BRF19 v Minister for Home Affairs
[2020] FCCA 1065
•29 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRF19 v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 1065 |
| Catchwords: MIGRATION – Protection visa Administrative Appeals Tribunal review of decision to affirm delegate’s decision to refuse visa national of Albania fears of persecution due to political affiliations whether Tribunal took account of irrelevant considerations whether Tribunal denied procedural fairness – whether Tribunal failed to perform statutory task whether Tribunal failed to give “proper genuine and/or realistic consideration” to matters before it legal unreasonableness appeal dismissed costs. |
| Legislation: Migration Act 1958 (Cth), s.36(2). |
| Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1 AVQ15 v Minister for Immigration and Border Protection (2018) 361 ALR 227 CGA15 v Minister for Home Affairs [2019] FCAFC 46 DOU16 v Minister for Home Affairs [2019] FCAFC 212 FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Minister for Immigration and Border Protection v Haq (2019) 267 FCR 513 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 |
| Applicant: | BRF19 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 21 of 2019 |
| Judgment of: | Judge WJ Neville |
| Hearing date: | 10 October 2019 |
| Date of Last Submission: | 10 October 2019 |
| Delivered at: | Canberra |
| Delivered on: | 29 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms K Hooper |
| Solicitors for the Applicant: | Clayton Utz |
| Solicitors for the Respondents: | Sean Kikkert |
ORDERS
The Applicant’s Amended Application filed on 25th September 2019 be dismissed.
The Applicant is to pay the First Respondent’s costs of these proceedings in accordance with Schedule 1 Part 3 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 21 of 2019
| BRF19 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
There is no dispute that the Applicant is a citizen of Albania. He applied for a Protection Visa on 6th May 2014. He claimed that he would suffer injury or worse if he were to return to Albania because of his political views, and because he was a member of the local Democratic Party of Albania (“the DPA”),
On 23rd March 2016 a Delegate of the Minister refused his Protection Visa Application. On 29th March 2019, the Administrative Appeals Tribunal (“the Tribunal” or “the AAT”) affirmed the Delegate’s decision.
On 18th April 2019, the Applicant filed in this Court an Application to Review the AAT’s decision. An Amended Application to Review was filed on 25th September 2019. The First Respondent Minister did not oppose the Applicant relying on the Amended Application.
The Applicant raised five Grounds of Review. In my view, there is quite some overlap between them. Very summarily stated, the Grounds (set out in full below) are:
i)the Tribunal took account of irrelevant considerations (noted later in these reasons);
ii)denial of procedural fairness to the Applicant;
iii)the Tribunal failed to perform its statutory task;
iv)the Tribunal did not give “proper, genuine and/or realistic consideration” to the documentation provided by the Applicant; and
v)the Tribunal’s decision was legally unreasonable.
Arguably, Grounds (i) and (iv) are [further] instances or examples of the alleged failure by the Tribunal to perform its statutory task. Subject to what is said later in these reasons, and noting that the particulars provided in relation to this Ground refer to an issue regarding the weight given to certain documents, it follows that Ground (iii) should more correctly be treated as a conclusion rather than a separate Ground of review. So much may be taken from the Full Court’s comments in MZYTS where, at [31], the Court said:[1]
… the asserted error in the Tribunal’s decision was often described as a “failure to consider more recent information”. That description might suggest as a corollary some kind of freestanding legal obligation on the Tribunal to consider the most recent information. In our opinion, while those descriptions may explain the path leading to error, the error itself is a failure to perform the statutory task imposed on the Tribunal by the relevant provisions of the Migration Act.
[1] Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431.
The Court in MZYTS, at [28], confirmed its agreement with the discussion by Robertson J in SZRKT regarding the characterisation of jurisdictional error.[2]
[2] Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99.
In SZRKT, at [77] – [98], with particular reference to the High Court decisions in Minister for Immigration and Multicultural Affairs v Yusuf, and Minister for Immigration and Citizenship v SZJSS, Robertson J said in particular, at [97] (emphasis added):[3]
In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, the passage cited by McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed, from Craig v South Australia at 179 shows that the High Court was concerned with the results or consequences of an error of law:
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
Thus merely to ignore “relevant material” does not establish jurisdictional error. This is consistent with proper limits on judicial review so that fact-finding is a matter for the tribunal of fact while the Court is concerned with whether the tribunal has acted so as to warrant the conclusion that it was not performing the task conferred on it by the legislation.
[3] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164.
In the light of these principles, I will deal with the Applicant’s Grounds (i), (iii) and (iv) together.
For the reasons that follow, in my view, none of the Grounds of Review have been established. In the light of the Tribunal’s reasons, the Grounds of Review are more akin to expressions of concern about the result and are, respectfully, little more than an Application for impermissible merits review.
The Amended Application must be dismissed with an Order for costs in the First Respondent’s favour.
The AAT’s decision
A summary of the reasons of the Administrative Appeals Tribunal, delivered on 29th March 2019, is as follows.
The Applicant claims to be a citizen of Albania. He applied for a visa on 6th May 2014. A delegate of the Minister refused to grant the visa on 23rd March 2016.
The Applicant claims that he is married and has four children. Two of his children live at home. One daughter is disabled. He is a well-known member of the Albanian Democratic Party (“the DPA”) and has been a member since 1992. He says that he was an official of the DPA and that on 10th January 2014 he was attacked on the street. He claims he will not receive protection from the Albanian government if he is returned to his native country.
He says that after the 2013 parliamentary elections in Albania he started to receive telephone threats which increased in frequency until he was attacked on 10th January 2014. He fears he may be harmed because the Socialist Party is now in government in Albania and the politics in the country are violent. He says that during the last elections a lot of people were killed. He believes that there is no relevance to take protection and certainly none that is available to him because of political corruption in the country. He fears that he will be killed if he returns to Albania because he is a well‑known supporter of the DPA and he further says that the current government wishes to get rid of people who do not support them.
The Applicant confirmed that he travelled to Belgium to visit his daughter and her family and that he also travelled to Australia in 2013. He returned to Australia in 2014.
At par. 12 of the AAT’s reasons there is a list of documents the Applicant provided for consideration by the Tribunal. Those documents included the following:
i)his membership of the National Association of the Prisoners and the Albanian Political Persecuted Integration of Shkoder Branch number 1740 dated 18th February 2014;
ii)his DPA certificate bearing a membership number of 17-219;
iii)in (or from) group section Berdice various newspaper articles;
iv)a medical report dated 10th January 2014 stating that around 2200 hours the Applicant, who was in the vicinity of a nominated theatre, was struck in the face. He said that he suffered dramatic injuries and was required to undertake ambulatory care for nine days of rest;
v)a newspaper report from the Malesia newspaper dated 11th January 2014 which outlined the circumstances of this attack to which I have just referred; and
vi)various declarations and police reports all dated from January 2014 including a report to the police dated 21st January 2014 by the Applicant’s Wife regarding the incident on 20th January.
The Tribunal outlined at par.s 14 through to 29 a range of claims and evidence relied upon by the Applicant. These included, for example, that he said in 2012 he was responsible for checking around the municipality like a security man so that people did not steal things. He said he was involved in many demonstrations against the Socialist Party when it came to power in 1998 and again in 2005.
When he was asked to explain what he meant by being “well‑known” in the area, he said that he protected the rights of people against socialists. When asked how he did this, he claimed to have fought socialist corruption and always told the truth. He claimed this was why the socialists hated him. He further claimed that it was because he spoke to the commission about the Socialist Party stealing votes meant for the DPA and putting them in the box for the Socialist Party.
At par. 18 of the Tribunal’s reasons the Applicant was asked to discuss the DPA’s political philosophy. He said they were for capitalism. He said the DPA did not like the socialist party and that is why they fought against them. The Applicant was asked to provide the motto adopted by the DPA in the 2011 elections and he said it was:
With us everyone is going to win.
At par. 19 of its reasons the Tribunal recorded the Applicant’s brief history of his family’s long involvement with the DPA which included that his Grandfather had been killed in 1946. When it was pointed out to him that the DPA did not exist in 1946, he responded that as a family they had never liked the Socialist Party.
At par. 20 it was put to the Applicant that, according to his written testimony, in the 23 years he has been a member of the DPA he has only experienced one incidence of violence. In response he said that there were no problems with the DPA when it won the first election in Shkoder, but that the threats started when the Socialist Party won in the 2013 parliamentary elections.
A little later at par. 23 of its reasons the Tribunal put to the Applicant that he had travelled to Belgium and Australia and returned, and that on no occasion did he suffer any difficulty, which suggested that he did not have any actual subjective fear of persecution. Again, he said that “they” started threatening him after September 2013 in the elections in that year because he saw the theft of the votes on the papers he had signed. Again it was reported that threatening telephone calls started in September 2013 after he had reported the theft of the votes.
At par. 24 of the Tribunal’s reasons there is an outline of the time that the Applicant said that he was bashed on 10th January 2014 and on 20th January 2014 when they came to his place at 2 o’clock in the early morning. He said he reported the attack to the police and went to hospital. He said he does not have the report from the police but does have the report from the hospital.
It was put to the Applicant that the news article reporting on the incident referred to stated that he was beaten up by “unidentified persons”. It was later put to the Applicant why he had not sought protection whilst in Australia in 2013, to which he replied that he simply considered that he had a normal life in Australia, and that he was far away from the problems in Albania. It was then put to him that the Albanian police does provide an acceptable level of protection to its citizens. He denied that this was true.
It was also put to him that he could have gone to any European country or member of the European Union which were closer to Albania; he said he chose Australia because it was so far away and the protection would be better. It was put to him that any or all of the European countries would protect him. He disagreed.
There was a further Tribunal hearing on 31st January 2019. A number of the claims that had already been outlined were canvassed at that hearing. In my view, there is no need to repeat them. However, it is important to note from the Tribunal’s reasons at par. 37 that there is a more detailed outline given by the Applicant of a contest with a man who was purporting to be a voter in the 2013 elections. The Tribunal noted in this par. that a member of the Socialist Party did not show him his vote, which it was said was not compliant with the rules in showing the Applicant the form. There was an argument between the two men. He told the voter that he was not obeying the rules and that he would not sign the election form. He said the man stood up and made trouble and did not put the form where it belonged. The Applicant did not sign the process of vote and the police came in. He left and did not go back. This matter was traversed at some length throughout the Tribunal’s reasons.
Amongst other things, it was put to him by an OSCE report dated 10th October 2013 that the 23rd June 2013 elections were in fact competitive with active citizen participation throughout the campaign and genuine respect for fundamental freedoms. It was noted that there was the death of a DPA supporter in the city of Lac. This same report found that while there were flaws in the process, there was no suggestion that there were any late reports about voting fraud.
At par. 46 of the Tribunal’s reasons the Applicant was asked what he feared about returning to Albania. To this he said that he feared that he would be killed because of his political involvement. It was put to him that there was no available evidence to suggest that merely being a member of a political party suggests that he will be harmed. He said that there were nonetheless a lot of killings. It was put to him that he could report matters to the police and that there was a functioning legal system. Again he said that there was no relevant protection and a lot of killings.
There was a further hearing before the AAT on 28th February 2019. Similar matters were canvassed with him that have been earlier traversed. I need only note that at par. 59 of the Tribunal’s reasons a range of contradictory evidence was put to the Applicant directly. For example, it was put to the Applicant that it was the Tribunal’s view that (a) he was not telling the truth in relation to the counting of votes at the 2013 elections, (b) he was not in fact assaulted or harmed after the 2013 elections because of his political opinion, and (c) the declaration made by his Wife about the incident was also untrue. It was further put to the Applicant that the Police Report dated 21st January 2014 made by his Wife regarding an incident on 20th January 2013 was also untrue. He denied these matters.
It was put to the Applicant that he in fact came to Australia for the purposes of work and not for any other purpose. To these matters he said that he would not have come and stayed away for five years. He said that he had a good life in Albania, that he worked there and that it was stable there. It was also put to the Applicant that he had in fact returned to Albania despite having received the alleged threatening phone calls.
It was noted at par. 67 of the Tribunal’s reasons that the Applicant provided a range of post‑hearing submissions. They included various newspaper articles from the Malesia newspaper, none of which were translated into English but show the newspaper’s internet address. These were from 2001, 2007, 2008, 2011 and 2018. The Applicant did not suggest that any of the newspaper articles referred to him or had any direct relevance to any of the claims before the Tribunal.
The Applicant also provided a number of newspaper articles in English. They were read by the Tribunal but his statements were produced from a range of witnesses. They are set out in par. 69 of the Tribunal’s reasons.
In particular, at par. 70 there was a post‑hearing submission dated 8th February 2019 from Mr Ymeri which refers to him being informed about the attack on the Applicant on 10th January 2014.
At par.s 71 through to 74 the Tribunal set out, at some length, statements and submissions provided by the Applicant’s highly‑experienced migration adviser. I need not canvass that material.
At par. 75 and following are the reasons and findings of the Tribunal. Summarised they are as follows.
At the outset, the Tribunal noted that it accepted the Applicant to be a national of Albania. Secondly the Tribunal said, contrary to submissions made by the Applicant’s migration advisor, that during the hearing when various propositions were put to the Applicant, particularly in relation to suggestions that his statements were disbelieved and that he was not a witness of truth, the Tribunal said that the Applicant answered questions without hesitation. At no point, in its view, did the Applicant become so distressed to the point of tears. Indeed, the Tribunal made the point that had the Applicant been distressed to such a degree at either of the hearings, the Applicant’s adviser would have made a submission to the Tribunal at that time.
At par. 77 the Tribunal, in my view fairly, noted that there may be errors, omissions or misunderstandings that cannot automatically be attributed to an Applicant’s credibility or the Applicant not being truthful. It was also noted that an Applicant may suffer nervousness, anxiety, depression or post‑traumatic stress disorder and have therefore difficulty remembering all aspects of their claims. Indeed, it may be the case in various matters that particular Applicants may block out or neglect to mention upsetting or traumatic experiences. Finally, the Tribunal noted in the same place that just because one part of an Applicant’s claim is exaggerated does not mean that the entirety of the claim is dishonest.
At par. 78 to 79 of its reasons, the Tribunal gave some historical background to the establishment of the DPA and the various contests at various elections. It noted, amongst other things, that by the mid-1990s the DPA, led by Mr Berisha, started to adopt increasingly non‑democratic and even authoritarian policies. I need not canvass further about the historical matters about the DPA in Albania.
At par. 80 and following, there are repeated references to an OSCE [Organisation for Security and Co-Operation in Europe] report regarding the 2013 election. The report noted that the election was generally peaceful and conducted in an orderly manner although, as previously noted, there was a fatal incident in Lac. The OSCE report stated that there were a significant number of voting centres opened with some delays, mainly due to lack of organisation.
The Tribunal then moved to the Applicant’s claims about his alleged assault and said at par. 81 that it gave the benefit of the doubt to the Applicant and accepted that he was a member of the DPA. It also accepted that he was injured in December 2013 or January 2014 but he was hospitalised and subsequently, unknown persons came to his home and threatened him on 20th January 2014 and came back a second time. Curiously, there are, in my view, some inconsistencies in the reporting and general narration of these incidents in the Tribunal’s reasons. Par. 81 should be contrasted with what is set out in par. 98 and par. 105 which repeatedly returns to these same incidents with slightly differing comments.
In any event, the Tribunal consistently found throughout its reasons that the Applicant was not a witness of truth. These matters are set out in the reasons in relation to the 2013 election, in particular at par.s 83 to 92. In the course of these par.s the Tribunal noted that it preferred to rely upon the OSCE reports regarding voting and the conduct of the 2013 election rather than the account given by the Applicant. The Tribunal accepted that it is likely that his discrete isolated account may well have occurred but the overwhelming independent evidence is as set out by the Tribunal in its reasons. See in particular a footnote reference in par. 90 of the Tribunal’s reasons.
At par. 93 of its reasons the Tribunal said that it was explained to the Applicant’s migration adviser at the second Tribunal hearing that the evidence regarding the vote counting procedures was crucial to the Applicant’s credibility. It went on to say that the Applicant had time after the second Tribunal hearing to provide any addition evidence regarding this aspect of his claim.
The Tribunal went on to note at par. 94 that it accepted that there has been some violence and corruption in elections in Albania. It also accepted that there was a backdrop of mutual accusations of vote buying and pressure on voters which lasted throughout polling day, with such incidents being reported in the media. It noted however that the terrible incident that led to the death of a voter, a member of the DPA in the town of Lac, occurred at a location that was approximately 56 kilometres away from Shkoder and about a 55 minute drive away from the Applicant’s town.
In response to an article entitled “Vote Buying Rampant Ahead of Albanian Poll” dated 10th June 2013, again the Tribunal said that it preferred to rely on the OSCE report that post‑dated the newspaper article. The OSCE report indicated that the presence of citizen and party observers throughout election day generally enhanced transparency, although in some cases, partisan observers were seen directing or interfering in the voting or counting processes. The Tribunal went on to say that:
Whilst I accept that there was corruption and interference in the election I am satisfied that evidence from independent sources reported that the 2013 elections were held in accordance with international standards, bringing new stability to the politics and economy of the country. Election results were announced the following day without significant contestation, particularly due to the wide margin of difference between the two main blocks.
At par. 96 of its reasons the Tribunal noted that the OSCE report stated that the 23rd June 2013 elections were competitive and that there was active citizen participation throughout the campaign and genuine respect for fundamental freedoms. The Tribunal then quoted at some length from USAID commenting that the opening session of Albania’s parliament on 9th September 2013 was the first time in the country’s brief democratic history that no party boycotted the session.
This led the Tribunal to state at par. 98 of its reasons that in the light of the OSCE report and the others noted earlier in its reasons that it rejected the Applicant’s claims that the electoral code of Albania did not reflect the reality and what was happening on the ground at the 2013 elections. It was satisfied that the Albania election was conducted in accordance with the Albanian electoral code. It was satisfied that voting was completed at special voter counting centres and not at ballot counting centres as claimed by the Applicant. In this same par. the Tribunal went on to state, noting that I have already recorded some inconsistency by reference to par.s 81 and 105:
It follows that I do not accept that the socialist party have sought to and continue to seek to harm him. I do not accept the Applicant received threatening telephone calls for his political opinion after the 2013 election or that he was assaulted, threatened or harmed for his political opinion when he resided in Albania. I do not accept that Applicant is a witness of truth. I am satisfied that he has created his claims of being harmed by socialist party members in order to obtain the visa sought.
At par.s 100 and following, the Tribunal considered the DPA certificate provided by the Applicant. It recorded, amongst other things, that he was said to have worked at the number 23 voting centre, whereas the DPA certificate he provided in fact referred to voting centre number 219 in the village of Trush. When it was put to the Applicant that he was not working during the elections at voting centre 23, he simply said that it must have been a mistake and it was the 2011 elections. The Tribunal said at par. 100 that:
As the Applicant’s evidence is not consistent with the DPA certificate I place no weight on the DPA’s certificate as evidence that the Applicant worked at the voting centre at the 2013 elections.
Next, the Tribunal put to him that it was relatively easy to obtain fraudulent documents in Albania. The Applicant denied this. The Tribunal put to him at least one article in the newspaper, Balkan Insight, which referred to the Albanian police busting a forgery workshop. Again the Applicant simply denied that it was easy to obtain fraudulent documents in Albania.
The Tribunal went on to say, at par. 102, that the independent evidence before it confirmed that Albania was yet to deal adequately with the gross human rights violations that had been committed between 1944 and 1991 when thousands of victims suffered from imprisonment, torture, internal exile, executions and enforced disappearances. However, the Tribunal went on to say that the independent evidence before it does not suggest that family members whose grandfathers were killed or harmed by the communist regime, or whose family members are members of the DPA, are persecuted or harmed by the Albanian government. It was of the view that, were it the situation, it would be known to independent sources such as Amnesty International, the UK Home Office, or the US State Department.
In relation to the Applicant’s claims of having received threatening telephone calls after the 2011 elections and that as a member of a group of persons who are harmed during the former communist regime and who continue to suffer harm from the socialist party, the Tribunal noted the following. It said at par. 103 that the Applicant left Albania for Australia in February 2013 and returned to Albania in March 2013. He went to Belgium in May 2012 and returned to Albania a week later because he was invited. The Tribunal said that it was satisfied that the Applicant’s return to Albania on two occasions indicated a lack of subjective fear of persecution. It therefore did not accept that the Applicant received threatening telephone calls for his political opinion after the 2011 election.
In relation to par. 105, to which I have already briefly referred, the Tribunal said that it placed no weight on the statement provided by Mr Ymeri which seemed to the Applicant’s claim of having been assaulted and injured on 10th January 2014 because of his political opinion. Amongst other things, the Tribunal noted that nowhere in the brief newspaper report that referred to this incident suggested that the attack was caused because of the Applicant’s political opinion. In the circumstances, as outlined in its reasons, the Tribunal rejected and placed no weight on Mr Ymeri’s statement as evidence for the assault on the Applicant on 10th January 2014 for his political opinion.
At par. 106 the Tribunal stated that in its view, the Applicant was not involved in vote counting in December 2013/January 2014, which was some months after the election. It found that he was not attacked in any way because of his political opinion.
At par. 107 the Tribunal listed further documentation, being articles that were provided after the second Tribunal hearing. Again I need not recount what those articles are.
The Tribunal did note, however, at par. 108 that the articles provided indicated that there have been incidents of violence, killing, corruption and vote rigging during Albanian elections since Albania removed communism. It stated further that with a history of corruption, scandals and alleged voting fraud, the country looked to technological assistance to avoid the problems of the past.
In a further article cited by the Tribunal entitled “Freedom in the World at 2018 Albania”, it was recorded that Albania has a record of competitive elections, though political parties are highly polarised and voting is often focused on leading personalities. It said that corruption and organised crime remain serious problems despite recent government efforts to address them.
However, at pars. 110 and 111, the Tribunal noted that reports from OSCE report and USAID did not suggest that any voters, or DPA members or supporters from Shkoder or its suburbs, were harmed for their political opinion after 2013 election or for voting irregularities. This led the Tribunal to find that, on the evidence before it, the Applicant did not suffer Convention-related harm in Albania prior to coming to Australia. It was also satisfied that the Applicant came to Australia in order to work.
At par. 114, the Tribunal recorded that according to the US State Department Human Rights Record 2017, civilian authorities generally maintained effective control over police, the guard of the republic, the armed forces and the SIS although officials periodically used state resources for personal gain and members of the security forces committed abuses. It also noted that the police did not always enforce the law equitably.
At par. 115, the Tribunal again confirmed that it did not accept that there was a real chance that the Applicant would be killed on his return to Albania for his political opinion or any other convention related reason. It found no evidence to suggest that members of the DPA or the National Association of the Prisoners or the Albanian Political Persecuted Integration suffer harm for their membership of those organisations. However, it accepted that there are mafia-style killings in Albania and in Shkoder, but noted that the OSCE report regarding the 2013 elections stated:
The campaign environment was peaceful overall, with only a few isolated incidents of violence.
This led the Tribunal to state at par. 117 that it found the chances of the Applicant suffering harm for his political opinion, or membership with the DPA, or any other organisation, on his return to Albania to be remote.
It noted at par. 118 that there is a functioning legal system and police service, and while there are instances of corruption and police abuse there is an ombudsman. The government also has internal mechanisms to investigate and punish police abuse and corruption.
It said at par. 119 that the Applicant faced no serious harm in the past for a Convention-related reason, and it was not satisfied that the Applicant faces a real chance of serious harm upon return to Albania for a convention related reason in the reasonably foreseeable future. Moreover, it found that it was not satisfied that the Applicant has a profile that would cause him to be of any interest to the authorities or the mafia.
It did note at par. 122 that Albania remains one of the poorest countries in Europe. As already noted, the Applicant stated that he did not agree with the levels of poverty referred to by the Tribunal, saying that he had a normal life and a good wage.
In all of the circumstances, the Tribunal found that no relevant ground had been established, or evidence provided, that warranted the Delegate’s decision being changed. Accordingly, it found that the Applicant did not satisfy the criterion in s.36(2) of the Migration Act 1958. Therefore, it affirmed the Delegate’s decision not to grant the Applicant a Protection Visa.
Grounds of Review
The Grounds of Review were set out in the Applicant’s Amended Application filed on 25th September 2019, which the First Respondent did not oppose, were as follows:
1. The Tribunal fell into jurisdictional error by taking into account irrelevant considerations, namely whether the Applicant wished to work in Australia and/or whether he could have applied in an EU country
Particulars
1.1 At par. [45] of the decision record, the Tribunal noted that “It was put to the Applicant that the economy of Albania is bad and that people work for low wages and often have difficulty obtaining work. This means that many Albanians work all over Europe and over the years it has been a large part of the economy for people to send money back to Albania in order to support their families. He did not agree, he said that he had a normal life and a good wage.”
1.2 At par. [59] of the decision record the Tribunal stated “. . . I put that he came to Australia to work. . .”
1.3 The recording of the hearing reveals that the Tribunal questioned the Applicant about whether he wished to work in Australia.
1.4 It is the Applicant’s position that the Tribunal treated the Applicant’s alleged desire to work in Australia as a factor that weighed against the Applicant in deciding whether or not to affirm the decision not to grant the Applicant a protection visa.
1.5 Whether or not the Applicant wished to work in Australia was an irrelevant consideration in deciding whether or not to affirm the decision not to grant the Applicant a Protection visa.
1.6 The Tribunal questioned the Applicant about why he did not apply for a protection visa in an EU country
1.7 It is the Applicant’s position that the Tribunal treated the fact that the Applicant did not apply for a protection visa in an EU country as an adverse piece of information that weighed against the Applicant.
1.8 However, whether or not the Applicant applied for a protection visa in an EU country was an irrelevant consideration in deciding whether or not to affirm the decision not to grant the Applicant a protection visa.
2. The Tribunal denied the Applicant procedural fairness by not making it clear which documents it was referring to when it stated that it did not accept the authenticity of certain documents and by not providing sufficient time for the Applicant to provide evidence of how voting proceeded in the Trush / Berdice area.
Particulars
2.1 At the hearings, the Tribunal indicated that it did not accept the authenticity of certain documents.
2.2 However, it was not clear which documents were in doubt.
2.3 As the Tribunal failed to identify which documents were in doubt, the Tribunal failed to provide the Applicant with procedural fairness in commenting on those documents.
2.4 The Applicant’s Migration Agent, Mrs Marion Le AM, also raised a procedural fairness concern in an email sent to the Tribunal on 14 March 2019. In that email, Mrs Le wrote as follows:
“It is unfortunate that the tight deadline has meant that the Applicant cannot provide testimony from others as to how voting that year proceeded in the Trush / Berdice area but in any event he is uncertain as to what evidence of the reality the Tribunal Member would be prepared to accept given that so far it seems she has dismissed all documentary evidence and individual testimonies provided by the Applicant”.
3. The Tribunal fell into jurisdictional error by failing to perform its statutory task.
Particulars
3.1 The task of a review is to form the requisite state of satisfaction.
3.2 To sufficiently undertake the statutory task of review, the Tribunal needs to be willing to hear and consider all relevant evidence.
3.3 Where an Applicant provides documentary evidence in support of his claim, the Tribunal has a duty to consider that information.
3.4 The Tribunal put to the Applicant that it is easy to falsify documents in Albania (please see par. [62] of the decision record).
3.5 The Tribunal then disregarded the documentary evidence provided by the Applicant on the basis that they were falsified, despite there being no evidence that the documents were falsified.
3.6 By failing to place any weight on this documentary evidence on the basis that it was falsified, despite there being no evidence before the Tribunal that they were falsified, the Tribunal failed to perform its statutory task of review.
4. The Tribunal fell into jurisdictional error by failing to give “proper genuine and / or realistic consideration” to matters before it by disregarding the documentary evidence provided by the Applicant on the basis that it was falsified, despite there being no evidence that the documents were falsified.
Particulars
4.1 Where an Applicant provides documents in support of his claim, the Tribunal needs to give “proper genuine and / or realistic consideration” to the documents and the matters raised as a result.
4.2 The Tribunal put to the Applicant that it is easy to falsify documents in Albania (please see par. [62] of the decision record).
4.3 The Tribunal then disregarded the documentary evidence provided by the Applicant on the basis that it were falsified, despite there being no evidence that the documents were falsified.
4.4 By failing to place any weight on these documents on the basis that they were falsified, despite there being no evidence before the Tribunal that they were falsified, the Tribunal failed to give “proper genuine and / or realistic consideration” to the documentary evidence placed before it and the matters raised as a result.
5. The Tribunal fell into jurisdictional error in that its decision lacked evident and intelligible justification and was legally unreasonable.
Particulars
5.1. The Tribunal's finding that the 23 June 2013 elections in Albania were “competitive” with “fundamental respect for fundamental freedoms” was unreasonable in light of its acceptance that the “election was marred by the death of a DPA supporter in Lac.” (please see par. [44] of the decision record).
5.2. The Tribunal put to the Applicant that it is easy to falsify documents in Albania (please see par. [62] of the decision record).
5.3. The Tribunal disregarded the documentary evidence provided by the Applicant on the basis that it was falsified, despite there being no evidence that the documents were falsified.
5.4. The Tribunal had stated during the course of the hearing that it didn’t believe that the newspaper relied on by the Applicant existed (which is why the Applicant subsequently provided several copies of the complete newspaper over a period of many years at [67]-[68] of the decision record. The Applicant also provided multiple internet links to this newspaper).
5.5. The Tribunal’s treatment of the documentary evidence provided by the Applicant was unreasonable.
5.6. At par. [45] of the decision record, the Tribunal noted that “It was put to the Applicant that the economy of Albania is bad and that people work for low wages and often have difficulty obtaining work. This means that many Albanians work all over Europe and over the years it has been a large part of the economy for people to send money back to Albania in order to support their families. He did not agree, he said that he had a normal life and a good wage.”
5.7. At par. [59] of the decision record the Tribunal stated “. . . I put that he came to Australia to work. . .”
5.8. The recording of the hearing reveals that the Tribunal questioned the Applicant about whether he wished to work in Australia.
5.9. It was unreasonable for the Tribunal to treat the Applicant’s desire to work in Australia as a factor that weighed against the Applicant in deciding whether or not to affirm the decision not to grant the Applicant a protection visa.
5.10. The Tribunal questioned the Applicant about why he did not apply for a protection visa in an EU country.
5.11. It was unreasonable for the Tribunal to treat the fact that the Applicant did not apply for a protection visa in an EU country as an adverse piece of information that weighed against the Applicant.
Applicant’s Outline of Submissions
The Applicant’s Outline of Submissions, filed 25th September 2019, was as follows:
Submissions for the Applicant
1. The Applicant is seeking review of the decision of the Second Respondent (Administrative Appeals Tribunal), dated 29 March 2019, affirming a decision of a delegate of the First Respondent (Minister) not to grant the Applicant a Protection visa.
Grounds of judicial review
2. The Applicant filed an application for judicial review on 18 April 2019 and an amended application on 25 September 2019, and the Applicant seeks this Honourable Court’s leave to rely on the amended application. The grounds of review are as follows (with the amendment underlined):
1. The Tribunal fell into jurisdictional error by taking into account irrelevant considerations, namely whether the Applicant wished to work in Australia and/or whether he could have applied in an EU country.
2. The Tribunal denied the Applicant procedural fairness by not making it clear which documents it was referring to when it stated that it did not accept the authenticity of certain documents and by not providing sufficient time for the Applicant to provide evidence of how voting proceeded in the Trush / Berdice area.
3. The Tribunal fell into jurisdictional error by failing to perform its statutory task.
4. The Tribunal fell into jurisdictional error by failing to give “proper genuine and / or realistic consideration” to matters before it by disregarding the documentary evidence provided by the Applicant on the basis that it was falsified, despite there being no evidence that the documents were falsified.
5. The Tribunal fell into jurisdictional error in that its decision lacked evident and intelligible justification and was legally unreasonable.
Submissions
Ground 1
3. The first ground is that the Tribunal fell into jurisdictional error by taking into account irrelevant considerations, namely whether the Applicant wished to work in Australia and/or whether he could have applied in an EU country.
4. At par. [45] of the decision record, the Tribunal noted that “It was put to the Applicant that the economy of Albania is bad and that people work for low wages and often have difficulty obtaining work. This means that many Albanians work all over Europe and over the years it has been a large part of the economy for people to send money back to Albania in order to support their families. He did not agree, he said that he had a normal life and a good wage.” Then at par. [59] of the decision record the Tribunal stated “. . . I put that he came to Australia to work. . .
5. The transcripts of proceedings annexed to my affidavit of 10 July 2019 reveal that the Tribunal questioned the Applicant about whether he wished to work in Australia. Annexure “A” (“A”) contains the extract of transcript of proceedings for 31 January 2019 and Annexure “B” (“B”) contains the extract of transcript of proceedings for 28 February 2019. The transcript reveals that the Tribunal:
· stated that it believed the Applicant came to Australia because he needed work to support his family (please see “A” P-2 L 7-10, “B” P-2, L 17); and
· queried why he didn’t go to Greece or another country (“A” P-3 L 4-5, 10-11, “B”, P-4, L 21-22).
6. It is the Applicant’s position that the Tribunal treated (a) the Applicant’s alleged desire to work in Australia; and (b) the fact that the Applicant did not apply for a protection visa in an EU country; as an adverse piece of information that weighed against the Applicant in deciding whether or not to affirm the decision not to grant the Applicant a protection visa. However, whether or not the Applicant wished to work in Australia or whether or not the Applicant applied for a protection visa in an EU country were irrelevant considerations in deciding whether or not to affirm the decision under review
Ground 2
7. The second ground is that the Tribunal denied the Applicant procedural fairness by not making it clear which documents it was referring to when it stated that it did not accept the authenticity of certain documents.
8. During both hearing days the Tribunal made general statements about “fraudulent documents” being “easily obtainable in Albania” (please see “A” P-4, L 9-17) and that the Melesia newspaper “doesn’t exist” and it’s easy to “fabricate newspaper articles”, “create fake newspapers” and “even pay for articles to be printed” (“B” P-2, L 31-39, P-3, L 1-5)
9. However, it was not clear exactly which documents were in doubt or for what reasons those documents were in doubt, considering the high volume of documents provided. Furthermore, on 15 March 2019 the Applicant’s migration agent, Mrs Marion Le AM, wrote to the Tribunal raising concerns that documents were referred to at both hearings which were “not shown to the Applicant who attempted to guess which document(s) were being referred to. . .” and which left the Applicant “visibly non-plussed” (please see CB, p 647). While the Tribunal did provide some partial clarification to what documents were being referred to (please see CB, p. 651), there still remained a great deal of uncertainty in regards to what documents were in doubt. As the Tribunal failed to identify which documents were in doubt, the Tribunal failed to provide the Applicant with procedural fairness in commenting on those documents.
10. Mrs Le also raised a procedural fairness concern in an email sent to the Tribunal on 14 March 2019. In that email, Mrs Le wrote as follows:
“It is unfortunate that the tight deadline has meant that the Applicant cannot provide testimony from others as to how voting that year proceeded in the Trush / Berdice area but in any event he is uncertain as to what evidence of the reality the Tribunal Member would be prepared to accept given that so far it seems she has dismissed all documentary evidence and individual testimonies provided by the Applicant” (CB, p. 606).
Ground 3
11. The third ground is that the Tribunal fell into jurisdictional error by failing to perform its statutory task. The task of a review is to form the requisite state of satisfaction and in order to sufficiently undertake the statutory task of review, the Tribunal needs to be willing to hear and consider all relevant evidence. Where an Applicant provides documentary evidence in support of his claim, the Tribunal has a duty to consider that information.
12. The Tribunal put to the Applicant that it is easy to falsify documents in Albania (please see par. [62] of the decision record, “A” P-4, L 9-17, “B” P-2, L 31- 39, P-3, L 1-5). The Tribunal then disregarded the documentary evidence provided by the Applicant, and stated that it would place “little or [no] weight on the documentation that you have provided”1 on the basis that that documentation was falsified, despite there being no evidence that the documents were falsified.
13. By placing little or no weight on this documentary evidence on the basis that it was falsified, despite there being no evidence before the Tribunal that they were falsified, the Tribunal failed to perform its statutory task of review.
Ground 4
14. The fourth ground is that the Tribunal fell into jurisdictional error by failing to give “proper genuine and / or realistic consideration” to matters before it by disregarding the documentary evidence provided by the Applicant on the basis that it was falsified, despite there being no evidence that the documents were falsified. Where an Applicant provides documents in support of his claim, the Tribunal needs to give “proper genuine and / or realistic consideration” to the documents and the matters raised as a result. The Tribunal did not do this.
15. This was despite the Applicant’s migration agent, Mrs Marion Le AM, providing seven complete original copies of the Malesia newspaper, and one incomplete copy dating back to 2011 (please see CB, p. 510). As such, this was a selection over the years 2001 until 4 March 2019 (CB, p. 583-584).
16. Mrs Le also noted the Tribunal’s comment that when it “put in the internet address that was printed on this so called newspaper, it came back with a note, unknown host.” (“B” P-2, L 35-36, see also CB, p 660, para [61]). The Tribunal accordingly concluded that this “suggests to me. . . that this newspaper doesn’t exist and it is easy to fabricate newspaper articles. . .: (“B” P-2, L 36-38). In response to this accusation, Mrs Le provided “several pages of links on the internet to the newspaper MALESIA” (CB, p. 583) after the hearing. These links have been broken up in the Court Book rather than being placed in one sequence, but can be found on pages 601 and 608-609. Significantly, Mrs Le also provided a statement from the Chief Editor of the Malesia newspaper (please see CB, p 602-605).
17. The Applicant notes that, while the index to the Court Book refers to “A series of articles from the Malesia newspaper”, what the Applicant in fact provided to the Tribunal was the complete, original newspapers rather than articles from the newspapers. The Applicant is also of the view that this Honourable Court might be assisted by having the opportunity to view the original newspapers which were before the Tribunal, rather than just the copies in the Court Book. As such, the Applicant seeks this Honourable Court’s leave to also tender the originals of these documents, which the Applicant is in the process of obtaining from the Tribunal.
Ground 5
18. The fifth ground is that the Tribunal committed a jurisdictional error in that its decision lacked evident and intelligible justification and as such, exhibited Li unreasonableness (please see Minister of Immigration and Citizenship v Li (2013) 249 CLR 332; HCA 18). Li unreasonableness is based on the principle that unreasonableness is related to rationality and logicality.
19. The test for legal unreasonableness is whether the Tribunal’s state of satisfaction is one “which no rational or logical decision maker could arrive on the same evidence” (Minister for Immigration v SZMDS (2010) 240 CLR 611 at [124] and [130] per Crennan and Bell JJ; SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 at [10], [59]) or that the decision was “arbitrary, capricious or clearly unjust” and lacks “evident and intelligible justification” (Li at [76] per Hayne, Kiefel and Bell JJ).
20. In Li, that Honourable Court also stated, in the joint judgment of Hayne, Kiefel and Bell JJ that “… the legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision –which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship’s judgment may more sensibly be taken to recognize that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified” (at [68]). The Court should be “slow, although not unwilling, to interfere in an appropriate case”.
21. There are several aspects of the Tribunal’s decision that the Applicant says are legally unreasonable. Firstly, it is the Applicant’s position that the Tribunal's finding that the 23 June 2013 elections in Albania were “competitive” with “fundamental respect for fundamental freedoms” was unreasonable in light of its acceptance that the “election was marred by the death of a DPA supporter in Lac” (please see par. [44] of the decision record), as well as other published evidence contradicting this finding (see for example CB, p 363).
22. Secondly, it is submitted that it was unreasonable for the Tribunal to treat the Applicant’s alleged desire to work in Australia as a factor that weighed against the Applicant in deciding whether or not to affirm the decision not to grant the Applicant a protection visa. Likewise, it was unreasonable for the Tribunal to treat the fact that the Applicant did not apply for a protection visa in an EU country as an adverse piece of information that weighed against the Applicant. Even if these considerations are not irrelevant considerations (as have been submitted to be in ground one), the Tribunal’s treatment of these two issues was unreasonable.
23. Although the Applicant had visited family in Belgium and Australia in 2012 and 2013 (please see CB, p. 8), this was prior to the Applicant being beaten on 10 January 2014 (CB, p. 310, see also CB, p. 322). This was then followed by masked men coming to his home on the night of 20 January 2014 (CB, p. 311)
24. Mrs Le explained the significance of this timing in her submissions to the Tribunal dated 25 January 2019. In those submissions, Mrs Le noted as follows:
“It is true that he was threatened during the 2011 elections but that was relatively common. He did not expect the threats would be carried out. He had no thought to seek protection anywhere overseas. His home and family were in Albania and leaving them because of threats did not enter his mind. In 2012, however, he paid visit to Belgium because travel to the EU countries was easy. He visited his friend for one week (05 – 14 May, 2012) and then returned to his home in Albania” (CB, p. 312).
25. Mrs Le further elaborated in the same submissions:
“As can be seen from the documents, and heard in his interview tapes, he really had difficulty believing that the threats against him would be carried out.” (CB, p. 313).
26. It is clear that the Applicant was not forum shopping, or else he would have applied for protection in Australia during his first visit. This evidence from the Applicant is also summarized in the Tribunal’s decision record at para [23] and [27] (CB, p. 656).
27. In regards to the Tribunal’s finding in regards to the Applicant’s alleged desire to work in Australia, this finding is not based on any evidence, and the evidence in fact demonstrates that the Applicant was doing well financially in Albania.
28. Thirdly, it is submitted that the Tribunal’s disregarding the documentary evidence provided by the Applicant on the basis that it was falsified, despite there being no evidence that the documents were falsified, was legally unreasonable. As such, the submissions and evidence above under grounds three and four above is also relevant to this ground.
29. It was legally unreasonable for the Tribunal to place little or no weight on the newspaper articles provide by the Applicant, or to find that the newspaper did not exist. It was this allegation of falsifying documents which led the Applicant to subsequently provide several copies of the complete newspaper over a period of many years (please see [67]-[68] of the decision record) and to also provide multiple internet links to this newspaper.
30. It is one thing for the Tribunal to accuse the Applicant of falsifying a news article, but it is another thing altogether for the Tribunal to accuse the Applicant of falsifying a whole newspaper or newspapers. This is a very serious allegation, which can only be reasonably made if based on some evidence. It is unreasonable to conclude that, just because it is allegedly easy to obtain fraudulent documents in a certain country, that all the documents submitted from that country must be fraudulent. There is no evidence at all that the newspapers or the numerous other documents provided were fraudulent, and the Tribunal should have disavowed this suspicion in light of the overwhelming evidence that the Malesia newspaper existed, including:
· seven complete original copies of the Malesia newspaper and one incomplete copy dating (CB, p. 510) dating from 2001 until 4 March 2019 (CB, p. 584);
· several pages of links on the internet to the Malesia newspaper; and
· a statement from the Chief Editor of Malesia (CB, p 602-605).
31. Indeed, Mrs Le had raised concerns at the conclusion of the hearing on 28 February 2019 that she wasn’t “aware that [the Tribunal] was going to raise something as. . . important as falsification of a newspaper. . .” (“B” P-5, L 4-5). The Tribunal only reluctantly gave the Applicant 14 days to address these issues (“B” P-4, L40, 46-47, P-5 L 19-20). The Tribunal’s treatment of this whole issue has resulted in the Tribunal’s decision becoming tainted with jurisdictional error.
Conclusion
1. The application should be allowed with costs.
First Respondent’s Outline of Submissions
The First Respondent’s Outline of Submissions, filed 3rd October 2019, was as follows (footnotes omitted):
FIRST RESPONDENT'S WRITTEN OUTLINE OF SUBMISSIONS
A INTRODUCTION
1. By application filed on 18 April 2019 pursuant to s 476 of the Migration Act 1958 (Cth) (the Act), the Applicant seeks judicial review of a decision of the second respondent (the Tribunal) dated 29 March 2019: Court Book (CB) 652. The Tribunal affirmed the decision of a delegate of the first respondent dated 26 March 2019, not to grant the Applicant a Protection visa.
B FACTUAL BACKGROUND
2. The Applicant is a male citizen of Albania. He arrived in Australia most recently on 23 March 2014 (CB 226) and, on 8 May 2014, lodged an application for a Protection visa: CB 1. The Applicant claimed to fear harm in Albania because of his involvement with the Democratic Party of Albania, including his involvement in counting votes at elections.
3. On 23 March 2016, a delegate of the first respondent refused the Applicant’s visa application. Relevantly to the application to the Court, the delegate:
(a) put to the Applicant that he chose to travel to Australia because he could work here. The Applicant agreed. Asked how his family were surviving without him, the Applicant claimed that he had savings and now he was sending them money: CB 231;
(b) doubted the authenticity of the Applicant’s Democratic Party of Albania membership card, for reasons which the delegate explained: CB 232;
(c) found the Applicant’s evidence when asked to discuss his membership of the Democratic Party of Albania to be vague and uninformative: CB 232;
(d) found the Applicant was unable to discuss either the constitution or the 2011 campaign motto of the Democratic Party of Albania, a Party with which the Applicant claimed to have had a life-long affiliation: CB 232;
(e) found no evidence that supported the Applicant’s claim that members of the Socialist Party were responsible for carrying out a physical attack on the Applicant: CB 232;
(f) found difficult to accept the Applicant’s claim that he was targeted because he had told the Electoral Commission that Socialist Party members were stealing votes and putting them into their Party’s ballot boxes: CB 232;
(g) rejected the Applicant’s claims that he was a long-term member of the Democratic Party of Albania, and was targeted by the Socialist Party for any reason: CB 233;
(h) found the sole reason the Applicant had bypassed other countries in which he could have sought asylum was because he had chosen to travel to Australia as he wanted to work here: CB 233;
(i) found the Applicant’s documentary evidence was inherently problematic and was of no assistance in assessing the credibility of his claims. The delegate did not accept the Applicant’s documents were genuine: CB 233; and
(j) found the Applicant had fabricated the totality of his claims: CB 234.
4. The Applicant sought review of the delegate’s decision by application to the Tribunal lodged on 14 April 2016: CB 247. He attached a copy of, relevantly, the delegate’s reasons for decision, to his review application: CB 257.
5. The Applicant attended hearings before the Tribunal on 31 January 2019 and 28 February 2019, at which dispositive issues were traversed. At the February 2019 hearing, the Tribunal records that it put to the Applicant its concerns, including that his claims as to the manner in which votes were counted were contrary to information from the Albanian Electoral Commission: CB 660[57]. The Tribunal put to the Applicant it was concerned he was not telling the truth about fundamental aspects of his claims, which it identified at CB 660[59]. The Tribunal additionally put to the Applicant that he had come to Australia in order to work, which the Applicant denied (CB 660[59]) and discussed with him the proposition that it is easy to falsify documents in Albania: CB 661[62].
6. On 29 March 2019, the Tribunal made its decision: CB 653. The Tribunal gave the Applicant the benefit of the doubt and accepted that he was a member of the Democratic Party of Albania, that he was injured in December 2013 or January 2014, that he was hospitalised, and that unknown persons came to his home and threatened him on two occasions: CB 665[81]. The Tribunal did not (otherwise) accept that the Applicant was a witness of truth (CB 665[82]), and it rejected the remainder of his material factual claims.
7. In so finding, the Tribunal had regard to independent information concerning the manner in which votes were counted during the 2013 election, which it found was inconsistent with the Applicant’s account: CB 665[83]. The Tribunal specifically relied upon the Albanian Electoral Code (CB 666[84]) as well as independent reports including material submitted to it by the Applicant: CB 666[86]-[91]; 669[98].
8. The Tribunal did not accept that the Applicant was counting election ballots at the 2013 election. It followed from this finding that the Applicant did not have an altercation with a Socialist Party member, or any other person, over the ballot during the counting of votes that night. The Tribunal did not accept that the Socialist Party had sought to harm the Applicant and continued to do so. It did not accept that the Applicant received threatening telephone calls after the 2013 election, or that he was assaulted, threatened, or harmed, for reason of his political opinion when he resided in Albania: CB 669[98].
9. The Tribunal considered the Applicant’s document ‘Authentication by DPA’ dated 25 October 2018. As it was not consistent with the Applicant’s claims, the Tribunal gave this document no weight: CB 669[99].
10. The Tribunal considered the ‘DPA certificate’: at CB 669[100]. It found the certificate and the Applicant’s oral evidence were not consistent as to the number of the voting centre the Applicant had worked at, and gave this document no weight. The Tribunal repeated this finding, at CB 669[101]. It also referred, in this par., to independent country information concerning the making of false documents, although made no finding that any of the Applicant’s documents was false or a forgery.
11. The Tribunal considered the Applicant’s document ‘Membership of National Association of the Prisoners and the Albanian Political Persecuted …’: at CB 669[102]. It gave the Applicant the benefit of the doubt and accepted he belonged to this Association.
12. The Tribunal acknowledged evidence that one person in Lac was killed over a dispute, on the day of the 2013 election. It also acknowledged evidence submitted to it by the Applicant concerning fraud and corrupt conduct prior to and during a number of elections: CB 670[104].
13. The Tribunal recorded that the Applicant had provided it with an article in the ‘Malesia’ newspaper stating he was assaulted, and a declaration from his wife. The Tribunal repeated that it had given the Applicant the benefit of the doubt, and accepted that he was assaulted. However, the article did not suggest that the Applicant was assaulted because of his political opinion. The Tribunal considered the letter from the editor of the newspaper, provided to it after the February 2019 hearing. The writer did not indicate when he learned that the attack on the Applicant was politically motivated, or how he learned of this, and he did not state in his newspaper article that the Applicant was injured for political reasons. For these reasons, the Tribunal gave no weight to the editor’s statement as evidence that the Applicant was injured on 10 January 2014 for a political reason: CB 670[105].
14. At CB 672[111], having made the findings summarised above, the Tribunal stated: ‘[o]n the evidence before me, I find that the Applicant did not suffer Convention related harm in Albania, prior to his departure. I am satisfied the Applicant came to Australia in order to work.
15. The Tribunal considered the future risk of harm to the Applicant and, having regard to independent country information, it was not satisfied there was a real chance that the Applicant would suffer harm for his political opinion: CB 673[117].
16. The Tribunal further found, at CB 673[118], that there is a functioning legal system and police service in Albania. While there are instances of corruption and police abuse, there is an Ombudsman, and the government has internal mechanisms to deal with police abuse and corruption. Further, the Tribunal found no evidence before it to suggest that members of the Democratic Party of Albania and the Albanian Political Persecuted Integration suffer harm in Albania and/or do not receive the protection of their government.
17. The Tribunal considered the complementary protection criterion in s 36(2)(aa), from CB 673[121]. Relevantly, it found that state protection was available to the Applicant such that there was no real risk of significant harm to him, at CB 674[124]. The Tribunal further did not accept in light of the Applicant’s circumstances that he satisfied the complementary protection criterion: CB 674[127]-[128].
C APPLICATION FOR JUDICIAL REVIEW
18. The Applicant relies on his proposed amended application filed on 25 September 2019. The first respondent does not oppose the grant of leave to the Applicant to rely on his amended application.
D CONSIDERATION
19. There are two bases to the Tribunal’s decision. The first is its rejection, at a level of fact, of the majority of the Applicant’s factual claims. The Applicant’s grounds of review in these proceedings are directed only to this first basis for the decision. The second basis is the Tribunal’s state protection finding, made by reference to the criteria in both of ss 36(2)(a) and (aa) of the Act.
20. Neither of the two bases for the decision are affected by jurisdictional error. In these proceedings, it is necessary for the Applicant to demonstrate jurisdictional error affecting both bases for the decision. The Applicant has not attempted to do so, with respect to the second basis (the state protection findings). The application to the Court must fail for this reason alone.
21. In any event, for the reasons that follow, none of the Applicant’s amended grounds of review demonstrate jurisdictional error by the Tribunal.
Ground one: irrelevant considerations
22. It is incumbent on the Applicant to identify a consideration the Tribunal was bound to not to take into account. Such considerations are to be identified by reference to the subject matter, scope or purpose of the Act.
23. The particulars to ground one do not identify a mandatory irrelevant consideration. The Tribunal was properly entitled to take into account whether the Applicant’s motivation in travelling to Australia was to work as opposed to because of a fear of persecution, and whether he had failed to avail himself of an opportunity to seek asylum in another country. Furthermore, neither of these matters, were essential to the Tribunal’s reasons rejecting the application.
(a) With respect to motivation to work, the Tribunal’s observation at CB 672[110] was not something that led it to reject the Applicant’s claims. The Tribunal had already made findings in which it rejected the Applicant’s claims, for reasons other than any perceived motivation to come to Australia to work. The second sentence at [110] is a non-essential remark on the part of the Tribunal, severable from its substantive reasoning. To the extent there is any error in it, which is not conceded, the error is not material and therefore not jurisdictional.
(b) With respect to any omission to seek asylum elsewhere, this is not a matter that is referred to in the Tribunal’s findings and reasons. It is a matter that was traversed by the Tribunal at its hearing, but in relation to which the Tribunal was apparently persuaded; it was not relied upon in the reasons.
Ground two: denial of procedural fairness
24. In light of s 422B of the Act, the proper way in which to characterise the first error alleged by this ground of review4 is a breach of s 425 of the Act. There was no such breach (nor, to the extent relevant, any denial of procedural fairness).
25. First, the Tribunal did not affirmatively find that any of the Applicant’s documents were fraudulent. An affirmative finding of fraud is to be distinguished from a finding giving no weight to a document. The Tribunal is properly entitled to form an assessment of the credibility of an Applicant’s claims, and then to consider the weight to be given to his or her documentary evidence in light of that assessment. That is precisely what the Tribunal did here. It was not required to give the Applicant a running commentary on the weight it was minded to give to his documentary evidence.6
26. With respect to the Malesia newspaper, it is apparent from the Tribunal’s findings at CB 670[105] that it accepted this was a genuine newspaper. The Tribunal, despite its concerns expressed at the hearing, had a mind that was open to persuasion, and was in fact persuaded, by the material the Applicant submitted to it after the February 2019 hearing addressing this issue.
27. Second and in any event, the Tribunal did traverse with the Applicant its concerns as to his documentary evidence: transcript of 31 January 2019 at page 4. Although it referred specifically only to the newspaper (whose genuineness it did not reject), and ‘other documents from the police service’, it is apparent that the Tribunal was putting to the Applicant that it had potential difficulty with all of his documentary evidence.8
28. It should be noted that the Applicant’s representative provided the Tribunal with, inter alia, a written submission sent by email on 29 January 2019: CB 304. Relevantly, the representative addressed the delegate’s findings concerning the genuineness of the documentary evidence submitted to the delegate, from CB 310. She provided additional written submissions addressing this matter on 30 January 2019: CB 322.
29. Third, the delegate’s decision put in issue the entirety of the Applicant’s credibility and the genuineness of all documentary evidence he had submitted to the delegate.9
30. With respect to the post-hearing request by the Applicant’s representative for certain documents (see Applicant’s written submissions (AS)[9] and CB 647), and the Tribunal’s provision of those documents (CB 651), there is no evidence from the representative as to any want of certainty on her part subsequent to the Tribunal’s provision of the requested documents. There was no further communication from the representative to the Tribunal as to this particular issue, or at all.
31. The second aspect of this ground of review10 is an allegation of procedural unfairness or legal unreasonableness with respect to the Applicant’s representative’s email of 14 March 2019: CB 606.
32. With respect to AS [10], to state that the Applicant’s migration agent had ‘raised a procedural fairness concern’, without more, is not an allegation capable of establishing jurisdictional error by the Tribunal.
33. In so far as it is alleged that it was legally unreasonable for the Tribunal not to exercise its discretion to adjourn the review, the Tribunal’s reasons at CB 667[92]-[93] demonstrate that it understood and engaged with the terms of the request, and had regard to relevant matters, in its exercise of discretion. The Tribunal acknowledged that, after its February 2019 hearing, it had given the Applicant an additional 14 days to provide further information. The Tribunal considered whether the Applicant’s representative’s request for more time (by her email, which referred to the tight timeframe for provision of evidence) had meant the Applicant had been unable to provide testimony from others as to how voting had proceeded: CB 667[92].
34. The Tribunal appreciated that this was an important issue, and stated that it had explained this to the Applicant’s representative at the February 2019 hearing. The Tribunal found that the Applicant had had time after the February 2019 hearing to provide any additional evidence regarding this aspect of his claims. He had provided a number of issues of the Malesia newspaper, and an article that supported the Tribunal’s conclusions. Therefore, the Tribunal did not propose to grant additional time for the Applicant to provide the testimony suggested: CB 668[93].
35. The Tribunal has provided reasons for its exercise of discretion and therefore they are the focal point of an assessment of legal unreasonableness. The reasons disclose a justification for the exercise of the power and thus it ought not be concluded that the exercise of discretion was unreasonable. The Tribunal had regard to the terms of the request, the time it had afforded, the significance of the issue, the representative’s knowledge of it, and the Applicant’s demonstrated ability within the time afforded to procure evidence, including from overseas. As was held in Minister for Immigration and Border Protection v Haq [2019] FCAFC 7 at [37] per Griffiths J:
In applying a standard of legal reasonableness the Court should not substitute the Court’s view as to how a discretion should be exercised for that of the decision-maker. Moreover, depending upon the terms of the relevant discretionary power, the decision-maker will generally have “a degree of latitude in determining what is fair and just in a given case” (SZVFW High Court at [13] per Kiefel CJ). More recently, the High Court has described the standard of legal unreasonableness which is implied as a condition of the exercise of a statutory power as “a demanding standard” (see TTY167 v Republic of Nauru [2018] HCA 61 (TTY167) at [24] per Gageler, Nettle and Edelman JJ).
36. For the same reasons as submitted with respect to legal reasonableness, no denial of procedural fairness is demonstrated. In addition, it should be noted that the decision not to grant additional time was made in circumstances where the member had at the hearing ultimately granted a period of 14 days for the provision of post-hearing material, this reflecting the time that was sought by the Applicant’s representative. The Tribunal did not in fact make its decision until 29 March 2019 (accepting that the Applicant could not have known when a decision was to be made). The representative’s request for an extension of time to 14 April 2019 was reasonably refused by the Tribunal.
Ground three: failure to perform statutory task
37. The Tribunal did not find any document submitted to it by the Applicant was false or a forgery. It gave certain documents no weight, in light of its rejection of the credibility of the Applicant’s material claims. This was a factual assessment, properly within the Tribunal’s jurisdiction. Further and in any event, the Tribunal is not required to have affirmative evidence that a document is a forgery.
Ground four: proper, genuine and realistic consideration
38. The first respondent repeats his submissions above as to the findings in fact made by the Tribunal. With respect to AS[17], there is no utility in the production of the original newspapers to this Court; the Tribunal did not find them to be non-genuine. This ground of review is an invitation to this Court to undertake impermissible merits review.
Ground five: legal unreasonableness
39. This ground of review does not identify any discretionary decision but, rather, points to findings of fact with which the Applicant takes issue. The Applicant’s submissions also generally misstate the Tribunal’s findings, which are as summarised in the first respondent’s submissions above.
40. Properly construed, this ground of review merely registers an emphatic disagreement by the Applicant with the merits of the decision. The test of legal unreasonableness is necessarily stringent. As was held by the Full Court (Besanko, Banks-Smith and Colvin JJ) in Tsvetnenko v United States of America [2019] FCAFC 74 at [70]:
[70] As to review for unreasonableness, as noted above, statutory discretionary powers of administrative decisionmakers are subject to a presumption that the power is to be exercised reasonably in accordance with the conceptions of the general law: SZVFW at [4], [53], [59], [80], [88], [131]. However, the Court must not stray into evaluating for itself how a discretion entrusted to a statutory decision-maker should be exercised. Therefore, the test as to whether a decision is unreasonable and therefore beyond power is 'necessarily stringent' (SZVFW at [11], Kiefel CJ), 'extremely confined' (at [52], Gageler J adopting the language of Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 36), 'in the realm of the extraordinary' (at [70], Gageler J) and is expressed in 'strong terms' (at [135], Edelman J).
41. With respect to AS[27], the first respondent repeats his submissions above as to the second sentence of CB 672[111] and its insignificance to the decision. In any event, this finding was open to the Tribunal; it was an inference drawn from its rejection of the Applicant’s claims and was supported by the Applicant’s evidence to the delegate that he came to Australia to work: CB 231.
E DISPOSAL
42. The application should be dismissed and the Applicant ordered to pay the first respondent's costs in a fixed amount. The title of the first respondent should be amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
Consideration and disposition
For ease of reference, the First Ground of Review provided as follows (emphasis added):
1. The Tribunal fell into jurisdictional error by taking into account irrelevant considerations, namely whether the Applicant wished to work in Australia and/or whether he could have applied in an EU country
Particulars
1.1 At par. [45] of the decision record, the Tribunal noted that “It was put to the Applicant that the economy of Albania is bad and that people work for low wages and often have difficulty obtaining work. This means that many Albanians work all over Europe and over the years it has been a large part of the economy for people to send money back to Albania in order to support their families. He did not agree, he said that he had a normal life and a good wage.”
1.2 At par. [59] of the decision record the Tribunal stated “. . . I put that he came to Australia to work. . .”
1.3 The recording of the hearing reveals that the Tribunal questioned the Applicant about whether he wished to work in Australia.
1.4 It is the Applicant’s position that the Tribunal treated the Applicant’s alleged desire to work in Australia as a factor that weighed against the Applicant in deciding whether or not to affirm the decision not to grant the Applicant a protection visa.
1.5 Whether or not the Applicant wished to work in Australia was an irrelevant consideration in deciding whether or not to affirm the decision not to grant the Applicant a Protection visa.
1.6 The Tribunal questioned the Applicant about why he did not apply for a protection visa in an EU country
1.7 It is the Applicant’s position that the Tribunal treated the fact that the Applicant did not apply for a protection visa in an EU country as an adverse piece of information that weighed against the Applicant.
1.8 However, whether or not the Applicant applied for a protection visa in an EU country was an irrelevant consideration in deciding whether or not to affirm the decision not to grant the Applicant a protection visa.
In my view, there are both factual and legal impediments to the success of the First Ground of Review.
First, the reasons of the Tribunal are to be read “fairly and as a whole”, and not with an eye carefully attuned to the perception of error.[4]
[4] See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [59]; CGA15 v Minister for Home Affairs [2019] FCAFC 46 at [25] and [27].
Factually, the only places highlighted by the Applicant that deal with or refer to questions about his intention to work in Australia (or otherwise) are in pars.45 and 59 of the AAT’s reasons. These paragraphs are not in the dispositive part of the Tribunal’s reasons. In my view, read “fairly and as a whole”, the reasons do not in fact rely upon the issue raised by the Applicant, namely whether the Applicant wished to work in Australia, and/or could have worked more conveniently in an EU country.
The Tribunal was entitled to “test” the Applicant’s evidence and claims, in the course of which the issue of work and residence were, in my view, perfectly understandable and acceptable questions to put to the Applicant. Further, par.111 of its reasons (not par.110 as set out in the First Respondent’s submissions) is the only part of its reasons and findings that refer to the Applicant coming to Australia to work.
More relevantly, in my view, the totality of the Tribunal’s reasons explain the detailed consideration it gave to the Applicant’s claims, the evidence presented and otherwise marshalled in support, and against, his Application. The issue of work was, at its highest, in my view, a very small aspect of the Tribunal’s consideration of the Applicant’s claim. It was plainly able to ask questions regarding issues related to residence and work. It was not, in my view, either an irrelevant consideration, or an issue that was relevantly a major source of, or cause for, the Tribunal to come to the decision it did. There was very significant evidence upon which the Tribunal relied, and which it set out in detail, to support its decision.
Finally, in my view, as an alternative and/or additional reason to reject Ground 1 (and in my view, also Grounds 2 and 3), the issue of the Applicant’s residence and or desire to work in Australia was not, in the Hossain sense, a matter of such materiality as likely to lead to any different result.[5]
[5] See Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 especially Edelman J (Nettle J agreeing) at [39], [40] and [72].
Otherwise, I agree with and accept the Minister’s submissions. Accordingly the First Ground of Review is not made out.
The Second Ground of Review was in the following terms:
2. The Tribunal denied the Applicant procedural fairness by not making it clear which documents it was referring to when it stated that it did not accept the authenticity of certain documents and by not providing sufficient time for the Applicant to provide evidence of how voting proceeded in the Trush / Berdice area.
Particulars
2.1 At the hearings, the Tribunal indicated that it did not accept the authenticity of certain documents.
2.2 However, it was not clear which documents were in doubt.
2.3 As the Tribunal failed to identify which documents were in doubt, the Tribunal failed to provide the Applicant with procedural fairness in commenting on those documents.
2.4 The Applicant’s Migration Agent, Mrs Marion Le AM, also raised a procedural fairness concern in an email sent to the Tribunal on 14 March 2019. In that email, Mrs Le wrote as follows:
“It is unfortunate that the tight deadline has meant that the Applicant cannot provide testimony from others as to how voting that year proceeded in the Trush / Berdice area but in any event he is uncertain as to what evidence of the reality the Tribunal Member would be prepared to accept given that so far it seems she has dismissed all documentary evidence and individual testimonies provided by the Applicant”.
For the following reasons, in my view, this Ground was also not made out.
First, at par.12 of its reasons (CB 653 – 655), the Tribunal listed the documents provide by the Applicant. At pars.71 – 74 of its reasons, the Tribunal set out in full the correspondence with the Applicant’s migration agent and the efforts, on all sides, to clarify what documentation was to be relied upon. This included what was contained in any specific document, such as relating to whether the Applicant was relevantly at Number 23 voting centre during the election in question in Albania.
Secondly, as set out in the Applicant’s submissions at par.10, the complaint made by his migration agent was not that there was doubt about what documents were being referred to by the Tribunal but simply that she had insufficient time to address the “testimony” that may have been provided by other supporting witnesses.
Thirdly, as noted in the Minister’s submissions, the Tribunal did not actually make any formal finding about any document being “fraudulent.”
Fourthly, as also noted in the Minister’s submissions (par.28), the Applicant’s migration agent provided comments and submissions regarding documentation, at CB 310, 322 and 647. As well, the Tribunal provided copies of the documents in question (CB 651).
Fifthly, in my view, the Tribunal either provided the document in question and or reasonably outlined what was contained in any document it wished to raise with the Applicant. Ample opportunity was given to the Applicant to address those matters. In this regard I note in particular the decision of Griffiths J in Minister for Immigration and Border Protection v Haq, at [37], which is set out in the Minister’s submissions at par.35.[6] Although it also has some relevance to the Applicant’s contention of legal unreasonableness, in my view, it otherwise plainly applies to the matters before the Court here.
[6] Minister for Immigration and Border Protection v Haq (2019) 267 FCR 513.
Accordingly, the Second Ground of Review is not made out.
The Third Ground of Review, apart from a general reference to the Tribunal not purportedly performing its statutory task, also raises the issue of the finding by the Tribunal regarding the lack of weight (in fact “no weight”) it would give to the documentation provide by the Applicant.
As the Minister’s submissions point out, matters of “weight” are pre-eminently issues for the tribunal of fact. To venture into an analysis of such matters in the current matter must be met with the prohibition of impermissible merits review.[7]
[7] Attorney-General (NSW) v Quin (1990) 170 CLR 1; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [82].
Accordingly, Ground 3 must be rejected.
Ground 4 provided that:
4. The Tribunal fell into jurisdictional error by failing to give “proper genuine and / or realistic consideration” to matters before it by disregarding the documentary evidence provided by the Applicant on the basis that it was falsified, despite there being no evidence that the documents were falsified.
Particulars
4.1 Where an Applicant provides documents in support of his claim, the Tribunal needs to give “proper genuine and / or realistic consideration” to the documents and the matters raised as a result.
4.2 The Tribunal put to the Applicant that it is easy to falsify documents in Albania (please see par. [62] of the decision record).
4.3 The Tribunal then disregarded the documentary evidence provided by the Applicant on the basis that it were falsified, despite there being no evidence that the documents were falsified.
4.4 By failing to place any weight on these documents on the basis that they were falsified, despite there being no evidence before the Tribunal that they were falsified, the Tribunal failed to give “proper genuine and / or realistic consideration” to the documentary evidence placed before it and the matters raised as a result.
Among a number of factual difficulties in relation to this Ground, is the confirmation by the Applicant, for example, that the newspapers provided by his migration agent (referred to in par.15 of his submissions) did not contain any articles that referred to the Applicant. Their utility, in my view, and as considered by the Tribunal, could – at best – be only marginal to the Applicant’s claims. As will be recalled, it is essential in any review process that particular attention be paid to the specifics of the individual Applicant.[8]
[8] See the discussion in MZYTS 230 FCR 431 at [35] and the detailed citation there from S395/2002 v Minister for immigration and Multicultural Affairs (2003) 216 CLR 473 at [73] – [76].
To a significant degree, the matters raised in the particulars in support of this Ground are closely related to those set out in the particulars of Ground 3.
More particularly, I note the comments by the High Court in SZJSS, to which I referred earlier in a different context. At [34] of SZJSS, the High Court said (internal citations omitted):
It has been recognised that to describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with it. In referring to "any rational, reasonable approach to the evaluation" and the need for "a proper, genuine or realistic evaluation" of the letters, the Federal Court was registering emphatic disagreement with the Tribunal's assessment of the factual matters to which the letters were relevant.
The authorities referred to in the Minister’s submissions need not be canvassed because they are well known, perhaps most especially the Full Court’s discussion about the terminology of “proper, genuine and realistic consideration” in Carrascalao.[9] Given (a) the 130 par.s of the Tribunal’s decision, together with, in my view, (b) the rather imprecise and generalised contentions in the Applicant’s submissions as to the way in which it is said that the Tribunal did not relevantly consider such limited matters, I cannot see how this Ground could be established.
[9] Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [32] – [35].
The main focus of the Applicant’s three paragraphs in his submissions relate almost exclusively to concerns about the Tribunal’s treatment of newspaper articles. In my view, the Tribunal’s reasons make very clear what the principal considerations were that led to its decision. The newspaper articles, to the degree that they came into the relevant reasoning equation and process, were, at best, of very limited weight and assisted the Applicant barely if at all.
Ground 4 must be rejected.
Ground 5 is in the following terms:
5. The Tribunal fell into jurisdictional error in that its decision lacked evident and intelligible justification and was legally unreasonable.
Particulars
5.1. The Tribunal's finding that the 23 June 2013 elections in Albania were “competitive” with “fundamental respect for fundamental freedoms” was unreasonable in light of its acceptance that the “election was marred by the death of a DPA supporter in Lac.” (please see par. [44] of the decision record).
5.2. The Tribunal put to the Applicant that it is easy to falsify documents in Albania (please see par. [62] of the decision record).
5.3. The Tribunal disregarded the documentary evidence provided by the Applicant on the basis that it was falsified, despite there being no evidence that the documents were falsified.
5.4. The Tribunal had stated during the course of the hearing that it didn’t believe that the newspaper relied on by the Applicant existed (which is why the Applicant subsequently provided several copies of the complete newspaper over a period of many years at [67]-[68] of the decision record. The Applicant also provided multiple internet links to this newspaper).
5.5. The Tribunal’s treatment of the documentary evidence provided by the Applicant was unreasonable.
5.6. At par. [45] of the decision record, the Tribunal noted that “It was put to the Applicant that the economy of Albania is bad and that people work for low wages and often have difficulty obtaining work. This means that many Albanians work all over Europe and over the years it has been a large part of the economy for people to send money back to Albania in order to support their families. He did not agree, he said that he had a normal life and a good wage.”
5.7. At par. [59] of the decision record the Tribunal stated “. . . I put that he came to Australia to work. . .”
5.8. The recording of the hearing reveals that the Tribunal questioned the Applicant about whether he wished to work in Australia.
5.9. It was unreasonable for the Tribunal to treat the Applicant’s desire to work in Australia as a factor that weighed against the Applicant in deciding whether or not to affirm the decision not to grant the Applicant a protection visa.
5.10. The Tribunal questioned the Applicant about why he did not apply for a protection visa in an EU country.
5.11. It was unreasonable for the Tribunal to treat the fact that the Applicant did not apply for a protection visa in an EU country as an adverse piece of information that weighed against the Applicant.
The jurisprudence in relation to what might be described, in a form of shorthand, as “legal unreasonableness”, is both well-known and regularly the subject of judicial comment of very high authority. I need only note the following, particularly since the Applicant refers to perhaps the most regularly cited High Court cases of SZMDS and Li.[10] For current purposes, I need only note the further important decisions by the Full Court in Stretton,[11] and the more recent High Court judgment in SZVFW.[12]
[10] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
[11]Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1.
[12] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541.
In SZVFW, Kiefel CJ said, at [10] and [11] (internal citations omitted):
[10] In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal's decision in the present case.
[11] Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.
In the same case, at [51] – [60], Gageler J set out in some detail, what his Honour described as “the nature of a legally unreasonable decision.” In the course of his Honour’s reasons, he referred at some length in favourable terms to the Full Court decision in Stretton. I need not set out those parts of Gageler J’s judgment.
I note too that in the joint judgment of Nettle and Gordon JJ in SZVFW, at [78] – [98] (which deal with “the nature of the Court’s task”) and in particular at [82], their Honours’ said (quoting from Gageler J’s reasons in Li) (internal citations omitted):[13]
Nor is the abuse of statutory power limited to a decision which may be described as "manifestly unreasonable", or to what might be described as an irrational, if not bizarre, decision that is so unreasonable that no reasonable person could have arrived at it. A conclusion of legal unreasonableness may be outcome focused – where, for instance, there is no "evident and intelligible justification" for the decision. As Gageler J explained in Minister for Immigration and Citizenship v Li, "[r]eview by a court of the reasonableness of a decision made by another repository of power 'is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process' but also with 'whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.'"
[13] See also the comments by Edelman J in SZVFW at [131] – [135] under the heading “Judicial review for unreasonableness.”
More recently still, in DOU16 v Minister for Home Affairs at [40], the Full Court said:[14]
The appellants accepted that the threshold for a finding of legal unreasonableness is high, and that for this ground to be made out they must establish that no rational decision-maker could have reached the decision, or made a finding on the way to the decision, on the same material: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at per Crennan and Bell JJ. The appellants accepted that the inquiry as to legal unreasonableness is fact intensive and that fixed formulae and reliance on analogous cases is unlikely to be helpful. As the Full Court said in Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 at 172:
... the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise: Singh at [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
[14] DOU16 v Minister for Home Affairs [2019] FCAFC 212.
Against these clear statements of principle, including the earlier-stated requirement for the reasons under review to be read “fairly and as a whole”, I note the following.
The matters about which the Applicant complains relate pre-eminently to issues of fact, namely, (a) comments by the Tribunal regarding the 2013 elections in Albania; (b) comments by the Tribunal about the Applicant’s purported desire to work in Australia and not to reside in another country in the European Union; (c) the Applicant’s travels to Belgium and Australia; and (d) the Tribunal’s consideration to give little weight to various documentary evidence provided by the Applicant.
As just stated, these matters are, above all else, matters of evidence or conclusions of fact. The consideration of them by the Tribunal, in my view, are all matters of “weight” into which the Court should not delve unless there is proper legal reason to do so. Having regard to the principles outlined earlier in these reasons, including the detailed reasons given by the Tribunal, there is no basis upon which such matters could be challenged or otherwise should be effectively “re-considered” by this Court.
Further, having regard to the stringency of the test for legal unreasonableness set out above, in my view, challenge to the attribution of weight to specific evidence during and after the hearing in this matter cannot be sustained. This is especially so when the matters raised by the Applicant are seen in the context of the other, detailed evidence considered by the Tribunal in coming to its conclusion.
Otherwise, I accept the Minister’s submissions. Accordingly, Ground 5 must be dismissed.
Finally, for completeness, I note the following comments by the Full Court in AVQ15 v Minister for Immigration and Border Protection, which consider in summary form, basic principles that relate to judicial review, credibility findings (which I note were not relevantly challenged in the current matter), and whether particular material was (or by inference other material was not) considered. At [41 (a) – (f)], the Full Court (Kenny, Griffiths and Mortimer JJ) said:[15]
[15] AVQ15 v Minister for Immigration and Border Protection (2018) 361 ALR 227.
[41] For convenience, the principles which have relevance to the particular facts and circumstances here may be summarised as follows.
(a) The issue whether or not an administrative decision is affected by jurisdictional error requires a careful examination of the relevant statutory framework, with a particular emphasis on provisions which determine the decision-maker’s powers, procedures, functions and obligations.
(b) While findings as to credit are generally matters for the administrative decision-maker, they may be amenable to judicial review on several grounds including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review, and failure to take into account material critical to the formation of the requisite state of satisfaction.
(c) Whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae. Merely because a decision-maker has ignored “relevant material” does not always give rise to jurisdictional error in the present context. The importance or cogency of the material, its place in an assessment of the appellant’s claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case. Those matters inform an assessment of the seriousness or gravity of the error.
(d) Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result (such as, for example, where it is but one of several findings that independently may have led to the ultimate decision).
(e) Merely because there is no reference in the decision-maker’s reasons for decision to particular material does not necessarily give rise to an inference that the material was not considered. Nonetheless, in the case of the Tribunal, which is required by s 430 of the Act to make a written statement setting out its reason for decision and its findings on material questions of fact, and to refer to the evidence on which such findings were based, a failure to refer to evidence that on its face bears on a finding may indicate that that evidence has not in fact been considered and, in some cases at least, disclose jurisdictional error in the decision-making (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10] per Gleeson CJ).
(f) Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review.
By reference to this overview of principle and applied to the facts and Grounds of Review in the current matter, I cannot see any basis for the Court to interfere with the processes undertaken by the Tribunal, or the conclusions it reached.
Accordingly, the Amended Application, filed 25th September 2019, must be dismissed. The Applicant must pay the Minister’s costs, in accordance with Schedule 1 Part 3 of this Court’s Rules.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge WJ Neville
Associate:
Date: 29 June 2020
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