BGT16 v Minister for Immigration
[2018] FCCA 642
•24 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BGT16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 642 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – first applicant (applicant) claiming a fear of harm in Jordan – applicant not believed – whether the Tribunal showed pre-judgement or was influenced by an anonymous complaint about the applicant received from Jordan considered – consideration of a non-disclosure certificate which purportedly covered the anonymous complaint – complaint disclosed but represented as a complaint from a “member of the community” – whether the applicant was misled considered – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424AA, 425, 438, 440 |
| Cases cited: ARG15 v Minister for Immigration (2016) 250 FCR 109 Minister for Immigration v SZLFX (2009) 238 CLR 507 Re Minister for Immigration; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405 |
| First Applicant: | BGT16 |
| Second Applicant: | BGU16 |
| Third Applicant: | BGV16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1325 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 15 March 2018 |
| Date of last submissions: | 28 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2018 |
REPRESENTATION
The First Applicant appeared in person
| Solicitors for the Respondents: | Mr J Hutton of Australian Government Solicitor |
ORDERS
A writ of certiorari shall issue, removing the record of the Administrative Appeals Tribunal decision made on 28 April 2016 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Administrative Appeals Tribunal to determine the review application before it according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1325 of 2016
| BGT16 |
First Applicant
BGU16
Second Applicant
BGV16
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 28 April 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas.
The following statement of background facts is derived from the submissions of the Minister filed on 8 March 2018.
The first and second applicants are citizens of Jordan who arrived in Australia on tourist visas on 23 January 2014.[1]
[1] Court Book (CB) 215
The third applicant is the son of the first and second applicants, born in Australia on 12 July 2014.[2]
[2] CB 214
The applicants lodged an application for the protection visa on 18 March 2014.[3]
[3] CB 12 to 194
The first applicant (applicant) attended an interview with the delegate on 23 July 2014.[4] On 30 October 2014 the delegate refused the application.[5]
[4] summarised at CB 217 to 219
[5] CB 213 to 226
The applicants applied to the Tribunal for review of the delegate’s decision on 5 November 2014.[6] The applicants attended a Tribunal hearing on 21 March 2016.[7] The Tribunal affirmed the delegate’s decision on 28 April 2016.[8]
[6] CB 227 to 234
[7] CB 285 to 288
[8] CB 334 to 343
The applicants filed this application for judicial review on 26 May 2016.
Protection claims
The applicant claims to fear harm from Islamic groups, and in particular a Salafist group. The applicant claims that the brothers of his former wife (the brothers) will kill him if he returns to Jordan, because he divorced her. He also claims that the brothers have declared him an apostate, which means that any Muslim could kill him.
The second and third applicants have no separate claims of their own.
The applicant gave evidence in a statutory declaration dated 6 March 2014,[9] in an interview with the delegate on 23 July 2014,[10] in a hearing before the Tribunal on 21 March 2016[11] and in a statutory declaration dated 31 March 2016.[12] Although the evidence varied, the applicant’s claims were broadly:
a)he met a Muslim girl at work, and began a friendship with her;
b)the Muslim girl began telling him that she wished to convert from Islam to Christianity to marry him. He then tried to avoid contact with her;
c)the Muslim girl began to attend his Christian church irregularly; and
d)in 2007, he received a phone call from the brother of the Muslim girl advising him to meet him at a private location. He did so, and was accused by the Muslim girl’s six brothers of sexually assaulting her and of forcing her to convert to Christianity. The brothers then assaulted him, and he fell unconscious. The brothers then stole all his official documents, which he had on him at the time.
[9] CB 86 to 90
[10] summarised at CB 217 to 219
[11] summarised at CB 336 at [11] to CB 340 at [41]
[12] CB 291 to 293
The brothers then forced him to marry the Muslim girl and convert to Islam.
In August 2008, he was able to escape from the brothers, and divorced the Muslim girl.
The brothers declared he was an apostate, and threatened to kill him. He was forced to move location once a month, and change his phone number.
In 2009, his younger brother was killed in a car accident which was caused by the brothers.
Upon marrying the second applicant in May 2012, the brothers continued to threaten him and the second applicant. He and the second applicant then fled to Australia on tourist visas in January 2014.
The applicant understands that the brothers have continued to state that they will kill him if he returns to Jordan.
Tribunal decision
The Tribunal accepted that the applicant was a national of Jordan. The Tribunal also accepted that the second and third applicants are members of the same family unit.[13] It rejected all other claims raised by the applicant. It found that he was not a reliable or credible witness[14] and that “he fabricated his entire claim in order to be granted a protection visa”.[15] The Tribunal made the following findings on the evidence and the applicant’s credibility:
a)the applicant’s account of him forging a close relationship with the Muslim girl was deemed to be implausible. As a busy employee in a small construction company, it was found to be implausible that he would go to the Muslim girl’s building to discuss deliveries with her, considering she was a secretary in another company.[16] Given the implausibility of this friendship, the Tribunal found that the Muslim girl never discussed her dislike of Islam with him, never offered to convert to Christianity and marry him, and never attended the church that he attended;[17]
b)the applicant’s account of receiving a phone call from a brother of the Muslim girl asking him to meet in a private location, without knowing what needed to be discussed, was not credible;[18]
c)the applicant’s claims of being forced into a marriage with the Muslim girl lacked credibility. The Tribunal found that, as it is prohibited in Islam for a Christian man to marry a Muslim woman, no sheikh would have allowed the marriage to take place unless the applicant had recited the shahada.[19] The applicant said that he had never recited the shahada;[20]
d)the applicant’s claims that he was detained from January 2007 to August 2008 by the brothers were not credible. The Tribunal showed the applicant information at the hearing which showed him applying for a US visa at the US Embassy in Amman on 20 June 2007. The Tribunal determined that the applicant’s reason for being at the US Embassy at the time, being that he was allowed to visit his sick mother and took the opportunity to apply for the visa, was implausible;[21]
e)the applicant’s claim that he lived in a different house every month from when he fled the brothers to when he left Jordan lacked credibility.[22] The applicant stated in his protection visa application that he only lived in two houses during that time, and the Tribunal found it implausible that the applicant would move houses so often, yet only worked at two locations during the relevant period;[23]
f)the documents provided in support of the applicant’s claims (letters from priests and lawyers, and emails from family members) were given little weight, with the Tribunal finding that the documents could have been produced on any home computer and may have been created to strengthen his story;[24] and
g)there was a lack of credibility from the applicant concerning his personal circumstances. On his visitor visa application dated November 2013, he stated that he had never been married and was staying with “friends” while in Australia. At the Tribunal hearing, he claimed he was married, and stayed with his sister-in-law while in Australia. The Tribunal did not accept that the applicant failed to mention he was married because he had only been married in a church and had not had the marriage registered with the Jordanian government.[25]
[13] CB 340 at [43]
[14] CB 340 at [45]
[15] CB 340 at [45]
[16] CB 340 at [48]
[17] CB 340 at [49]
[18] CB 341 at [50]
[19] CB 341 at [51]
[20] CB 337 at [25]
[21] CB 341 at [54]
[22] CB 341 at [56]
[23] CB 341 at [56]
[24] CB 342 at [60]
[25] CB 342 at [63]
Having found that the applicant was not a credible witness, the Tribunal made the following findings:
a)it did not accept that the applicant had ever befriended a Muslim woman near his workplace;[26]
b)it did not accept that the applicant ever met the brothers in a private location, and was detained and assaulted by them;[27]
c)it did not accept that the applicant was ever forced to marry a Muslim woman or convert to Islam by the brothers;[28]
d)it did not accept that the applicant had been held against his will for two years;[29] and
e)it did not accept that the applicant had been declared an apostate and was wanted by a Salafist group or any other group in Jordan, or that he had reasserted his Christianity.[30]
[26] CB 340 at [47]
[27] CB 341 at [50] and [51]
[28] CB 341 at [51]
[29] CB 341 at [51]
[30] CB 343 at [66]
The Tribunal therefore concluded that the applicant was not a refugee for the purposes of s.36(2)(a)[31] nor was there a real risk he would suffer harm as defined under s.36(2)(aa) of the Migration Act 1958 (Migration Act).[32]
[31] CB 342 at [65]
[32] CB 343 at [67]
The current proceedings
As noted above at [8], these proceedings began with a show cause application lodged on 26 May 2016. The applicants continue to rely upon that application. The grounds in that application are:
1. The [Tribunal] made adverse credibility findings base of the fact that marriage was not disclosed on tourist visa application. I explained that I was not officially married hence did not disclose marriage on an official document ie application form. The [Tribunal] did not take into consideration my logic.
2. The [Tribunal] doubted my credibility because I did not list all addresses I had lived in on my application form. I explained that all addresses I lived at were not my official addresses hence I did not include them in my official application. The [Tribunal] did not take into consideration of my logic.
3. The [Tribunal] used discrepancy between my job title and job duties to make adverse credibility findings. I explained that it was a small company and that this discrepancy was very normal in Jordan. The [Tribunal] assessed this based on concept of job description and duties as they are in Australia.
4. The [Tribunal] placed undue weight on the fact that I did not recite the Shahada hence could not have been married to a Muslim woman. The [Tribunal] disregarded that my ID shows Muslim and the fact I had a divorce certificate. These two items show that I had converted to Islam.
5. The [Tribunal] doubted that I was married and divorced based on the circumstances of meeting. A divorce certificate was submitted. If the [Tribunal] doubted the marriage and divorce it made no attempt to verify if the document was genuine.
(errors in original)
I received as a submission the applicant’s affidavit filed with the application. I received as evidence the book of relevant documents (court book) filed on 29 July 2016 and the affidavit of Kate Elizabeth Gawidziel made on 21 October 2016, to which is annexed a certificate purportedly issued under s.438 of the Migration Act and documents purportedly covered by that certificate.
Consideration
Credibility findings
The grounds of review advanced by the applicant, and his written and oral submissions made in support of those grounds, all take issue with a series of adverse credibility findings made by the Tribunal. Those findings cumulatively supported the Tribunal’s finding at [45] of its reasons[33] that the applicant was not a reliable or credible witness and that he had fabricated his entire claim in order to be granted a protection visa. To the extent that the applicant’s complaints take issue with factual findings made by the Tribunal, and the Tribunal’s reasoning process, his complaints do not rise above a dispute over the merits of the Tribunal decision. However, the applicant adopted a proposition of mine made during argument that the Tribunal showed pre-judgement on the credibility issue which was influenced by an anonymous complaint received by the Tribunal prior to the Tribunal hearing. The information in that anonymous complaint was included in the documents purportedly covered by the non-disclosure certificate, which I discuss below.
[33] CB 340
In other respects, in relation to the grounds in the application, I agree with the Minister’s submissions.
Grounds 1 to 3 - credibility findings
The first to third grounds of review raises an issue about the Tribunal’s conclusions on the applicant’s credibility. As a general principle, credibility findings are a matter for the Tribunal.[34] Although credibility findings are not immune from jurisdictional error, the Tribunal did not fall into error in make its adverse credibility findings in this matter.[35] It was open to the Tribunal to make those credibility findings considering the numerous inconsistencies in evidence given and the implausibility of that evidence. The Tribunal also gave detailed reasons as to why it found that the applicant was not credible, summarised above at [18].
[34] Re Minister for Immigration; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405 at [67]
[35] ARG15 v Minister for Immigration (2016) 250 FCR 109 at 130−131 and CQG15 v Minister for Immigration [2016] FCAFC 146
In terms of Ground 1, the applicants seek to impugn the Tribunal’s credibility findings on the grounds that it failed to consider the applicant’s explanation why he failed to state on his tourist visa application that he was married. This ground cannot be sustained, as the Tribunal did consider the applicant’s explanation that he had only been married in a church and had not told the Jordanian authorities about the marriage, so he did not record his marriage on the form. However, it did not accept that explanation because the form only asked about his marital status, not where it was registered.[36]
[36] CB 342 at [63]
By Ground 2, the applicants claim that the Tribunal, in making its credibility findings, did not consider the reasons given by the applicant why he did not provide all of his Jordanian addresses in his protection visa application. The Tribunal noted the reasons given by the applicant in its decision, being that he only included “official” addresses.[37] However, the Tribunal did not accept these reasons.[38]
[37] CB 339 at [36]
[38] CB 341 at [56]
Ground 3 makes a claim which appears to be about a finding of the Tribunal that the applicant gave inconsistent descriptions of his job titles. The evidence of the applicant giving inconsistent descriptions of his job titles is found at [15] and [16] of the decision.[39] The applicant claimed that his company was not large and so he undertook many jobs.[40] The Tribunal noted the inconsistencies in his description of his job titles.[41] It did not reject the applicant’s claim to have worked many jobs in a small company, but it found that such a claim would have appeared to have precluded the applicant from establishing close relationships with anyone outside of his immediate work environment.[42]
[39] CB 336
[40] at [15]
[41] CB 340 at [47]
[42] CB 340 at [48]
Contrary to Ground 3, the applicant does not appear to have explained to the Tribunal the inconsistencies he now seeks to explain in his description of his job titles, based on the difference between job descriptions and duties in Jordan and Australia. Accordingly, the Tribunal did not err by failing to consider this explanation.
In my opinion, Grounds 1 to 3 do not demonstrate any jurisdictional error arising from the Tribunal’s credibility findings, or otherwise.
Ground 4 - undue weight on the applicant not reciting the shahada
The applicant’s fourth ground claims that the Tribunal placed undue weight on him not reciting the shahada. This is an impermissible attempt at a merits review. The question of weight is entirely a matter for the Tribunal, and the Tribunal is entitled to accept, reject or to give such weight to the evidence proffered as it thinks appropriate in all the circumstances.[43]
[43] Lee v Minister for Immigration [2005] FCA 464
Ground 4 - failure to have regard to the applicant’s ID and divorce
The applicant also claims by Ground 4 that the Tribunal disregarded that his ID showed that he was Muslim and that he had a divorce certificate.
To the extent that the applicant is claiming that the Tribunal failed to consider those documents, such a claim cannot be made out. The Tribunal clearly considered the documents but gave little weight to them.
In terms of the ID, the Tribunal accepted that it recorded that the applicant was a Muslim, but it placed little weight on it because he gave evidence that he had the card replaced in 2011, and it was not credible that he would not have sought to update the card in 2011, well after he had escaped from the brothers and converted to Christianity.[44]
[44] CB 342 at [58]
The Tribunal also considered the applicant’s divorce order at [60], finding that there was an inconsistency between the divorce order issued on 19 March 2008 and the applicant’s claims that he divorced his wife on 19 August 2008 after attending the family court. Contrary to the applicant’s grounds, the divorce order makes no claim on its face that the applicant is Muslim.[45]
[45] see at CB 98. It may nevertheless be a jurisdictional requirement of the Sharia court that the parties to the marriage both be Muslims
Ground 5 - failure to verify if the divorce certificate was genuine
The applicant’s fifth ground claims that the Tribunal was under an obligation to determine whether his divorce certificate was genuine. No general obligation exists for a Tribunal to consider and determine whether or not a document is genuine because it doubts the veracity of the claim which the document purportedly supports. This is especially the case in this matter, where the Tribunal has made numerous credibility findings concerning the applicant’s claims. An inquiry into the veracity of the divorce order would go beyond the Tribunal’s obligation to make an obvious inquiry about a critical fact, the existence of which could be easily ascertained.[46]
[46] Minister for Immigration v SZIAI (2009) 83 ALJR 1123 at [19] to [25]
Material covered by the s.438 certificate
The affidavit of Ms Gawidziel deals with a certificate purportedly issued under s.438 of the Migration Act (the certificate) and the documents which it purportedly covered.
The applicants have not sought to raise any issue in respect of the certificate.
The Minister submits that even if the certificate were invalid, it does not give rise to any jurisdictional error. The only issue of relevance in the material covered by the certificate is said to be an allegation made against the applicant that he provided a false declaration about his marital status on his visitor visa application, because it says that he had never been married, but he had been married to a Muslim girl and later a Christian girl.
I invited further submissions from the parties in relation to the certificate and the documents purportedly covered by it in order to address the following issues:
a)the validity of the certificate;
b)whether the Tribunal had disclosed sufficiently the content of the anonymous complaint received by the Minister’s Department and passed to the Tribunal;
c)whether the applicant was misled by the Tribunal in its disclosure under s.424AA that the anonymous complaint had come from “a member of the community”;[47] and
d)whether the complaint caused the Tribunal to pre-judge the applicant’s credibility.
[47] CB 339 at [39]
The certificate on its face asserts two reasons for its issue, those being that the documents purportedly covered by it contain matters “relevant to the Department’s internal affairs or was given to an officer of the Department in confidence”. The first reason could not support a valid certificate but the second reason might. The documents in issue appear at pages 7, 9 and 10 of the annexure to Ms Gawidziel’s affidavit. In particular, the document at page 7 of the annexures reveals that the Australian diplomatic post in Amman, Jordan had received a confidential allegation from a “reliable source” relating to the applicant’s protection visa application. That information is repeated in the document at page 9 of the annexures. From that, I infer that the reliable source was in Jordan, not Australia, and that the reference by the Tribunal to the complaint coming from a “member of the community” might have been misleading.
I called for further submissions from the parties on these issues. Only the Minister filed further submissions. I accept those submissions in part.
Question 1 – the validity of the certificate
The Full Federal Court said in Minister for Immigration v BJN16[48] at [63] that:
It may be accepted that the non-disclosure by the Tribunal of the existence of a certificate, given under s 438 of the Act, may give rise to a denial of procedural fairness. It does not follow that this will always be the case. It will be necessary, in each case, for all the circumstances and the consequences for the applicant of the omission to be examined.
[48] [2017] FCAFC 197
In considering “all the circumstances” of the matter, it is relevant that although there was a certificate it is apparent that the Tribunal did not act on the certificate. This is because it provided information covered by the certificate to the applicant under s.424AA and it did not do so by issuing a direction under s.440 of the Migration Act. This suggests that the Tribunal either “was ignorant of the Certificate, or it was aware of the Certificate but did not consider it to be valid, or the Tribunal simply decided to ignore the Certificate”.[49] Given that the Tribunal did not act on the certificate, the applicant’s participation in the review was not circumscribed by the certificate. Assuming that the certificate was valid, there was no obligation to disclose the existence of the certificate to the applicant in these circumstances.[50]
Questions 2 and 3 – whether the Tribunal fell into error in disclosing in part the information covered by the certificate
[49] see CKG15 v Minister for Immigration & Anor [2017] FCCA 938 at [82]
[50] see CKG15 at [106]-[107]
In considering what material the Tribunal was required to disclose to the applicant, it is necessary to consider that material in the context of the decision.
The main issue before the Tribunal was the applicant’s credibility. The fact that the applicant had provided a false statement in a visitor visa was a matter which may have led the Tribunal to conclude that he was not a credible witness (or it may have reinforced the Tribunal’s conclusions on this point). The visitor visa issue was not otherwise related to the applicant’s claims for protection.
The essential fact at issue was that the applicant had said in his visa application that he was married, when in fact he was not. A related issue was whether that statement was false or intentionally false. The fact that this had been uncovered initially by a confidential source providing a “dob-in” is said by the Minister to be of little to no relevance to the question of the applicant’s credibility. The Tribunal was able to determine the issue of credibility by reference to statements made by the applicant about his marital status and the contrary statements made in the visitor visa application.
Independently of the information covered by the certificate, the Tribunal raised with the applicant at the hearing that he stated in his visitor visa application that he was not married but that he had given contrary evidence to the Tribunal.[51] He was given an opportunity to explain this inconsistency and he accepted that he had stated that he was not married in his visitor visa application but that he was married at the time he completed it.[52] He was given an opportunity to explain why the statement that he was not married was not false (or intentionally false), and he claimed that he stated he was not married because he did not have an official document to prove that he was.[53]
[51] CB 339 at [39] and CB 342 at [62]
[52] CB 339 at [39]
[53] CB 339 at [39]
To ensure procedural fairness the Tribunal was required to put two relevant matters to the applicant which gave rise to credibility issues, being that there was an “independent source” which had said that:
a)the applicant had made a false statement; and
b)it concerned his marital status on his visitor visa application.
The material covered by the certificate stated that the source of the “independent” information was from Amman (or more generally Jordan). However, the Minister submits that this information was not relevant to the Tribunal’s credibility findings, which were based on the fact that the applicant had provided an incorrect statement in his visitor visa application and its conclusion that it did not accept his reasons for providing that incorrect statement.[54] The Tribunal’s credibility findings were not based on the fact that there was information from a source in Amman.
[54] see CB 342 at [62] and [63]
The material covered by the certificate stated that the confidential source had stated that the applicant was Christian and that he was previously married to a Muslim girl whom he later divorced.[55] The Minister contends that it was not necessary to put this bare fact to applicant as it was not relevant to the review. The applicant’s claims were that he was forcibly married to a Muslim woman. The Tribunal found this his claim to have been forcibly married lacked credibility.[56] However, it made no findings about whether he was ever married to, or divorced from, a Muslim woman.
[55] To that extent the information corroborated what the applicant claimed in his protection visa application
[56] CB 341 at [51]
The Minister contends that the answer to Question 2 should be that the Tribunal provided the applicant with all the material it considered would be the reason or part of the reason for affirming the decision under review under s.424AA,[57] and this was sufficient to deal with any procedural fairness issues raised by the certificate. I agree, provided that the applicant was not misled by the Tribunal.
[57] Minister for Immigration v SZLFX (2009) 238 CLR 507 at [24]
The Minister contends that the Tribunal did not mislead the applicant by stating that “a member of the community” had claimed that he had provided false information, when the material under the certificate stated that claim came from a person in Amman. The term “community” is said to have no necessary local connotation, as is seen by the following definitions found in the Macquarie Dictionary:
community
1. all the people of a specific locality or country: the new transport service is for the benefit of the whole community.
2. the community, the public.
3. a particular locality, considered together with its inhabitants: a small rural community.
4. a group of people within a society with a shared ethnic or cultural background, especially within a larger society: the Aboriginal community; Melbourne's Greek community.
5. a group of people with a shared profession, etc.: the scientific community.
6. a group of people living together and practising common ownership.
7. Ecclesiastical a group of men or women leading a common life according to a rule.
8. a group of organisms, both plant and animal, living together in an ecologically related fashion in a definite region: *A little-appreciated fact about a natural community of plants and animals such as a rain forest community is that it virtually recycles all materials used as resources. – Charles Birch, 1976.
9. joint possession, enjoyment, liability, etc.: community of property.
10. similar character; agreement; identity: community of interests.
– adjective 11. (of a radio or television station) owned and operated by the community which uses it.
– phrase 12. the community at large, the general populace.
The Minister submits that the Tribunal was using the term in its second meaning given by the Macquarie Dictionary as “the community, the public”. This is said to have been to indicate that the information was not from a government or official source, but rather a member of the public. The Minister submits that it did not, and was not intended to, indicate that the information necessarily came from the local community in Australia, or indeed in some location within Australia.
I disagree. First, it is reasonable to assume that the applicant would have taken the Tribunal to be saying that the information came from someone in the Australian community, consistently with the first dictionary definition of the word “community”. Secondly, I have no evidence that the information received by the Australian diplomatic post in Amman did not come from an official source. The source was stated to be “reliable”. If the source was from a member of the public in Jordan, how was the reliability of the source determined? If, however, the information came from an official source, the reliability of that source could readily be determined by the diplomatic post.[58]
[58] See Khanan v Minister for Immigration [2017] FCCA 2983 as to the usage of the expression, “reliable source”
This raises yet further (and potentially disturbing) questions. If the Jordanian source was official, did that official know that the applicant had applied for protection in Australia and, if so, was the official attempting to influence the consideration of that application?
These are questions which would probably have been at the forefront of the applicant’s mind if he had been told that the adverse information had come from “a reliable source in Jordan”. He was not told that and hence was deprived of the opportunity to consider and make submissions on the implications of it. Having been misled by the Tribunal as to the source of the adverse information, the applicant was in no position to deal with it and the hearing opportunity afforded to the applicant was unfair, constituting a breach of s.425 of the Migration Act.
It is not necessary to deal with the last question, namely whether the Tribunal pre-judged the review because of the anonymous allegation made against the applicant.
The applicants should receive the relief they seek.
I will hear the parties as to costs.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 24 April 2018
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