Bse16 v Minister for Immigration - [2018] FCCA 2581

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSE16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2581

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Protection visa application – claim that the Administrative Appeals Tribunal committed jurisdictional error in the nature of procedural unfairness in not giving to the applicant enough time to respond to information for the purposes of s.424A and s.424AA of the Migration Act 1958 (Cth) – information referred to did not constitute information for the purposes of s.424A or s.424AA of the Migration Act 1958 (Cth) – in any event the Administrative Appeals Tribunal did advise the applicant that he could seek additional time to comment on or respond but neither applicant nor his registered migration agent present at the hearing before the Administrative Appeals Tribunal indicated that they wanted more time – applicant otherwise seeks to engage in impermissible merits review of the decision of Administrative Appeals Tribunal – no jurisdictional error established – application for judicial review dismissed.

Legislation:
Evidence Act 1995 (Cth), s.43
Migration Act 1958 (Cth), ss.424A, 424AA

Cases cited:

AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205

AWA15 v Minister for Immigration [2018] FCA 604

AZU15 v Minister for Immigration & Border Protection (2016) 240 FCR 143

Minister for Immigration v Brar (2012) 201 FCR 240

Minister for Immigration v Chamnam You [2008] FCA 241

MZYER v Minister for Immigration (2010) 115 ALD 382

NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195

SZBYR v Minister for Immigration and Citizenship(2007) 235 ALR 609

SZMDS v Minister for Immigration (2009) 107 ALD 361

SZNQR v Minister for Immigration [2010] FCA 152

SZPZJ v Minister for Immigration [2012] FCA 18

SZTGV v Minister for Immigration & Border Protection (2015) 229 FCR 90

SZTNL v Minister for Immigration (2015) 231 FCR 204

SZUSH v Minister for Immigration and Border Protection [2016] HCATrans 112

Applicant:

BSE16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1763 of 2016

Judgment of:

Judge Dowdy

Hearing date:

7 November 2017

Delivered at:

Sydney

Delivered on:

13 September 2018

REPRESENTATION

The Applicant appeared
in person.

Counsel for the First Respondent:

Mr A. Markus

Solicitor for the First Respondent:

Australian Government Solicitor

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 8 July 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1763 of 2016

BSE16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant in this proceeding is a male citizen of Lebanon aged 27 years, having been born on 24 July 1991. He is married to Ms ESB16 (i.e. a pseudonym) whom he married on 16 November 2013 in Australia, and they now have two children.
By Application filed in this Court on 8 July 2016 he seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 14 June 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 16 January 2015 refusing to grant to him a Protection (Class XA) visa (Protection visa).
The Applicant first arrived in Australia on 21 March 2010 on a Sponsored Family Visitor (Class UL) (Subclass 679) visa, and departed on 19 June 2010. He then returned to Australia on a Prospective Spouse (Class TO) (Subclass 300) visa on 8 July 2011.
He then lodged an application for a Combined Partner (Classes UK / BS) (Subclasses 820 / 801) visa (Spouse visa) on 29 February 2012, but this was refused by a Delegate on 2 July 2013. He sought merits review from the Tribunal (then the Migration Review Tribunal) on 23 July 2013, but withdrew this review application on 23 July 2014.
The Applicant then by letter dated 27 August 2014 lodged a request for Ministerial intervention which was received by the Department of the Minister (Department) on 4 September 2014 (Ministerial intervention letter). In the Ministerial intervention letter the Applicant claimed in substance as follows:
a)Part 1:
He arrived in Australia in July 2011 when he met his previous wife Ms Ladef (i.e. a pseudonym), who had three children from a previous relationship, and married her on 5 February 2012. Two days later on 7 February 2012 he came home from work to find Ms Ladef had left and she had informed him that she was married to another man from whom she was not legally divorced and that because she had married the Applicant, who was a Christian, she had been threatened with never seeing her three children again and that they had been taken to Lebanon.
Ultimately, the marriage with Ms Ladef was annulled and he met his current wife Ms ESB16 in September 2012 and married her on 16 November 2013, and they have a son.
b)Part 2:
He is happily married and it would be very disadvantageous for him and his family to have to depart Australia.
c)Part 3:
His wife and son would not be travelling back with me to Lebanon because Lebanon is dangerous and unstable, and dangerous especially for a Christian family.
d)Part 4:
He and Ms BSE16 would fail to meet the requirements of Australian sponsorship law, so could the Minister intervene because his case is exceptional and needs the Minister’s personal intervention.
The Ministerial intervention request was finalised adversely to the Applicant on 16 September 2014 with an outcome of “no power”.
The Applicant then lodged his application for a Protection visa the subject of this proceeding on 30 September 2014. This application included a copy of the Ministerial intervention letter.

Claims for Protection

In answer to questions 43 to 49 of his Protection visa application the Applicant made the following factual claims:
a)He left Lebanon to migrate to Australia.
b)He denied that he has experienced harm in Lebanon.
c)His previous partner (Ms Ladef) threatened to report him to Hezbollah, as she was a member of that group. Hezbollah are in control of the airport in Lebanon. His marriage to Ms Ladef only lasted two days because she asked him to convert to Islam and he refused. She had also found out that he was an active member of the Lebanese Forces.
d)If he was to be returned to Lebanon he would be kidnapped from the airport on arrival, and as a Catholic Maronite be subject to all kinds of harm by Islamic fanatics.
e)Ms ESB16 and their child are Australian citizens and if he were returned to Lebanon they must go with him, as he would have no hope of returning to Australia.
f)He fears Hezbollah will harm him as he is an active member of the Lebanese Forces. He stated verbatim that “Hezboulla is in control of everything in Lebanon they tried recently to assassinate our leader recently they have killed many of our politicians in recent years and no one of that group face justice”.
In a Submission to the Department dated 7 January 2015 the Applicant further claimed that:
a)his claims for protection came as a result of feuds between himself and his previous partner / wife, Ms Ladef;
b)Ms Ladef had threatened that she would get the Applicant deported from Australia;
c)soon afterwards he received a call from a male person telling the Applicant to pay money to Ms Ladef “or we will get you when you go back to Lebanon”; and
d)“I have concerns that should I go back to Lebanon and any threats made towards me from these persons who I believe they are an active members of Hezboulla who controls everything at the moment in Lebanon including the airport”.

Relevant Criteria and Law Applicable to Protection Visa Applications

A convenient summary of the relevant grounds and criteria for the grant of a Protection visa can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5]The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....

Decision of Delegate

The Applicant attended an interview with the Delegate on 13 January 2015.
During the interview the Delegate put to the Applicant that on 29 February 2012 he had lodged an application for a Spouse visa (see [4] above) on the basis that he was in a relationship with Ms Ladef and that he was now claiming that he had previously separated from Ms Ladef on 7 February 2012. The Applicant responded that he had lodged the application for the Spouse visa “in order to prolong his stay in Australia”. The Delegate noted to the Applicant that this amounted to the Applicant having conceded that he had intentionally lodged a false Spouse visa application knowing that his relationship with Ms Ladef had ended, and the Applicant replied “that he had no choice”.
The Delegate further noted that the Applicant had not made any reference in his Ministerial intervention letter to such claims as Ms Ladef reporting him to Hezbollah, herself being a member of that group, asking him to convert to Islam or any claimed fear of harm to his safety if he returned to Lebanon.
In the result, the Delegate expressed his concerns that the Applicant had only lodged his Protection visa application after he exhausted all other immigration pathways and that the Applicant had fabricated his claims for protection. The Delegate confirmed with the Applicant that he had not received any threats since June 2012. The Delegate then rejected the Applicant’s claims to protection as fabricated, considered that it was mere speculation that the Applicant would be harmed upon return to Lebanon, that he was not a person of interest to any person or group in Lebanon, had never been harmed or received any threats, rejected the Applicant’s claims in their entirety and refused to grant a Protection visa to him.

Decision of Tribunal

The Applicant applied to the Tribunal on 9 February 2015 for merits review of the Delegate’s decision.
On 8 June 2016 the Applicant appeared before the Tribunal to give evidence and present arguments with the assistance of an interpreter in the Arabic and English languages. The Applicant was represented at the hearing before the Tribunal by his registered migration agent.
At [12] – [18] of its Decision Record the Tribunal summarised the Applicant’s claims to protection as made from the time of his Protection visa application up to the Tribunal hearing. At [18] it recorded that the Applicant had provided it with a copy of the Decision Record of the Delegate.
From [19] – [44] of its Decision Record the Tribunal recorded its consideration of what it perceived to be inconsistencies in the claims as made by the Applicant from time to time, and its questioning of the Applicant about those perceived inconsistencies. At [41] it noted that in his Protection visa application the Applicant had claimed to fear returning to Lebanon because he was part of the Lebanese Forces. At the Tribunal hearing the Applicant stated that he had become a member of the Lebanese Forces political party two years before he came to Australia, and that everyone in his village in Lebanon was a part of this political party.
Then at [45] – [60] the Tribunal recorded its findings in relation to the claims of the Applicant.
At [45] it recorded its finding that the Applicant was not a witness of truth and that he had embellished some of his claims and fabricated others for the purpose of obtaining the Protection visa.
Then at [46] – [53] the Tribunal recorded its findings concerning his relationship with Ms Ladef and his marriage to Ms ESB16. It found that he married Ms Ladef on 5 February 2012, that Ms Ladef had left the marriage two days later on 7 February 2012, that in a telephone conversation between them on 7 February 2012 she told him that her husband knew that she had married a Christian man, that he had threatened that she would not see her three children again and that her children were in Lebanon.
At [47] the Tribunal noted that it was not clear from the evidence whether Ms Ladef had entered into a bigamous marriage with the Applicant or whether she had in fact divorced her first husband.
At [48] the Tribunal stated that it did not accept that the Applicant’s marriage to Ms Ladef had broken down because she asked him to convert to Islam and he had refused, or because she found out that he was an active member of the Lebanese Forces political party.
At [52] – [53] the Tribunal stated that it did not accept that Ms Ladef or her family were members of Hezbollah or that the Applicant was a member, or alternatively a supporter, of the Lebanese Forces political party.
Ultimately at [56] and [60] the Tribunal recorded that, having considered all of the Applicant’s claims individually and cumulatively, it was not satisfied that the Applicant satisfied either the Refugees Convention criterion or the complementary protection criterion and it affirmed the decision of the Delegate not to grant a Protection visa to the Applicant.

Grounds of Attack on Tribunal Decision in this Court

The Grounds relied upon by the Applicant are as follows:
1. The Tribunal denied procedural fairness to the Applicant.
Particulars
a. The Tribunal committed jurisdictional error in failing to allow the enough time to respond to questions pursuant to s 424AA of the Act regarding his marriage to [Ms Ladef] (AAT [29]- [30]).
2. The Tribunal committed jurisdictional error in credit findings (AAT at [45]).
Particulars
a. The Tribunal erroneously attaching importance to one event / rejecting claims in entirety without proper consideration.
b. The Tribunal did not engage with the claims but simply irrationally and / or illogically rejected the claims globally.
3. The Tribunal denied the Applicant procedural fairness in its consideration of the claims.
Particulars
a. The Tribunal did not engage with the core claims. It rejected the claims in entirety without realistic consideration.
At the hearing in this Court the Applicant tendered a transcript of the hearing before the Tribunal on 8 June 2016.

Consideration

Ground 1

A main concern of the Tribunal as expressed in its Decision Record was its view that there were inconsistencies between the claims as made by the Applicant prior to the Tribunal hearing and his claims as made at the Tribunal hearing. This was entirely conventional because it is common for the purposes of criminal and civil litigation for there to be consideration and comparison of any prior inconsistent statements or evidence of a party (or witness) in the course of the assessment of the trustworthiness and veracity of that party (e.g. see s.43 of the Evidence Act 1995 (Cth)). If that party has earlier said one thing and then subsequently says another thing about the same subject matter this may, if not minor or trivial, throw suspicion on the accuracy or credibility of that party’s evidence. Likewise, if that party makes a claim later which he had not made earlier but which might have been expected to have been made at that earlier point of time. In this context Nettle J said in SZUSH v Minister for Immigration and Border Protection [2016] HCATrans 112 at 10 as follows:
…. it is not the law that the credit and reliability of an applicant’s evidence is irrelevant in the determination of a review of an application for protection visa. Where the establishment of facts is dependent on oral evidence, the evidence must be assessed and weighed in light of its apparent credibility and reliability and findings must be made according to that assessment (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (“MIMIA”) at 21-22 [42] – [44] per Gummow and Hayne JJ.)
No doubt, as SZUSH contends, refugee cases involve special considerations where credibility is in issue (MIMIA (2004) 207 ALR 12 at 33 [73(7)] per Kirby J, in dissent.) As Kirby J observed in MIMIA, “There is no necessary correlation between inconsistency and credibility in such cases”. It is necessary to keep in mind that there may be a host of ethnic, cultural, lingual, physical, behavioural and psychological considerations peculiar to refugees which, depending upon the circumstances of a given case, may explain inconsistencies that would otherwise be thought to reveal dishonesty. But, that said, it remains a process of evaluation for the tribunal of fact to determine what, if any, weight is to be placed on an applicant’s version of events; and where, as here, there were many reasons to disbelieve an applicant’s version of events it is not in error to reject it.
In AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205, the Tribunal in its decision had pointed to a number of inconsistencies in important aspects of the applicant’s claims as made at various times and between her accounts and those given by her husband at an earlier Tribunal hearing. The Tribunal also considered that the applicant’s answers were evasive and vague when those inconsistencies were put to it. In that context, Perry J said at [24]:
[24]The existence of such inconsistencies in important aspects of the appellant’s claims, and the failure to explain those inconsistencies in a way that the Tribunal considered was satisfactory, provide a logical and rational basis for the Tribunal’s adverse credibility findings. In this regard, it is well established that the Tribunal is not required to accept, uncritically, any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451–452 (Beaumont J); Guo at 596 (Kirby J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion is not established: see eg Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at [7] (Heerey J).
At [29] – [30] of its Decision Record the Tribunal noted inconsistencies between the claims made by the Applicant in his Ministerial intervention letter as to why Ms Ladef had left him which were consistent on the one hand with his oral evidence at the Tribunal hearing, but on the other hand inconsistent with his claims as made in his Protection visa application. The Tribunal put these inconsistencies to the Applicant as “information” pursuant to s.424AA of the Migration Act 1958 (Cth) (the Act) in relation to the credibility of his claims.

However, this “information” was not “information” for the purposes of s.424A of the Act and did not need to be given to the Applicant either under s.424A or s.424AA. As Griffiths J said in SZTNL v Minister for Immigration (2015) 231 FCR 204 (SZTNL) at 220 [53]:
[53] The relevant two pieces of information became material only because the Tribunal relied upon them in finding inconsistencies in the appellant’s evidence, which lead to the conclusion that he was not a truthful witness. I accept the Minister’s submission that it was these inconsistencies (or the process of comparison between the appellant’s evidence and the factual statements with which the evidence was compared) that counted against him, however, neither inconsistency nor such a comparative process constitutes “information” for the purposes of s 424A(1) (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (SZBYR) at [18] and SZJBD v Minister for Immigration and Citizenship [2009] FCAFC 106; (2009) 179 FCR 109 at [104] per Buchanan J, with whom Perram J agreed).
At [18] of SZBYR Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ had stated:
[18]…However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.
I interpose that the apparent belief or assumption by the Tribunal that s.424A or s.424AA of the Act requires information to be provided to an applicant is immaterial if, in fact, such information is exempted from the operation of those sections: SZTGV v Minister for Immigration & Border Protection (2015) 229 FCR 90 at 109 [53]; SZMDS v Minister for Immigration (2009) 107 ALD 361 at [14] per Moore J; SZTNL at 219 [49] per Griffiths J.
Second, the Ministerial intervention letter (which made claims about his marriage to Ms Ladef and its breakdown) was nothing new to the Applicant as it was his letter and it formed part of his Protection visa application and therefore s.424A(3)(ba) of the Act rendered s.424A(1) inapplicable in relation to the circumstance of his marriage to Ms Ladef and the contents of the Ministerial intervention letter. That information and the Ministerial intervention letter had been given by the Applicant in his Protection visa application and was not oral “information”: SZNQR v Minister for Immigration [2010] FCA 152 per Rares J at [34] and MZYER v Minister for Immigration (2010) 115 ALD 382 at 388 [50]-[53] per Dodds-Streeton J.
Third, the circumstances of the Applicant’s marriage to Ms Latef and the Ministerial intervention letter were the subjects of consideration by the Delegate and were dealt with in the Decision Record of the Delegate. The Applicant gave a copy of the Decision Record of the Delegate to the Tribunal (see [17] above). Accordingly, this was “information” which was in the Decision Record of the Delegate and was “information” that the Applicant “gave” to the Tribunal and s.424A(1) of the Act was rendered inapplicable by force of s.424A(3)(b): Minister for Immigration v Chamnam You [2008] FCA 241 per Sundberg J which case was cited with evident approval by the Full Court of the Federal Court of Australia in Minister for Immigration v Brar (2012) 201 FCR 240 at 259 [74] per North, Greenwood and Besanko JJ.
Fourth, s.424A(3)(b) of the Act rendered s.424A(1) inapplicable to “information” that the Applicant “gave” at the hearing before the Tribunal in response to questioning by the Tribunal: see NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 [57] – [59] per Young J, with the agreement of Gyles and Stone JJ. The Tribunal member questioned the Applicant concerning his marriage to Ms Ladef and its breakdown over some six pages of the transcript of the Tribunal hearing and the Applicant responded to that questioning.
Finally, the transcript of the hearing before the Tribunal recorded at TP25 – TP27 that the Tribunal member put to the Applicant, in the presence of his registered migration agent, a number of matters and inconsistencies about which the Tribunal was concerned, including with respect to his relationship with Ms Ladef and the Ministerial intervention letter. The Tribunal member at TP25 had first advised and explained to the Applicant that he would be given an opportunity to comment on or respond to the information to be given to him under s.424AA of the Act saying:
I’ll tell you what the information is, and I will give an opportunity to comment on or respond to that information. You are not obliged to do so immediately, you can ask for additional time. If you ask for additional time, I will consider whether or not I will adjourn this review to give you that additional time.

Now, the information is this……………………
However, the Applicant declined to make any further comment on the inconsistencies noted by the Tribunal. The Tribunal member then asked the registered migration agent whether he wanted to make any submissions, and the registered migration agent initially responded that he would like a week “to be able to get back to you, if possible? I need to speak to my client and address those concerns with him so that he understands”.
However, he then at TP29 expressly retracted that request, saying to the Tribunal member:
Representative: No, I retract that, I believe that your concerns are valid, and that should he be in the situation, we would obviously have to – he would consult us, or we would consult him on other options that he might want to either leave Australia or what his situation is.
Member:So you’re not asking for further time.
Representative: No, no.
Accordingly, even though it had no obligation to do so, in my view the Tribunal complied with s.424AA of the Act: see SZPZJ v Minister for Immigration [2012] FCA 18 at [44] – [45] per Nicholas J.
In my view, Ground 1 fails to establish that the decision of the Tribunal is affected by jurisdictional error.

Ground 2

This Ground seeks to argue with the credit findings of the Tribunal in relation to the Applicant’s claims to protection, and seeks to engage a merits review in this Court which is not available.
Paragraph [45] of the Decision Record of the Tribunal merely anticipates and foreshadows the subsequent findings of the Tribunal recorded at [46] – [59].
It is, of course, the case that credibility findings of the Tribunal are not beyond judicial scrutiny, but in this case I do not consider that the findings of the Tribunal in relation to the Applicant’s credit, or otherwise, could be said to be unreasonable, without a logical, rational or probative basis or founded on objectively minor matters. Nor could they be regarded as “blanket, reflex or exaggerated adverse credit findings”: AZU15 v Minister for Immigration & Border Protection (2016) 240 FCR 143 per Allsop CJ, Kenny and Bromwich JJ at 145 [11].
Rather, they seem to me to be findings which were legally open to the Tribunal on the material before it.
I do not accept the assertion in this Ground that the Tribunal rejected the Applicant’s claims to protection without proper meaningful consideration or that it failed to bring an active intellectual process to the consideration of the Applicant’s claims.
Accordingly, Ground 2 also fails to establish that the decision of the Tribunal is affected by jurisdictional error.

Ground 3

This Ground was cast in the most general of terms and fails to identify or particularise “the core claims” with which it is asserted that the Tribunal did not engage.
In my view this Ground also fails. The Tribunal in its Decision Record clearly engaged with and meaningfully considered the claims to protection of the Applicant but unfortunately for him felt compelled to reject them, principally on the basis that the Applicant was not a truthful witness.
Accordingly, Ground 3 fails to establish that the decision of the Tribunal is affected by jurisdictional error.

Conclusion

The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 13 September 2018