BFE15 v Minister for Immigration
[2018] FCCA 539
•9 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BFE15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 539 |
| Catchwords: MIGRATION – Judicial review – review and adoption by 2nd Tribunal of summary given by 1st Tribunal of applicant’s history of claims and submissions to that point – 2nd Tribunal considered taped recording of proceedings before 1st Tribunal – reproduction of 1st Tribunal’s statement of the evidence given by applicant – attribution of reasons of 1st Tribunal as source of reproduction – whether Tribunal approached statutory task with independent mind – whether Tribunal failed properly to consider the application for itself – whether Tribunal erred in relying on earlier decisions of delegate and Tribunal – whether Tribunal failed to notify applicant of matters that might be dispositive – scope of Tribunal’s obligation to give to the applicant clear particulars of any information that it considered would be the reason, or a part of the reason, for affirming the decision under review – whether Tribunal relied overly upon reasons of 1st Tribunal – grounds of review not made out. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.34AB Migration Act 1958 (Cth), ss.36, 45AA, 65, 414, 415, 416, 424A, 424AA, 425, 430, 476, 486I, 496 |
| Cases cited: ACR15 v Minister for Immigration [2015] FCCA 2992 Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 ATP15v Minister for Immigration and Border Protection [2016] FCAFC 53 AZAAD v Minister for Immigration and Citizenship (2010) 189 FCR 494 AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 AZAFH vMinister for Immigration and Border Protection [2016] FCA 1363 BFE15 v Minister for Immigration and Border Protection [2016] FCCA 1462 BFS16 v Minister for Immigration and Border Protection [2017] FCA 142 BWL16 v Minister for Immigration and Border Protection [2017] FCA 628 Commissioner of Taxation v Primary Health Care Limited [2017] FCAFC 131 CQG15 v Minister for Immigration and Border Protection (2016) FCR 146 DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 Dranichnikov vMinister for Immigration and Multicultural Affairs (2003) 197 ALR 389 Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 Huluba v Minister for Immigration and Ethnic Affairs (1995) 59 FCR 518 Lekv Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100 LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Minister for Immigration and Border Protection v SZGUR (2011) 241 CLR 594 Minister for Immigration and Border Protection v SZRKT (2013) 212 FCR 99 Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wie Rong (1996) 40 ALD 445 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 Minister for Immigration and Multicultural Affairsv Yusuf (2001) 206 CLR 323 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441 MZZMG v Minister for Immigration and Border Protection [2015] FCAFC 134 MZZXM v Minister for Immigration and Border Protection [2016] FCA 405 MZZZW v Minister for Immigration & Border Protection [2015] FCAFC 133 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1 Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 SZDFZ v Minister for Immigration and Citizenship (2008) 168 FCR 1 SZQRW v Minister for Immigration and Citizenship (2012) 134 ALD 454 SZTGV v Minister for Immigration and Border Protection (2015) 229 FCR 90 SZTNL v Minister for Immigration and Border Protection (2015) 231 FCR 204 SZTQP v Minister for Immigration and Border Protection [2015] FCAFC 121 SZUXO v Minister for Immigration and Border Protection [2016] FCA 1399 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 WAFK vMinister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 209 |
| Applicant: | BFE15 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | DNG 35 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 10 March 2017 |
| Date of Last Submission: | 10 March 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 9 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Costello |
| Solicitors for the Applicant: | Victorian Legal Aid |
| Counsel for the First Respondent: | Ms Symons |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed at $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DNG 35 of 2016
| BFE15 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a Pakistan national aged 35 years, was previously but is no longer in detention. On 7 April 2014, he arrived in Australia using a Malaysian passport that he had purchased and which was a forgery.
On arrival the applicant attended an interview during which he acknowledged having purchased a forged passport. In the course of this interview the applicant also provided an explanation as to why he had decided to leave Malaysia. He said that he had been raised as a Sunni Muslim but had converted to Shi’a Islam. The applicant said that after declaring his conversion, he was subjected to threats, including an assassination attempt by passing motorcyclists but that fortunately he had not been hit by the shot. Despite informing the police of his position, they had taken no action. He also said that his friends and relatives had disowned him.
On 20 August 2014, the applicant made application for a Protection (Class XA) visa. By operation of s 45AA of the Migration Act 1958 (Cth) (Act) and reg 2.08F of the Migration Regulations 1994 (Cth), with effect from 16 December 2014, the application was taken to be a valid application for a Temporary Protection (Class XD) visa.
By an annexure to his application, the applicant restated and amplified the reasons for his protection visa application, including that:
If I am returned to Pakistan I will surely be killed for being one of these infidels and my position is a lot worse and precarious because I converted to Shi’a from Sunni on 10 March 2010 so I am classified as the worsts (sic) kind of traitor.
Of central relevance to the present application is that the applicant also claimed he had disclosed the fact of his conversion to Shi’a to a childhood friend who had become the Mufti of a local Sunni mosque. The applicant claimed that his conversion to the Shi’a faith had become widely known despite his desire to maintain privacy about the matter.
The applicant appointed a migration agent and attended an interview with a delegate of the first respondent (Minister). The applicant’s migration agent provided the delegate (delegate) with a submission which restated and expanded upon the matters on which the applicant had relied in making his application for a protection visa. On 18 November 2014, the delegate made a request for the provision of detailed information by the applicant. The applicant responded to that request progressively.
On 17 December 2014, the delegate refused the visa application.
The delegate’s Decision Record furnished detailed reasons for the decision to refuse the application. Although the delegate accepted that the applicant had converted from Sunni to Shi’a Islam in 2010 it was found that the applicant had then lived without incident until August 2011. The delegate identified the locations in which the applicant had lived in Pakistan until 2012. Upon country information, the delegate was prepared to accept that a shooting had occurred whilst the applicant was acting as a security guard outside a Shi’a mosque during Shi’a celebrations.
Despite serious concerns as to the credibility of the applicant’s claims in relation to the time that he had spent in Malaysia, the delegate was prepared to accept that the applicant had departed Pakistan in March 2012 and spent time in Malaysia until April 2014. The delegate was not prepared to accept that the applicant had a fear of harm from his former childhood friend or that he had been the subject of a targeted assassination attempt.
The delegate was not satisfied that the applicant was owed protection obligations by Australia and so did not meet the criteria for a protection visa prescribed by para 36(2)(a) of the Act. As concerned complementary protection, the delegate found that the harm being claimed by the applicant constituted significant harm within the meaning of sub-s 36(2A). However, the delegate further found that there was no real chance the applicant would face harm amounting to persecution and accordingly that there was no real chance the applicant would suffer significant harm as a result of returning to Pakistan. The delegate concluded that the applicant was not owed protection obligations by Australia and so did not meet the criteria for a protection visa prescribed by para 36(2)(aa) of the Act.
On 12 June 2015, the Refugee Review Tribunal (1st Tribunal) confirmed the delegate’s decision and gave a written statement of its reasons for doing so (1st Reasons). On 16 June 2016, this court ordered that the application for review be remitted for reconsideration on the ground that the 1st Tribunal had breached its obligation of procedural fairness: BFE15 v Minister for Immigration and Border Protection [2016] FCCA 1462. The court held that the Tribunal had not put the applicant on notice as to an issue whether the applicant had received threats of harm: see s 425; [2016] FCCA 1462, [20], [26].
A differently constituted Tribunal (2nd Tribunal) assigned to hear the remitted application invited the applicant to appear before it to give evidence and present submissions on the issues arising in the case.
The applicant submitted a statutory declaration which he had made on 19 August 2016 in which he made corrections to certain erroneous or false statements and information that he had provided earlier. The declaration also gave additional information concerning his visa application. The applicant provided information to the 2nd Tribunal on 19 and 26 August 2016 and again on 4 September 2016.
By his statutory declaration, the applicant made admissions to the Tribunal that false information had been provided in relation to his visa application. He sought to explain the submission of false information as being the product of poor representation and advice received from his migration agent and the pressure that he had been under at that time. The false information that had originally been supplied in connection with the protection visa application and which the applicant sought to correct in the statutory declaration, included:
(1)a supposed change in name;
(2)false information as to the date on which he had departed Pakistan (he had originally stated his departure date as being 2014 when he had, on his revised version, departed Pakistan to Malaysia in 2012 and lived in Malaysia illegally for two years);
(3)amending his claim to being the target of an assassination attempt as having occurred in 2011 (his original version stated that the incident happened at the end of 2012);
(4)an assertion in his original application that he had been involved in an incident in February 2012, ‘when many Shi’a pilgrims had been killed.’The applicant now contended that this incident was not connected with his claims and that he had told the migration agent that this information was incorrect.
The applicant blamed his registered migration agent for not having accurately represented his claims. He also blamed the agent for demanding further money from him so as to amend his claims.
A Tribunal hearing was conducted on 23 August 2016. At the hearing the applicant was assisted by an interpreter. The applicant told the 2nd Tribunal that he had been given assistance by the Asylum Seeker Resource Centre for the purposes of the hearing: Transcript, p. 2.
By a decision made on 14 October 2016, the 2nd Tribunal set aside the 1st Tribunal’s decision and substituted a decision to refuse to grant the applicant a Protection (Class XD) visa.
The 2nd Tribunal gave a written statement of its reasons for that decision (2nd Reasons). I address those Reasons below.
On 17 October 2016, the Tribunal notified the applicant of its decision.
Procedural history
On 3 November 2016, the applicant applied for an order that the respondents show cause why a remedy should not be granted in exercise of the court’s jurisdiction under s 476 of the Act in respect of the 2nd Tribunal’s decision. The applicant sought a range of orders by way of final relief including orders that the 2nd Tribunal’s decision be quashed, mandamus requiring the Tribunal to determine the application for a protection visa according to law, declaratory and injunctive relief.
The applicant affirmed an affidavit in support of his application to seek a review of the Tribunal’s decision made on 14 October 2016. The affidavit simply annexed a copy of the Tribunal’s decision.
The grounds of application stated merely that the 2nd Tribunal’s decision was affected by an error of law and that the applicant had been denied procedural fairness. The applicant has since filed amended applications dated 7 February 2017 and 27 February 2017 respectively.
By its response filed on 8 November 2016, the Minister contended that the proceeding should be dismissed on the grounds the that 2nd Tribunal’s decision was not affected by jurisdictional error and that the Tribunal’s review had not entailed a denial of procedural unfairness.
On 10 November 2016, orders were made regulating the interlocutory steps in this proceeding for trial including that the applicant file and serve any affidavit upon which he intended to rely and for the applicant to file and serve a written outline and submissions.
On 21 December 2016, an order was made transferring the proceeding to the Melbourne Registry of this court.
On 14 February 2017, orders were made allowing the applicant to file and serve an amended application by 17 February 2017. On that date, the applicant filed an amended application by which he abandoned the original grounds of review and substituted two amended grounds of review including that the 2nd Tribunal had erred by failing to apply the PAM 3 Complimentary Protection Guidelines. The amended application contained a lawyer’s certificate given pursuant to sub-s 486I(1) of the Act that there were ‘reasonable grounds for believing that this migration litigation has a reasonable prospect of success.’
On 27 February 2017, the applicant filed a further amended application by which the applicant now abandoned the ground based upon alleged failure to apply the PAM 3 Complimentary Protection Guidelines. In its place, the applicant introduced two further grounds of review. Again, the further amended application contained a lawyer’s certificate given pursuant to sub-s 486I(1). Although counsel for the applicant stated candidly that she had settled the grounds of review in each of the amended applications, it seemed somewhat curious that the ground based upon the PAM 3 Complimentary Protection Guidelines had been introduced and abandoned within the space of two weeks.
The Minister consented to the filing of the further amended application.
The applicant also filed an affidavit affirmed by the applicant’s solicitor, exhibiting the Transcript of the Tribunal hearing.
The parties filed detailed submissions which were supplemented by oral submissions at the hearing. An appreciation of the grounds of review is assisted by an examination of the 2nd Tribunal’s Reasons.
2nd Reasons
The 2nd Tribunal[1] considered the applicant’s claims being that:
(a)the applicant apprehended he would be harmed upon return to Pakistan. The basis for such harm was that Sunni groups would harm the applicant on account of his conversion to Shi’a Islam;
(b)in 2011, the applicant had disclosed his conversion to a childhood friend who had been appointed Mufti of a local Sunni mosque. Thereafter, the applicant had received a series of anonymous phone calls, his father had received a letter containing threats and the applicant had been expelled from his father’s house;
(c)in August 2011, while visiting his home town, the applicant had acted as a guard outside a Shi’a mosque. Two motorcyclists had driven past the mosque and fired shots at the applicant. The applicant believed those men to be Sunni extremists.
[1] Hereafter, the 2nd Tribunal is referred to as the Tribunal unless the context requires otherwise.
The 2nd Reasons were arranged upon the following structure:
(a)application for review: [1]-[5];
(b)relevant law: [7]-[20];
(c)consideration of claims and evidence: [21]-[25];
(d)findings and reasons: [26]-[97];
(e)decision: [98].
The matters addressed in the 2nd Reasons at [1]-[20] were not in issue.
The applicant’s grounds of review focussed primarily upon the Tribunal’s consideration of the claims and evidence at [21]-[23].
In giving consideration to the application on remittal, the Tribunal conducted a review of the submissions that had been made to the Department of Immigration and to the Tribunal as originally constituted: 2nd Reasons [21]. Following that review, the Tribunal stated at [21] that it ‘considers the following summary of the applicant’s claims as presented by the applicant and provided in the previous Tribunal’s decision to be an accurate reflection of his claims to that point.’ The summary adopted by the 2nd Tribunal reproduced in full each of the 1st Tribunal’s Reasons in relation to the claims that had originally been made: compare 2nd Reasons at [21] and 1st Reasons at [18]-[45]. The 2nd Tribunal annotated the summary with footnotes so as to identify source documents from which information was derived.
By those means, the 2nd Reasons disclose that the Tribunal had: (i) conducted a review of the submissions; (ii) examined and identified relevant source records; (iii) concluded that the summary which was set out in full from the 1st Reasons was accurate; (iv) included footnotes as necessary to source information; and (v) acknowledged that the 1st Tribunal’s Reasons were the source of that summary of the applicant’s claims to that point.
The Tribunal listened to a recording of the hearing of the proceedings before the 1st Tribunal. Having done so, the Tribunal also concluded that the 1st Reasons at [50]-[76] constituted an accurate reflection of the discussions which had been held at that hearing.
Next, in its consideration of the claims and evidence the Tribunal set out the whole of the applicant’s statutory declaration, recorded the documents which had been provided by the applicant (including those provided to the 2nd Tribunal), and expressed its significant concerns with the documents that had been provided: 2nd Reasons, [23]-[25].
When addressing its findings and reasons, the 2nd Reasons at [26]-[97] demonstrate that the Tribunal undertook a detailed consideration of the following issues concerning the visa application: (i) country of nationality; (ii) third country protection; (iii) credibility; and (iv) conversion from Sunni to Shi’a Islam, including country information.
The Tribunal found that the applicant was a citizen of Pakistan, and accepted that he had converted from Sunni to Shi’a Islam in 2010 and was genuine in his beliefs. Based upon adverse credibility findings, the Tribunal rejected the applicant’s claim that he had been the intended target of a shooting as was claimed to have occurred in 2011. Credibility findings, some of which are now the subject of challenge, were the subject of detailed analysis in the 2nd Reasons at [33]-[61].
The Tribunal’s findings included that while the applicant’s conversion might have caused some difficulty, his family had accepted his decision and he had not been threatened by members of his family by reason of his conversion: 2nd Reasons, [64]. Upon consideration of extensive country information, including that which had been provided by the applicant, the Tribunal did not accept the applicant had a real chance of serious harm or faced a real risk of such harm, either from the state, state bodies or from insurgent groups: 2nd Reasons, [77], [81].
The Tribunal found that the applicant would be able to practice his religion publicly if he returned to Pakistan, including in his home region, and to do so by observing his faith at public religious events: 2nd Reasons, [90].
The Tribunal was not satisfied the applicant was owed protection obligations and so did not meet the criteria for a protection visa prescribed by paras 36(2)(a) or 36(2)(aa) of the Act: 2nd Reasons, [95]-[96]. The Tribunal set aside the 1st Tribunal’s decision and substituted its decision to refuse the applicant a Protection (Class XD) visa.
Review of a protection visa application
Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476.
The grant or refusal of a protection visa requires that the Minister has been satisfied or not satisfied (as the case requires) that the criteria prescribed for such visa have been satisfied: ss 36(2)(a), 36(2)(aa), 65(1)(a), 65(1)(b). Ministerial satisfaction that a protection visa applicant has fulfilled the criteria prescribed by s 36 is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, [37]-[38]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [40], [102].
Subject to exceptions not presently relevant, powers conferred on the Minister under the Act, including determination whether the criteria for the grant of a visa application have been satisfied, may be delegated: s 496. Where a power had been delegated, when performed by a delegate, it is deemed to have been performed or exercised by the authority for the purposes of the relevant Act: para 34AB(1)(c), Acts Interpretation Act 1901 (Cth).
Accordingly, it was for the delegate to be satisfied of the criteria which governed the applicant’s entitlement to a protection visa.
In conducting a review of a delegate’s decision, a Tribunal exercises all the powers and discretions as are conferred by the Act upon the Minister: s 415(1). The conduct of the review by a Tribunal is a review of the application on its merits. In order to review a decision, the Tribunal must consider for itself the material before it and make its own findings based on that material: Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [32]; MZZZW v Minister for Immigration & Border Protection [2015] FCAFC 133 at [58]; ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109, [71].
The conduct of review by a Tribunal is not akin to adversarial litigation where issues are joined. In conducting a merits review, a very different process is undertaken whereby an applicant seeks a particular administrative decision. While the applicant puts before the Tribunal whatever material he or she may consider to be of assistance to the determination of their claim, it is for the Tribunal to make findings of fact which it considers to be necessary for it to make its decision: Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518, [73]. A Tribunal operates in an inquisitorial manner and is under a duty to arrive at the correct or preferable decision on review according to the material which is before it: MZZZW, [56]-[58]. These considerations inform the content of a Tribunal’s obligation to consider on its merits the application for the review of a visa application.
In conducting a merits review, a Tribunal is required to examine the application, claims and arguments afresh – that is with fresh eyes: MZZZW, [60]. For that reason, the Tribunal’s task is not discharged by simply asking whether the facts of the instant application fall within those considered in an earlier application: ARG15, [71]. Nor is it discharged by simply adopting the decision made by the delegate. To do so is not the product of a review; it is copying: ACR15 v Minister for Immigration [2015] FCCA 2992, [26].
The statutory task of review by a Tribunal is however, non-delegable. The task remains non-delegable in cases where a visa application has been remitted for reconsideration. For that reason, the performance of a merits review is not performed by the wholesale adoption of views as expressed by the earlier Tribunal. On further review, the earlier decision has no legal status – it is properly regarded as no decision at all: MZZZW, [60], [78], [92] citing Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, [51]; Wang (2003) 215 CLR 518, [16]. The first decision has been quashed.
When a matter is remitted for reconsideration by a Tribunal, it is not required to consider any information contained in the earlier application but may have regard to and take to be correct any decision an earlier Tribunal has made about or because of that information: see s 416. However, para 416(2)(b) does not empower the Tribunal to ‘take to be correct’ a decision which has been quashed on judicial review. Equally, where an application for review of a delegate’s decision is remitted, the requirement to consider the application afresh does not mean that the process of review must proceed uninstructed by all that preceded it: MZZZW, [60]. The Tribunal can have regard to the nature and contents of a previous decision on review in respect of the same applicant and on the same visa application: MZZZW, [84] citing AZAAD v Minister for Immigration and Citizenship (2010) 189 FCR 494, [41]; SZDFZ v Minister for Immigration and Citizenship (2008) 168 FCR 1 at [20]-[21], [28].
Within those limitations, the new decision maker must nonetheless bring its own perspective, approach and reasoning to the claims made by an applicant for review and do so on the materials that are before it.
Jurisdictional error may be demonstrated where a Tribunal conducting the review of an application remitted for reconsideration is shown to have copied text from the reasons of the original Tribunal. The error may be characterised in a number of ways. Where a second Tribunal is shown to have copied matter from an earlier decision, the error may constitute a breach of the obligation of procedural fairness, a failure to discharge the Tribunal’s statutory role, a constructive failure to exercise jurisdiction or as involving bias: MZZZW, [30].
The manner in which a second Tribunal has paid regard to the findings and reasoning of a previous Tribunal or a delegate’s decision in respect of the same applicant will commonly raise issues of procedural fairness: MZZZW, [84] citing SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.
The nature of the copied information may have an important bearing on whether the copied sections of text are such that the second decision should be impugned as being affected by jurisdictional error. At one end of the spectrum, the adoption of applicable legal principles or the available country information may be unremarkable. Nor would there necessarily be any difficulty in reproducing text concerning the applicant’s background, claims, summaries of or direct quotes from his or her materials: MZZXM v Minister for Immigration and Border Protection [2016] FCA 405, [138]. The position would be otherwise where more recent country information was available but had been disregarded. Also along the spectrum may be cases where findings of fact have been adopted or where the copying has been extensive.
More problematic will be cases in which findings on credibility have been adopted: compare MZZZW at [36]-[50], citing Huluba v Minister for Immigration and Ethnic Affairs (1995) 59 FCR 518; Lekv Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100; WAFK vMinister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 209; LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166.
Cases where there has been a wholesale adoption, without attribution, of the opinions expressed in the earlier quashed decision will also be problematic: MZZZW. The non-attribution of the copied text, amounting in effect to plagiarism, is indicative of a failure to conduct the merits review with an independent mind. Transposing the findings of the earlier Tribunal without attribution suffers the vice that the original findings are made to appear as though the new Tribunal had formulated its own findings when it had not. The adoption of that course may deny a conclusion that the new Tribunal has brought an independent mind and has thereby failed in the discharge of the statutory task of conducting the merits review afresh: MZZZW, [65]-[66]. Whether or not that has occurred in a particular case is a matter about which minds may reasonably differ: MZZZW, [52], [66].
There is, however, no doubt ‘that it is legitimate, and indeed in many cases, necessary, for a differently constituted tribunal to have regard to what occurred during any hearing or process previously conducted by a tribunal in relation to the same applicant’: MZZZW, [67]. In this context, it is instructive to consider the result in MZZMG v Minister for Immigration and Border Protection [2015] FCAFC 134, which was heard at the same time at MZZZW. The Full Court held at [60] that while it could be inferred that there had been some measure of ‘cutting and pasting’, this did not demonstrate a failure by the Tribunal on remitter to have brought an independent mind to the claims nor to the making of a decision in the review on the materials before it.
While each case must turn on its own circumstances, where copying of text from an earlier decision is in issue, the touchstone of jurisdictional error is whether the second Tribunal has brought an independent mind to the remitted application and so considered it with fresh eyes.
Grounds of review
Although the applicant’s counsel emphasised the third ground of review it is convenient to address them in the order as presented.
Explanation for errors in visa application
The first ground of review states:
The Tribunal miscarried in its statutory task of forming for itself, on the material before it, the requisite state satisfaction under s.65 of the [Act] in relation to the Applicant’s claim, by failing to have regard to and/or misconstruing the applicant’s evidence that his migration agent's bad advice, the poor representation he received, and the time pressure he was under to submit the application caused wrong answers to be included in his protection visa application.
(Emphasis added)
No particulars to this ground were provided. As concerned Ground 1, the applicant was initially content to rely upon his written submission. There were three bases on which Ground 1 was put.
(1)Failure properly to consider claim for itself
The applicant submitted that the Tribunal erred in its consideration of how false information had been included in his protection visa application. In support of this submission, attention was drawn to the Tribunal’s description of the applicant’s explanation on this issue. It was said that the Tribunal’s description of that explanation did not match the applicant’s actual explanation and that the difference in description was so material as to constitute jurisdictional error. It was also said that the Tribunal’s negative credibility finding seriously affected the overall findings made by the Tribunal.
The applicant submitted that the Tribunal’s credibility findings could not be quarantined from its ultimate conclusions, citing ARG15.
The Minister responded that the applicant’s submissions on the first ground disclosed both a false appreciation of the 2nd Reasons and a misunderstanding of the evidence which had been given by the applicant to the Minister and the Tribunal respectively.
The focus of these submissions was the statements made in the 2nd Reasons at [34] that ‘The applicant has not shown himself to be an honest man’, and that he had ‘continued to provide incorrect information’. It should be noted that para [34] appeared within that section of the 2nd Reasons which addressed the Tribunal’s Findings and Reasons and followed the section Consideration of Claims and Evidence. The Tribunal’s consideration of its Findings and Reasons comprised paras [26]-[97] and demonstrated a detailed analysis of a variety of subject matters, including the applicant’s credibility.
It may be accepted that a deficiency in credibility findings may amount to a denial of procedural fairness: ARG15, [83]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2, [30].
Whether jurisdictional error is established will depend upon the cogency of the evidentiary material relied upon, the place of that material in the assessment of the applicant’s claims and any other relevant factors. Further, as the Full Court has recently confirmed, a ‘high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review’: DAO16, [30(5)].
While credibility findings are primarily a matter for the Tribunal in the conduct of a merits review, they are not immune from challenge: CQG15 v Minister for Immigration and Border Protection (2016) FCR [36]-[44]; ARG15, [83]; DAO at [30(1)]-[30(4)]. The authorities consistently hold that the issue whether a credibility based finding is tainted by jurisdictional error is not to be analysed upon fixed categories or formulae but involves analysis on a case specific inquiry.
The following further propositions may be noted. First, where the Tribunal makes a decision on a review, it must make a written statement which includes its findings on material questions of fact: para 430(1)(c). Secondly, part of the important work done by s 430 in the context of review is that: (a) it enables persons dissatisfied with the result, and a court, to know with certainty what were the Tribunal’s reasons for reaching its conclusion and what facts it considered material to that conclusion; (b) it entitles a court to infer that any matter not mentioned was not considered to be material: MZYTS, [52] citing Minister for Immigration and Multicultural Affairsv Yusuf (2001) 206 CLR 323, [10], [35], [44], [69]. Thirdly, merely because there is no express reference to a matter in a Tribunal’s reasons does not necessarily mean that it had not been considered. Fourthly, it is not always jurisdictional error for the Tribunal to ignore relevant material, including corroborative evidence: ARG15 at [62], citing Minister for Immigration and Border Protection v SZRKT (2013) 212 FCR 99, [122]. Fifthly, a distinction is to be drawn between the omission of a matter from reasons as indicating that the matter was not considered and as indicating that it was not considered to be material: MZYTS, [51]. Sixthly, where reasons contain no reference to a matter, the court might more easily infer that if the matter had been considered at all, it would have been referred to in the reasons: ARG15 at [65]-[66], citing Minister for Immigration and Border Protection v SZGUR (2011) 241 CLR 594, [31]; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16, [34]; MZYTS, [52].
With those principles in mind I have examined the 2nd Reasons, the Transcript of the hearing before the 2nd Tribunal and court book. Upon examination of that material I am satisfied that the Tribunal brought its own perspectives, approach and reasoning to the applicant’s claims. If I am wrong in that conclusion, I do not consider the manner in which the Tribunal framed its observations in the 2nd Reasons at [34] exposes any error of such seriousness as to constitute jurisdictional error.
I agree in the Minister’s submission that the statements at para [34] of the 2nd Reasons should be read as a prefatory observation of that which followed in the remainder of this section of the reasons at [35]-[61]. It was entirely permissible for the Tribunal to provide a statement by way of summary of its view that the applicant had been admittedly untruthful in the information which he provided on arrival and its conclusion that he had continued to be so in relation to a number of issues that had been advanced in support of the application. The analysis which followed demonstrates that the Tribunal had regard to a number of matters in assessing the claim that the applicant had been the intended target of an attack outside a mosque in August 2011.
In the course of the hearing, the Tribunal identified that the applicant’s credibility was squarely in issue. The applicant acknowledged that this was so and that he had arrived in Australia on a forged passport and given false information during his initial interview: Transcript, p. 4. When giving that evidence the applicant assigned his reason for doing so as being due to stress and further because he feared he would be ‘in big trouble if I returned to Malaysia.’ Perhaps notably, in this context the applicant did not mention a risk of facing ‘trouble’ in Pakistan.
The Tribunal identified aspects of the applicant’s claim which were implausible. It identified inconsistencies in the applicant’s account of the attack as contained in his First Information Report (FIR) and later translations of the FIR that the applicant had later provided. It had regard to country information that addressed the prevalence of the use of forged and fraudulent documentation. Regard was had also to inconsistencies between the applicant’s account of the attack outside the mosque. The Tribunal expressed concern in relation to further statements, produced some five years after the alleged incident, from two guards who had been with the applicant when he had been shot at. It also considered statements made by the applicant in the course of the hearing before the Tribunal to be implausible.
The 2nd Reasons confirm that the Tribunal did not proceed upon a misapprehension of the applicant’s evidence. The applicant had arrived in Australia using a forged Malaysian passport which he had purchased for that purpose. The applicant’s separate explanation for providing false information had been that his protection visa application had been completed by a person who he had met at the detention centre. Yet the statutory declaration had sought to assign responsibility for the incorrect information to a migration agent.
It was not submitted that the Tribunal’s adverse credibility findings involved jurisdictional error by reason of legal unreasonableness or because they had been reached without a logical or rational basis. Nor was it said that the finding made was contrary to the only finding that was open on the evidence or that the adverse findings were made upon relatively minor matters. Clearly they were not minor matters.
In my opinion, the impugned finding at [34] was open on the evidence.
I consider that the Tribunal properly considered for itself the applicant’s claims and evidence including his statutory declaration.
(2) Adoption of Tribunal’s 1st Reasons
While the applicant’s counsel submitted that she would rely upon the written submissions in relation to Ground 1, this ground was expanded in oral submissions. It was said that Ground 1 was also made out on the basis that the Tribunal copied material from the 1st Tribunal’s Reasons and to have done so was impermissible. The applicant submitted that the Tribunal miscarried in the task of performing for itself, on the material before it, the requisite state of satisfaction as required by s 65 of the Act: citing MZYTS, [31]-[36].
The gravamen of this expanded submission was that the Tribunal had simply adopted from the 1st Reasons the findings set out at [21]-[22] and had thereby miscarried in its statutory task of forming for itself, on the material before it, whether it held the requisite state of satisfaction under s 65 of the Act. I do not accept this submission.
Upon the principles stated at [43]-[58] above and for the reasons given at [70]-[75] respectively, I do not accept that the 2nd Tribunal acted impermissibly in reproducing from the 1st Reasons the matter which was set out in the 2nd Reasons. The 2nd Tribunal did not adopt the conclusions which the 1st Tribunal had reached regarding the credibility of the applicant or his claims. Instead, the 2nd Tribunal brought an independent mind to the remitted application and brought a fresh set of eyes to the statutory task that was required of it. Further, the decision which it reached was open on the evidence. There was no abdication of the role which the Tribunal was obliged to perform.
(3) Failure to consider integer of claim
The applicant’s written submission stated that the first ground of review was supported by the reasoning in AZAFH vMinister for Immigration and Border Protection [2016] FCA 1363, [39]-[40].
This somewhat Delphic proposition was explored in the course of oral submissions. When pressed to identify the precise integer that had not been considered by the Tribunal, ultimately attention was drawn to the 2nd Reasons at [34]. It was said that a claim had been put forward by the applicant about his credibility and that this had been done by the provision of his statutory declaration. As I understood this submission, the applicant’s ‘claim’ was that his credibility had been put in issue but that, by his statutory declaration, he had explained why his original visa application contained false information. The applicant submitted that the Tribunal had failed to engage with that integer. The Minister submitted that this was neither a claim nor an integer of a claim.
The 2nd Reasons stated at [34]:
The applicant has shown himself not to be an honest man. He arrived in Australia on a fraudulently altered Malaysian passport. He lodged his protection application with an ‘annexure’, which the applicant has subsequently denounced, telling the Tribunal that a person he was put in touch with through people he met at the detention centre had written out the form, and that it contained incorrect information, in particular the information about the applicant’s involvement in an incident in Kohistan in February 2012. The applicant stated that he was in fear of his life when he arrived so provided incorrect information. The applicant has claimed that, subsequently he has provided correct information. However as determined below the Tribunal does not accept that the applicant has provided a truthful account, and has continued to provide incorrect information and bogus documents to support his claims for protection. (Emphasis added)
A difficulty in the submission was that the applicant presented it at such a level of generality as to mask the issue with which the Tribunal was supposed to grapple. Was the issue whether or not the Tribunal should accept the applicant’s statutory declaration? Or was the issue that his credibility needed to be addressed? On either view, I consider that the Tribunal properly addressed each of these issues.
By s 414, the Tribunal is required to review the claims of the applicant. To make a decision upon a merits review without having considered all of the claims made is to fail to complete the statutory task required of the Tribunal. For that reason, each of the components, or integers of each claim must be considered: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136, [42].
An absence of finding upon a relevant fact may amount to jurisdictional error. Where a Tribunal fails to make a finding upon a substantial, clearly articulated argument relying upon established facts, such failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: SZTQP v Minister for Immigration and Border Protection [2015] FCAFC 121, [50] citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, [53], [62]; see also Dranichnikov vMinister for Immigration and Multicultural Affairs (2003) 197 ALR 389, 394, [24], [95]; Singh v Minister for Immigration and Border Protection [2017] FCAFC 195, [27]; Commissioner of Taxation v Primary Health Care Limited [2017] FCAFC 131, [24].
The test posed in NABE at [62] and endorsed in SZTQP at [50] ss whether a Tribunal has failed to deal with a claim that had been raised by the evidence and contentions before it which, if resolved in one way, would or could be dispositive of the review. If a failure of that kind is established it may constitute a failure of procedural fairness.
For example, in SZTQP, the appellant’s claim that he had received threatening phone calls was considered to be an element of his claim to fear serious or significant harm if he was returned to his country: [2015] FCAFC 121, [51], [56]. Thus, the Tribunal was required to consider whether or not it accepted the claim that the applicant had received threatening phone calls. Had a finding favourable to the applicant been made on this integer, it would have been material in that it could have indicated that the applicant remained a person of interest. Rather than deal with the claim, the Tribunal had instead acted on the basis that if the calls had been made, the applicant would have been able to ‘deal with them’: [2015] FCAFC 121, [51]-[53].
In AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193, [37] the Full Court had no doubt that the relevant integer of the claim (which had not been identified in the grounds of judicial review) had been squarely identified and considered by the Tribunal.
I accept the Minister’s submission that neither the applicant’s credibility nor his statutory declaration constituted a claim or integer of such claim. I have summarised the applicant’s claims at [30] above. The Tribunal correctly identified and addressed those claims.
If I am wrong in that conclusion, I also consider that more generally, both the applicant’s credibility and his declaration were considered by the 2nd Tribunal.
Moreover, a distinction is to be drawn between the failure to deal with a claim and what may be described as errant fact-finding. An error of fact based on a misunderstanding of evidence in considering an applicant’s claims is not jurisdictional error so long as the error does not mean that the Tribunal has not considered those claims: SZQRW v Minister for Immigration and Citizenship (2012) 134 ALD 454, [39]; MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441, [83]. Such a distinction may not always be obvious.
The applicant had the burden on the application for judicial review to persuade the court to infer that there had been a failure to consider a claim or a matter which it was obliged to consider: MZYTS, [53]. Two observations are apposite. First, the reasons of an administrative decision maker are not to be scrutinized in an overzealous manner upon judicial review so as to glean some inadequacy in the manner of their expression: SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190, [25]. Secondly, where an application for a protection visa has proceeded through many levels of decision-making, the court insists that, on application for judicial review, the decision must be considered in light of the basis on which it was advanced, not a basis conceived of by the applicant or their advisor after the event: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, [1], [14] (Gleeson CJ).
When the 2nd Reasons are read fairly and as a whole, they demonstrate an active and proper engagement with the applicant’s claims, the materials on which he relied and the evidence which was before it.
In proceeding upon its assessment of the credibility of the applicant and his claims, the Tribunal recognised the importance of adopting a reasonable and non-stringent approach to findings of credibility: 2nd Reasons, [28]-[32], citing Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wie Rong (1996) 40 ALD 445, 482. The Tribunal also recognised that it was not required to accept uncritically all or any of an applicant’s allegations. The Tribunal raised its credibility concerns with the applicant directly: 2nd Reasons, [33]. Only then did the Tribunal make the prefatory comments at [34]. Having done so, the Tribunal proceeded to consider the credibility of the applicant and his claims: 2nd Reasons at [35]-[61].
In my opinion, the reference in the 2nd Reasons at [34] to the applicant’s claim that he had subsequently provided correct information is a reference to his statutory declaration. It is clear that the Tribunal was cognisant of that statutory declaration. It was set out in the 2nd Reasons in full at [23]. Where the 2nd Reasons stated at [34] that as provided below the Tribunal had not accepted the applicant had provided a truthful account, it informed the reader that the reasons why it had determined the applicant had not been truthful were set out in the passages following para [34] under that section which addressed Findings and Reasons.
Ground 1 is not established.
Failure to give applicant particulars of information
The second ground of review states:
The Tribunal breached s.424A of the [Act] by not giving the Applicant particulars of information that the Tribunal considered would be a part of the reason for affirming the decision under review.
Particulars
a. The information was that another Tribunal had not accepted the Applicant’s account about disclosing his conversion from Sunni to Shi’a to a childhood friend who was a leader of a local mosque; see [55] of the Tribunal’s decision and the transcript of the Tribunal’s hearing at page 16. (Emphasis added)
The ambit of Ground 2 was confined by these particulars to ‘information’ arising from the hearing before the 1st Tribunal.
The applicant said the ‘information’ of which the Tribunal had failed to give him clear particulars was that another Tribunal had not accepted the applicant’s account about his having disclosed his conversion to Shi’a Islam to his childhood friend, the Sunni Mufti, who had been appointed as religious leader of the local mosque. It was accepted that the applicant was on notice that his credibility was in issue. So much was apparent from the delegate’s decision and the 1st Reasons, both of which were in the applicant’s possession. Indeed the applicant’s statutory declaration addressed credibility issues in detail.
The applicant identified an observation made by the Tribunal during the hearing that two intelligent decision-makers had determined it was not plausible the applicant would have told his friend of his conversion to Shi’a. The applicant relied on the Transcript for that purpose: see Transcript at p. 16. This observation addressed a matter of credibility.
The applicant submitted that the use of the 1st Reasons on this issue was a part of the 2nd Tribunal’s reasons for affirming the delegate’s decision to refuse the visa application. It was submitted that so much was evident from the exchange recorded in the Transcript at p. 16 and from the 2nd Reasons at [55].
It was submitted that, while s 416 of the Act permitted the Tribunal to have regard to the Tribunal’s 1st Reasons, this did not excuse the Tribunal from its obligations of procedural fairness in s 424A, citing MZZZW, [84], [94].
Upon these bases the applicant submitted that the Tribunal had clearly breached its obligations pursuant to s 424A in that no letter had been sent to the applicant warning him that the 1st Tribunal’s decision would be a reason for affirming the delegate’s decision.
The Minister, who accepted the Tribunal was required to observe the requirements of s 424A, submitted that no such obligation was engaged in the circumstances of the case having regard to the matters which informed the dispositive findings of the Tribunal. Specifically, it was submitted that no obligation of disclosure arose respecting the Tribunal’s reference in the course of the hearing to the 1st Tribunal having determined that it was implausible the applicant would have disclosed the fact of his conversion to his childhood friend.
A Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review: s 425. Such an invitation was issued in the present case and the applicant did so appear.
Section 424A of the Act concerns the subject, Information and invitation given in writing by Tribunal. It is information that is relevant to the application for review, as distinct from the application for a protection visa itself, which is relevant: SZTGV v Minister for Immigration and Border Protection (2015) 229 FCR 90 at [21].
Subject to the exceptions which it provides, sub-s 424A(1) imposes an obligation on a Tribunal to give to the applicant clear particulars of any information that it considers would be the reason, or a part of the reason, for affirming the decision under review. The obligation is engaged in relation to information that would be dispositive of the application for review. Where information would be the reason or a part of the reason for affirming the decision that is under review, the Tribunal must give the applicant clear particulars of that information.
As the text of sub-s 424A(1) confirms, the obligation does not arise in relation to information that could be or might be the reason or a part of the reason for affirming the decision that is under review: SZTGV, [18]. As s 424A is not engaged by information that could or might be determinative, it follows that information relating to credibility does not constitute ‘information’ for the purposes of that section: SZTNL v Minister for Immigration and Border Protection (2015) 231 FCR 204 at [52]; SZUXO v Minister for Immigration and Border Protection [2016] FCA 1399 at [33]. In SZBYR at [18], the Court emphasised:
. . . it is difficult to see how such disbelief could be characterised as constituting ‘information’ within the meaning of par (a) of s 424A(1).
See also Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 at [23]-[26].
The Tribunal’s role does not arise in a statutory vacuum. Its role is dependent upon the requirement to make an administrative decision upon criteria to be found elsewhere in the Act. The criterion upon which an administrative decision is to be made in a protection visa application is located in sub-s 36(1). For the purposes of s 424A, as concerns a protection visa application the reason, or a part of the reason, for affirming the decision that is under review is that the applicant is not a person ‘to whom Australia owed protection obligations’: SZBYR, [18]. As this is the determinative reason upon which a Tribunal will affirm a decision under review, the obligation to provide information is engaged where the information would be the reason or part of the reason for doing so.
In SZBYR, the Court observed at [18] that:
The use of the future conditional tense (‘would be’) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case.
Upon those principles, ‘information’ of a kind which engages s 424A does not extend to the Tribunal’s subjective appraisals, thought processes or determinations: SZBYR, [18], approving VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471, 476-7, (Stone J); Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1, [413].
Nor does the obligation imposed by sub-s 424A(1) arise in relation to that which is a part of the prospective reasoning process of the Tribunal. The obligation is engaged in relation to information that would be the reason or part of the reason for affirming a decision because that information ‘necessarily involves a rejection, denial or undermining of the applicant’s claims’: SZTGV [2015] FCAFC 3, [18].
More recently, in BWL16 v Minister for Immigration and Border Protection [2017] FCA 628, Yates J stated at [26]:
When s 424A(1)(a) of the Migration Act refers to information that would be the reason, or part of the reason, for the Tribunal affirming the decision under review, it is directing attention to, and referring only to, information that would stand as a rejection, denial or undermining of the visa applicant’s claims to be a person to whom Australia owes protection obligations under the Act.
To similar effect, in BFS16 v Minister for Immigration and Border Protection [2017] FCA 142 Robertson J, citing SZBYR, said at [45]:
. . . the Tribunal was under no obligation to put to the appellant, pursuant to ss 424A or 424AA of the Migration Act, any inconsistency between the information provided by the appellant in his application and the evidence given at the Tribunal hearing because the putative information was not information to which the obligation in s 424A(1) of the Act applied, as it was not information that would constitute ‘in [its] terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations’:
See also ATP15v Minister for Immigration and Border Protection [2016] FCAFC 53, [42]; and compare CQG15, at [92]-[93].
Upon the principles addressed at [106]-[114], I conclude that the adverse credibility findings of the delegate or the 1st Tribunal did not constitute information within the meaning of s 424A.
Even adopting a more expansive meaning of the term information, the Tribunal’s 2nd Reasons do not indicate, whether expressly or by necessary implication, that the Tribunal regarded the subject views of the 1st Tribunal as being either the sole or part of the reason to affirm the delegate’s decision to refuse the application.
What the Tribunal said at [55] was as follows:
The Tribunal noted that this account of the applicant had been questioned by the delegate and the previous Tribunal, and that the present Tribunal had concerns about the plausibility of the applicant disclosing information to this person in the manner as described.
Those reasons record no more than that the applicant’s account had been questioned by the delegate and 1st Tribunal and that the present Tribunal also had concerns about the plausibility of the claim.
The 2nd Reasons do not suggest that the views of the 1st Tribunal informed the ultimate decision on the issue of whether the applicant had in fact disclosed the fact of his Shi’a conversion to his childhood friend, now a Sunni Mufti. The 2nd Reasons at [23], [53]-[56] confirm that the Tribunal gave detailed consideration to the applicant’s evidence on this issue and its evaluation of that evidence in light of all the material which was before it.
The Transcript records the Tribunal’s exchange with the applicant on this issue at pp. 14-16. In particular, it demonstrates that the Tribunal was concerned to test the plausibility of the applicant’s claim that, as a Shi’a convert, would disclose the fact of his conversion to a Sunni Mufti, irrespective of whether the person had been a childhood friend or would have done so in circumstances where he had only made such disclosure to his mother and fiancé, he wished to keep the fact of his conversion private and he held the view that persons who had converted to Shi’a were regarded as ‘the worst kind of traitor’.
The decisions of the delegate and the 1st Tribunal were before the 2nd Tribunal and were materials that the applicant had in his possession. It was because the applicant recognised the relevance of his credibility to the application that he made and lodged his statutory declaration. The declaration dealt at [29]-[34] with the disclosure of his conversion to the Sunni Mufti and that declaration was set out in the 2nd Reasons.
Reading [55] in isolation, or in the context of the 2nd Reasons as a whole, I conclude that the obligations imposed by s 424A were not engaged in relation to the observation of the 1st Tribunal. The information concerned the applicant’s credibility. The applicant already had this information and had addressed it. He had sought review of the delegate’s decision. He sought review of the Tribunal’s decision. He obtained an order for the 1st Tribunal’s decision to be set aside and for the remitter of the application for review of the delegate’s decision. Finally, the reasons of the 1st Tribunal on this issue were not dispositive of the application for review.
Ground 2 is rejected.
Failure to decide matter for itself
The third ground of review states:
The Tribunal committed jurisdictional error by overly relying on the views of not only a differently constituted Tribunal but also the delegate about the same applicant, instead of deciding the matter itself.
Particulars
a.The Tribunal overly relied on the fact that a differently constituted Tribunal and the delegate had not accepted the Applicant’s account about disclosing his conversion from Sunni to Shi’a to a childhood friend who was a leader of a local mosque; see [55] of the Tribunal’s decision and the transcript of the Tribunal’s hearing at page 16.
b.The Tribunal quoted from a differently constituted Tribunal’s findings about the claims made, rather than itself considering and synthesising the claims made; see [22] and [23] of the Decision. (Emphasis added)
The central bases of this ground were that: (1) the Tribunal had relied upon non-acceptance by the delegate and the 1st Tribunal of the applicant’s claimed disclosure of his Shi’a conversion to his childhood friend, the Sunni Mufti; and (2) by quoting from the 1st Tribunal’s Reasons the matters reproduced at [21]-[22], the Tribunal had thereby not considered those matters for itself.
In support of this ground the applicant relied upon the following:
(a)the Tribunal had merely quoted ‘vast slabs’ of the 1st Reasons;
(b)the 2nd Tribunal had employed the credibility findings of the 1st Tribunal to influence its own credibility findings;
(c)in ‘overly relying’ on the 1st Reasons and the delegate’s decision, the 2nd Tribunal failed to carry out its task of forming its own opinion on the material that was before it.
Those matters were said to establish that the Tribunal had failed to discharge its statutory task and thus committed jurisdictional error, citing MZZZW, [30], [43], [53], [57]-[60].
While counsel for the applicant emphasised Ground 3, it will be recalled that Ground 1 was expanded in the course of oral submissions to rely upon substantially the same submissions: see at [78]-[79] above.
Conceding that the 2nd Tribunal had acknowledged the source of the text reproduced in the 2nd Reasons, it was said that what had occurred in this matter could be characterised as more brazen copying than that which had occurred in MZZZW. It was said to be more brazen because the Tribunal at [21]-[22] had simply copied the evidence from the 1st Reasons without instead considering the evidence for itself.
Counsel for the applicant identified paras [21]-[22] and [55] of the 2nd Reasons as being under attack. It was accepted that the Tribunal had structured the 2nd Reasons in a manner that was commonly employed in Tribunal reasons relating to the review of a delegate’s refusal on applications of this kind. But it was said that the manner in which the Tribunal had acted by reproducing from the 1st Reasons the history of the applicant’s claims and the evidence at the original hearing demonstrated an abdication of duty on a merits review.
It was also accepted the 2nd Reasons at [21] recorded that the Tribunal had reviewed the submissions provided to the Minister and the Tribunal respectively and upon such review had concluded that the applicant’s claims as set out in the 1st Reasons at [18]-[45] constituted an accurate reflection of the applicant’s claims to that point. In addition, the Tribunal had annotated those paragraphs to identify the source documents which were relevant to aspects of that claims history.
It was also accepted that the 2nd Reasons at [22] recorded that the Tribunal had listened to the recording of the proceedings before the 1st Tribunal. It is implicit that the Tribunal so considered this recording before concluding that the text which was then reproduced at [22] was an accurate reflection of the further evidence adduced at that hearing. Only then did the Tribunal adopt the summary in the 2nd Reasons.
The Minister submitted that Ground 3 was misconceived as was the applicant’s reliance on MZZZW. To make out that submission, counsel for the Minister examined the reasoning of that decision in detail. I have considered those principles at [46]-[56] above.
The Minister submitted that the present case was distinguishable from MZZZW in several respects. First, in this case the Tribunal had expressly attributed authorship for the passages reproduced from the 1st Reasons. Secondly, it was said that in quoting attributed passages, the Tribunal had included that material so as to identify the state of the evidence and submissions up to the point in time of the original hearing. Thirdly, the Tribunal had not merely reproduced the material. Rather, the 2nd Reasons confirmed that it had done so only after the Tribunal had: (a) examined the submissions made to the delegate and the 1st Tribunal; (b) identified and provided annotations of the relevant underlying documents; (c) listened to the taped recording of the proceedings before the original Tribunal; (d) satisfied itself that the quoted passages accurately reflected the applicant’s claims and evidence; and (e) considered documents not before the 1st Tribunal. Fourthly, the Tribunal’s transparent use of the material reflected an orthodox and proper use of the matters contained in the 1st Reasons, citing MZZZW at [62]. Fifthly, and critically, the Tribunal did not utilise the reproduced passages when, in the ensuing section of its reasons – Findings and Reasons – it considered for itself the applicant’s credibility at [28]-[61] and made findings whether to accept or reject the applicant’s claims.
The Minister further submitted that the use in the 2nd Reasons of the reproduced passages did not disclose error and that such use was unobjectionable. As concerned the applicant’s claim that he had disclosed his Shi’a conversion to a Sunni cleric at a time when he knew the way in which such converts were regarded and wished to keep the matter private, the Tribunal was entitled and authorised to note the fact that both the delegate and original Tribunal had been troubled by the plausibility of the applicant’s claim to have made such disclosure.
In short, it was submitted that fairly read the 2nd Reasons as [55]-[56] demonstrated the Tribunal conducted an independent assessment of this claim. I agree.
The applicant’s complaint was that in adopting the above course, the Tribunal had not formed its own impression of the matter. While the applicant submitted that the 2nd Tribunal had ‘overly relied’ upon the 1st Reasons by reproducing them, the submission was maintained at that level of generality. The applicant did not descend to the detail of the matters set out in either [21] or [22] and so did not identify particular matters contained in that text which might have demonstrated any, or an, error of such significance as to warrant a conclusion that the decision was affected by jurisdictional error.
Applying the principles considered at [46]-[58] above, the Tribunal was entitled to have regard to the 1st Reasons but was not entitled to abdicate its duty and so was required to undertake the merits review, exercising an independent mind, upon the materials before it. It did so.
The Tribunal stated it had reviewed all of the submissions and listened to the recording before forming a conclusion that the 1st Reasons provided an accurate summary of the matter. There is no warrant for a conclusion that it had not done so. The Tribunal did review those submissions and did listen to the recording for the very purpose of forming its own impression of each of those matters. The Tribunal did not, as was suggested, take a shortcut by proceeding simply to cut and paste the findings of the 1st Reasons. More was done and it entailed the Tribunal forming its own impression of the submissions, evidence and discussions that occurred in the original hearing. The Tribunal considered the further documents that were produced by the applicant and which had not been before the 1st Tribunal.
Only upon such consideration did the 2nd Tribunal conclude that the 1st Reasons at [21]-[76] provided an accurate reflection of the claims and further evidence adduced at the hearing before the 1st Tribunal. Having addressed those matters the 2nd Tribunal undertook its own comprehensive consideration in the next section of the 2nd Reasons, Findings and Reasons, where it proceeded to address a range of issues, including the applicant’s credibility.
The 1st Tribunal’s credibility findings were set out in the 1st Reasons at [89]-[105]. The 2nd Tribunal did not reproduce those credibility findings. Nor did it adopt them.
The 2nd Tribunal did not overly rely upon non-acceptance by the delegate or 1st Tribunal of the applicant’s account of the disclosure of his Shi’a conversion to a childhood friend who had become a Sunni Mufti. The 2nd Tribunal undertook its own analysis of the applicant’s credibility and the credibility of his claims and its findings were then set out in the 2nd Reasons at [28]-[61]. It conducted an independent inquiry as it was required to do. As the Findings and Reasons demonstrate, the inquiry was undertaken in a detailed manner.
I reject Ground 3.
Conclusion
The applicant’s grounds of review have not been made out. The application must be dismissed with costs.
I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 9 March 2018
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