BIJ15 v Minister for Immigration
[2017] FCCA 1815
•4 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BIJ15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1815 |
| Catchwords: MIGRATION – Application for review of former Refugee Review Tribunal – whether the Tribunal complied with s.424AA – whether actual or apprehended bias – whether Tribunal failed to consider Refugees Convention claim – whether Tribunal failed to consider evidence – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.420, 424A, 424AA, 430, 476 Migration Amendment (Complementary Protection) Act 2011 (Cth) |
| Cases cited: SZBYRv Minister for Immigration and Citizenship [2007] HCA 26; (2007) 8 ALJR 1190 BWC15 v Minister for Immigration and Border Protection [2017] FCA 199 |
| Applicant: | BIJ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1925 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 11 July 2017 |
| Date of Last Submission: | 11 July 2017 |
| Delivered at: | Sydney |
| Delivered on: | 4 August 2017 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr D Hughes |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
The application made on 13 July 2015 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1925 of 2015
| BIJ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 13 July 2015, seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) made on 15 June 2015, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection (Class XA) visa to the applicant.
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
Background
The relevant background to this matter, as derived from the evidence before the Court, is summarised in the Minister’s written submissions filed on 4 July 2017, and prepared by counsel. It is a fair summary of the relevant background as follows ([2] – [5] of the Minister’s written submissions):
“[2] The applicant is a citizen of Lebanon. He arrived in Australia on 8 March 2008 on a prospective marriage visa. He did not marry and the visa ceased. He remained in Australia without a visa until 13 March 2009, when he applied for a protection visa (First Application). That application was refused on 24 April 2009. He did not seek review of the refusal. A request for ministerial intervention was refused on 23 November 2010: see Court Book (CB) page 124.
[3] On 13 August 2013, the applicant applied again for a protection visa: CB [50]. That application was valid by reason of the decision in SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235 (SZGIZ).
[4] On 27 June 2014 the delegate decided to refuse the application: CB 119. The applicant applied to the Tribunal for a review of the delegate’s decision: CB 136. The applicant was invited to appear before the Tribunal (CB 147) which he did: CB 219 [3].
[5] On 15 June 2015 the Tribunal decided to affirm the delegate’s decision: CB 218.”
The applicant’s claims to fear harm as they were ultimately put before the Tribunal were as follows. He was a Maronite Christian from Lebanon. He feared that he would become a victim of religious violence in circumstances where in Lebanon, which was an Islamic State, Islamic fundamentalists targeted Christians. He claimed that he would be specifically targeted by such a group, Hezbollah, because he had worked for the army, and had killed one of the members of such Islamic groups.
The Tribunal found that the applicant’s evidence regarding his claims “lack[ed] credibility” ([29] at CB 222). Variously, the Tribunal found his evidence to be inconsistent, implausible and contrary to country information that it otherwise had before it ([30] at CB 222 to [37] at CB 223). The Tribunal found that the applicant was not a “reliable, credible or truthful witness”, and that he had “fabricated his claims” for the purpose of seeking a protection visa ([29] at CB 222). The Tribunal also found that Hezbollah was not targeting Christians, and did not accept that the applicant would be targeted for the reasons that he had advanced ([36] – [37] at CB 223).
The Application to the Court
The grounds of the application before the Court are in the following terms:
“1. The Tribunal failed to provide adverse information under
s424 (AA).
Particulars
a. The Tribunal mentioned in its decision Col Andrew Condon was located in Cyprus and not in Beirut. The Tribunal is obliged to put this relevant information to me because I was not aware of this particular information to provide my comment. The Tribunal failed to put this relevant information to be before taking adverse decision on my case.
b. The Tribunal Member mentioned that he was the military liaison officer during 2006 evacuation and failed to provide corroborative documentary evidence to confirm this and give to me before taking adverse decision.
2. There was apprehended or actual bias on the part of the Tribunal.
a. The Member formed the decision on the basis of his personal experience in Lebanon without providing any corroborative evidence that he worked as a Military liaison officer and formed his own view.
b. The Member failed to provide any evidence to corroborate that Col Andrew Condon was located in Cyprus and not in Beirut. I have provided credible evidence to establish that Australian military officers were in Uniform in Lebanon at the time of 2006 evacuation.
3. The Tribunal failed to consider my claim under the Refugee Convention.
4. The Tribunal failed take into consideration of relevant information and documentary evidence when assessing my claim.
a. The Tribunal failed to take into consideration of a letter from the eyewitnesses I provided to the Tribunal to confirm that the Australian soldiers were in uniform in Lebanon at the time of 2006 evacuation. The Tribunal failed to acknowledge or to consider the letter which is a significant and corroborative evidence in relation to my credibility issue.”
[Errors in original.]
The applicant appeared in person before the Court. He was assisted by an interpreter in the Arabic (Lebanese dialect) language. It was clear that the applicant had little, or no knowledge, about the grounds of the application that he had put before the Court. He demonstrated, through his oral submissions, that he did not have any relevant understanding of the legal issues possibly arising from the grounds of the application.
It was not clear whether the applicant’s grounds were drafted by a lawyer or anyone with legal qualifications. The applicant was unable to assist with any explanation of the grounds of the application before the Court. Nor, when given the opportunity to consult with a person who had accompanied him to the Court, and whom the applicant identified as his fiancée, was she able to assist with explaining the grounds of the application to the Court.
Ground one asserts that the Tribunal failed to provide “adverse information”, presumably to the applicant, pursuant to s.424AA of the Act. I understood this to be a reference to s.424A and s.424AA of the Act. The particulars explain that the Tribunal failed to put to the applicant for comment, certain information concerning an Australian military officer which was “relevant information”, leading to the “adverse decision” made by the Tribunal.
The background to this matter is as follows. It is clear from the Tribunal’s account, that during the Tribunal hearing there was discussion about Australian military personnel who were involved in certain evacuation operations in Lebanon during the war in that country, in 2006. The question arose as to whether the Australian military personnel were wearing military uniforms while in Lebanon during the evacuation.
The applicant has not put any evidence before the Court, including a transcript of the Tribunal hearing, to explain how this matter arose, the context of the discussion, or relevance of this matter to his claims to fear harm. I note that by orders made by a Registrar of this Court, the applicant was given the opportunity to file and serve such evidence. The only evidence available to the Court with regards to this matter is a reference by the Tribunal, in its decision record, under the heading of “Other Issues” (see [38] – [39] at CB 223).
The relevant paragraphs under the heading “Other Issues” are in the following terms ([38] – [39] at CB 223):
“[38] The applicant’s lawyer provided an additional letter claimed that incorrect information was put to the applicant during the hearing, relating to whether ADF personnel were wearing uniform during evacuation operations in Lebanon during the 2006 war. He claimed that as the Member was the military liaison officer during the evacuation I may not have been in a position to observe what the air crew and others were wearing at all times, and included a press release quoting a COL Andrew Condon who said that evacuees seeing Australian troops in uniform was immediately comforting and reassuring.
[39] Beirut airport was rendered non-operational by IDF aircraft early in the war so no evacuations were carried out by air, and hence no air crew operated inside Lebanon. Evacuations were done by road to Syria or by sea to Cyprus. COL Condon was located in Cyprus and in the media announcement he was referring to ADF personnel who greeted evacuees on arrival in Cyprus, where they wore their uniform. I was located in Lebanon, where ADF personnel involved in the evacuation did not wear uniforms. I do not accept that the applicant being questioned about his recollection of these events impacted on the other parts of his evidence, and the inconsistencies he displayed were because he fabricated the claim rather than because he felt stressed.”
The following material in the Court Book appears to provide further background to this matter. After the hearing before the Tribunal, which took place on 27 April 2015 ([3] at CB 219), the applicant’s representative wrote to the Tribunal by letter sent by email dated 1 May 2015, which attached a Statutory Declaration from the applicant dated 1 May 2015, a media release from the former (Australian) Minister for Defence dated 4 August 2006, and a letter dated 30 April 2015 (CB 177 to CB 185).
Of particular relevance from the Statutory Declaration is the following ([3] at CB 179):
“During the recent Tribunal hearing, I was very stress and nervous. At the hearing, I said I saw the Australian military personnel in uniform during 2006 evacuation operation. The Member said that he functioned as the military officer during 2006 evacuation operation in Lebanon and said no officers were deployed there with the Australian military uniform. Due to that I got confused which might have caused inconsistency in my evidence. I again confirm that I had seen the Australian military personnel in uniform. To corroborate my claim, I attached the following document. (Attachment 1).”
[Errors in original.]
The document attached to that Statutory Declaration is a media release from the then (Australian) Minister for Defence in 2006 (CB 182 to CB 183). It appears the applicant relied on the following passage from that media release (CB 182.9 to CB 183.1):
“‘I think all Australians would be very proud of the work of the soldiers, sailors and airmen and airwomen of the Joint Task Force in their efforts to assist fellow Australians. Australian evacuees seeing our troops in uniform and hearing a familiar accent, was immediately comforting and reassuring.’ Colonel Condon said.”
It is of relevance to note that the information in the media release was information provided by the applicant to the Tribunal for the purposes of the review. It is therefore exempt by virtue of s.424A(3)(b) of the Act from the operation of s.424A(1) of the Act.
It appears however, that the essential nature of the applicant’s complaint is that at the hearing, the Tribunal member referred to the location of Colonel Andrew Condon as being Cyprus, and not Beirut, as the applicant had claimed. Further, that the Tribunal member stated at the hearing that he was the Australian military liaison officer during the 2006 evacuation. The complaint is that the Tribunal failed to “provide corroborative documentary evidence” to confirm this before making its “adverse decision”.
This latter complaint is not an assertion of legal error relevant to s.424A of the Act, but rather, an assertion that the Tribunal was required to provide evidence in support of what it put to the applicant at the hearing (see further below at [25]).
The applicant’s reliance on the media release put before the Tribunal, appeared to be for the purpose of submitting that Australian military personnel were wearing military uniforms while in Lebanon. For the reasons that it gave, the Tribunal did not accept this submission. It must be said that the press release is silent on whether the wearing of uniforms by Australian military personnel occurred in Lebanon or elsewhere. Nor, for that matter, does the media release state the location of Colonel Condon. Although the “Air Force evacuee handling team” is said to have been based in Cyprus (at CB 182.8).
In any event, in relation to the location of Colonel Condon, this information referred to by the Tribunal, was the Tribunal’s members own observation and knowledge of relevant events. I agree with the Minister that that was not “information” that can be said, in its terms, to be a “rejection, denial or undermining” of the applicant’s claims to fear harm. The Minister referred to Court authority SZBYRv Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 (“SZBYR”), and in particular, Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 (“SZLFX”) at [22]:
“Furthermore, it was emphasised that for s 424A(1)(a) to be engaged, the material in question should in its terms contain a ‘rejection, denial or undermining’ of the review applicant’s claim to be a refugee. The Federal Magistrate approached the issue framed by reference to s 424A by considering whether the file note could or might undermine the credibility of the first respondent. He considered it could and also considered that no inference that the file note was not material to the decision should be drawn from the RRT’s failure to mention the file note.”
Specifically, in relation to particular “a” of ground one, I agree with the Minister that the Tribunal’s reference, at the hearing, to the location of Colonel Condon, when read in the context of the Tribunal’s decision record, which is the basis upon which the applicant’s ground proceeds, is that this was not “information” that, in its terms, fell within the understanding of “information” in the context of s.424A(1) of the Act and as explained by the High Court (SZBYR at [17] and SZLFX at [22]).
I also agree with the Minister that Colonel Condon’s location, whether Lebanon or Cyprus, was not relevant to the disposition of the applicant’s claims to fear harm. The Tribunal referred to this matter in the context of addressing the media release that the applicant’s representative had provided to the Tribunal. It is important to note in this regard, that the Tribunal referred to this matter under the heading of “Other Issues”. On a fair reading, there is a distinction between the matter of the media release and the location of Colonel Condon, and the actual consideration of the applicant’s claims.
In short, the Tribunal distinguished this matter from the body of its consideration of the applicant’s claims and evidence. On a fair reading of the Tribunal’s decision record, it is clear that the reasons for the applicant’s claims to fear harm, arose from the matters dealt with by the Tribunal at [26] – [37] (at CB 222 to CB 223) of its decision record. What the Tribunal set out at [38] (at CB 223) and [39] (at CB 223) was to address evidence provided by the applicant to the Tribunal, and contains the Tribunal’s assessment as to why that evidence, provided after the hearing, did not cause it to alter the findings and conclusion that it had already expressed in the preceding paragraphs.
In relation to particular “b”, I cannot see that s.424A of the Act obliges the Tribunal to provide evidence to support its analysis of the applicant’s claims. It is of course for the applicant to provide evidence and arguments, such that the Tribunal can be satisfied that his claims to fear harm can be made out.
I cannot see that s.424A of the Act imposes any obligation on the Tribunal member to provide evidence to the applicant of his or her own observations. I agree with the Minister that it is open to a specialist Tribunal, as in the present case, to draw on the member’s own personal observation and knowledge (BWC15 v Minister for Immigration and Border Protection [2017] FCA 199 (“BWC15”)). In the current case, the Tribunal, on the evidence, told the applicant that he was incorrect as to the matter of the Australian military personnel wearing uniforms in Lebanon during the 2006 evacuation. He was given the opportunity to comment, which he utilised through his representative, with the subsequent submission of the media release and the applicant’s Statutory Declaration.
It is the case that s.424AA of the Act is a mechanism, or facility, by which the Tribunal may discharge its obligation pursuant to s.424A of the Act orally at the hearing (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415). As s.424A of the Act was not engaged in the current circumstances, there was no obligation on the Tribunal to consider utilising s.424AA of the Act, in relation to the matter of the location of Colonel Condon and the wearing of military uniforms by Australian military personnel in Lebanon during the 2006 evacuation. In all, ground one is not made out.
Ground two asserts actual bias on the part of the Tribunal member, or the apprehension of bias irrelevant to the Tribunal member. The basis for this complaint is explained by the particulars to the ground, to be that the Tribunal made its decision, on the basis of the member’s personal experience in Lebanon, without “providing any corroborative evidence” that he worked as a military liaison officer in 2006 in Lebanon.
The test for bias is well settled (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (“Jia Legeng”), Minister for Immigration and Citizenship v SZJSS & Ors[2010] HCA 48; (2010) 243 CLR 164, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[2002] FCAFC 361; (2002) 194 ALR 749, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCA 872; (2003) 131 FCR 102, Re Refugee Review Tribunal; Ex parte H[2001] HCA 28; (2001) 179 ALR 425 and see also SZUCD & Anor v Minister for Immigration & Anor [2017] FCCA 421). It is the case that an allegation of bias is a very serious allegation to make. It must be said that unlike many other allegations of error on the part of a Tribunal member, bias, at its core, seeks to impugn the very integrity of that Tribunal member. For this reason, such allegations of bias must be “distinctly made and clearly proven” (Jia Legeng at [69] and [127]).
The test for the apprehension of bias is that a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an open mind to the proceedings (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, Re Refugee Review Tribunal; Ex parte H[2001] HCA 28; (2001) 179 ALR 425, MZAEU v Minister for Immigration and Border Protection[2016] FCAFC 100; (2016) 70 AAR 22, Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 and NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 328; (2004) 214 ALR 264).
Particular “a” to ground two asserts that the Tribunal member made the decision on the basis of his own “personal experience” of events in Lebanon. The assertions of bias and the apprehension of bias appear to arise from this circumstance.
As the Minister submits, and further to what is set out above in relation to ground one, the Tribunal, as an administrative body, and further, a specialist administrative body, is not bound by the rules of evidence (see s.420(a) of the Act). In the current case, on the available evidence, the matter of the Australian military personnel wearing uniforms, and the location of Colonel Condon, and the Tribunal member’s own observation of these events, was discussed at the hearing with the consequence that the applicant’s representative sought to provide material to counter what the Tribunal said was its own observation ([38] – [39] at CB 223). That is, the media release and the applicant’s own Statutory Declaration (CB 179 to CB 183).
In circumstances where the matter was raised at the hearing with the applicant, it is difficult to see how actual bias can be asserted, let alone made out.
Further, as to the apprehension of bias, while it is the case that the Tribunal member proceeded from his own personal observation of certain events, the fact of raising this at the hearing with the applicant, as opposed to relying on it without giving the applicant the opportunity to comment on it, does not bring these circumstances within the relevant test for the apprehension of bias (see also BWC15 at [16]).
Particular “b” asserts that the Tribunal member “failed to provide any evidence” to corroborate the Tribunal’s assertion that Colonel Condon was located in Cyprus and not in Beirut, and that such failure occurred in light of what the applicant said was “credible evidence” that he had provided, to establish that Australian military personnel wore uniforms in Lebanon at the time of the 2006 evacuation.
Again, as set out above, I cannot see that there was any obligation on the Tribunal to provide corroborative evidence to support its evaluation of the applicant’s claims and evidence. As the Minister submits, what has occurred here is that the Tribunal made a finding of fact based on its own knowledge, and explained to the applicant why it did not accept the interpretation of the media release put forward by the applicant’s representative. The applicant was given the opportunity to comment. In these circumstances, no bias, or no apprehension of bias is made out.
Ground three asserts that the Tribunal failed to consider the applicant’s claims under the Refugees Convention. No particulars are provided to this ground. As set out earlier, the applicant before the Court, was unable to explain any of the grounds of his application.
In any event, it would appear given the evidence before the Court, that the complaint in the ground may seek to mirror what is set out in a document headed “Memorandum of Advice”, said to have been drafted by “the Special Counsel for Parish Patience Immigration Lawyers”, who represented the applicant before the Tribunal (and that which was provided to the Tribunal) (see CB 153 to CB 155).
As set out above, the applicant had previously applied for a protection visa at a time when, relevantly, the only criterion for the grant of the visa applicable to the applicant was the criterion derived from the Refugees Convention. This was at a time prior to the introduction of the complementary protection provisions into the Act (Migration Amendment (Complementary Protection) Act 2011 (Cth)).
The opinion of the “Special Counsel” was that there was no legal impediment, if not an obligation, on the Tribunal (in light of SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235) in considering both the Refugees Convention and complementary protection criteria, in circumstances where the Refugees Convention criterion had previously been, separately, decided by an earlier constituted Tribunal or by a Ministerial delegate.
As was made clear in Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; (2016) 244 FCR 366 (“SZVCH”), which was handed down after the date of the advice given by the applicant’s Special Counsel, even if the Tribunal had considered the claims made under the Refugees Convention and made some error, it would not have been a jurisdictional error in circumstances where the Tribunal only had the power to consider the claims for protection under the complementary protection criterion (see SZVCH at [42] – [44]). Ground three is not made out.
Ground four asserts that the Tribunal failed to take into account “relevant information” and “documentary evidence” in assessing the applicant’s claims. The particulars refer to what is said to be the Tribunal’s failure to take into account consideration of a letter from “eyewitnesses”, that the applicant provided to the Tribunal to confirm that Australian soldiers were wearing uniforms in Lebanon at the time of the 2006 evacuation.
The error asserted appears to be that the Tribunal failed to even acknowledge, or to consider, this letter which was significant and corroborative of the applicant’s evidence, and ultimately as it related to his credibility.
The difficulty for the applicant now, is that he does not identify any such letter, or letters, in the ground. Nor was reference made to it at the hearing before the Court. No such letter has been reproduced in the Court Book, which is, in effect, the relevant evidence before the Court. Despite opportunity to provide evidence in support of his grounds, the applicant has not filed any evidence to support the assertion in ground four, that such a letter, or letters, were put to the Tribunal. On this basis, the applicant’s ground four cannot be made out.
Before the Court, and after hearing the Minister’s counsel’s submissions, the applicant stated that he wished to confirm that there were five [Australian military] personnel in uniform when he was put on a ship to Cyprus when he was evacuated from Lebanon in 2005. The applicant then claimed to have been questioned by seven “police” [officers] at an interview. The applicant made no mention of any letter from “eyewitnesses”.
However, it may be that the applicant’s ground sought to refer to a letter signed by a number of people, and put in general support of his claims to fear harm at the same time as the applicant’s representative submitted the applicant’s Statutory Declaration and the media release to the Tribunal (at CB 184 to CB 185).
If the ground does refer to that letter (at CB 184 to CB 185), there is nothing in this letter to say that the Australian military personnel in Lebanon were in uniform at the time of the 2006 evacuation. While it is the case that the Tribunal did not specifically refer to this letter in its decision record, there is no obligation on the Tribunal to refer to every piece of evidence before it (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCAFC 184; (2003) 236 FCR 593). The Tribunal’s obligation in this regard extends to evidence on which its findings of fact are based (see s.430(1)(c) and (d) of the Act).
The obligation on the Tribunal is to set out the evidence and material on which its findings of fact were based. Any plain reading of the letter (at CB 184 to CB 185), reveals that the authors or signatories do not make any claims to fear harm on behalf of the applicant, in addition to those made by the applicant himself. The letter provides background details about the applicant, in general terms, and asserts some of the claims already made by the applicant. Relevant to the matter of what occurred at the 2006 evacuation, the signatories to the letter merely state that they accompanied the applicant on the evacuating ship to Cyprus. In all therefore, ground four is not made out.
Conclusion
None of the applicant’s grounds of the application are made out. It is appropriate therefore to dismiss the application. I will make the appropriate order.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 4 August 2017
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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