BCK21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 55

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BCK21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 55

File number(s):	CAG 16 of 2021
Judgment of:	JUDGE HUMPHREYS
Date of judgment:	7 February 2022
Catchwords:	MIGRATION – Administrative Appeals Tribunal – Protection visa – whether the Tribunal fell into jurisdictional error – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed.
Legislation:	Migration Act 1958 (Cth), s.424AA
Cases cited:	ARG 15 v Minister for Immigration and Border Protection [2016] FCAFC 174 BJC21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 205 BVE16 v Minister for Immigration and Border Protection (2018) 261 FCR 148 DFC16 v Minister for Immigration and Border Protection (2018) 259 FCR 460 Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68
Division:	Division 2 Family Law
Number of paragraphs:	32
Date of last submission/s:	3 February 2022
Date of hearing:	3 February 2022
Place:	Sydney
Counsel for the Applicant:	Mr Moutasallem
Solicitor for the Respondents:	Mr Morris

ORDERS

CAG 16 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BCK21

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	7 FEBRUARY 2022

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Applicant is to pay the First Respondent’s costs, fixed in the amount of $7,000.00.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

1. The applicant claims to be a citizen of Lebanon. The applicant came to Australia on a Temporary Visitor’s visa on 16 June 2016. On 25 August 2016, the applicant applied for a Protection visa. In the applicant’s Protection visa application, he cited as his reasons for seeking the visa, issues with his in-laws, including threats to kill him.

2. Prior to arriving in Australia, the applicant spent 3 years working as a hairdresser in Kuwait. The applicant stated that he was invited to come to Australia by his sister for a short holiday. The applicant decided to stay after the company he worked for in Kuwait cancelled his sponsorship.

3. On 2 April 2017, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a Protection visa.  The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”).  In a decision dated 15 April 2021, the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa.  The applicant now seeks judicial review of the Tribunal’s decision.

   THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION

4. The Tribunal hearing took place on 27 February 2021. Given the grounds of the application for judicial review set out below, it is not necessary to summarise in full the Tribunal decision. At paragraph 9 of its decision, the Tribunal set out part of the statement made by the applicant in support of his Protection visa. This relevantly includes that the applicant claimed to have been involved is a dispute with his wife and her family as regards property that he states he owns in Lebanon but did not register in both his and his wife’s name. The applicant registered the property only in his wife’s name and was then harassed by his wife’s family. This included sending people to kill him. It was after this that the applicant went to Kuwait to work. Following a dispute with his employer, the applicant claims that his sponsorship to work in Kuwait was cancelled.

5. At paragraph 10 of its decision, the Tribunal noted that the applicant was asked about the relevance of a car accident the applicant was involved in in 2019. The applicant stated that he was unwell and that this prevented him from attending the Sydney Registry of the Tribunal but that there was no problem attending in Canberra.

6. At paragraph 11 of its decision, the Tribunal noted that the applicant had failed to provide specific property registration information available from the Ministry of Finance in Lebanon that had been requested by the Tribunal. The Tribunal records that the applicant claimed he just signed the visa application that had been prepared by a lawyer and did not know precisely what was in the application.

7. At paragraph 19 of its decision, the Tribunal records that the applicant stated he had given up any rights that he may have had to property in Lebanon. As a result, the applicant did not have fears of serious harm due to the property dispute.

8. At paragraphs 28 to 30 of its decision, the Tribunal noted that the applicant claimed to have attended his daughter’s engagement in Lebanon in 2015. The applicant went to the function notwithstanding that his wife and her family attended the function. It was put to the applicant that attending the function was inconsistent with fearing serious harm from his wife and her family.

9. At paragraphs 41 to 45 of the Tribunal decision, various matters were put to the applicant pursuant to s 424AA of the Migration Act 1958 Cth (“the Act”) which included not making a complaint against his Migration Agent, giving three separate dates regarding his alleged divorce and inconsistencies about why the Sidawi family would wish to harm him. It is to be noted that each of these matters were put to the applicant on the basis that they raised concerns as to his credibility.

10. At paragraphs 44 to 45 of its decision, the Tribunal noted that the applicant claimed that he had disclosed everything at the hearing and was scared to disclose some matters when interviewed by Departmental Officers. The applicant requested that he be given the questions asked of him during the hearing, in writing so he could answer them post hearing in a submission. The Tribunal noted that the applicant would not be given those questions again in writing, as he had been given a chance to answer them at the hearing but that he would be given a small amount of time post-hearing if he wanted to answer them further in a post-hearing submission.

11. At paragraph 46 and onwards of its decision, the Tribunal found the applicant not to be a credible or truthful witness and had fabricated his claim in order to be granted a Protection visa. The Tribunal rejected the evidence of the applicant as to his fears of serious harm if returned to Lebanon.

12. At paragraph 64 of its decision, the Tribunal noted that it initially allowed the applicant until

    
    

    2 March 2021 to provide additional information. The applicant requested on several occasions that he be provided with written questions for him to answer. The Tribunal declined to do so. The time for any post-hearing response was however extended to 8 March 2021 but, not the additional 14 days requested by the applicant. No response was received. The Tribunal handed down its decision on 15 April 2021.

    GROUNDS OF APPLICATION

13. The grounds of judicial review relied upon are set out in an amended application filed with the Court on 2 November 2021.  They are as follows:

    Ground One

    The Tribunal fell into jurisdictional error at [48] where the Tribunal held that:

    “I have taken into account some medical reports regarding a car accident that the applicant presented prior to the hearing but lend them little weight in determining the credibility of his claims.  He made no claim they affected his memory and neither is there anything in the reports that would indicate he had any memory problems.”

    Particulars:

    a.   The Tribunal failed to have regard to the evidence submitted by the applicant that demonstrated he had difficulties with memory disturbance and difficulties with concentration: see CB 140-142.

    b.   The Tribunal failed to consider an aspect of the applicant’s case.

    c.   The Tribunal made findings in the absence of evidence.

    d.   In making a finding contrary to the evidence, the Tribunal made an unreasonable finding.

    Ground Two

    The Tribunal fell into jurisdictional error at [65] in failing to allow the applicant 14 days to provide answers to questions asked by the Tribunal at the hearing on 25 February 2021 and by failing to provide the applicant the questions in writing.

    Particulars

    a.   The Tribunal failed to have regard (to) the evidence and submissions made by the applicant relating to the relevance of his health issues to his need for the questions to be in writing and his request for 14 days to respond to the questions of the Tribunal. 

    b.   In denying the application for 14 days to respond to the questions and denying the request for the questions to be furnished in writing the Tribunal acted unreasonably

    CONSIDERATION

14. It is perhaps appropriate to initially make a number of general observations in regards to the applicable law in conducting a judicial review of a migration matter.

15. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant: (see; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]). Jurisdictional error is not present if the Tribunal’s findings were open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings: (see; ARG 15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83]).

16. The Tribunal’s disbelief of an applicant’s evidence arising from inconsistencies therein, is not “information” for the purposes of s 424A of the Act. However, it is now well established that the Tribunal may, out of an abundance of caution or concern for fairness, put a particular line of reasoning to an applicant in circumstances where s 424 of the Act has no application:

    
    

    (see; SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [30]).

17. A medical certificate should identify the medical condition that would prevent the sufferer from participating effectively in a Court hearing. There must be clear evidence that the applicant’s mental state deprived him of a meaningful opportunity to participate in the hearing mandated by s 425 of the Act: (see; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [19]).

18. Ground one complains that the Tribunal fell into error in that there was clearly an unarticulated claim that squarely raised that the applicant had memory problems. This, it is said, was dismissed by the Tribunal at paragraph 48 of its decision.

19. The report of Dr Takyar dated 6 December 2020 that is relied upon by the applicant relevantly states as follows (CB 140-142):

    His concentration was moderately disrupted, and he stated that he watches television but loses focus and he can no longer focus on reading as well…

    He described irritability as noted above as well as lowered frustration tolerance…

    He spoke at a normal rate and volume through the interpreter with normal thought form, but tangential requiring redirection frequently and his concentration was disrupted, intermittently requiring redirection because of obliquely related answers of lack of detail. He presented with some memory disturbance on review.

20. In relation to Ground 1a, it is clear that the Tribunal did have regard to the medical evidence. It said as much when the Tribunal stated at paragraph 48 of its decision, “I have taken into account the medical reports regarding a car accident that the applicant presented at the hearing”. The Tribunal had also cautioned itself at paragraph 47 of its decision that ‘undue weight should not be placed on some level of confusion or omissions to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed.”

21. The complaint that the Tribunal did not have regard to the medical evidence has no merit. The Tribunal considered the issue but was not satisfied that the medical evidence was sufficient to find that the applicant’s memory was so faulty that his oral evidence at the hearing was unreliable or worthless. “Some memory disturbance” does not equate to ongoing memory problems such that the applicant was unable to effectively participate in the hearing and so denied a fair hearing or that his oral evidence was unreliable. If that was the case, the medical evidence should have so stated. Paragraphs 47 and 48 of the Tribunal decision need to be read together. The Court does not accept that the Tribunal did not consider the issue. It simply was not prepared to accept on the basis of the evidence before it that the applicant had memory problems. Ground 1a has no merit.

22. Ground 1b is a variation of Ground 1a. It complains that the Tribunal failed to consider an unarticulated aspect of the applicant’s case as regards his memory issues. The applicant relies upon DFC16 v Minister for Immigration and Border Protection (2018) 259 FCR 460 (“DFC”) to the effect that unarticulated claims may nonetheless form part of the applicant’s case where they arise on the evidence. Such a claim must be raised ‘squarely’ on the evidence. However such a claim “will not depend upon for its exposure on constructive or creative activity by the Tribunal”: (see; DFC at [463]). At no point in the hearing, noting that a copy of the transcript was tendered to the Court, did the applicant raise even obliquely that his memory was faulty and he was unable to recall past events clearly. Further, the medical report does not explain inconsistencies in the applicant’s claims and evidence, including those in the statement in support of the protection visa made before the car accident. The Court does not accept the applicant’s submission that in seeking further time for submitting a post hearing submission stating he was ‘very sick’ that this again raised the issue ‘squarely’ of memory issues. If the applicant was so ill that he was unable to respond to the invitation to provide further information then he should have presented medical evidence to support that fact. The claim that the applicant was ‘very ill’ was not expanded upon in any way and was entirely vague. Ground 1b has no merit.

23. Ground 1c seems to be predicated upon the assumption that the Tribunal was bound to accept that the applicant had memory problems.  The Tribunal did not do so for the reasons it gave. To a large extent this ground merely expresses vehement disagreement with the conclusion of the Tribunal that it did not accept the applicant’s evidence and found he was not a credible witness. The Tribunal is not required to have rebutting evidence before holding that a particular assertion is not made out: (see: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [348]). Ground 1c has no merit.

24. Ground 1d complains that the Tribunal’s findings were unreasonable. Unreasonableness is where a decision maker has come to a conclusion so unreasonable that no reasonable decision maker could have come to it: (see; Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [28]). The test for unreasonableness is ‘stringent’ and will only arise in rare cases. The decision to find the applicant did not have memory problems such that it would explain the significant inconsistencies in his evidence is one that was open to the Tribunal based on the evidence before it and for the reasons it gave. Ground 1d has no merit.

25. Ground 2 is a general complaint as to the manner in which the Tribunal dealt with the issues of the matters it put to the applicant in the hearing and his request for questions to be put in writing for him to answer and by failing to allow him 14 days to make a post submission hearing submission.

26. Firstly, the matters raised by the Tribunal went to the applicant’s credit only and do not constitute ‘information’ the Tribunal was required to put to the applicant under either

    
    

    s 424A or s 424AA of the Act: (see; BVE16 v Minister for Immigration and Border Protection (2018) 261 FCR 148 at [154]-[160]).

27. Secondly, the applicant was provided with a copy of the audio recording of the hearing and was in a position to review the issues that were raised with him and his answers. The Tribunal also gave him an extension of time to make his post hearing submission due to him being initially provided with an incorrect audio hearing. That extension was until ultimately

    
    

    8 March 2021.

28. The hearing was held on 25 February 2021. The decision was not handed down until

    
    

    15 April 2021, being a period in excess of the 14 day time period asked for by the applicant. Notwithstanding this, no submission was made. The Court is not satisfied there was anything unreasonable in the conduct of the Tribunal. The Tribunal was under no obligation to comply with the request that the applicant be provided with questions he could answer. Secondly, the time period was not inherently unreasonable, given the applicant had the opportunity to answer the questions in the hearing. The applicant had an audio recording of the hearing. The applicant was given time to make a post hearing submission. This time frame was extended. There is nothing magical about a 14 day time period. The failure to provide 14 days does not constitute behaviour so unreasonable as to constitute jurisdictional error. The Court noted that Counsel for the applicant was unable to point to any authority in support of his proposition in Ground 2.

29. There was no medical evidence before the Tribunal to support the claims by the applicant that he so ‘very sick’ that he was medically unable to make a submission. Grounds 2a and 2b have no merit.

30. The first respondent makes a final submission that the applicant’s claims were replete with inconsistencies and implausibility’s such that even if the Court is wrong in finding that grounds 1 and 2 have no merit that any errors (which are not admitted) could have made a difference to the outcome.

31. Any error as to his memory was not sufficient to overcome the other inherent implausibility’s and inconsistencies in the applicant’s claims and was thus not material: (see; BJC21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 205 at [21]). The Court accepts this submission.

    CONCLUSION

32. Accordingly, the application is dismissed.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Dated:       7 February 2022