of 2015
| BCF15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant contended in this proceeding that the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), fell into jurisdictional error when it found that the applicant did not meet the criteria for a Protection (Class XA) visa set out in s.36(2)(a) of the Migration Act 1958 (Cth) (“the Act”). In this proceeding the applicant advanced four arguments by which he asserted the existence of jurisdictional error. The applicant applied to this Court out of time so he needed an order granting him an extension of time within which to bring this application for review.
Synopsis
For the reasons that follow, in my judgment the Tribunal did not make any jurisdictional error in this case. I refuse the applicant leave to apply out of time.
Relevant factual background
On 13 June 2012 the applicant entered Australia as an irregular maritime arrival at Christmas Island. He was born on 17 August 1990 in Tehran, Iran and is of Farsi ethnicity and is of Shia Muslim faith.
On 1 August 2013 the delegate of the Minister for Immigration and Border Protection (“the delegate”) found that he was not satisfied that the applicant had met the criteria for the grant of a protection visa either on the grounds enumerated in s.36(2)(a) or s.36(2)(aa) of the Act.[1]
[1] Court Book filed 26 February 2016 at pp.123-143.
Being dissatisfied with the delegate’s decision, the applicant applied to the Tribunal on 6 August 2013.[2]
[2] Court Book filed 26 February 2016 at pp.147-152.
On 19 February 2014 an entity known as Australian Migration Options Pty Ltd (“AMO”) provided the Tribunal with a document styled “Submission to Refugee Review Tribunal” in which AMO advanced
10 pages of legal and factual propositions in support of the contention that the applicant should have been accorded refugee status.[3] In that submission, AMO made detailed arguments under s.36(2)(a) as well as under s.36(2)(aa) of the Act.
[3] Court Book filed 26 February 2016 at pp.198-208.
On 7 October 2014 the Tribunal wrote to the applicant inviting him to attend before it on 12 November 2014 so as to give evidence and present argument.[4] The applicant accepted that invitation and appointed a migration agent to appear for him.[5] On 12 November 2014 the applicant appeared before the Tribunal with his appointed migration agent along with an interpreter together with the applicant’s mother. The hearing commenced shortly after 2.00 p.m. and concluded immediately prior to 4.00 p.m. with a short break in between.[6]
[4] Court Book filed 26 February 2016 at pp.213-217.
[5] Court Book filed 26 February 2016 at pp.218-223.
[6] Court Book filed 26 February 2016 at pp.226-229.
On 12 February 2015 the Tribunal notified the applicant that it decided to affirm the delegate’s decision.[7]
[7] Court Book filed 26 February 2016 at pp.239-248.
Before turning to a consideration of the Tribunal’s reasoning, it is necessary to say something about the grounds of review in this Court and also about the fact that the application to this Court was made out of time.
Extension of time
The Tribunal’s decision was made on 12 February 2015. The applicant had 35 days within which to apply to this Court under s.477(1) of the Act, that is to say by mid-March 2015. Instead, the applicant applied to this Court on 19 June 2015, several months out of time.
In this case I have decided to refuse to grant an extension of time as the legal criteria for the grant of such an extension were not met.
As long ago as 1984, in the context of the review of administrative decisions generally (not specifically those under the Act) Wilcox J in Hunter Valley Developments Pty Ltd v Cohen[8] (“Hunter Valley Developments”) put forward a six-point list of issues to be considered in an application to extend time. Relevantly paraphrased, they amount to the following –
a)it is the prima facie rule that a proceeding commenced outside of the period prescribed by legislation will not be entertained[9] and that it is a precondition to the exercise of the discretion in favour of the grant of an extension of time that the applicant for the extension must show an “acceptable explanation” for the delay and that it is “fair and equitable in the circumstances” to extend time;[10]
b)action taken by the applicant is relevant to the question of whether an acceptable explanation for the delay has been furnished including whether the applicant has continued to make the decision-maker aware that he (the applicant) contests the decision and has not rested on his rights;[11]
c)prejudice to the respondent in defending the proceeding is a material factor militating against the grant of leave;[12]
d)conversely, the absence of prejudice is not sufficient to justify the grant of an extension of time;[13]
e)the merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted;[14] and
f)considerations of fairness as between the applicant and other persons are also relevant.[15]
[8] (1984) 3 FCR 344.
[9] Lucic v Nolan (1982) 45 ALR 411, 416.
[10] Duff v Freijah (1982) 62 FLR 280.
[11] Doyle v Chief of General Staff (1982) 42 ALR 283, 287.
[12] Hickey v Australian Telecommunications Commission (1983) 47 ALR 517.
[13] Douglas v Allen (1984) 1 FCR 287.
[14] Lucic v Nolan (1982) 45 ALR 411.
[15] Wedesweiller v Cole (1983) 47 ALR 528.
In the specific context of the Act, the decision in Minister for Immigration andMulticultural and Indigenous Affairs v Sun[16] is relevant but it turned on a different issue than did the facts of this case.
[16] (2005) 146 FCR 498.
The need for the applicant to show “something very persuasive indeed” to justify the grant of leave after a year was considered in
Jess v Scott.[17] In that case the Federal Court said “something much less significant” might be justified where the party was a few days late in meeting the prescribed time.[18]
[17] (1986) 12 FCR 187, 193.
[18] Ibid.
In Howard v Australian Electoral Commission[19] (“Howard”),
Branson J referred to the three factors relevant to the exercise of the discretion to grant or refuse an extension of time, namely –
a)the importance of the question sought to be raised;
b)the bona fides of the proposed appeal; and
c)the prima facie strength of the proposed ground of appeal.
[19] [2000] FCA 1767.
An illustration of the Federal Court of Australia refusing leave was given in WAJU v Minister for Immigration and Multicultural and Indigenous Affairs[20] especially whether the substantial application was without merit. In SZMNO v Minister for Immigration and Citizenship,[21] Barker J catalogued some of the situations where an acceptable explanation for the delay was not offered.
[20] [2004] FCA 150.
[21] [2009] FCA 797.
In SZTES v Minister for Immigration and Border Protection[22] (“SZTES”), the Full Court of the Federal Court of Australia held that the test applied by a judge of this Court, namely, whether the substantive proceeding had no reasonable prospects of success, was not incorrect.
[22] [2015] FCAFC 158.
In MZABP v Minister for Immigration and Border Protection,[23]
Justice Mortimer of the Federal Court of Australia expressly countenanced language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or whether it has “reasonable prospects of success” citing SZRIQ v Federal Magistrates Court of Australia & Ors.[24] Mortimer J cautioned against transforming the extension of time application into a de facto full hearing.
[23] [2015] FCA 1391.
[24] [2013] FCA 1284.
In SZTES, Wigney J held that a judge hearing an extension of time application must carefully distinguish between grounds of review that are hopeless and destined to fail as opposed to grounds that are weak. Where grounds are weak, as opposed to those being hopeless, it will rarely be appropriate to refuse to extend time. That said, as French J held in Seiler v Minister for Immigration, Local Government and Ethnic Affairs,[25] an applicant on the hearing of an extension of time application need not establish that his or her grounds of review will succeed. In this case, the applicant’s written submissions[26] did not even address the applicant’s need to seek and obtain an order extending the time for the bringing of the application for review. However, a solicitor employed by Victorian Immigration Lawyers swore two affidavits in support of the extension of time application.[27] The applicant’s solicitor swore that the solicitor looking after the applicant’s case on
14 April 2015 was no longer able to assist, that on 1 May 2015 a new solicitor had been located who could assist and that since 1 May 2015 no further communication had been supplied about the provision of legal assistance to represent the applicant. The solicitor swore that soon after the applicant was returned to immigration detention three weeks prior to 19 June 2015 (being the date on which the solicitor’s main affidavit was sworn) Victorian Immigration Lawyers consulted a barrister and a few days prior to 19 June 2015, the application for an extension of time was filed.
[25] (1994) 48 FCR 83.
[26] Applicant’s Submissions filed 11 March 2016.
[27] Affidavits of Amir Hassani filed 11 March 2016 and 19 June 2015.
An “acceptable explanation”?
The first question is whether that explanation was “an acceptable explanation” for the purposes of the matters mentioned by Wilcox J in Hunter Valley Developments. On a careful examination of the affidavit material, it boiled down to the applicant contending, through his solicitor, that the applicant once had legal representation, then he lost that representation, then the services of a barrister were enlisted and then the extension of time application was made. In the context of a litigant who was not represented throughout, I am willing to proceed on the basis that the explanation offered was acceptable.
The bona fides
Applying the second consideration of Howard, the bona fides of the proposed application for review is not in question. Unless the applicant succeeds in this application, he is at risk of being removed from the Commonwealth of Australia.
The prima facie strength of the application for review
The biggest issue for the applicant was the fact that his grounds of review were destined to fail.
In the passages below I have addressed each of the applicant’s grounds of review and concluded that the applicant’s grounds of review were destined to fail.
Grounds of review
In his amended grounds of review[28] the applicant relied on four grounds, although ground one was in two parts, particular (c) having been deleted. The amended grounds were as follows –
[28] Amended Application filed 11 March 2016.
1. The Second Respondent committed jurisdictional error by failing to consider all of the applicant’s claims and/or their component integers. Particulars:
The Second Respondent failed to consider the applicant’s claims that:
(a) in December 2011 he had pretended to commit suicide;
(b) his father would report and/or had reported him to the authorities for apostasy.
2. Further or alternatively, the Second Respondent committed jurisdictional error by identifying a wrong issue or asking a wrong question. Particulars:
In finding that, for the purposes of complementary protection, the applicant would not face a real risk of significant harm from the Iranian authorities, or anyone
else in Iran, for his lack of religion, having a Christian girlfriend or having spent time in a Western country, the
Second Respondent conflated the tests for refugee status and complementary protection by requiring the significant harm to be for a Convention reason.
3. Further or alternatively, the Second Respondent’s finding that, unless the applicant himself intends to publicly denounce or insult Islam, the chance of serious harm was too remote to amount to a real chance was illogical or irrational or betrayed the asking of a wrong question or the addressing of a wrong issue such that it amounted to jurisdictional error. Particulars:
There was no logical or rational basis to exclude the real chance of harm if someone else (e.g. the father) publicly disclosed that the applicant had committed apostasy.
4. The Second Respondent acted in breach of the rules of procedural fairness. Particulars:
The Second Respondent found that the Applicant’s mother had deliberately given false or misleading evidence in support of the Applicant in order to support her son, without putting that to her.[29]
[29] Amended Application filed 11 March 2016 at pp.3-4.
Ground one
In his written submissions, Mr A.F. Solomon-Bridge, counsel for the applicant, contended that the failure to consider an applicant’s claim or the integers of an applicant’s claim is jurisdictional error.
At the heart of the applicant’s case in respect of ground one was his contention that he was entitled to the issue of constitutional writs on the basis that the Tribunal had constructively failed to exercise its jurisdiction in the manner contemplated by the Act. The jurisprudential basis of that contention can be traced to authorities such as R v Toohey; Ex parte Northern Land Council,[30] Re Minister for Immigration and Multicultural Affairs; Ex parte Miah[31] and Dranichnikov v Minister for Immigration and Multicultural Affairs[32](“Dranichnikov”). As Kirby J held in Dranichnikov,[33] in a case where there has been a fundamental mistake at the threshold in expressing and therefore considering the legal claim propounded by the applicant, the error will be classified as an error of jurisdiction. It will be treated as a constructive failure of the decision-maker to exercise the jurisdiction and powers given to it.
[30] (1981) 151 CLR 170, 267–268.
[31] (2001) 206 CLR 57, 82 at [81].
[32] (2003) 77 ALJR 1088.
[33] Ibid.
A substantial issue emerged in this case about the lengths and breadths of the applicant’s claim or claims. The task of ascertaining precisely what fell for determination by the Tribunal is frequently problematic in cases under the Act. It is equally problematic ascertaining whether,
by the failure to consider a particular issue the Tribunal had in fact fallen into jurisdictional error. Unlike in the arena of civil litigation where pleadings define the controversy between the parties, as was pointed out by Gleeson CJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs,[34] proceedings before the Tribunal are not adversarial so issues are not defined by the pleadings or by any analogous process. There, the Chief Justice held that –
Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process (footnote omitted).[35]
[34] (2003) 216 CLR 473 at [1].
[35] (2003) 216 CLR 473 at [1].
In the context of a protection visa, Gleeson CJ said the arguments and evidence of the applicant and the Minister cannot narrow the Tribunal’s jurisdiction to investigate the generality of the claim.[36]
[36] (2003) 216 CLR 473 at [39].
The “claim” that fell to the Tribunal to address was “a substantial, clearly articulated argument relying upon established facts”, as the expression was used in Dranichnikov,[37] and as was considered by the Full Court of the Federal Court of Australia (Black CJ, French and Selway JJ) in NABE v Minister for Immigrationand Multicultural and Indigenous Affairs (No 2) (“NABE”).[38] Other authorities at single judge and Full Court level in the Federal Court of Australia have wrestled with the parameters of the constituent elements of an applicant’s ‘claim’. By way of illustration in Htun v Minister for Immigration and Border Protection[39] Allsop J (as the Chief Justice then was) with whom Spender J agreed, addressed the requirements in s.414 of the Act that the Tribunal considers ‘the claims’ of the applicant stating “[t]he claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration”.[40]
[37] (2003) 77 ALJR 1088 at [24].
[38] (2004) 144 FCR 1, 22 at [61] and [68].
[39] (2001) 194 ALR 244.
[40] (2001) 194 ALR 244 at [42].
The Tribunal is not to limit its determination to the ‘case’ articulated by the applicant if evidence and material which the Tribunal accepts raises a case not articulated. So much was the holding of Merkel J in Paramananthan v Minister for Immigration and Multicultural Affairs[41] as well as by the Full Court of the Federal Court of Australia (Wilcox and Magwick JJ) in Sellamuthu v Minister for Immigration and Multicultural Affairs.[42]
[41] (1998) 94 FCR 28, 63.
[42] (1999) 90 FCR 287, 293-294.
But if an unarticulated claim is relied upon by an applicant seeking review, the unarticulated claim must be raised squarely on the material available to the Tribunal, according to Cooper J in SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs.[43] As the
Full Court in NABE observed, the use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when the claim is apparent on the face of the material before the Tribunal.[44] Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
[43] (2003) 129 FCR 137 at [19].
[44] (2004) 144 FCR 1 at [58].
It is true that the Tribunal is not to construe an applicant’s claim or claims as a common law court of law or equity might analyse a claim or claims raised in a pleading. In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs,[45] Selway J referred to the way the Tribunal is not obliged to consider claims not made then famously remarked “[b]ut this does not mean that the application is to be treated as an exercise in nineteenth century pleading”.[46]
[45] (2003) 199 ALR 364.
[46] (2003) 199 ALR 364 at [17].
The settled position nowadays is that stated in NABE.[47] The Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but extends to reviewing the delegate’s decision on the basis of all the materials before it. Whatever the scope of the obligation,
the Tribunal is not required to consider an application never made.
[47] (2004) 144 FCR 1 at [61].
To my way of thinking, it would place an impossible burden on the Tribunal to require it to refer to every piece of evidence and every contention made by an applicant, however wrong-headed, peripheral or tangential. For that matter, the Full Court of the Federal Court of Australia in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[48] (“Applicant WAEE”)
(French, Sackville and Hely JJ) held that the Tribunal is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. To that I add that the Tribunal is not a court of law and its reasons are not to be scrutinised with an eye keenly attuned to error nor is the Tribunal necessarily required to provide reasons of the kind that might be expected of a court of law. But even a court of law is not required to address every submission advanced in the hearing, as was observed by the Honourable Justice Mark Weinberg in his speech ‘Adequate, Sufficient and Excessive Reasons’.[49] Still less would the Tribunal be expected to provide reasons equivalent to those provided by a court of law, especially when dealing with high volume applications as does the Tribunal.
[48] [2003] FCAFC 184 at [46].
[49] Speech delivered at Judicial College of Victoria, 4 March 2014.
Accordingly, it seems to me that the proper approach in any consideration of the applicant’s contentions in this case is to commence by ascertaining the metes and bounds of the matters the Tribunal was required by law to consider. Dissected, the Tribunal was required to deal with –
a)a substantial clearly articulated argument relying upon established facts;[50]
b)a claim or claims and its or their component integers;[51]
c)evidence and material that the Tribunal accepts to raise a case not articulated;[52]
d)an unarticulated claim that is raised squarely on the material available to the Tribunal;[53] and
e)not an application or claim never made.[54]
[50] See Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088.
[51] See Htun v Minister for Immigration and Border Protection (2001) 194 ALR 244.
[52] See Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 and Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287.
[53] See SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 and NABE v Minister for Immigrationand Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1.
[54] See NABE v Minister for Immigrationand Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1.
As Robertson J held in Minister for Immigration and Citizenship v SZRKT,[55] “[a]lthough ultimately it is the claim which the
Migration Act requires to be considered, there are many ways, actual or constructive, of failing to consider the claim”.[56][55] (2013) 212 FCR 99.
[56] (2013) 212 FCR 99 at [98].
Once the ‘claim’ that the Tribunal had to consider was identified, it fell to the Tribunal to give that claim or those claims “proper, genuine and realistic consideration”, as was canvassed by the High Court in Minister for Immigration and Citizenship v SZJSS[57] (“SZJSS”).
[57] (2010) 243 CLR 164 at [7].
In a protection visa case, it remains good law that it is for the applicant to advance whatever argument or evidence he or she wishes to advance in support of his or her contention that the applicant has a well-founded fear of persecution for a Convention reason, and that the Tribunal must then decide whether that claim is made out. That proposition emanated from the decision of the High Court in Abebe v Commonwealth of Australia[58] (“Abebe”) and was recently restated by the Full Court of the Federal Court of Australia (Kenny, Griffiths and Mortimer JJ) in Minister for Immigration and Border Protection v MZYTS.[59]
[58] (1999) 197 CLR 510 at [187].
[59] (2013) 230 FCR 431, 444 at [38].
More recently, a differently constituted Full Court (Gordon, Robertson and Griffiths JJ) in Minister for Immigration and Border Protection v SZSWB held that “[m]oreover, the claim must emerge clearly from the materials”.[60]
[60] [2014] FCAFC 106 at [33].
The applicant contended in written submissions that he had pretended to commit suicide after the applicant’s father, a devout and radical Muslim, disagreed with the fact that the applicant had a Christian girlfriend.
The applicant contended that the Tribunal did not address that issue after mentioning it in two places in its reasons. He contended that the Tribunal did not dispose of the claim.
In submissions before me, counsel for the applicant argued that the issue of the applicant having a Christian girlfriend to whom the applicant’s father took exception was, in fact, raised in the applicant’s irregular maritime arrival entry interview held on 25 July 2012. In that passage the applicant argued that he told representatives of the Department then known as the Department of Immigration and Citizenship that “my dad wasn’t in agreement with the marriage.
At one time I was pretending to commit suicide and took a few tablets that weren’t too bad to feign that I was trying to kill myself”.[61][61] Court Book filed 26 February 2016 at p.16.
The applicant contended that the delegate referred to the disagreement between the applicant and his father, stating that the applicant “pretended to commit suicide and took a few tablets. His father made fun of him and told him off”.[62]
[62] Court Book filed 26 February 2016 at p.127.
The applicant also referred to a statement that his migration agent supplied to the Tribunal, the salient portion of which read as follows –
Another issue was that I did not include any details about my attempted suicide into my statement of claims. I am certain that I did mention it in my interview with my representative though.
It is possible that it was just not included in the statement and I think I did not insist because I though (sic) that my representative knows better what is important and what isn’t.[63]
[63] Court Book filed 26 February 2016 at p.207.
So far as the Tribunal’s treatment of the false suicide, that was addressed in paragraph 24 of the Tribunal’s reasons. It is as well to set out the whole paragraph –
In his entry interview on 27 July 2012 the applicant claimed to have departed Iran for Australia for three reasons: firstly that time was important to him, by which it appears he meant he was young and wanted to get on with making a success of his life; secondly, that he had economic problems in Iran; and thirdly, he had a Christian girlfriend and as a Muslim he could not marry her. He said he pretended to commit suicide after his father disagreed with him about having a Christian girlfriend.
His father stopped talking to him, but life continued as normal. His financial problems had a huge impact on him.[64]
[64] Court Book filed 26 February 2016 at p.242.
Having recited that aspect of the applicant’s claim, the applicant submitted that the false suicide assertion assumed the status of an integer calling for the Tribunal to specifically address it and that, wrongly, the Tribunal gave no consideration to the matter.
Ms C. Symons, counsel for the Minister, did not take issue with the proposition that the false suicide and the applicant’s father’s disapproval of the applicant’s girlfriend was an integer of claim. However, Ms Symons submitted that the applicant’s personal reaction to an event that occurred could not, and on the facts of this case did not, constitute Convention harm. According to Ms Symons, whether the information given to the Tribunal about the false suicide and the tension between the applicant’s father and the applicant’s girlfriend was characterised as background narrative, an integer of a claim or even an articulated claim made no real difference as it had no dispositive relevance. At my request that Ms Symons reduce her proposition to a single sentence she said “[t]he question of whether or not the applicant had attempted suicide was a matter that could not have had any bearing on the outcome of the applicant’s review application before the tribunal”.[65]
[65] Transcript of Proceedings, 22 April 2016 at p.34.
Underpinning the Minister’s submissions in that regard was a collection of factual findings made by the Tribunal, as follows -
a)in paragraph 36 of its reasons the Tribunal found that the applicant’s own actions did not support the finding that his family would violently oppose his marriage to his Christian girlfriend. The Tribunal found it implausible that the applicant would have got the families together to organise a wedding if the applicant’s father was the radical fundamentalist that the applicant described him as being. The Tribunal found that the applicant had exaggerated his father’s response to discovering the applicant had a Christian girlfriend and observed that there was no prohibition on Muslim men marrying non-Muslim women in Iran;
b)in paragraph 37 of its reasons in relation to the applicant’s claim that he had been physically detained and attacked by his father, the Tribunal rejected such claims having regard to the failure of the applicant to raise the incident in his entry interview and having regard to the inconsistencies in the applicant’s account about whether he sought or received medical care after being attacked with a knife;
c)in paragraph 39 of its reasons the Tribunal noted that it had taken into account the evidence of the applicant’s mother but determined, due to the concerns about the applicant’s claims and the inconsistencies in his evidence, that it would give little weight to that aspect of the evidence. The Tribunal found that the applicant’s mother gave evidence for the purpose of helping her son with his application;
d)in paragraph 41 of its reasons the Tribunal found that whilst the applicant may no longer personally follow Islam, this personal belief would not bring him to the adverse attention of the authorities. The Tribunal considered that unless the applicant intended to publicly denounce or insult Islam (and there was no evidence to that effect), the chance of serious harm for this reason was too remote to amount to a “real chance”.[66] The Tribunal referred to country information to the effect that individuals could not be prosecuted simply for their belief and that convictions for apostasy were not common. The Tribunal concluded that the applicant did not have a well-founded fear of persecution for reason of no longer having a religious belief; and
e)
in paragraph 44 of its reasons the Tribunal found that there was nothing in the applicant’s personal circumstances that would give him a profile such that the authorities would take an adverse interest in him upon his return. The Tribunal found otherwise,
and having regard to country information, the applicant’s actions in seeking a protection visa in a western country did not give rise to a well-founded fear of persecution.
[66] Court Book filed 26 February 2016 at p.246.
The question therefore was whether counsel for the applicant was correct when he submitted that the Tribunal gave no consideration to –
a)the applicant’s pretended suicide; and
b)the applicant’s father’s threat of reporting the applicant for apostasy.
In my judgment, the Tribunal did in fact consider those two issues.
It was erroneous to contend otherwise. The pretended suicide issue was addressed in paragraphs 24 and 26 of the Tribunal’s reasons.
The Tribunal found that the applicant exaggerated his father’s response to discovering that the applicant had a Christian girlfriend.
As for the argument that the applicant’s father would report the applicant due to the applicant’s lack of religion or apostasy,
the Tribunal addressed that claim in paragraph 35 of its reasons. In any event, the Minister submitted that the allegation about the applicant being reported to the authorities due to his lack of religion or apostasy was dealt with by the Tribunal in the context of the applicant’s claim that he had come to the adverse attention of the authorities and,
as a result, had been issued with a court summons. On that point,
at paragraph 40 of its reasons the Tribunal found that the claim that a court summons had been issued against the applicant was a fabrication.
In other places in the Tribunal’s reasons the Tribunal found that the applicant’s claim was an embellishment (for example, paragraph 38) or that the applicant fabricated his claims as he went along (for example, paragraph 37).
To my mind, there is merit in the Minister’s submission that the point was best resolved according to the observations of the Full Court of the Federal Court of Australia in Applicant WAEE. There, the
Full Court held that an inference ought not too readily be drawn that the Tribunal failed to consider an issue by reason of the fact that the reasons of the Tribunal did not expressly deal with the issue.
The Full Court held that such an inference should not be too readily drawn where the reasons are otherwise comprehensive and the issue has been identified at some point. The Full Court further held that it may be unnecessary for the Tribunal to make a finding on a particular matter because any such finding is subsumed in findings of greater generality.
That is precisely the situation in relation to ground one in this case.
The Tribunal identified the pretended suicide issue as well as the issue about the applicant’s father’s intimation of his intention of reporting the applicant to the authorities due to the applicant’s lack of religion or his apostasy. In addition to the Tribunal considering at paragraph 36 of its reasons that the applicant had exaggerated his father’s response to discovering that the applicant had a Christian girlfriend, the Tribunal’s finding that the applicant’s assertions of the existence of a court summons (premised on the fact that the applicant’s father had initiated the issue of the summons) was a fabrication. In other words, it was not necessary for the Tribunal to make a specific finding on the pretended suicide assertion or on the reporting of the apostasy assertion because those matters were precursors to the issue of a court summons against the applicant and the Tribunal found the claim about the existence of a court summons to have been a fabrication. The finding about the summons being a fabrication was a finding of greater generality that necessarily subsumed the existence of the pretended suicide claim and the reporting for apostasy claim.
Strictly speaking, it was not correct to contend, as the applicant contended, that the Tribunal having identified the pretended suicide issue and the claim about the father reporting the applicant for apostasy failed to dispose of those matters. I do not agree with the applicant’s submission that those matters, whether described as claims or integers of claims, were not impliedly disposed of by the findings of greater generality. The findings of greater generality were findings that the applicant fabricated his claim about his being summoned and that he would be arrested upon his return to Iran. Necessarily subsumed in that finding was a conclusion about the basis for the issue of the summons. As the Tribunal found that the applicant’s narration of events in relation to the summons was a fabrication, it followed logically that the narration of events that predated the summons was also disposed of.
Ground one had no prospect of success.
Ground two
[67] (1995) 184 CLR 163.
Under the second ground of review the applicant contended that the Tribunal fell into jurisdictional error by identifying a wrong issue or asking a wrong question. Those were the classic indicators of the existence of jurisdictional error canvassed in such authorities as
Craig v State of South Australia[67]and Minister for Immigration and Multicultural Affairs v Yusuf.[68] The error for which the applicant contended was the Tribunal’s conflation of the tests for refugee status and complementary protection in requiring the significant harm to be for a Convention reason.
[68] (2001) 206 CLR 323 at [82].
In written submissions, the applicant contended that the Tribunal’s task in addressing the applicant’s complementary protection claim was “simply to assess the risk of significant harm”.[69] Wrongly, according to the applicant, the Tribunal expressed the test more broadly in paragraph 46 of its reasons in the following terms –
For the reasons given above, the Tribunal finds the applicant does not have a real risk of significant harm from the Iranian authorities, or anyone else in Iran, for his lack religion (sic), having a Christian girlfriend or having spent time in a Western country.[70]
[69] Applicant’s Submissions filed 11 March 2016, p.4 at [16].
[70] Court Book filed 26 February 2016 at p.248.
The applicant highlighted that it was erroneous for the Tribunal to stipulate the basis on which the real risk of significant harm emanated, that is to say, “for his lack religion (sic), having a Christian girlfriend or having spent time in a Western country”.[71]
[71] Ibid.
In his submissions before me, counsel for the applicant contended that it was necessary in a complementary protection claim to examine whether significant harm would occur, irrespective of the cause.
To better understand the way the Tribunal approached the complementary protection basis of the case, it is first necessary to examine the way the Tribunal recited what it called “relevant law” and its dissection of the tests under s.36(2)(a) of the Act on the one hand and under s.36(2)(aa) of the Act on the other hand. Between paragraphs 7 and 16 of its reasons, the Tribunal addressed the elements of the
1951 Convention relating to the Status of Refugees (“the Convention”). Neither party contended that the Tribunal made any error in its recital of the elements of s.36(2)(a) of the Act. Between paragraphs 17 and 19 of its reasons, the Tribunal addressed the elements of the complementary protection criteria. Neither party argued that the Tribunal made any error in its recital of the elements of s.36(2)(aa) of the Act. Paragraph 45 of the Tribunal’s reasons was accurate, it seemed to me, in its distillation of the matters the Tribunal needed to consider.
The applicant said no vice was revealed by the following wording of paragraph 46 of the Tribunal’s reasons – “the Tribunal finds the applicant does not have a real risk of significant harm”.[72] However, the words by which paragraph 46 commenced, “[f]or the reasons given above” coupled with the words by which paragraph 46 ended
“from the Iranian authorities, or anyone else in Iran, for his lack religion(sic), having a Christian girlfriend or having spent time in a Western country”[73] were odious.
[72] Court Book filed 26 February 2016 at p.248.
[73] Court Book filed 26 February 2016 at p.248.
In submissions before me, counsel for the applicant contended that the Tribunal set out the wrong test and it was not possible to infer that the Tribunal applied the correct test.
In written submissions, counsel for the Minister contended that the Tribunal invited the applicant to address the complementary protection claim, that the applicant advanced all he chose to advance and none of it went beyond the facts said to give rise to the refugee claims.
Put slightly differently, the Minister contended that the facts that gave rise to the refugee claim were necessarily the same facts that gave rise to the applicant’s claim for complementary protection.
Before me, Ms Symons submitted that the Tribunal made findings of fact relevant to Convention-based grounds and that as a separate finding, by reference to those same facts as found, the Tribunal concluded that the applicant did not engage the complementary protection obligations.
To my way of thinking this ground of review is best considered against the wording of s.36(2)(a) and s.36(aa) of the Act and the status of the evidence in relation to each. Did substantial grounds exist for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there was a real risk that the applicant would suffer significant harm? That was the criteria for the purposes of s.36(2)(aa) of the Act. The applicant advanced and relied on identical facts in support of his contentions concerning the complementary protection aspect of the case as he did in relation to the refugee criterion. The Tribunal was not persuaded that the applicant met the criteria in relation to s.36(2)(a) of the Act. In the absence of any other or different evidence, the Tribunal had no factual foundation for concluding differently about the Convention basis than it did in relation of the complementary protection claim. That probably explained the Tribunal’s use of the words “[f]or the reasons given above” in the opening sentence of paragraph 46 of its reasons. But did the inclusion of the words over the balance of paragraph 46 after “significant harm” wholly invalidate the finding in paragraph 46 that the applicant did not have a real risk of significant harm?
In my opinion it did not.
Having recited the parameters of the phrase “significant harm” according to s.36(2)(a) and s.5(1) of the Act, paragraph 46 of the Tribunal’s reasons must be taken to be the expression of the Tribunal’s view that it was not satisfied that the applicant suffered “significant harm”. That was a factual matter properly open to the Tribunal.
To embed into paragraph 46 of the Tribunal’s reasons the improper conflation of the separate elements of s.36(2)(a) with those of s.36(2)(aa) of the Act is to construe the Tribunal’s reasons minutely and finely with an eye keenly attuned to the perception of error.
The decision of the Full Court of the Federal Court of Australia in Collector of Customs v Pozzolanic Enterprises Pty Ltd[74] instructs me that I must not construe the Tribunal’s reasons minutely and finely with an eye keenly attuned to the perception of error.
[74] (1993) 43 FCR 280, 287.
In my view ground two has no prospects of success.
Ground three
Ground three focused on jurisdictional error based on illogicality and irrationality. In essence, the applicant contended that no logical connection existed between the evidence and the conclusions drawn by the Tribunal.
To better understand the point, the applicant referred to paragraph 41 of the Tribunal’s reasons. There, the Tribunal stated that it did not accept that the applicant’s personal belief that he no longer followed any religion would bring him to the adverse attention of the authorities.
The Tribunal stated further that it considered that unless the applicant intended to publicly denounce or insult Islam, the chance of serious harm for that reason was too remote to amount to a real chance.
In his written submissions, the applicant contended that it was not entirely clear why the risk of harm only materialised if the applicant himself publicly renounced Islam. He said no logical distinction could be made based on who made the disclosure of apostasy, provided the disclosure was in fact made. The applicant said jurisdictional error resulted.
In the Minister’s submissions, counsel pointed out that whatever view one took about the reasoning process in which the Tribunal engaged in paragraph 41 of its reasons, that reasoning was neither illogical nor irrational. Ms Symons submitted that country information existed to the effect that atheists were unlikely to come to the attention of security authorities and that individuals could not be prosecuted simply for their beliefs.
The Minister submitted that in accordance with the observations of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS[75] a decision cannot be said by a reviewing court to be illogical or unreasonable simply because one conclusion has been preferred to another conclusion in circumstances where probative evidence can give rise to different processes of reasoning and if logical and reasonable minds might differ in relation to the conclusions to be drawn from that evidence.
[75] (2010) 240 CLR 611.
It seems to me that the real fallacy of the applicant’s argument lay in the consequences of a disclosure of apostasy. Having regard to the state of country information to the effect that atheists are unlikely to come to the attention of security authorities, and that an individual cannot be prosecuted simply for his or her beliefs, the Tribunal was correct in concluding that it did not accept the applicant’s contention that he would come to the attention of authorities for not following a religion. Even if the Tribunal had accepted the applicant when he said he had a genuinely held and earnest belief that he no longer followed any religion, that was unlikely to be sufficient for the applicant to come to the attention of the authorities. That said, a public denunciation of or insult to Islam may well have led to the existence of a chance of serious harm which was less than remote.
The proposition can be tested in the following manner - if the applicant believed that he was an apostate, his beliefs alone could not found a prosecution, no matter whether the applicant personally or some interloper disclosed to the authorities that he believed he was an apostate. But the risk of serious harm to the applicant was increased if he personally publicly renounced Islam or insulted it. To my mind there is no illogicality or irrationality in that process of reasoning.
It seemed to me that ground three was devoid of merit.
Ground four
Under this ground, the applicant raised a matter described as procedural fairness. He contended that the Tribunal found that the applicant’s mother had deliberately given false evidence in support of the applicant without putting to her that she was giving false evidence. In his written submissions the applicant argued that the Tribunal found that the applicant’s mother had embellished her evidence and that the Tribunal should have, but failed to, suggest to the applicant’s mother that she was fabricating evidence so as to support her son.
The applicant argued that the Tribunal acted in breach of rules of procedural fairness.
In debate before me, counsel for the applicant accepted that the rules of evidence customarily applied in cases of an adversarial nature have a much curtailed application in the context of administrative law, particularly in cases under the Act, having regard to the inquisitorial nature of the Tribunal’s operations, based as they are upon a “review” of the decision of the delegate. Counsel for the applicant also agreed that in this case the mother was a “mere witness”.[76]
[76] Transcript of Proceedings, 22 April 2016 at p.22.
The point about procedural fairness raised by the applicant
was intriguing. The applicant’s written submissions did not flush
out the point to any degree. The point became more focused
upon its presentation by Mr Solomon-Bridge during debate.
Mr Solomon-Bridge argued it extremely well, if I may say so, as he did on all grounds, as did Ms Symons. Let me restate the argument as it was developed during debate.
After hearing from the applicant’s mother the Tribunal concluded at paragraph 38 of its reasons that the mother’s evidence was embellished in order to support her son. The applicant contended in paragraph 21 of his written submissions that a finding of embellishment was the same as a finding that the mother had made a statement that was false or misleading, and deliberately so, in order to advance her son’s visa application. Mr Solomon-Bridge asserted that s.234(1)(b) of the Act rendered it a criminal offence for “a person” (not necessarily the visa applicant) in connection with an application for a visa to make or cause to be made to a person exercising powers or functions under the Act in a statement that, to that person’s knowledge, was false or misleading in a material particular. Mr Solomon-Bridge submitted that the Tribunal’s finding that the mother embellished her evidence was a finding that the mother positively misled the Tribunal. Counsel contended that the finding of embellishment had two consequences –
a)the first was that such a finding exposed the mother to criminal liability in relation to s.234(1)(b) of the Act; and
b)the second was reputational, as that concept was explained in the High Court’s decision in Ainsworth v Criminal Justice Commission[77] (“Ainsworth”).
[77] (1992) 175 CLR 564.
Mr Solomon-Bridge argued that a fundamental element of procedural fairness was that someone against whom a serious adverse finding was to be made should be notified in advance that the serious adverse finding will, or is likely to be, made against that person. Before me,
Mr Solomon-Bridge put the point in similar terms as follows –
HIS HONOUR: It’s a curious argument.
MR SOLOMON-BRIDGE: Well, your Honour, as your Honour will be well familiar, there are no prescriptive rules about the content to be afforded. So it doesn’t – there’s not much to be gained from a discursus as to when, in a hypothetical instance, someone might alert someone else to adverse findings. But what is clear, in my respectful submission, is that once the Tribunal apprehended that that was going to be the reason for rejecting in toto her corroborative evidence that there was a minimum content of procedural fairness that should be accorded to her. That’s what we say. Now, if that required reconvening the Tribunal, that often happens with respect to the applicant. If that required a letter to the mother to say, well, look, you know, would you like to email us, you know, something in response to that, well, equally, that would be something consistent with the efficient, just determination of proceedings as it’s obliged to conduct itself.[78]
[78] Transcript of Proceedings, 22 April 2016 at p.27.
On behalf of the Minister, Ms Symons made two main points on this issue –
a)first, Ms Symons submitted that the inquisitorial nature of the proceeding in the Tribunal had the result that rules of evidence of the sort espoused in Browne v Dunn[79] did not apply; and
b)second, Ms Symons submitted that the Tribunal was not obliged to extend to the mother procedural fairness because no “decision” was made by the Tribunal that directly affected the mother.
[79] (1893) 6 R 67.
[81] [2003] HCA 60 at [57].
In developing the first proposition relating to Browne v Dunn,
Ms Symons relied on the decision at first instance in BTF15 v Minister for Immigration and Border Protection[80] (“BTF15”) yet the appeal in that case was handed down on 3 June 2016, that is to say, between the date of the hearing of this case and the date on which I delivered judgment in it. In the Federal Court of Australia, Katzmann J
[80] [2016] FCA 647.
made various observations about the application of the rule in
Browne v Dunnin BTF15. There, Katzmann J held that the rule in
Browne v Dunndid not apply to a proceeding in the Tribunal because the proceeding was inquisitorial and not adversarial and that in
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002[81](“Applicant S154/2002”) the High Court
held that the rule in Browne v Dunn has no application in an inquisitorial proceeding. By way of amplification, the 1890s decision in Browne v Dunn was more recently restated by Hunt J in
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation.[82]
[82] [1983] 1 NSWLR 1.
I agree that the rule in Browne v Dunn has no application to an inquisitorial proceeding of the sort conducted by the Tribunal.
The High Court of Australia emphatically pronounced on point.
The Tribunal member conducting the enquiry is not an adversarial cross-examiner. The Tribunal member has no “client” and no “case” to put against the applicant, as Gummow and Heydon JJ said (with whom Gleeson CJ agreed) in Applicant S154/2002. Importantly, concepts about matters to be put in pursuance of the rule in Browne v Dunn ordinarily focus on puttage to a plaintiff or to an applicant rather than to a witness (bearing in mind Mr Solomon-Bridge’s characterisation of the mother as a “mere witness”).[83]
[83] Transcript of Proceedings, 22 April 2016 at p.22.
In answer to the applicant’s point about the finding of embellishment amounting to a contravention of s.234(1)(b) of the Act, Ms Symons contended that such a finding was no more than a factual finding necessarily made in the disposition of the proceeding and one the Tribunal was entitled to make. The Minister called in aid the observations of the High Court in Abebe and SZJSS to the effect that the weighing of various pieces of evidence is a matter for the Tribunal.
The Minister took issue with the applicant’s contention that the Tribunal was obliged to accord procedural fairness to the mother.
The Minister relied on two propositions in that regard –
a)first, the Minister said the mother was not a person directly affected by the Tribunal’s decision; and
b)second, the Minister said the Tribunal was not required to put to the mother what the Tribunal was minded to decide.
In support of the first proposition, counsel for the Minister relied on the observations of the Full Court of the Federal Court of Australia (Northrop, Miles and French JJ) in Commissioner for Australian Capital Territory v Alphaone Pty Ltd[84] (“Alphaone”). In that case,
the Full Court held that it is a fundamental principle that where the rules of procedural fairness applied to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. To interpolate, the rules of natural justice that require the giving of an opportunity to be heard applied to the party to be directly affected by the decision. On the facts of this case, the person to be directly affected by the Tribunal’s decision was the applicant, not the applicant’s mother.
[84] (1994) 127 ALR 699.
In Alphaone, the Full Court adopted the observations of Lord Diplock in his Lordship’s speech to the House of Lords in F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry.[85] Relevantly paraphrased, there Lord Diplock held that the rules of natural justice do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising the decision-maker’s mental processes before he reaches a final decision.
[85] [1975] AC 295, 386.
In his reply submissions, Mr Solomon-Bridge contended that the issue was not the revelation of the Tribunal’s thought processes. He said the point was whether the Tribunal should have informed the applicant’s mother that the Tribunal may form the view that by reason of the fact that she was the applicant’s mother she might have a reason to give untrue evidence. Mr Solomon-Bridge said the point was best illustrated by the observations of the plurality in Kuhl v Zürich Financial Services Australia Ltd[86] (“Kuhl”). That case involved a claim for damages for personal injuries where the plaintiff’s arm was sucked into a flexible
high-pressure vacuum hose. The trial judge was not satisfied by the plaintiff’s evidence. The trial judge stated that he considered that the plaintiff had been reluctant to say what had in fact occurred. In the High Court, Heydon, Crennan and Bell JJ held that it was unjustified for the trial judge to have attributed the paucity of the plaintiff’s evidence to deliberate suppression without giving reasons for that course excluding all relevant innocent possibilities.
[86] (2011) 243 CLR 361.
The plurality further held in Kuhl (at [71]) that the rule in Browne v Dunn made it “absolutely essential to the proper conduct of a cause”[87] that where it was intended to suggest that the witness was not speaking the truth on a particular point, to direct the witness’s attention to that fact by some questions put in cross-examination. The plurality said if a person intends to impeach a witness “you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him”.[88] The High Court went on to state an allegation in final address that the plaintiff suppressed evidence would in substance be a suggestion that he was not speaking the truth and ought not to be believed. The plurality then posed the rhetorical question –
Now if it was not open to counsel for the first respondent to make the postulated allegation, how can it have been open to the trial judge, without warning, to incorporate into his reasons for judgment a finding to the same effect as the allegation?[89]
[87] (2011) 243 CLR 361 at [71].
[88] Ibid.
[89] (2011) 243 CLR 361 at [72].
Having carefully considered the observations of the plurality in Kuhl,
a number of matters relevant to this case may be shortly stated.
First, unlike this case, Kuhl was concerned with the common law claim in negligence in which the plaintiff sought damages. Conversely,
this case is an application under the Act in which there is no plaintiff, no defendant, no claim to damages, no cross-examination, no puttage to witnesses and no impeachment of witnesses. In this case, unlike in Kuhl, no issues emerged about causation in the proof of a claim in negligence, no questions emerged about the existence of a duty of care or about the breach of that duty. Before the Tribunal the relevant enquiry was whether the applicant met the elements of s.36(2)(a) or s.36(2)(aa) of the Act. Before me the relevant enquiry was whether the Tribunal fell into jurisdictional error. Questions about suppression of evidence, allegations that anyone had failed to speak the truth in deliberately not describing the whole of what a witness remembered and the like could only ever be relevant if they addressed an issue going to jurisdictional error.
However it seemed to me that the premise upon which ground four was based proceeded upon an erroneous assumption that the rule in
Browne v Dunnapplied to an inquisitorial proceeding. The
High Court’s decision in Applicant S154/2002 put the matter beyond doubt in stating that the rule in Browne v Dunn does not apply to an inquisitorial proceeding.
Ground four also proceeded on the erroneous premise that rules of procedural fairness applied to a person (here, the applicant’s mother) other than the party liable to be directly affected by the relevant decision (here, the applicant). The decision in Alphaone put the matter beyond doubt that the relevant person to whom the rules of procedural fairness applied was “the party liable to be directly affected by the decision”.[90] In this case, the mother would in all likelihood be indirectly affected by the Tribunal’s decision (if it stood unreversed) because her son would continue to be a person in whose favour a protection visa stood refused. However the applicant, not his mother, is entitled to assert that the rules of procedural fairness applied to him.
[90] (1994) 127 ALR 699, 714.
So far as the applicant’s contentions about s.234(1)(b) of the Act were concerned, it seemed to me that a finding of embellishment in respect of a person’s evidence was a very different proposition to the making of a statement that, to that person’s knowledge, was false or misleading in a material particular. The latter involved deliberateness in the making of the knowingly false statement. The former may have been the result of an innocent statement that was found subsequently to have been the subject of additions.
Ground four also brought in Mr Solomon-Bridge’s submissions concerning Ainsworth. It was argued that reputation is an interest attracting the protection of the rules of natural justice, citing such
long-standing authorities as Fisher v Keane,[91] Annetts v McCann,[92] Heatley v Tasmanian Racing and Gaming Commission,[93] Kioa v West[94] and Mahon v Air New Zealand Ltd & Ors.[95] In several of those authorities, a stream of learning can be deduced to the effect that personal, business or commercial reputation is an interest that should not be damaged by an official finding after a statutory enquiry unless the person whose reputation is likely to be affected has had a full and fair opportunity to show why the finding should not be made. Even an adverse recommendation rather than an express finding will suffice to entitle a person to procedural fairness in that regard.
[91] (1879) 11 Ch D 353, 362.
[92] (1990) 170 CLR 596, 598.
[93] (1977) 137 CLR 487, 494.
[94] (1985) 159 CLR 550.
[95] [1984] AC 808.
To my mind, it would strain the language of the legislation to say that the Tribunal’s function under the Act was to make an “official finding after a statutory inquiry”. In this case, as part of the Tribunal’s statutory role, it heard from the applicant’s mother. In giving evidence she acquired the status of a witness. In making observations about her evidence, the Tribunal did not make an “official finding after a statutory inquiry”. Instead, the Tribunal made an assessment of her evidence in the course of finding facts necessary to dispose of the application.
To my mind, it would bring the wheels of justice and the workings of the Tribunal to a grinding halt to uphold ground four. If I were to accept the applicant’s submissions on point, it would mean that a witness, howsoever peripheral, would be entitled to the benefit of the whole metes and bounds of the rules of procedural fairness. If I were to accept the applicant’s submissions on ground four it would mean that every witness against whom a serious adverse finding will or was likely to be made, would have to be notified in advance of that prospect. That was set against a factual backdrop of the high-volume caseload of the Tribunal. It was also set against a backdrop where the possible significance of a witness’s evidence only emerged well into the hearing or, as often is the case, after the Tribunal assessed that witness’s evidence against other documentary or viva voce evidence when the Tribunal’s decision was reserved. One need only state the point to at once be struck by the practical impossibility of its application. Moreover, this submission in ground four was set against a legal backdrop in which the rule in Browne v Dunn had no application in an inquisitorial proceeding in which rules of procedural fairness are extended to have application to the party liable to be directly affected by the decision, not all and every witness, peripheral or otherwise.
In my judgment, ground four cannot be maintained.
Conclusion
None of the four grounds of review amount to jurisdictional error.
It follows that none of the grounds of review are “arguable”, “reasonably arguable”, “sufficiently arguable” nor have any of the four grounds of review “reasonable prospects of success”.[96]
[96] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391.
In my view no point is served in granting an extension of time for the bringing of this application for the review of the Tribunal’s findings.
I refuse the application to extend time.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 8 September 2016
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