BQQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 427
•27 April 2021
FEDERAL COURT OF AUSTRALIA
BQQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 427
Appeal from: BQQ16 v Minister for Immigration & Anor [2019] FCCA 1829 File number: VID 864 of 2019 Judgment of: BEACH J Date of judgment: 27 April 2021 Catchwords: MIGRATION – appeal from Federal Circuit Court – application for protection visa – asserted jurisdictional error – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 420, 425 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 55 Date of hearing: 16 April 2021 Counsel for the Appellant: The Appellant appeared via video with the assistance of an interpreter Counsel for the First Respondent: Mr C McDermott Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
VID 864 of 2019 BETWEEN: BQQ16
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
BEACH J
DATE OF ORDER:
27 APRIL 2021
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs of and incidental to his appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BEACH J:
The appellant appeals from a judgment of the Federal Circuit Court delivered on 1 August 2019 wherein the primary judge dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal made on 6 June 2016 which had affirmed a decision of a delegate of the relevant Minister not to grant to the appellant a protection visa (the visa).
The appellant’s sole ground of appeal was that, in essence, the primary judge had failed to find that the Tribunal had not provided the appellant with a hearing in accordance with s 425(1) of the Migration Act 1958 (Cth). I should also note two other matters at this point. First, the Minister sought to rely upon a notice of contention, which I have permitted. Second, the appellant sought to resurrect a further ground of appeal before me relating to an asserted ground of jurisdictional error that his counsel had abandoned below. That point had no substance and I have refused leave. I will deal with such matters later.
For the following reasons I would dismiss the appeal.
The appellant is a citizen of Iran, who on 15 August 2013 applied for the visa. He was an unauthorised maritime arrival. The appellant provided a written statement at the time of his application in support of his protection claims.
On 5 December 2014, the Minister’s delegate refused to grant to the appellant the visa.
On 10 December 2014, the appellant applied for review of the delegate’s decision to a predecessor to the Tribunal.
On 21 January 2015, a migration agent representing the appellant made a written submission on the appellant’s behalf to the Tribunal.
On 9 May 2016, the appellant appeared at a hearing before the Tribunal to give evidence and present arguments. He was aided by an interpreter, and assisted by his migration agent.
On 6 June 2016, the Tribunal affirmed the delegate’s decision.
Before the Tribunal, the appellant claimed that his parents sought to force him to join the Islamic Revolutionary Guard Corps (IRGC), known as Sepah, and that he fled Iran to avoid this. Apparently, Sepah had been established following the Islamic revolution of 1979. The appellant claimed that he would be of adverse interest to Sepah as a result of an application having been made on his behalf in circumstances where he had fled Iran to a western country.
At the outset of the Tribunal hearing, the appellant gave evidence that his father was a member of Sepah. The appellant also gave evidence that only a few months prior to his leaving Iran, his family caused him to join the Basij, which apparently is a volunteer paramilitary organisation operating under the command of Sepah; there are several levels of membership being regular, active and special, with the active and special members being on the Sepah payroll.
During the hearing, the Tribunal permitted the appellant and his representative a short break. After the hearing break, the appellant proceeded to give a different account of his level of experience in the Basij, the essence of which involved his being a member of the Basij since the age of 16, which was from about 2002.
In the Tribunal’s reasons, the Tribunal indicated concerns about the appellant’s credibility based on the changes in his evidence and the timing of the new claims.
The Tribunal also observed that the appellant had been “untruthful with [the Minister’s Department] and/or Tribunal, either in withholding relevant information or fabricating the new claims” (at [44]). The Tribunal noted the appellant’s contrasting evidence about the level of his engagement with the Basij before the delegate, as compared with his evidence before the Tribunal (at [45] and [46]).
At [47], the Tribunal set out a number of reasons why the Tribunal considered that the appellant’s claims to be “long term active member of the Basij” were not credible. The Tribunal said (at [47]):
The Tribunal has considered the new claims raised at the hearing, but finds they are not credible. The applicant claims to have been a long term active member of the Basij, but also claimed never to have been paid for such work, to have received limited training, and never to have undertaken activities that might be regarded under Australian law as ‘criminal activities’. The Tribunal finds his limited training and no pay are inconsistent with the country information referred to above (see in particular the references to Golkar’s book) which indicates active members are paid and undergo ongoing training including introductory general training, complementary general training, refresher training, and consistency training. The Tribunal also finds it inconsistent that someone who was a long term member of the Basij would be so opposed to joining Sepah, as he would have gone through years of indoctrination but also years of observation such that it would have been known if he was suitable for Sepah or not. This would have been apparent not only to the applicant, but also to the organisation, which is known for its intelligence work. The applicant claimed he began to feel differently about Sepah after witnessing atrocities in the 2009 post-election violence, and that this was when he started fighting with his father about not wanting to join Sepah. The Tribunal does not accept this. The Tribunal notes the applicant left and re-entered Iran three times between 2008 and 2012, before leaving in 2013. If he had fears about his father forcing him to join Sepah or strong views about what the Basij and Sepah did, he had prior opportunities to leave which he did not take.
The Tribunal then said (at [49]):
The Tribunal has considered the oral submission from [the applicant’s representative] who claimed the applicant had told him the previous week that he had been a Basij member since age 16. The Tribunal gives this submission no weight, as it was not given as evidence and no evidence has been provided post hearing to support the submission (eg case notes or a statutory declaration from the representative). The Tribunal warned the representative that he was not in a position to give evidence through oral submissions, and he did not seek to regularise this by asking to be sworn in as a witness or seeking an opportunity to provide written evidence. The Tribunal has doubts about the representative’s submission, as had the applicant told his representative such important new claims a week prior to the hearing, the representative should have provided pre-hearing submissions and a statutory declaration from the applicant.
The Tribunal then set out reasons as to why the Tribunal considered that the appellant had exaggerated and fabricated the new claims at the hearing, essentially finding that the appellant fabricated his claims after the hearing break “when he realised the Tribunal did not appear convinced an ordinary Iranian who did not want to join Sepah would be of adverse interest to Sepah” (at [50]). The Tribunal did not accept the reasons given by the appellant for the late timing in making the new claims. The Tribunal said (at [50]):
The Tribunal finds the applicant exaggerated and fabricated new claims at the hearing. The Tribunal does not accept the applicant was a member of the Basij since age 16 or that his father was and his brothers are members of Sepah. The Tribunal finds the applicant fabricated the claim to be a long-term Basij member after the break in the hearing, when he realised the Tribunal did not appear convinced an ordinary Iranian who did not want to join Sepah would be of adverse interest to Sepah. The Tribunal does not accept he did not raise these claims earlier because he was fearful of the consequences if he was returned to Iran. Whilst the Tribunal could accept the applicant may have been fearful at his first interview on arrival, he has since that time been represented by migration agents. He would have been on notice of the importance of telling his full claims, and should have been assured of the confidentiality of his claims. He would have been on notice when the delegate refused his application that he needed to put his best case forward for an application for review. He has been assisted throughout the review by a migration agent, who should have raised new claims with the Tribunal. The failure to raise the claims until after a break in the hearing, and the inconsistencies and implausibilities in those claims as referred to in paragraphs 48 and 49 above, has led the Tribunal to find the applicant was not a long-term member of the Basij and his father and brothers are not and were not members of Sepah. The Tribunal rejects all of the new claims made at the hearing as it considers these claims were fabricated.
The Tribunal concluded that the appellant was not a long-term member of the Basij (nor were any of his family members of Sepah). This was on the basis, inter-alia, of the inconsistencies and implausibilities that the Tribunal had earlier found in the appellant’s claims, coupled with the timing of when he made the claims after the hearing break.
Further, in the Tribunal’s reasons the Tribunal took the appellant’s initial claims at their highest, and set out the reasons as to why the Tribunal could not be satisfied that the appellant faced a well-founded fear of persecution. The Tribunal also concluded that the complementary protection criterion had not been satisfied. The Tribunal affirmed the delegate’s decision.
On 1 July 2016, the appellant applied for judicial review of the Tribunal’s decision. The hearing before the primary judge took place on 28 June 2019 at which the appellant was represented by counsel. Only one ground was pressed before the primary judge. His Honour described this in the following terms (at [45] to [47]):
Ground 1 of the application is the only ground pressed before the Court. It is:
The Second Respondent committed jurisdictional error in its treatment of the representative’s information as to the applicant’s new claims:
a)The Second Respondent did not accept the representative’s explanation to the effect that the applicant had raised new claims with him during the week prior to the hearing on the purported basis that the representative did not give that information to the Second Respondent having been sworn as a witness;
b)By insisting that that information be given on oath or affirmation, the Second Respondent treated itself as bound by technicalities, legal forms or rules of evidence, contrary to s 420 of the Migration Act 1958;
c)Further or alternatively, it was unreasonable for the second respondent not to accept the representative’s explanation on the basis that it was an explanation given otherwise than on oath or affirmation.
It should be noted that, pursuant to section 423A(2) of the Act:
In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
The parties’ oral submissions were essentially an encapsulation of the written submissions. The complaint made by the applicant goes to the way the evidence was treated. It was submitted that it was not apparent that the Tribunal would not accept the representative’s assertions unless they were in writing or as sworn evidence.
It was put that this failure meant that the ultimate outcome was that the imperative obligation in s 425 of the Act was not fulfilled. It was submitted that there was no dichotomy between evidence and everything else. It was submitted that it was simply not apparent why the Tribunal had made the finding that it did at paragraph 49, in rejecting the applicant’s representative’s assertions.
In essence, it was contended that the Tribunal erred by not accepting the appellant’s representative’s explanation of his having been told by the appellant in the prior week of the new claim concerning his membership to the Basij from the age of 16, because the representative did not give sworn evidence to that effect. It was said that by requiring that the information given by the representative be sworn, the Tribunal erroneously proceeded as though bound by the rules of evidence, contrary to s 420(a). Alternatively, it was said that it was unreasonable for the Tribunal not to accept the explanation from the appellant’s representative otherwise than on oath or affirmation.
On 1 August 2019, his Honour dismissed the application for judicial review.
In his reasons, the primary judge noted that the appellant challenged the Tribunal’s finding at [49]. I have already set out [49] of the Tribunal’s reasons.
The primary judge found that the Tribunal’s approach of giving “no weight” to the representative’s submission was wrong, but explicable having regard to what transpired at the hearing. His Honour said at [50] to [54]:
For my part, I would find that the Tribunal’s decision to give the submission no weight, as it was not given in evidence and no further evidence had been provided post-hearing, was wrong. Nonetheless it is easy to see why this error came into existence. The representative stated in terms at T13 that he did not want to provide evidence on behalf of his client, but then went on in the next breath to say that he had had an interview with the client in the previous week which supported the matters now sought to be advanced.
The Tribunal then raised with the representative why no further submissions were put in before that day, and the representative was told to stop. I accept counsel for the applicant’s submission that what can be made of that is open to question, but it is important to note that the representative said:
That wasn’t my intention. My intention is that could you please ask my client again (about the matters he had now raised).
That is what the Tribunal actually did at T13-18. The Tribunal expressly made it clear to the applicant at T16 that the Tribunal member had concerns about the applicant’s credibility because what he was now saying was different from what he had earlier said to the department and, indeed, in the hearing itself.
When it came to final submissions, the bulk of what the representative had to say was plainly submissions per se. But at T22, he sought to explain the distinction between what the applicant’s earlier claims had been and what they now were as being because he was young and did not know where the information goes. He went on to repeat that on the Friday afternoon his office, he had said something which he subsequently changed but had eventually told the truth.
It is easy to see how the Tribunal, having informed the representative that he could not give evidence, with the representative confirming that he did not wish to do so, may have fallen into the mistake of overlooking what the applicant’s representative said. The difficulty, however, that the applicant faces is that he radically changed his claims at the last moment.
The primary judge went on to explain why it was open to the Tribunal to form the adverse credit finding against the appellant, having regard to the material before the Tribunal. He said (at [55]):
During his entry interview, his statement of claims, his interview with the delegate and his written submissions he had repeatedly, in effect, sought to minimise any contact with the Baseej and/or the Sepah. This remained his position at the Tribunal before the break. After the break in the Tribunal, he came in and said he was an active Baseej member. This was a fundamental change of position. In those circumstances it is entirely unsurprising that the Tribunal formed an adverse credit finding against the applicant. The Tribunal did not go so far as to accuse the representative of lying.
The primary judge concluded that the Tribunal gave the appellant the necessary opportunity to be heard and make submissions. He said (at [56]):
The Tribunal’s conclusion that this was part of exaggerated and, indeed, fabricated claims at the hearing was plainly in those circumstances one that was open to it. As a result, and notwithstanding the infelicity of the way in which the Tribunal expressed itself, in my opinion such inadequacies as there are in the reasons do not indicate that the Tribunal failed to fulfil the function allotted to it of giving the applicant an opportunity to be heard and make submissions, and the Tribunal’s decision does not represent jurisdictional error.
Present appeal
The sole ground of appeal before me is that the primary judge erred in his ultimate conclusion at [56] that the appellant was accorded a hearing under s 425(1) given the issues that the primary judge had earlier identified in his reasons (at [50]).
I should note at this point that the Minister sought leave to file a notice of contention, which leave I will grant. The appellant had been put on notice of the point for some time and no prejudice is caused to the appellant; I satisfied myself that this was so in discussions with the appellant.
In terms of the notice of contention, the Minister contended that the judgment of the primary judge should be affirmed on the basis that the finding of the Tribunal made at [49] was open to be made in the circumstances. It was said that the Tribunal did not in essence act contrary to s 420(a) by giving “no weight” to the explanation provided by the appellant’s representative as outlined at [49] of the Tribunal’s reasons. Further, it was said that there was no obligation on the Tribunal to exercise any available power under Div 4 of Part 7 to seek further information from the appellant and/or his representative given the matters that the Tribunal had identified at [49]. It was said that having regard to these matters, the Tribunal did not otherwise fail to fulfil the obligation under s 425(1) in the conduct of the review.
Let me return to the appellant’s sole ground of appeal, putting to one side for the moment his attempt to raise a new point.
The appellant challenges the primary judge’s conclusion that the Tribunal fulfilled its obligation under s 425(1).
Now the appellant appeared before me unrepresented and with the aid of an interpreter. In those circumstances I confirmed with him that he relied on his previous counsel’s written submissions filed below concerning the matching asserted jurisdictional error.
The appellant pointed out that s 420(a) relevantly provides that the Tribunal is not bound by technicalities, legal forms or rules of evidence, and must act according to the substantial justice and merits of the case (s 420(b)). So, the Tribunal had a discretion to determine the means by which the Tribunal obtained the material necessary to make a decision.
The appellant said that the Tribunal’s fastening on the fact that the representative’s assurances had not been given on oath or affirmation was evidence of the Tribunal having treated itself as bound by technicalities, legal forms or rules of evidence.
Further, it was said that the dichotomy apparently drawn by the Tribunal, between that of submission vs evidence, was a false one. That is typically a dichotomy drawn by bodies which are bound by the rules of evidence. But the Tribunal is not such a body. Furthermore, it was said that in addition to s 420, s 424 made clear that the Tribunal was empowered to receive and act on information, and not just on evidence or submissions.
The appellant said that the representative’s assertion of what had occurred a week before the hearing was not, as the Tribunal called it, a “submission”. It was an assertion as to the existence of a material fact. It was new, factual, information.
Further, it was said that the Tribunal’s approach appears to have treated the running of the appellant’s case as a matter entirely for him. But the Tribunal’s processes were inquisitorial, not adversarial. And in that context, the Tribunal had available to it plenary powers to secure relevant information to be given as sworn evidence, if that was the way in which it wished those matters to be received. In particular, the Tribunal had available to it specific powers to summon the representative to give evidence, to require him to take an oath or affirmation, and to administer such an oath or affirmation (ss 427(3)(a), (c) and (d)).
It was said that the Tribunal’s failure to consider exercising those powers to secure the representative’s information as sworn evidence was unreasonable; alternatively, to the extent that such powers were considered, the decision not to exercise those powers was unreasonable.
In my view none of these points have any real substance.
It was open to the Tribunal to reject the appellant’s new claims. Moreover, the appellant was on notice of the dispositive issue on the review. An examination of the transcript of the hearing makes it plain that the Tribunal put the appellant on notice as to a number of specific reasons why his credibility, and the credibility of his new claims, might be impugned.
Further, the inconsistencies and implausibilities identified by the Tribunal were significant. One only has to compare what he set out in his statement of claims made on 13 August 2013 at [5], [8] and [10] with what was said to the Tribunal. What changed in the Tribunal was that the appellant said that his father was a member of Sepah. He had earlier said that a friend of his brother was a member of or associated with Sepah. What had also significantly changed was the date that the appellant had said he became a member of the Basij.
In my view it has not been shown how the Tribunal was specifically obliged to exercise any power it had available to it under Div 4 of Part 7 to obtain further material from the appellant’s representative which went to the circumstances of the appellant informing him of the new claims in the week preceding the Tribunal hearing. And it has not been established that the non-exercise of available powers by the Tribunal was legally not reasonable.
Further, there was no jurisdictional breach of s 420. This provision is facultative, not restrictive. And in the present context, it cannot be used indirectly as a basis for the source of any jurisdictional error.
In summary, the primary judge has not been shown to be in error in his findings that the Tribunal fulfilled its obligation under s 425(1).
In any event I would uphold the Minister’s notice of contention. In the circumstances, the Tribunal’s finding at [49] was open. The Tribunal was entitled to give no weight to belated factual assertions from the appellant’s representative about the new claim after a mid-hearing break.
When the Tribunal said it gave “this submission no weight” that was hardly remarkable. And it is fallacious to suggest that such a phrase carries with it the proposition that the submission was not considered. Necessarily implicit in the Tribunal’s phrase was that the submission was considered. The “no weight” observation was that the submission, having been considered, carried no evidentiary value whatsoever. Even judges do not usually describe counsel’s submissions as having “weight”. The submissions of counsel are usually graded on a sliding scale of plausibility.
Clearly, and as can be seen from [49], the “no weight” statement was in the context of evidentiary value. And the assertions of the representative, belatedly after a break in the Tribunal hearing, did not look any better characterised as “information”. The Tribunal was entitled to be dismissive of such self-serving advocacy. But in any event, even if it be accepted that the appellant had changed his story to his representative a week earlier, that hardly assisted his credibility given his inconsistent prior version. Indeed, I note that his original version as concerned his membership of the Basij persisted at the start of the Tribunal hearing; it was only changed after the break in the hearing when the representative and the appellant had apparently conferred.
Further and for completeness, I should make another point. It seems to have been put by the Minister in submissions before the primary judge that s 423A(2) was relevantly engaged in the present context. But this was incorrect having regard to the relevant transitional provisions. In any event, the primary judge did not ultimately rely upon the asserted operation of s 423A(2) and the Minister has not sought to revive reliance thereon before me.
I should deal with one other matter. The appellant essentially sought before me to rely upon a ground abandoned below to the effect that there had been a breach of s 424A or s 424AA. Such a ground was advanced in written submissions below in the following terms.
Reference was made to the Tribunal’s reasons (at [50] as to part):
The Tribunal does not accept he did not raise these claims earlier because he was fearful of the consequences if he was returned to Iran. Whilst the Tribunal could accept the applicant may have been fearful at his first interview on arrival, he has since that time been represented by migration agents. He would have been on notice of the importance of telling his full claims, and he should have been assured of the confidentiality of his claims.
It was said that the assumptions which formed part of that reasoning were matters which formed an undermining of the appellant’s claims. In particular, it was said that the assumption that the appellant should have been assured of the confidentiality of his claims is such a matter; and it was an assumption apparently directed at the same representative whom the Tribunal had queried.
It was said that if the Tribunal proposed to disbelieve the appellant because the Tribunal had made assumptions about what his representatives over time should have told him about the confidential nature of his claims, that assumption or the information forming the basis for it should have been disclosed to the appellant pursuant to s 424A or s 424AA.
In my view this ground, if it had been pressed below, would have had no substance to it. Neither the operation of s 424A nor s 424AA were engaged. It is not in doubt that “information” under those provisions does not extend to the subjective appraisals, thought processes or determinations of the Tribunal. Now I accept that the Tribunal had to identify any critical issue not apparent from the nature of the decision or the statutory power being exercised. And the Tribunal may have had to draw to the attention of the appellant any potentially adverse conclusion not obviously open on the known material. But save for this, the Tribunal’s thought processes or provisional views concerning the appellant’s credibility (or preliminary thoughts that may have impugned it) did not need to be exposed for comment. Further and in any event, the appellant was on notice that the Tribunal might not accept the new claims advanced if it could not be satisfied of the appellant’s explanation as to why the claims had not been raised earlier. Further, s 424A could have had little to do with the matter in any event given its context of operation.
I refuse leave to put this new ground before me. It is not reasonably arguable.
The appeal must be dismissed with costs.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Beach. Associate:
Dated: 27 April 2021
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