Box16 v Minister for Immigration
[2018] FCCA 2910
•19 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BOX16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2910 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – claim that the Administrative Appeals Tribunal committed jurisdictional error by a denial of procedural fairness in refusing to telephone witnesses and wait for a certified copy of a letter to be provided by the applicant in breach of ss.424, 424A, 424AA, 425, 426, 427 of the Migration Act 1958 (Cth) – no jurisdictional error established – reasons for refusal of recusal application made at hearing – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424, 424A, 424AA, 425, 425A, 426, 427 Migration Regulations 1994 (Cth) |
| Cases cited: Aporo v Minister for Immigration & Citizenship [2009] FCA 79 AQF17 v Minister for Immigration & Border Protection [2018] FCA 966 AWA15 v Minister for Immigration [2018] FCA 604 AZU15 v Minister for Immigration & Border Protection (2016) 240 FCR 143 Minister for Immigration & Multicultural & Indigenous Affairs v Katisat [2005] FCA 1908 Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin (2005) 88 ALD 304 NALO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 114 Ogawa v Phipps & Anor (2006) 151 FCR 311 Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 SZJPG & SZJPH v Minister for Immigration & Citizenship [2008] FCA 1240 |
| Applicant: | BOX16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1645 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 26 October 2017 |
| Date of Last Submission: | 27 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 19 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Williams of Counsel |
| Counsel for the First Respondent: | Ms B. Rayment |
| Solicitors for the First Respondent: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Amended Application filed in this Court on 28 September 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1645 of 2016
| BOX16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Bangladesh aged 51 years, having been born on 15 June 1967.
By Amended Application filed in this Court on 28 September 2017 he seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 2 June 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 13 November 2014 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).
The Applicant arrived in Australia using his Bangladeshi passport on 25 December 2013 on a Tourist (Class FA) (Subclass 600) visa which was issued offshore on 10 December 2013 and was valid until 25 March 2014. The Applicant lodged the Protection visa application on 24 March 2014.
Claims for Protection
In his Protection visa application form the Applicant stated that he could speak, read and write the English language and that he was married and had two daughters, one of whom was a full-time student in Australia. In his Statement of 23 March 2014 (Statement), which formed part of his Protection visa application, the Applicant made the following factual claims:
a)He is a Bangladeshi citizen, his father was a farmer who died in March 1989, his mother is a house wife and he has six siblings.
b)His family will be considered as part of the pro-liberation forces of Bangladesh. One of his uncles joined the Liberation war in 1971, and as a result his family’s house was burnt down during that war.
c)On 16 December 1971 Bangladesh was liberated from the Pakistani occupation army. Three million people lost their lives and 200,000 women lost their prestige in the war. After obtaining the independence of Bangladesh the Government did not last more than four years and was involved in corruption, nepotism and malpractices. Subsequently the Government was ousted by a military coup in 1975.
d)The Applicant completed his secondary school studies in Bangladesh in 1987, and was then admitted to a College to study for the HSC. After completion of that course he then in 1988 joined the youth wing of the Bangladeshi National Party (BNP), known as the Jatiyatabadi Jubo Dal. At that time the party was involved in a political movement, alongside a separate political party known as the Awami League, to remove the dictator Hossain Mohammad Ershad from power, and on 6 December 1990 he was forced to resign from power. In the 1991 election the BNP won a majority of seats in Parliament.
e)After a five year term the Awami League came into power and targeted members of the BNP. On 7 February 1997 the Applicant was attacked by a group of Awami cadres; they beat him mercilessly and left him on the street and people took him to a private clinic. After spending three days at that clinic he was released.
f)In August 1997 he left Bangladesh to secure his life. He continued to maintain connection with his political leaders and members of the BNP. Some 13 years later in 2011 he returned to Bangladesh permanently and became the executive member of the Gazipur Municipal committee of the BNP. In July 2013 the BNP won the mayoral election in Gazipur city. After this election he became a serious target of the Awami League because he had “spent a huge amount of money in this election”.
g)On 8 July 2013 he was attacked by a group of Awami League activists while he was returning home from his party office. They beat him seriously and tried to kill him, but he escaped. After this incident he decided to leave Bangladesh. In the meantime a political false case was filed against him to doom his political future.
h)On 24 December 2013 he again left Bangladesh to save his life. He passed through the airport by providing AUD$2,000 to a high official in Bangladesh.
i)Political opponents to the party in power are not safe from the current regime and are subject to killing, becoming missing and harassment. A political person opposing the current regime cannot live in Bangladesh. If the Applicant returns to Bangladesh he will be persecuted and his life will not be safe.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of a Protection visa can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Decision of Delegate
The Applicant attended an interview with the Delegate on 6 November 2014. He there summarised that he feared being killed or subjected to physical harm and mistreatment by Awami League supporters on account of his membership and support of the BNP. The Delegate noted that the Applicant had claimed that he left Bangladesh in 1997 as a result of persecution by the Awami League after he had secured a job in Saudi Arabia, where he remained until 2011 when he returned to Bangladesh.
In the result, after taking into consideration the Applicant’s Statement, oral testimony at the interview and country information on Bangladesh, the Delegate did not accept that the Applicant was a member or supporter of the BNP or that he was attacked by Awami League supporters or anyone else on account of his political opinion as he was able to depart Bangladesh legally on a passport issued in his real name.
The Delegate was not satisfied that the Applicant was a person to whom Australia had protection obligations to under s.36 of the Migration Act 1958 (Cth) (the Act) and cl.866.221 of Sch.2 to the Migration Regulations 1994 (Cth) (the Regulations) and refused to grant to him a Protection visa.
Decision of Tribunal
The Applicant applied to the Tribunal on 7 December 2014 for merits review of the Delegate’s decision. His registered migration agent made a Written Submission of the same date to the Tribunal.
By letter dated 18 February 2016 the Tribunal scheduled a hearing for 15 April 2016. By letter dated 23 February 2016 the Applicant’s new registered migration agent and lawyer sought an adjournment on various grounds, which adjournment was initially refused by letter dated 23 February 2016, but ultimately granted by the Tribunal’s letter of 8 April 2016, with the new scheduled hearing date being appointed for 13 May 2016. By a completed Response to Hearing Invitation dated 13 April 2016 the lawyer for the Applicant indicated that at the hearing a long term friend of the Applicant and a member of the BNP, Mr Dizam (i.e. a pseudonym), would give evidence as a witness at the Tribunal hearing.
Under cover of letter dated 10 May 2016 the Applicant’s lawyer forwarded to the Tribunal a Supplementary Statement of the Applicant and supplementary Written Submissions. One of the documents annexed to these supplementary Written Submissions in support of the Applicant’s claim that false charges had been brought against him in July 2013 was a Police First Information Report dated 15 July 2013 (Police Report), together with an English translation. Also provided to the Tribunal by his lawyer at this time were seven witness statements, including one from the Applicant’s wife, together with a list of the names of those witnesses and their mobile telephone numbers.
By email dated 12 May 2016, the day before the scheduled Tribunal hearing, the lawyer for the Applicant advised the Tribunal that Mr Dizam would not be giving evidence as previously notified, but that a Mr Hallom (i.e. a pseudonym), who had not provided a witness statement to date, would like to give oral evidence at the Tribunal hearing. This letter further explained that it had not been possible to give seven days’ written notice under s.426(2) of the Act because Mr Dizam had changed his mind and given late notice that he would no longer be attending the hearing and Mr Hallom had declined to provide a written statement, wanting to give oral evidence only. In the event the Tribunal received oral evidence from Mr Hallom at the Tribunal hearing.
On 13 May 2016 the Applicant appeared before the Tribunal to give evidence and present arguments with the assistance of an interpreter in the Bengali and English languages. He was represented at the hearing by his lawyer.
At [7] of its Decision Record the Tribunal recorded that the Applicant claimed protection on the ground that, because of his involvement with the BNP, he would be harmed by the Awami League.
At [8] – [10] of its Decision Record the Tribunal recorded that the Applicant had claimed at the Tribunal hearing that he had returned to Bangladesh in August 2011 and that he and his wife and children lived in a building in his local area in a district of Dhaka, to which he added a number of storeys and which he leased to tenants. From August 2011 he had resumed activities for the BNP in his local area and would go to meetings, party processions and carry out orders from party leaders and because of these activities he was targeted by the Awami League. From November 2011 he received telephone calls from Awami League supporters approximately five or six times per week, when he was told that he would be beaten severely and that his children would be kidnapped. Further, Awami League supporters would stop trucks carrying building materials which were to be used for the construction of the extra storeys to the Applicant’s building. In December 2011 the Applicant and his family moved to another part of Dhaka, approximately 40km away, and hid in rented premises there.
Then from [16] – [26] of its Decision Record the Tribunal recorded its questioning of the Applicant concerning his claims and activities from the period between going into hiding in December 2011 and coming to Australia in late 2013. In summary, the Tribunal found inconsistencies and implausibilities in the Applicant’s claims and in particular that his claimed public and heavy involvement in elections in Bangladesh in July 2013 was inconsistent with his evidence that he had gone into hiding to save his life in December 2011.
At [27] the Tribunal recorded its view that the Applicant’s evidence about the false case said to have been commenced against him in July 2013 was vague and unconvincing for the reasons there expressed. At [28] it recorded its discussion of the Police Report with the Applicant, which referred to the Applicant and some 50 – 60 other unknown people setting fire to a bus. Ultimately, at [32] the Tribunal recorded its view that the Applicant’s evidence about the alleged false case “was unsatisfactory and unconvincing”.
From [33] – [37] the Tribunal recorded its concerns about inconsistencies and improbabilities in the Applicant’s account at the Tribunal hearing of the Awami League attacking his home in September 2014.
From [38] – [45] of its Decision Record the Tribunal expressed its concern that the Applicant had omitted from his Statement a number of significant claims made at the Tribunal hearing, namely that he had to go into hiding in late 2011 after receiving very serious telephone threats from the Awami League, and also that he had been attacked in October 2013, from which he had sustained an injury to his knee and for which he had obtained medical treatment in Australia. The Tribunal recorded at [40] that in response the Applicant had sought to explain these omissions from his Statement as being the result of:
a)his not having any documents to prove them; and
b)his former representative, who assisted him to lodge his Protection visa application and was told about the Applicant going into hiding in late 2011 and the attack in 2013, advised the Applicant that he was not to mention those claims if he did not have documents that proved them.
At [41] the Tribunal rejected these explanations and the claims themselves.
At [41] the Tribunal also recorded that the Applicant’s lawyer at the Tribunal hearing had referred to her submissions of 10 May 2016, where it had been asserted at paragraphs 20 and 21 that the former representative of the Applicant had been given a statement which said that the Applicant had been attacked on 8 July 2013 and had been given a complete history, but that this representative had omitted to supply the Department with all the necessary details relating to the Applicant’s claims for protection, and for that reason was discharged and the Applicant’s present lawyers retained in February 2016. The Tribunal did not accept that important claims had been omitted from the Statement for this reason.
From [46] – [49] of its Decision Record the Tribunal considered the Applicant’s account of intending to return to Bangladesh after coming to Australia if the Bangladesh Government changed, and found that it was unconvincing and improbable, noting that the BNP had boycotted the elections in January 2014 and so there was no likelihood that the BNP was going to return to power in the near future.
Then from [50] – [77] the Tribunal recorded its adverse findings of the credibility of the Applicant and the reasons for those findings. At [50] the Tribunal recorded that, considered cumulatively, it considered that the Applicant was not a witness of truth and that the account of events on which his protection claims had been based was false. It rejected the Applicant’s claims that he supported, donated money to, belonged to and undertook activities for the BNP at any time in his life in Bangladesh and that he was ever threatened or attacked by the Awami League, or that a false case was taken out against him. At [51] it recorded that it did not believe the Applicant’s claim that he had travelled to Singapore in October 2013 for the purpose of finding safety from the Awami League and at [52] the Tribunal recorded its rejection of the Applicant’s claim to have been of adverse interest to the Awami League at any time in Bangladesh or to have paid bribes to leave Bangladesh.
From [55] – [59] the Tribunal identified and considered the documents which had been submitted in support of the Applicant’s claims. At [56] the Tribunal stated that it had considered the contents of these documents, but at [60] recorded its conclusion that it did not give evidentiary weight to the documents produced by the Applicant and his lawyer and that in essence the documents merely repeated the Applicant’s account of events, which it had rejected because of its findings about the Applicant’s credibility. At [62] the Tribunal found that the medical records submitted by the Applicant, which showed that he had obtained treatment in Australia for his knee and back, did not corroborate his claim of being attacked in 2013.
Accordingly, the Tribunal found that Australia did not have protection obligations to the Applicant under either the Refugees Convention criterion or the complementary protection criterion and it affirmed the decision of the Delegate not to grant a Protection visa to the Applicant.
Grounds of Attack on Tribunal Decision in this Court
The Grounds as stated in the Amended Application appear below. At the hearing Mr Williams of Counsel, who appeared for the Applicant, sought and was granted leave to further amend Ground 1 by adding a reference to the sections of the Act emboldened below. Further, he asked that Grounds 1 and 2 be regarded as “connected as a single ground” and that accordingly Ground 1 should be regarded as Ground 1(a) and Ground 2 should be regarded as Ground 1(b).
1.Ground 1: Denial of procedural fairness
The Second Respondent (Tribunal) denied the applicant procedural fairness in violation of sections 424, 424A 424AA(l)(ii); (iii) or (iv), 425 and 426 of the Migration Act 1958 (Cth) in the following ways:
(a)At [58] by refusing to accept a certified copy of a letter regarding the false claim against the applicant by way of a post hearing submission.
(b) At [59], by refusing to telephone witnesses.
(c)At [59], by refusing to accept the name and telephone of the former representative to make enquiries regarding alleged omissions of significant claims by the applicant.
2.As a consequence, the adverse credibility finding by the Tribunal at [50] of the decision record was affected by jurisdictional error as there was a sufficient lack of probative evidence or logical connection between the Tribunal's assessment of the applicant's credit and the material upon which it relied to make that assessment.
Particulars
Protection Claims
a)At [7] of the decision record, the applicant is a citizen of the Bangladesh who claims protection in Australia "because of his involvement with the Bangladesh Nationalist Party (BNP)" and that "he will be harmed by the Awami League".
b)At [55], "the applicant and representative submitted documents to support the applicant’s claims that he was involved with the BNP in Dhaka;8 that he lived in hiding in Dhaka from late 2011;9 that he was assaulted in July 2013;10 that a false case was taken out against him at that time;11 that he travelled to Singapore in October 2013 for his safety:12 that he was assaulted in October 2013 13 and that the Awami League came to his home in September 2014.
Adverse credibility finding
c)At [50]: "Considered cumulatively, the concerns the Tribunal holds about the applicant's credibility lead the Tribunal to find that he is not a witness of truth mid the account of events on which his protection claims are based is false Accordingly, the Tribunal disbelieves the applicant's claims that he supported, donated money, belonged to and undertook activities for the BNP at any time in his life in Bangladesh. The Tribunal disbelieves his claims that he was ever threatened or attacked by the Awami League, that a false case was taken out against him , that he lived in hiding in Bangladesh and that the Awami League (or police at their behest) came to his home to find him."
Refusal to accept a certified copy of the letter regarding the false case against the applicant
d)At [58]: "At the conclusion of the Tribunal. hearing, the applicant offered to produce a certified copy of a letter about the false case against him but the Tribunal saw no purpose in him doing that. The Tribunal could not see that such a document would overcome its significant concerns about his credibility and when he had already produced a document on that issue."
Refusal to telephone witnesses
e)At [59]: "The representative submitted that the Tribunal could telephone some of the authors of these documents. 15 (She provided telephone numbers for the applicant's wife; the caretaker of his home in Dhaka; the man who saw him injured in July 2013; the friend he visited in Singapore: the owner of the hiding place in Dhaka: the BNP general secretary of the branch to which he claimed to belonged in Dhaka and the Ex Convenor of the BNP in Australia). The Tribunal also saw no purpose in doing this. The Tribunal was willing to accept these people would repeat their evidence in the documents they have written. That would not overcome the significant concerns the Tribunal holds about the applicant's credibility predominantly based on his own evidence.”
f)At [60]: "For the reasons given, the Tribunal does not give evidentiary weight to these documents produced by the applicant and the representative."
Omissions by the former representative
g)At [60]: "At the hearing, the applicant said that he could obtain the name and telephone number of his former representative for the Tribunal to enquire with that person as to the omission of significant claims from the applicant's evidence to the department. The Tribunal again declined to do this because its concerns about the applicant' s credibility do not solely relate to the omission of significant claims from his evidence to the department.
Refugee Criterion
h)As a result, the Tribunal's decision was affected by jurisdiction error at [77] with regard to the refugee criterion, by finding the "applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future."
Complementary Criterion
i)Similarly, the Tribunal's decision was affected by jurisdiction error at [78] with regard to the complementary criterion, by finding that 'I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).'
Consideration
Ground 1
Sections 424, 424A and 424AA of the Act
First, in my view Ground 1 fails to establish that the decision of the Tribunal is affected by jurisdictional error by reason of breach of ss.424, 424A or 424AA of the Act.
Section 424(1) of the Act gives the Tribunal a discretionary power to “get any information that it considers relevant”. This section is permissive and facultative, rather than mandatory: Dissanayake v Minister for Immigration & Multicultural Affairs [2002] FCA 976 at [18] per Sundberg J and VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459 at [27] per Crennan J.
Section 424(2) of the Act grants the Tribunal the right to invite a person to give information either orally or in writing. However, once again the power is permissive and facultative, and the fact that the Tribunal did not utilise an enabling provision such as s.424(2) does not create or indicate any error of law on its part amounting to jurisdictional error.
As to ss.424A and 424AA of the Act, these sections are related and are intended to operate in a coherent and complementary fashion in connection with the Tribunal giving to an Applicant “clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”. Subject to sub-ss.(2)(a) and (3) of s.424A, s.424A(1) is mandatory and prescribes what must be done, whereas s.424AA is discretionary and facultative in that it prescribes one way by which the Tribunal can satisfy the substance of what is required of it under s.424A(1): see generally SZMZD v Minister for Immigration & Citizenship (2009) 174 FCR 415 at 430 – 432 [73] – [90] per Moore, Tracey and Foster JJ. Both sections relate to the Tribunal giving to the Applicant information, whereas the substance of the complaint in Ground 1 is that the Tribunal refused to accept evidence and seek further evidence by making enquiries.
Accordingly, Ground 1 fails to establish that the decision of the Tribunal is affected by jurisdictional error by breach of ss.424, 424A or 424AA.
Particulars to Ground 1
Particular (a) to Ground 1 complains that the Tribunal refused to accept a certified copy of a letter regarding the raising of the alleged false claim against the Applicant “by way of a post-hearing submission” and refers to [58] of the Decision Record, which stated as follows:
[58] These concerns significantly discredit the applicant as a witness and the contents of these documents submitted by the applicant and his representative do not overcome the Tribunal’s concerns about his credibility. At the conclusion of the Tribunal hearing, the applicant offered to produce a certified copy of a letter about the false case against him but the Tribunal saw no purpose in him doing that. The Tribunal could not see that such a document would overcome its significant concerns about his credibility and when he had already produced a document on that issue.
Particulars (b) and (c) to Ground 1 complain that the Tribunal refused to telephone witnesses, namely the seven witnesses who had given statements: (see [11] above), and that the Tribunal refused to accept the name and telephone number of the Applicant’s former representative so as to enquire about the omission of significant claims from the Applicant’s evidence in his Statement, and particularises [59] of the Decision Record as being referable to refusing to telephone witnesses and refusing to telephone the Applicant’s former representative, although I consider that the reference concerning the Applicant’s former representative ought to be to [60]. Paragraphs [59] and [60] are as follows:
[59] The representative submitted that the Tribunal could telephone some of the authors of these documents. The Tribunal also saw no purpose in doing this. The Tribunal was willing to accept these people would repeat their evidence in the documents they have written. That would not overcome the significant concerns the Tribunal holds about the applicant's credibility predominantly based on his own evidence. One of these people, the 'Ex Convenor' of the BNP in Australia made assertions about the applicant suffering harm in Bangladesh but made no claim that he was witness to those events and the Tribunal understands that he is repeating what the applicant has told him.
[60] For the reasons given, the Tribunal does not give evidentiary weight to these documents produced by the applicant and the representative. At the hearing, the applicant said that he could obtain the name and telephone number of his former representative for the Tribunal to enquire with that person as to the omission of significant claims from the applicant's evidence to the department. The Tribunal again declined to do this because its concerns about the applicant's credibility do not solely relate to the omission of significant claims from his evidence to the department.
The complaints made in Ground 1 must be considered in light of the clear recognition in the authorities that it is the primary obligation of the applicant before an administrative decision-maker to advance whatever evidence or argument he or she wishes to advance, and that circumstances where the decision-maker has an obligation to make enquiry are within a “strictly limited” compass: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169 – 170.
In Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 (SZIAI) at 436[25] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said as follows:
[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case...
In Westlake v Attorney-General of the Commonwealth [2017] FCA 1058 at [27] Bromwich J recently said:
[27] It has long been the law, at least in the migration area, that there is no duty on an administrative decision-maker to inquire or conduct investigations, except perhaps in very limited circumstances: see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 111 ALD 15; 259 ALR 429 at [25]; Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 at [24]. The circumstances of this case do not meet any of those very limited exceptions, nor otherwise give rise to a duty to make inquiries of the kind suggested on behalf of the applicant.
Further, the Tribunal is not obliged, whenever there is a conflict in the evidence presented to it, to conduct its own investigation to resolve that apparent conflict if it is able to give reasons for preferring or giving more weight to some evidence over other evidence: see Aporo v Minister for Immigration & Citizenship [2009] FCA 79 at [57] per Bennett J.
Also relevant to Ground 1 is the statement of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 63 [12]:
[12] It was contended that this passage shows that the tribunal member adopted a flawed approach to her evaluation of the evidence, failing to assess the evidence of the applicant/appellant in the light of the corroborating evidence, and giving no weight to the evidence of the corroborating witness for reasons that had nothing to do with the quality of that evidence. The essence of the complaint is that the tribunal failed to consider the evidence as a whole, but first considered, and disbelieved, the evidence of the applicant/appellant, without taking account of the corroboration, and then considered and rejected the corroboration because of the rejection of the evidence of the applicant/appellant. I do not accept that this is a fair criticism of the tribunal’s reasons. In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant’s story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering. The member could have expressed herself more clearly. It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.
In light of the above legal principles, I turn to a consideration of [58], [59] and [60] of the Decision Record of the Tribunal.
Paragraph [58] records that towards the end of the Tribunal hearing the Applicant offered to produce “a certified copy of a letter about the false case against him”. The Applicant had already produced the Police Report in support of his claim that a false case had been brought against him: see [11] above. At [27] the Tribunal recorded its finding that the Applicant’s evidence about the false case was “vague and unconvincing” and that when it asked him about this case the Applicant had said that he was told by his friends “that it was in court” but he “did not know when it went to court” and that was all he knew of it. This relative ignorance of the case was further recorded at [28] of the Decision Record. At [32] the Tribunal recorded its finding that overall the Applicant’s evidence about the false case was “unsatisfactory and unconvincing” and “His vagueness about the status of his case, the Court action in relation to it, including action against his co-accused party colleagues, was inconceivable”. The Police Report was noted at [55] and footnoted at footnote 11. At [56] the Tribunal recorded that it had considered carefully the documents submitted by the Applicant, including the Police Report. At [57] the Tribunal summarized its specific concerns about aspects of his claims, and then at [58] expressed the view that those concerns “significantly discredit the Applicant as a witness and the contents of these documents submitted by the Applicant and his representative do not overcome the Tribunal’s concerns about his credibility”. It was in light of its findings about the Applicant’s credibility that it came to the view recorded in the balance of [58] that a certified copy of a letter about the false case would not overcome its significant concerns about the Applicant’s credibility, particularly in light of the fact that he already produced a document on that issue.
In my view there was nothing legally unreasonable in the Tribunal declining to receive a further document about the false case. There does not appear to have been any explanation given to the Tribunal of the likely contents of the letter, or how or by whom it would be “certified” and what that certification would mean or establish. Those matters have still not been explained. In my view, the decision of the Tribunal to not adjourn the hearing to receive the letter or to otherwise wait for such a letter does not lack an intelligible justification and is otherwise not legally irrational or unreasonable, having regard to its already expressed views about the alleged false case.
Paragraph [59] of the Decision Record of the Tribunal records that the Applicant’s lawyer invited the Tribunal to telephone seven witnesses who had given written statements. The Tribunal expressed the view at [59] that it was prepared to accept that these witnesses, if spoken to on the telephone, would repeat and adhere to the evidence in their written statements. Nevertheless, the Tribunal was of the view that such a repetition of the evidence in their statements would not overcome the Tribunal’s concerns about the Applicant’s credibility based predominantly on his own evidence. The Tribunal does not appear to have been informed how or in what way a telephone call to the witnesses would have been likely to lead to any different view or opinion of the Tribunal as to the Applicant’s claims, and that has still not been explained.
It has never been suggested that these witnesses would give different and further and better evidence in favour of the Applicant over the telephone than they had given in their written statements. I do not consider that the Tribunal acted legally unreasonably in declining to telephone the seven witnesses. It had comprehensively rejected the Applicant’s credibility and claims and it was entitled to consider that its views in that regard would not be changed or altered by speaking to these witnesses over the phone.
Paragraph [60] of the Decision Record records the Tribunal declining to telephone the Applicant’s former representative to enquire as to the omission of significant claims from the Applicant’s evidence in his Statement. The Tribunal recorded at [60] that it declined to telephone the former representative because the concerns it held about the Applicant’s credibility did not solely relate to the omission of those significant claims. It does not appear to have been suggested to the Tribunal that the former representative was going to admit to having omitted significant claims and one might have thought that the making of such an admission to the Tribunal would be most unlikely. Once again, I do not consider that the Tribunal acted legally unreasonably in failing to contact the former representative of the Applicant on the telephone, given the Tribunal’s emphatic rejection of the Applicant as a witness of credit. Its decision in this regard fell within the area bounded by the standard of legal reasonableness in which it had a genuinely free discretion. As recently pointed out by Kiefel CJ in Minister for Immigration v SZVFW [2018] HCA 30 at [11] “the test for unreasonableness is necessarily stringent”.
Section 425 of the Act
It is of course the case that s.425 of the Act provides that, in conducting a review of a decision of the Minister, “the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”. Further, the invitation given under s.425 must be real and meaningful: see Minister for Immigrationand Multicultural and Indigenous Affairs vSCAR (2003) 128 FCR 553 (SCAR) at 561 [37] per Gray, Cooper and Selway JJ.
Nevertheless, as was stated at [36] of SCAR:
[36]It is clear that s 425 of the Act does not require that the Tribunal actively assist the applicant in putting his or her case; nor does it require the Tribunal to carry out an inquiry in order to identify what that case might be: Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 1671.
I note that Mr Williams placed heavy reliance on the decision of her Honour Judge Barnes of this Court in SZVGP v Minister for Immigration & Border Protection (2016) 316 FLR 21. However, that case turned on its own very specific facts where the Tribunal had refused to take oral evidence by telephone from a potentially corroborative witness based on the mere speculation that the telephone call might be intercepted. In these circumstances her Honour, not unnaturally, regarded the Tribunal’s refusal to telephone as a legally unreasonable exercise of the Tribunal’s discretion to receive evidence. The factual position considered by her Honour bears no resemblance to the present case and the application of the relevant principles to the facts of this case do not bespeak legal unreasonableness.
In my view Ground 1 fails to establish that the decision of the Tribunal is affected by jurisdictional error because of any violation of s.425 of the Act.
Sections 426 and 427 of the Act
Section 426(2) of the Act entitles an applicant to give to the Tribunal written notice that he or she wants the Tribunal to obtain oral evidence from a person or persons, within seven days after being notified of the day, time and place at which the Tribunal hearing is to take place pursuant to s.425A. However, as Ms Rayment, who appeared for the Minister, points out, pursuant to s.426(3) the duty of the Tribunal is to “have regard” (i.e. to take into account or consider) to the Applicant’s wishes for it to obtain oral evidence from nominated persons. As Ms Rayment also points out, there was never any relevant notification given by or on behalf of the Applicant to the Tribunal under s.426(2). The only notification which would have met the seven day requirement of s.426(2) was with respect to Mr Dizam, but in the end he would not give evidence and Mr Hallom gave oral evidence at the Tribunal, although both the Tribunal and the Applicant’s lawyer recognised that s.426(2) had not been complied with: see [12] above.
Further, it is clear that the Tribunal nevertheless did have regard to the Applicant’s wish for it to take telephone evidence from the seven witnesses, but decided not to. In deciding not to, after having given genuine consideration to the request, the Tribunal did not commit jurisdictional error: see Minister for Immigration & Multicultural & Indigenous Affairs v Katisat [2005] FCA 1908 at [63] per Bennett J. See also the decision of the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin (2005) 88 ALD 304 at 316 [37] per Spender, Kenny and Lander JJ.
Finally, I assume in the Applicant’s favour that Ground 1 might also be based on an argument that the Tribunal committed jurisdictional error by breaching s.427 of the Act in not adjourning the Tribunal hearing to telephone the seven witnesses and the former representative and to receive a certified copy of a letter regarding the false claim. However, for the reasons given above I do not consider that the Tribunal acted legally unreasonably or without an intelligible justification in not granting any adjournment of the Tribunal hearing for any of the purposes suggested.
In my view, Ground 1 fails to establish that the decision of the Tribunal is affected by jurisdictional error.
Ground 2
As requested by Mr Williams, I consider this Ground on the basis that it forms part of a composite Ground asserting that, by reason of the Tribunal’s failures as alleged in Ground 1, the adverse credibility findings against the Applicant were affected by jurisdictional error.
However, in my view this Ground also fails to establish jurisdictional error. The simple fact of the matter is that the Tribunal rejected the Applicant’s claims substantially because of its findings based on his oral evidence at the Tribunal hearing and the omission of significant claims made at the oral hearing, which had not found a place in the Statement. In numerous paragraphs of its Decision Record the Tribunal referred to the Applicant’s evidence as being “vague”, “unconvincing”, “unsatisfactory” “improbable” or “inconsistent”: see [17], [20], [27], [32] , [34] and [36] of the Decision Record of the Tribunal.
The Tribunal was entitled to act on these credibility concerns and findings. It is clear on authority that the Tribunal does not need to possess rebutting evidence before holding that a particular factual assertion is not made out: see Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J.
It is, of course, the case that credibility findings of the Tribunal are not beyond judicial scrutiny. Credibility findings remain “findings of fact the same as any other fact”: CPW16 v Minister for Immigration & Border Protection [2017] FCA 1210 at [15] per Flick J. However, in this case I do not consider that the findings of the Tribunal in relation to the Applicant’s credit, or otherwise, could be said to be unreasonable, without a logical, rational or probative basis or founded on objectively minor matters. Nor could they be regarded as “blanket, reflex or exaggerated adverse credit findings”: AZU15 v Minister for Immigration & Border Protection (2016) 240 FCR 143 per Allsop CJ, Kenny and Bromwich JJ at 145 [11]. Rather, they seem to me to be findings which were legally open to the Tribunal on the material before it.
Accordingly, Ground 2 also fails to establish that the decision of the Tribunal is affected by jurisdictional error.
Recusal Application
Right at the end of the hearing on 26 October 2017 Mr Williams asked me to recuse myself, which I declined to do, at the same time indicating that I would give my reasons in that regard when I delivered judgment in the substantive proceeding. I now proceed to give those reasons and set out the circumstances leading up and relevant to the recusal application.
The Amended Application as originally filed only invoked and referred to s.424AA(1) of the Act. The Applicant’s Written Submissions dated 12 October 2017 referred to, and asserted in addition, violation of s.424 and s.424A of the Act. In reply, the Written Submissions of the Minister dated 20 October 2017 submitted that none of the matters identified by the Applicant could be said to give rise to a breach of s.424A or s.424AA; that reliance on those sections was misconceived and that the real substance of the Applicant’s case appeared to be that the Tribunal acted unreasonably in refusing an opportunity to provide further evidence and to call witnesses and made reference to s.427(1)(b). That section, as I have pointed out, permits the Tribunal to adjourn hearings from time to time.
In these circumstances, in favour of the Applicant at the commencement of the hearing I suggested to Mr Williams that he might wish to amend Ground 1 in light of the point made in the Written Submissions of the Minister. Mr Williams then referred to s.426 of the Act as supporting Ground 1. At that point Ms Rayment pointed out that Ground 1 of the Amended Application made no reference to ss.424, 424A or 426 and submitted that the Amended Application ought to reflect the case that was being argued in Court before it went any further.
Ms Rayment was entitled to take that position. As pointed out by Farrell J in AQF17 v Minister for Immigration & Border Protection [2018] FCA 966 at [25] this Court’s approved form for the making of an application for remedies in the exercise of its jurisdiction under s.476 of the Act specifically provides for the specification of Grounds and the Court’s regime “is predicated on the applicant for relief in the Federal Circuit Court specifying grounds on the basis of which that Court will determine whether or not the decision under review is affected by jurisdictional error”.
In other words, it is both appropriate and necessary for an applicant who asserts that the Tribunal has committed jurisdictional error by breaching provisions of the Act, to specifically plead or identify the relevant provisions in his or her Grounds. There is no scope for leaving footprints in the sand by simply referring to statutory provisions of the Act in Written Submissions, or orally at the hearing.
Nevertheless, Mr Williams initially declined to amend Ground 1 to make reference to any other section of the Act, until I indicated to him that in the absence of any amendment I would determine the case by reference only to s.424AA. That did result in Mr Williams seeking leave to amend Ground 1 by adding references to s.424, s.424A and s.426 of the Act. Ms Rayment took no objection to this course and I granted leave to amend.
However, right at the end of the hearing another pleading controversy arose. At that stage Mr Williams had addressed the Court in support of his client’s case, Ms Rayment had made the Minister’s submissions and Mr Williams was in reply to Ms Rayment when, without notice and as in passing, he referred to s.425 of the Act as a basis for the submissions which he was then making. Ms Rayment immediately interrupted Mr Williams, as I considered she was justified in doing, to complain that if s.425 was relied on, then an amendment was required. She was right in requiring an amendment if s.425 was to be relied upon by the Applicant. The relevant principle was summarised by Finkelstein J in Ogawa v Phipps & Anor (2006) 151 FCR 311 at 313 [5]:
[5] … That claim was introduced by the leave of the federal magistrate. The federal magistrate granted that leave in general terms, but he had before him the form of the proposed amendments. Thus he acted in conformity with the old practice which was that a party who seeks to raise “a fresh issue or a fresh cause of action [was required] to formulate and state in writing the exact amendment that he asks”: Hyams v Stuart King (a firm) [1908] 2 KB 696 at 724 per Farwell LJ; see also Practice Direction, June 1947 [1947] WN 185; Derrick v Williams (1939) 55 TLR 676; J Leavey & Co Ltd v GH Hirst & Co Ltd [1944] KB 24. In Busch v Stevens [1963] 1 QB 1 Lawton J (as he then was) said that it was wrong in law to make an order giving a plaintiff leave to amend his statement of claim without specifying what the amendments were…
I then indicated to Mr Williams that I thought Ms Rayment had made a fair point. Mr Williams responded that he was moving to the point of including s.425 in Ground 1 as an alternative. To that I responded that he had not yet asked to amend and that it was “outrageous to do that in reply”. Mr Williams then asked me to recuse myself for reasonable apprehension of bias on the basis that I had yelled at him and made an allegation of outrageous behaviour.
The Minister’s position on the recusal application as put by Ms Rayment was in short that a fair minded lay observer properly informed would not consider that I had yelled and that my characterisation as outrageous of the application made in reply to further amend Ground 1 to add reliance on s.425 of the Act was reasonable in the context of the hearing. I then indicated that I would not recuse myself and would give my reasons in my judgment. I granted leave to amend Ground 1 to add a reference to s.425 of the Act over the Ms Rayment’s opposition.
An application for recusal based on apprehension of bias requires three steps, being:
a)first, the identification of what it is said might lead the Judge to decide a case other than on its legal and factual merits and as a result of a neutral evaluation;
b)second, an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on a neutral evaluation of its merits; and
c)third, a consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way.
(see: CNY17 v Minister for Immigration and Border Protection & Anor [2018] FCAFC 159 per Mortimer J at [10] and Thawley J at [153(7)])
At the hearing Mr Williams did not identify what might lead me to decide this case other than on its legal and factual merits, nor did he articulate any logical connection between any such matter and the feared deviation of my deciding the case on its merits, and no such matter is self-evident.
As to the complaint of yelling, recourse to the audio recording of the hearing, which will speak for itself, confirms the correctness of my rejection at the hearing of this complaint. There was most certainly an increased level and terseness of tone. I said to Mr Williams:
HIS HONOUR: I reject your allegation that I have been yelling at you. I have raised my voice because I am very irritated, and I continue to be irritated, having regard to the context and circumstances of this case ‑ ‑ ‑ that once again, you are seeking an amendment in reply.
As to Mr Williams’ complaint of my using the word “outrageous” I responded to him at the hearing:
HIS HONOUR: Mr Williams, I will repeat, I consider that it is outrageous in the context of what has happened, particularly at the beginning of this case when we were talking and discussing amendment that now, at the end of the case, in reply, you are seeking to amend again.
The simple fact of the matter is that there is a clear general principle to the effect that unless there is very good ground and strong justification for so doing, a Court should be reluctant to grant amendments of the pleadings after the close of the Plaintiff’s case: see Loutfi v Czarnikow Ltd [1952] 2 All ER 823. There had been ample opportunity at the commencement of the hearing to raise s.425 of the Act and it was my view, to which I adhere, that if reliance was to be placed on s.425 such amendment should also have been sought at the commencement of the hearing when leave had been granted to add a reference to ss.424, 424A and 426. Nothing in my use of the word “outrageous” could give rise to an apprehension of bias in the reasonable observer. It is a word regularly used by Judges to describe a variety of procedural applications, conduct or irregularities of which they believe they have cause to castigate or disapprove: see by way of example Graham J in SZJPG & SZJPH v Minister for Immigration & Citizenship [2008] FCA 1240 [4]; Conti J in NALO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 114 at [3]; Strickland J in Franklin & Franklin [2007] FamCA 1424 at [22]; and Dowsett J in Toben v Jones [2002] FCAFC 158 at [8].
In my view nothing that passed between Mr Williams and myself at the hearing could give rise to an apprehension of bias. Nothing that passed had anything to do with the substance of the case, and in my view it could hardly ever be the case that an apprehension of bias could arise from a short and isolated exchange or disagreement between Counsel and Judge during a hearing relating to a perceived procedural irregularity. As Justice Thomas of the Supreme Court of Queensland said writing extra-judicially, “Courts are robust institutions and it is undesirable that either judges or counsel should be too thin-skinned about an occasional skirmish”: Judicial Ethics in Australia (2009, 3rd ed.) at [4.7].
Conclusion
Accordingly, the Amended Application filed in this Court on 28 September 2017 is to be dismissed.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 19 October 2018
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