BTQ16 v Minister for Immigration
[2019] FCCA 2101
•1 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BTQ16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2101 |
| Catchwords: MIGRATION – Application for review of decision of the Administrative Appeals Tribunal (“the Tribunal”) – whether the standard of translation at the hearing before the Tribunal was so defective that it denied the applicant procedural fairness in breach of s.425 of the Migration Act 1958 (Cth) (“the Act”) – whether the Tribunal erred by breaching its obligations to comply with s.424AA and s.424A of the Act – whether the Tribunal erred by misconstruing the applicant’s claim – whether the Tribunal erred by failing to give the applicant a meaningful opportunity to present her case pursuant to s.425 of the Act – whether the Tribunal breached s.425 of the Act by failing to provide the applicant with a meaningful hearing – whether the Tribunal erred by failing to engage in an active intellectual process before disregarding certain evidence – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.424AA, 424A, 425, 476 Evidence Act 1995 (Cth), ss.76, 77, 78 |
| Cases cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 Brandon v Commonwealth of Australia [2005] FCA 109 |
| Applicant: | BTQ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1820 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 7 December 2018, 29 January 2019, 12 March 2019, 2 April 2019 |
| Date of Last Submission: | 2 April 2019 |
| Delivered at: | Sydney |
| Delivered on: | 1 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms T. Baw |
| Legal Representative for the Applicant: | Ms M. Metledge |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
| Legal Representative for the Respondents: | Ms S. Given |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
The application made on 14 July 2016 and as further amended is dismissed.
The applicant pay the first respondent’s costs as agreed or taxed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1820 of 2016
| BTQ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 14 July 2016 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 21 June 2016 which affirmed the decision of the Minister’s delegate not to grant a protection visa to the applicant.
Background
The applicant is a citizen of Georgia. She arrived in Australia on 24 March 2013 (CB 56). She had been granted a student visa on 7 March 2013, valid until 14 August 2013 (CB 23).
With the assistance of a migration agent, she applied for a protection visa on 19 June 2013 (CB 20 and following). Amongst other documents, she provided a written statement setting out her claims to fear harm if she were to return to Georgia (CB 78 – CB 84).
The Applicant’s Claims to Protection
In essence, the basis of her claim was that she had suffered discrimination in Georgia throughout her life because of her ethnicity. She claimed that her father was Ossetian and that she and her father suffered harassment from Georgian neighbours.
The applicant also claimed to have been attacked in 2008 by two men who came onto her property. She was beaten because she resisted their attempts to sexually assault her. The men ran away when a friend came to her rescue. The police did not assist her. She suffered psychological effects as a result of this incident.
In March 2009 she commenced work as an accountant. Work colleagues made derogatory remarks about Ossetians because she was Ossetian. The Director of the company dismissed her when he learned of her Ossetian ethnicity. She was subsequently dismissed from two other companies for the same reason.
In May 2012 the applicant claims that she was approached by the head of a secret service unit within the Georgian Taxation Office while she was employed there. He told her that in addition to her “normal” duties, she was required to collect information about companies, who supported the political party in opposition to the Georgian government.
The opposition subsequently won the election, and began investigating those who worked in the secret service unit. She became the subject of an investigation.
She feared harm if she were to return to Georgia from both the “old” and “new” government. She claimed that she would be sent to gaol because of her “political actions”, and that action against her would be “more serious” because of her Ossetian ethnicity.
The Delegate
The applicant was interviewed by the Minister’s delegate. Her representative was present. The delegate found that the applicant had: “…fabricated a series of claims, based around her ethnicity…” (CB 171.1).
Further, the delegate found inconsistencies between the applicant’s written statement, and evidence she provided at the interview. The delegate ultimately refused the application for the visa.
For current purposes, I note that after the interview with the delegate, the applicant (through her representative) complained about the standard of interpretation provided by the interpreter at the interview (CB 171).
The delegate noted that no such complaint was made during the interview (CB 171.2). In any event, the applicant was given the opportunity to provide post-interview submissions to address these concerns.
The Tribunal
The applicant applied for review to the Tribunal on 6 June 2014 (CB 178 – CB 210). The Tribunal wrote to the applicant on 9 June 2015 inviting her to a hearing (CB 214 – CB 215). The Tribunal wrote again on 18 June 2015 to advise that another hearing date with a different member would be made available to her, and she would be advised of the date (CB 217).
On 23 June 2015, the applicant appointed a solicitor as her authorised recipient for the purposes of the review (CB 219 – CB 220).
On 5 August 2015 the Tribunal wrote to the applicant (through her authorised recipient) inviting her to a hearing (CB 221 – CB 224). The applicant’s representative asked the Tribunal to allow the applicant to be accompanied to the hearing by her psychologist (CB 232 – CB 233). Further documents and submissions were provided to the Tribunal, including a report from the psychologist (CB 234 – CB 298; CB 279 – CB 291 for psychologist’s report). It was made clear that the psychologist was attending as a support person, and not as a witness (CB 292). Further written submissions were provided.
The applicant ultimately appeared at a hearing before the Tribunal on 26 November 2015 ([6] at CB 384). Her representative (a solicitor) and psychologist were present. She gave her evidence with the assistance of an interpreter in the Georgian language.
The Tribunal provided the applicant, and her representative, with a copy of the audio recording of the hearing (CB 339 – CB 340). The representative made further written submissions to the Tribunal on 1 December 2015, 14 December 2015, 5 January 2016 and 13 January 2016 (CB 341 – CB 379).
The Tribunal affirmed the delegate’s decision. The Minister’s written submissions filed in these proceedings on 29 November 2018 (the first of three sets of written submissions filed by the Minister – see further below) provides a fair summary of the Tribunal’s decision (at [12] – [23]):
“12. In making its findings in relation to the applicant's claims, the Tribunal first gave specific consideration to a claim by the applicant that there were deficiencies in the standard of interpretation at the Tribunal hearing. The Tribunal listened to the hearing audio and had regard to clarifications that had been provided (by the 14 December 2015 submission). In light of that process, and the applicant's ability to engage in English during the hearing, the Tribunal found that the applicant's ability to give evidence and present arguments at hearing was not compromised by the interpreter (CB 390 at [22]).
13. The Tribunal also considered the psychologist's report (noting that it was based on the background recounted by the applicant which the psychologist is not required to test critically (CB 390 to 391 at [23])) and found that apart from one incident during the Tribunal hearing during which the applicant became distressed (and the Tribunal provided a break in proceedings), she was cogent and logical in her evidence and her capacity was not impaired by her mental health (CB 391 at [24]). The Tribunal also found that the content of the psychologist's report did not alter its credibility findings (CB 391 at [24]).
14. The Tribunal was not satisfied that the applicant worked for the Georgian Taxation Office's (GTO) secret service unit or was involved in making illegal videos for them as claimed (CB 385 at [11](a)-(c)). Nor did it accept that either the former, or current governments targeted her because of her alleged work for the GTO (CB 386 at [12](a) and 388 to 389 at [16](l) and (p)).
15. The Tribunal did not find the applicant's claim to be plausible or credible that, as a casual contractor without any security vetting, she would have been directed to undertake sensitive and covert surveillance work for the GTO (CB 391 at [27]).
16. The Tribunal found that the applicant embellished her evidence regarding the videos she allegedly took of small businesses to strengthen her case (CB 392 at [30]). In making this finding, the Tribunal referred to inconsistencies in the applicant's evidence. As a consequence, it did not accept that the subject matter of the videos that the applicant claimed to have recorded (the voting intentions of small business owners and staff) were of interest to the previous government or would be of interest in the context of the forthcoming election (CB 392 at [31]). In addition, the Tribunal found that no reports were found suggesting that the GTO were involved in illegal videotaping ahead of the 2012 election.
17. For these reasons, the Tribunal found (CB 392 at [32]) that the applicant fabricated her claims, that she suffered harm as a result of making illegal videos for the GTO or that she had to go into hiding and leave Georgia as a result, in order to achieve a migration outcome.
18. The Tribunal noted (CB 392 at [34]) that the applicant's admission to providing false information in her Student visa application had also undermined her credibility (CB 389 to 390 at [16](q)-(s)).
19. The Tribunal considered the applicant's various claims relating to her Ossetian ethnicity and accepted that, over the years, the applicant may have faced societal discrimination and negative attitude towards her in Georgia. However, it was not satisfied that this amounted to systematic and discriminatory conduct rising to the level of serious or significant harm (CB 394 at [40]).
20. In relation to the applicant's claim that she was dismissed from three jobs because of her Ossetian ethnicity, the Tribunal found this to be speculative (CB 393 at [37] and 387 at [16](d)). The Tribunal noted inconsistencies in her evidence regarding her employment and did not accept that her ethnicity led to her being pressured to do illegal surveillance work for the GTO (CB 388 at [16](g) and (k)), become targeted (CB 385 at [11](e), CB 387 to 388 at [16](i) and (l)), or would exacerbate her problems relating to that work (CB 388 to 389 at[11](j)-(m) and [16](p).
21. The Tribunal considered the 'displaced persons' identity documents of the applicant's relatives from North Ossetia to be irrelevant because it was unaware of their particular background, situation and the circumstances in which they left Georgia (CB 394 at [41]).
22. The Tribunal was not satisfied that the applicant would suffer serious or significant harm on the basis of her gender and past experience of violence (CB 394 at [42]).
23. Having found the applicant's claims not to be credible, the Tribunal was also not satisfied that the applicant was owed complementary protection (CB 394 at [45]).”
Before the Court
The applicant applied for judicial review to this Court on 14 July 2016. Given the number of changes to the applicant’s grounds, it is not necessary for current purposes, to set out the grounds of the originating application, which in any event appeared to be in the nature of a narrative of complaints, rather than properly pleaded grounds asserting jurisdictional error on the part of the Tribunal.
Various orders were made by a Registrar of this Court for the conduct of this case. Orders made on 22 September 2016 gave the applicant the opportunity to file any amended application and any evidence by way of affidavit, and written submissions. By the commencement of the final hearing of this matter on 7 December 2018 the applicant had not filed anything further (except for a Notice of Address for Service on 22 March 2018).
Notwithstanding this, the applicant arrived at the hearing and sought to provide a document to the Court which she said revealed errors in the interpretation at the hearing with the Tribunal.
It is of note that the applicant had about a year from the relevant date in the Registrar’s orders to have filed and served any evidence by way of affidavit. Before the Court, the applicant was unable to satisfactorily explain why she failed to take up the opportunity provided by the Registrar.
There was certainly ample time to seek legal assistance in the two years since the Registrar’s orders and the hearing, or even to make some enquiries as to how to go about putting evidence before the Court.
Nevertheless, I did not want to deprive the applicant of an opportunity to put her best case before the Court. I adjourned the hearing until 29 January 2019 and ordered the Minister to make further written submissions concerning the document. I also noted with the applicant the further opportunity to obtain legal advice, both as to how to put evidence before the Court, and her substantive application.
At the resumption of the hearing on 29 January 2019 a solicitor, Ms Mary Metledge (who was not on the record), appeared and wanted to speak for the applicant. It appeared that she had written a long letter to the Court’s Registry seeking various things, but had not gone on the record.
It must be said that up to this point the applicant’s grounds and her affidavit in support were formulaic, and her attempt to put evidence before the Court suffered from problems of admissibility.
Given the “appearance” of Ms Metledge (who subsequently came onto the record on the 11 February 2019) I further adjourned the hearing, and gave the applicant the opportunity to file any amended application and any evidence by way of affidavit.
The hearing resumed on 12 March 2019. The applicant was now also represented by counsel.
A number of affidavit documents had been filed over time by the applicant. The applicant’s counsel initially proceeded to seek leave to read the following affidavits. It was clear that counsel had not received proper instructions in this matter given (as set out below) the confused manner in which the applicant’s evidence was sought to be presented.
First, the applicant’s counsel said she sought to read the applicant’s affidavit of 14 August 2016. There was some confusion as to the identity of this document as there was no record of any such document filed on, or after, that date in 2016.
Counsel then said she had been handed such a document. It appears that this affidavit had been filed with the Court’s Registry electronically on 14 July 2016, even though on its face the affidavit says it was affirmed on 14 August 2016.
In any event, this affidavit only had annexed to it a copy of the Tribunal’s decision, and notification that it was sent to the applicant. The reading of the affidavit was not pressed. The Tribunal decision is in evidence before the Court in the Court Book.
Second, it appears that counsel sought to read this affidavit because she believed that a copy of a report of certain country information was annexed to it. Counsel said she had a copy of an affidavit that had been “stamped” as received by the Court’s Registry, and had annexed to it this country information report.
It appeared that counsel had a different copy of the affidavit of 14 July 2016 or 14 August 2016, with a “different stamp” to the one which was on the copy of the document referred to above (at [33]).
Counsel subsequently said she “discovered” that the report to which she referred had not been filed with any affidavit.
The background to this is that, as set out above, the applicant commenced the proceedings without legal representation. Ms Metledge sought to assist the applicant, but for some time was not on the record. During this period (including after Ms Metledge went on the record), the applicant and Ms Metledge sent various emails to the Court which can only be described as correspondence. It must be said that as a solicitor Ms Metledge should have known how to put evidence before the Court, the need to comply with the Court’s orders, and the need to utilise the appropriate process (and Rules) of the Court to prosecute the applicant’s case.
I note, in this context, the applicant had had two adjournments of the final hearing, which amongst other things were given to her as the opportunity to properly present her affidavit evidence. Yet even with this history the Court still had to spend two hours (of what was meant to be a two hour hearing) seeking to sort through the applicant’s poorly prepared “potential” evidence. This ultimately required yet another adjournment.
The applicant had a fair opportunity in the circumstances, with legal representation, to properly prepare her case. In any event, it appeared what the applicant sought to put into evidence with this affidavit (which on its face made no reference to any annexure), was country information said to have been referred to by the Tribunal.
Given the adjournments and the opportunity already afforded to the applicant, I had made it clear that only affidavits with annexures that had been filed would be considered. After all, the Minister is entitled to be treated just as fairly as the applicant. There comes a point after a number of adjournments where the direction, as for example, provided by the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (“Aon Risk”), in the proper and efficient conduct of litigation meant that the time, in this case, to draw the line had well and truly passed. In any event, the reading of this version of the applicant’s affidavit was not pressed.
Third, on 12 March 2019 the applicant sought to read into evidence the affidavit of Ms Mary Metledge, solicitor, made on 19 February 2019. The affidavit (which referred to another affidavit of Ms Metledge of 28 January 2019, which was not pressed) annexed what was said to be a “partial transcript” of the hearing with the applicant, held on 26 November 2015.
The Minister objected to parts of the affidavit itself, and the partial transcript. As the Minister submitted, it is to be noted that there were difficulties with the affidavit even beyond the fact that it was filed after the time at which the Court had made clear to the applicant and Ms Metledge that care needed to be taken with the filing of documents, and for which the various adjournments had already been granted. Ultimately, the applicant did not press the admission of annexure “A” to the affidavit. What was pressed was annexure “B”, which was a professionally prepared transcript (“T”) of the hearing before the Tribunal. The Minister made no objection. The affidavit at [4] was read (omitting the reference to annexure “A”) and the transcript was read into evidence.
Fourth, without resolution (at that time) of the Minister’s objection, the applicant’s counsel interposed to submit that she also sought to read the affidavit of Natia Rostomashvili, university student, made on 19 February 2019, also annexing what was said to be a “typed transcript” of the Tribunal hearing with the applicant held on 26 November 2015.
The applicant’s counsel explained that the annexure went to grounds one, and possibly two, of the amended application, and sought to reveal “mistranslations” by the interpreter at the hearing before the Tribunal.
The Minister objected to the entirety of the affidavit, and the annexures. As background, the Minister noted the number of adjournments granted to the applicant, including, in part, while she was legally represented. The Minister raised the following points.
The Minister submitted that the partial transcript was not prepared by any accredited transcriptionist, or interpreter, or translator. Nor was there any evidence that the transcript could not have been prepared by such a person. As it stood, the deponent was a university student who claimed proficiency in both the Georgian and English languages.
The affidavit contained a number of material deficiencies. There is no evidence to support the claim of language proficiency, nor, for that matter, that the deponent is a “native” of Georgia. The Minister pointed out that in her written submissions to the Court, the applicant now raised the very point of qualifications about the interpreter at the Tribunal hearing (at [33](c) of the applicant’s submissions):
“33. The second way in which the translations caused a denial of procedural fairness was that the circumstances of the interpreter during the Tribunal hearing resulted in frequent or continuous errors in translation which caused the process to miscarry, and those circumstances included the following:
…
c. There is no evidence of any qualifications of the translator, it is unknown whether or not she is a certified translator with skills equivalent to at least a level 3 from the (Australian) National Accreditation Authority for Translators and Interpreters (NAATI) accreditation.”
The Minister also submitted that there was no evidence before the Court as to how, or why, the deponent was engaged to provide the annexure. That is, was this a professional engagement, or did the deponent have some pre-existing relationship with the applicant that may have caused her to “assist” the applicant. In short, there was nothing to support the proposition that the deponent was acting independently.
The deponent asserts she was given the audio recording of the Tribunal hearing, but says nothing about anything else she may have been given in connection to the task for which she was engaged. This is important, specifically, because the transcript is a partial transcript, and there is nothing to indicate why only those parts of the audio were the subject of her consideration (beyond containing what she said were errors of interpretation), instead of, as would usually be done in matters of this type, providing the entire transcript.
Given this was a partial transcript, the Minister submitted that given the nature of what is alleged in the applicant’s grounds (all arising from the Tribunal hearing), then the task set for the Court, which required a contextual understanding of what occurred at the Tribunal hearing, would be difficult to achieve.
The Minister also submitted that on her own statements in the affidavit, the deponent makes clear that she was: “…requested by the applicant to prepare a written transcript of any material errors, misinterpretations and/or omissions...” Rather than, as would be required of a professional transcriptionist, interpreter, or translator, which would be to provide a comparative transcript of what was said without any pre-existing brief to actively search for errors. I pause to note that this submission appears to have some weight given the deponent’s assertion at [10]:
“10. I respectfully submit that the transcript shows systematic as well as some material deficiencies in the interpretation of the evidence given by the Applicant.”
(Noting, of course, that it was ultimately not read into evidence).
In short, the Minister’s objections were summarised as being that the transcript was not only not the best evidence, but not sufficient evidence, to support the applicant’s grounds.
The applicant’s response was to submit that the deficiencies identified by the Minister could be addressed in cross examination.
What can immediately be said is that the affidavit, and its annexure, is, in essence, evidence in chief. I do not understand the purpose of cross examination (in this case, presumably by the Minister) is to give the deponent the opportunity to address what appeared to be deficiencies in her own evidence in chief, which should have been given in the affidavit.
I note in this submission the applicant did not argue that the “deficiencies” identified by the Minister did not exist.
The applicant also argued that the Court should not give weight to the Minister’s objections, because as a model litigant, the Minister should have raised the objections at an earlier time. (The applicant’s affidavits were filed on 20 February 2019 – the hearing was on 12 March 2019).
To the extent that the applicant claimed she was not on notice of the Minister’s objections, then the Minister’s latest written submissions (for context, each adjournment required further written submissions from the Minister), which were filed on 7 March 2019, made clear that the admissibility of all of the applicant’s evidence was in issue.
Contrary to the submission that she was not on notice of the Minister’s objections, the applicant then submitted (through her counsel) that she had brought the deponent with her as a “preventative measure”.
Ultimately, the applicant’s submission was that notwithstanding the deficiencies in the affidavit, the affidavit and the annexure should be admitted because: “…the factor of justice outweighs not admitting it”. This was explained to be that the “misinterpretation” was: “…so material that it goes to the administration of justice”.
There were a number of matters raised by the Minister in reply that require note.
First, the assertion that the Minister breached his model obligations in this case.
As set out above, the applicant was given a number of adjournments of the final hearing (the last while she was legally represented by a solicitor), so as to be given the opportunity to put, properly, the evidence before the Court. That she has been unable to do so, while legally represented, and where the opportunity was already given to her, and specifically given to her for that purpose, does not engage the Minister’s model litigant status.
Further, as the Court made clear on the previous occasion (29 January 2019) when the applicant was legally represented, the adjournment to 12 March 2019 (a period of six weeks) was for the specific purpose of allowing the applicant to provide her evidence by way of affidavit, and that without sufficient reason, no further indulgence would be granted. No such reason was proffered in any evidentiary capacity, nor, it must be said, even in submissions.
Second, the applicant’s submissions against the Minister’s objections to the admissibility of the affidavit, and the reference to model litigant, was, in essence, that the Minister could never object to the admissibility of evidence proffered by an applicant because he was a model litigant.
That must be rejected. As the Court made clear initially to the applicant on the first occasion of the final hearing, and then her solicitor on the second occasion of the final hearing (and before granting the adjournment), that the adjournments were granted so that she could provide proper evidence in support of the complaints in her grounds.
Nor, as the Minister submitted, is the Minister prevented from objecting to the admissibility of evidence simply because he is a professed model litigant. (See Brandon v Commonwealth of Australia [2005] FCA 109).
Having failed, with legal representation, and an ample opportunity to do so, to properly prepare the affidavit evidence on which she sought to rely, it is no answer for the applicant to now argue that evidence (which should not otherwise be admitted – see further below) should be read, simply because this is a migration matter. As the Minister submitted, there is no relevant difference in this regard between a migration matter and any other matter before this Court.
The applicant also sought to argue that she had no notice of the Minister’s objections (contrary to what is set out above at [58] in this judgment). This, as the Minister also submitted, ignores the by now “mundane” (as described) practice of considering the admissibility of evidence at the beginning of the hearing.
There was also a suggestion in the applicant’s response to the Minister’s objection that some leeway should be given to the applicant by the Court relating to Ms Metledge’s failure to assist the applicant in complying with the “timetable” for the conduct of this case, because Ms Metledge was acting on a “pro bono” basis.
Any such argument must be rejected. While it may be laudable that Ms Metledge felt compelled to assist the applicant, acting pro bono, this does not relieve her of the obligation to act competently. (See ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [68]).
Finally, the applicant also submitted that the affidavit and the annexure should be admitted into evidence, and the Court could then deal with this material by assigning appropriate weight to it.
The difficulty with this submission is that given the nature of the matters alleged in grounds one and two in particular, once the transcript is admitted into evidence, I could not see how it could be a matter of the assignment of weight in determining whether the grounds are made out.
Once the evidence is admitted, then it speaks for itself. The evidence will either support, or not support, the applicant’s contention of the inadequacy of interpretation at the Tribunal hearing. It could not be that if admitted, and the Court were to find the transcript supported the applicant’s ground, that lesser weight be accorded to it because of the many deficiencies concerning the transcript and the affidavit.
What the applicant failed to appreciate is that this case, just like any other case before this Court, is subject to the rules of evidence as set out in the Evidence Act 1995 (Cth) (“the Evidence Act”). The relevant question therefore at the hearing was whether, consistent with the Evidence Act, the evidence should, or should not, be admitted.
There was no dispute that Ms Rostomashvili was not a professional transcriptionist, interpreter, or translator. Even if the affidavit were to be read into evidence, her assertion was, at its highest, that she was “proficient” in the Georgian and English languages.
Such “proficiency”, whatever its state or level, without more does not provide the basis to say that Ms Rostomashvili is seeking to provide expert evidence. The applicant’s counsel agreed before the Court that what Ms Rostomashvili sought to do was to provide a lay opinion as to the interpretation at the Tribunal hearing.
Evidence, therefore, which is Ms Rostomashvili’s opinion, is not admissible to prove the existence of a fact about the existence of which the opinion was expressed (s.76(1) of the Evidence Act). That is, in the current case, it is not admissible to prove the fact at issue, particularly in grounds one and two, of whether the interpretation of the Tribunal hearing contained errors. That is, it is not relevant in these proceedings.
There was no argument from the applicant that Ms Rostomashvili’s opinion fell within s.77 of the EvidenceAct.
The opinion rule as expressed in s.76 is subject to the exceptions referred to in s.78 of the EvidenceAct. While Ms Rostomashvili’s “opinion” is based on what she says she heard by listening to the audio of the Tribunal hearing, what Ms Rostomashvili perceived about what she heard, in the absence of any other evidence as to her “proficiency”, does not assist the Court in the task posed by the grounds of the amended application, because evidence of her opinion would only go to an understanding of her lay perception of what occurred at the Tribunal hearing.
This limited purpose does not provide the exception contemplated in regard to s.76 of the EvidenceAct.
This is reinforced by what Ms Rostomashvili states in her affidavit as to the basis of the request for her to engage in this task. (See [51] in this judgment above).
In all, Ms Rostomashvili seeks to give an opinion. She is not an “expert”. The opinion is a lay opinion. It does not come within the exception to s.76 of the EvidenceAct. On this basis, the affidavit and the transcript were not read into evidence.
Fifth, in light of this, the applicant’s counsel sought leave to put her instructing solicitor (Ms Metledge): “…in the stand to give evidence of her search for Georgian interpreters…”.
This was subsequently explained as being in support of the admissibility of the evidence of Ms Rostomashvili. (Ignoring that the ruling on the admissibility had already been made). That is, that contrary to the earlier position, the applicant now wanted to argue that Ms Rostomashvili was an expert, and that her evidence was not lay opinion.
In short, the applicant wanted a yet further opportunity to provide further evidence that was plainly not in Ms Rostomashvili’s affidavit (or anyone else’s for that matter).
The Minister opposed what was an (now extremely late) application for leave to provide further evidence. (Over an hour and half into what was meant to be a two hour hearing).
Leave was refused. I had made it clear at the two previous occasions of the final hearing, and in particular on the last occasion when an adjournment was granted, at a time when the applicant was legally represented, that unless “new” evidence was not known to the applicant, or otherwise a reasonable explanation was to be provided, there would be no yet further adjournments of the final hearing.
The evidence that the applicant now said she wanted the further opportunity to adduce was available to her legal representative (that is, her own evidence) to have been raised at least at the time of the making of Ms Rostomashvili’s affidavit. Nor, importantly, was any explanation proffered as to why this evidence was not provided earlier.
Sixth, the applicant also sought to read her affidavit, said on its face to have been made on “30 February 2019”. Later this was identified as the applicant’s affidavit, said to have been made on 20 January 2019.
This affidavit had not been filed in accordance with orders made previously. Nor did the applicant seek leave to file it prior to the final hearing. It was in fact “handed up” nearly one and three quarter hours after the commencement of the third occasion of the final hearing.
The Minister objected to the whole of the affidavit. Apart from the reference to having been sworn on “30 February 2019”, the applicant purported to give evidence about the standard of interpretation at the Tribunal hearing in circumstances where no interpreters’ jurat had been completed in the making of the affidavit.
The Minister made various objections to different paragraphs in the affidavit, including hearsay, opinion, and relevance. On hearing these objections, the applicant’s counsel sought only to press [1], [2], [4], [5] and [6].
What was unexplained was the matter of how the applicant was able to prepare an affidavit in English (without the assistance of an interpreter), concerning the level of interpretation at the Tribunal hearing, when she was otherwise alleging that she needed an interpreter at the Tribunal hearing to be able to understand the Tribunal member who spoke in English.
Even if I were to accept the submission (“evidence” from the bar table) that the applicant’s solicitor gave instructions to counsel that: “…the applicant is able to understand a little bit of English”, and her solicitor: “…[spoke] to her in English very slowly and carefully”, this still leaves the following.
One, in relation to [1]:
“1. I am the Applicant.”
There was no dispute that the applicant was the applicant before the Tribunal and the applicant in these proceedings.
Two, [6] refers to a part of the transcript which was already in evidence before the Court.
Three, in relation to [2] – [6], in essence, I understood that the applicant sought to press the remaining paragraphs to be able to argue that she was not shown certain documents during the Tribunal hearing, or given notification about certain matters prior to the beginning of the hearing from the Tribunal.
In relation to [2], the evidence before the Court (the Court Book) reveals that no documents were shown to the applicant at the Tribunal hearing. It would not be open to the Minister, in the absence of any other evidence, to argue otherwise.
In relation to [3], the transcript is in evidence.
In relation to [4], the evidence before the Court similarly reveals that no such written information was sent to the applicant by the Tribunal. Again, it would not be open to the Minister, in the absence of any other evidence, to argue otherwise.
In relation to [5], this was not relevant to any of the grounds of the amended application. The applicant’s perception now as to the state of her knowledge about the importance of the information (referred to in [3] and [4]), which was not otherwise given to her by the Tribunal, was not relevant to any of the grounds.
In short, I agreed with the Minister’s objections. This affidavit was not read into evidence.
Given the length of time taken to deal with the matters above, the hearing had to be adjourned yet again.
When the final hearing resumed on 2 April 2019, the applicant was again represented by her counsel. She confirmed there was no further application to adduce or produce any further evidence.
The Grounds of the Amended Application
The grounds of the amended application of 20 February 2019 are in the following terms:
1. The standard of translation at the hearing before the Second Respondent (the Tribunal) was so defective as to deny the Applicant procedural fairness in breach of s.425 of the Migration Act 1958 (Cth).
Particulars
a. The circumstances in which the inadequate translation was provided, included the following:
i.the interpreter was not physically present at the hearing but was translating over the telephone;
ii.the interpreter was in a different time zone and had been sleeping prior to being contacted;
iii.at times there were difficulties in hearing the translator and vice-versa; and
iv.it was unclear what qualification the interpreter had, there was no evidence that she was accredited by NAATI level 2 or 3.
b. The errors and/or omissions in the interpreter's translations were so material that it caused the decision-making process to miscarry. In particular the Tribunal's serious adverse credibility finding against the Applicant was largely based upon errors and/or omissions in translations.
c. Further or in the alternative, when the intermittent translation errors are viewed in aggregate, they demonstrate a pattern that indicates the hearing was procedurally unfair.
2. The Tribunal erred by breaching its obligations to comply with s.424AA and s.424A of the Migration Act.
Particulars
a.The Tribunal made a finding at D[34] about the truthfulness of information provided by the Applicant in her student visa application and protection visa application. However, at the Tribunal hearing, the document that the Tribunal relied upon was not shown to the Applicant and the part that was read from it by the Tribunal was not translated to the Applicant, in breach of s.424AA of the Migration Act.
b.The failure to comply with s.424AA meant that compliance with s.424A of the Migration Act was enlivened. The Tribunal failed to clear particulars of the document; failed to ensure the Applicant understood why it was relevant and the consequences of it being relied upon; and failed to invite the Applicant to comment on or respond to it, in breach of s.424A of the Migration Act.
c.Accordingly, the consequent credibility finding at D[34] reached by the Tribunal was infected with jurisdictional error.
3. The Tribunal erred by misconstruing the Applicant's claim:
Particulars
a.The Tribunal misconstrued the Applicant's claim at D[30] by stating: “Nor was the applicant able to offer a coherent explanation of the link between the prison sexual abuse videos and the videos she had allegedly made of the GTO - how a video she allegedly took of a small business owner saying they intended to vote for Georgian Dream might result in their torture or how she knew this was what he videos were used for”.
b.The Applicant did not claim to have actual knowledge of the torture or what the videos were used for, she claimed to be imputed with anti-government opinion.
c.The Applicant consistently claimed that she feared persecution for imputed anti-government political opinion due to her occupation as a tax inspector who conducted secret illegal video surveillance (the Videos) to determine government opposition leading up to the elections. She can be seen in the Videos.
d.The country information supports the illegal use of surveillance videos by the previous government. A cache of some 26,000 tapes were discovered as a means to blackmail and torture, including sexual abuse.
e.The Applicant consistently claimed that after the elections, when the new government was in power, on or about December 2012, two men came to see the Applicant to interrogate her about the Videos. She was so physically beaten that she lost consciousness and was hospitalised.
f.The Tribunal erred in describing her claim as “vague and speculative” by failing to understand that her fear was based on the implication that may arise from her being in the Videos, in light of the country information.
4. The Tribunal erred by failing to give the Applicant meaningful opportunity to present her case pursuant to s.425 of the Migration Act, which lead to the Tribunal making an erroneous finding on a critical issue.
Particulars
a.Refer to Particulars a. to f. in Ground 1 above.
b.The finding of the Tribunal at D[30] in particular 1. of Ground 1 is erroneous because no such question about the "link between the sexual abuse videos and the videos she had allegedly made for the GTO" was ever put to the Applicant at the Tribunal hearing.
c.The finding of the Tribunal D[30] in particular 1. that the Applicant was not able to offer a “coherent explanation" is also erroneous because at the Tribunal hearing what was put to the Applicant was a composite question. Accordingly, one is unable to discern to which part of the composite question the Applicant replies.
d.Further or in the alternative, the aforementioned findings are irrelevant because they are based upon a misconstruction of the Applicant's claim, her claim was imputed political opinion, see Ground 1 above.
5. The Tribunal erred by failing to provide the Applicant with a meaningful hearing in which he was apprised of the issues which might be adverse to her, in breach of s.425 of the Migration Act.
Particulars
a.The Delegate made a finding that the leading up to the elections, the Applicant, along with a group of tax inspected was instructed to gather intelligence about companies that may be in opposition to the government and she carried out her new duties (CB169).
b.The Tribunal did not find it plausible that in the run up to the elections, the Applicant was involved in making videos of government opponents among the business owners and employees she was investigating (D[27] CB391) (the Issue).
c.The Issue was not fully revealed to the Applicant at the Tribunal hearing. She had not been on notice that the Issue was of concern to the Tribunal and was denied any opportunity to respond or comment on the Issue.
6. The Tribunal erred by failing to engage in an active intellectual process before disregarding corroborating evidence.
Particulars
a.The Tribunal dismissed the Applicant's history that was reported in the psychologist’s report.
b.However, the Tribunal failed to consider:
i.that the psychologist had been treating the Applicant on a continuous weekly basis for around one year;
ii.the expertise of the psychologist, being a registered psychologist in NSW that had worked at Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) for eight years and at the time of the report was the Direct Services Team Leader; and
iii.that the psychologist was in attendance throughout the whole of the Tribunal hearing, so was available for any questioning that Tribunal may have with regard to the Applicant's history.
[Errors in the Original.]
It is convenient to deal with the applicant’s grounds in the order in which her counsel addressed them before the Court. Ground one was not pressed.
Consideration: Ground Five
Ground five asserts that the Tribunal breached s.425 of the Act. In particular, by failing to put the applicant on notice of the following issue in the review. (See [111] and following below).
The applicant relied on Minister for Immigration v SCAR (2003) 128 FCR 553 (“SCAR”) at [37] for the proposition that the Tribunal hearing must be a meaningful opportunity for the applicant to give her evidence.
Further, the applicant relied on SZBEL v Minister for Immigration (2006) 228 CLR 152 (“SZBEL”) at [35] and [36]:
“35. The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision‑maker identified as determinative against the applicant.
36. It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.”
In addition, the applicant also referred to SZQPY v Minister for Immigration and Border Protection [2013] FCA 1133 (“SZQPY”) at [117] and [118]:
“117. Whether or not these questions and the surrounding context notified the appellant of the relevant issues depends in part on the authorities discussed above at [73] to [74] above and on the fact that the delegate’s decision did not address the matter of relocation. The answer to this question is clear. Since the delegate’s decision did not address relocation, nor treat it as dispositive of his claim in any way, the appellant had no reason to suppose that it would be a live issue before the Tribunal…At no point, however, did the Tribunal indicate to the appellant that the reasonableness of relocating to another (specified) place also fell for its consideration in order that the appellant might give evidence and present argument about the practicability of relocating there. In the context of the hearing and the matters being addressed by the Tribunal and the appellant, the Tribunal’s reference to ‘harm’ could not reasonably be understood as an inquiry about the reasonableness or practicability of possible relocation. It was not sufficient to use the proposition of avoiding harm to give notice to the appellant that a new issue – whether it would be reasonable for him to relocate – was now in play before the Tribunal; indeed had these questions been thought to provide such notice, they would have been misleading.
118. …There can be no sufficient opportunity to give evidence and argument when the relevant issue is not drawn to the visa applicant’s attention and cannot be regarded as obvious (because, for example, the delegate had identified as it as determinative against the applicant). In the circumstances of this case, the Tribunal failed to provide such an opportunity in relation to the practicability of relocation. There was a failure by the Tribunal to comply with its obligation under s 425 and, in consequence, jurisdictional error in the making of its supposed decision.”
In light of this, the ground was explained as follows. The delegate recorded the following claims made by the applicant (at CB 169.5 – CB 169.6):
·“Around the end of May 2012, in the lead up to the October 2012 parliamentary elections, the applicant, along with a group of tax inspectors, was instructed by Tamar Panjaridze, her supervisor to covertly gather intelligence about companies that may be in opposition to the government.
·At interview the applicant admitted she had reservations about her new duties, as she believed it to be an illegal operation. Yet she decided not to leave her job because as she is Ossetian, her employers had warned her she would have a lot of problems if she didn’t do this job. I note however that it was the applicant’s choice to be involved in such operations.”
With reference also to what was relevantly set out at CB 168 and CB 170, the applicant submitted that the delegate made a finding (“implicitly”) that the applicant, who was employed as a tax inspector, complied with an order by her employer, in the period leading up to certain elections, to gather evidence about companies opposed to the then government.
In its decision record the Tribunal stated at [27] (CB 391):
“27. The Tribunal does not find plausible, however, the applicant’s claim that, in the run up to the October 2012 election, she was involved in making videos of government opponents among the business owners and employees she was investigating. The Tribunal does not find credible that, as a casual contractor, employed without any security vetting, the applicant would have been directed to undertake sensitive and covert surveillance work for the secret service unit of the GTO, as claimed at paragraph 11.a.”
The allegation of jurisdictional error is said to arise because the Tribunal made a finding contrary to that of the delegate, and did not give the applicant the opportunity at the hearing to address an issue which, contrary to what occurred before the delegate, was of concern to the Tribunal.
I understood from the applicant’s submissions that the applicant was not put on notice by the Tribunal that it would make a contrary finding to that of the delegate on the matter of whether, at the instigation of her employer, she carried out covert operations in relation to companies opposed to the then government.
The Minister’s response was that the applicant’s ground was based on a “flawed premise”. The Minister explained this as follows.
As set out above, the applicant relied on that part of the delegate’s decision, as reproduced at [111] above. The Minister submitted that the delegate’s decision should be read holistically, and this part of the delegate’s reasoning should be properly understood in the context in which it appears, and which gives it meaning.
That context was said to be that what relevantly appears at CB 169 is under the broad heading of “Findings of Fact (Credibility)” (item 9 at CB 168). There are two subheadings under that heading. (“Ethnicity Claims” at CB 168.4, and “PSG Claims” at CB 169.3). The two “bullet points” in the delegate’s decision relied on by the applicant now are a part of the latter subheading.
The Minister submitted that there are a number of bullet points under each of these items. There are in fact 24 such bullet points.
The Minister’s submission was that not all of the bullet points contain findings made by the delegate. That what the delegate has done is to summarise the applicant’s claims and evidence as set out in greater detail earlier in the delegate’s decision, and that this is “intermingled” with findings of fact made by the delegate.
I agree on any plain reading of this part of the delegate’s decision, with the Minister’s characterisation of what the delegate has done.
For example, at the second and third dot points on CB 168 (at item 9) the delegate makes specific reference to “the applicant[’s] claims” and sets out various claims, and the applicant’s evidence at the interview before the delegate. There is nothing at these dot points to indicate that the delegate made any finding, in spite of the fact that they appear under the heading “findings of fact”.
The fourth dot point continues in setting out the applicant’s claims. It is not until the words: “I consider…” that the delegate’s view of these claims and evidence emerges.
In relation to the dot points relied on now by the applicant (at CB 169), the Minister submitted a similar approach has been employed by the delegate.
As set out above, the third and fourth dot points at CB 169 appear under the subheading of “PSG Claims”.
I agree with the Minister that what appears at the first dot point under that heading is again a summary of the applicant’s claim to have been employed in the tax office. No findings of fact are expressed.
The second dot point specifically notes that the applicant: “…who claims to be persecuted due to her Ossetian ethnicity, was employed by a Georgian government agency…”. The dot point is a notation of relevant evidence given by the applicant in relation to this. Again, no expression of any finding of fact can be reasonably read into this.
When read in context and fairly, I agree with the Minister that the two dot points in the delegate’s decision (at CB 169), relied on now by the applicant, set out the applicant’s own claims relating to her claimed covert work for the tax office.
This reading is reinforced by the fact that in subsequent dot points under the same subheading, the delegate makes actual findings that are characterised by such words as: “…I have not accepted…” (the fifth dot point under the “PSG Claims” sub-heading at CB 169), “As I have disregarded…” (the fourth dot point at CB 170), and then “I find…” (at the sixth dot point at CB 170 and the first dot point at CB 171), and “I am satisfied…” (at the last dot point at CB 171). All these findings involve the claims recorded at the dot points relied on now by the applicant.
It is also important to note what the delegate actually found in relation to the tax office claim.
It was the applicant’s claim that she was “instructed” by her supervisor to covertly gather intelligence. (As recounted at the third dot point under the subheading).
The applicant also claimed that she “felt pressured” to comply with this instruction. It is at the subsequent dot point to those relied on now by the applicant, that the delegate makes a clear finding that rejects those claims, and finds that she stayed in her job for economic reasons.
That is, the delegate did not accept, at least, (at this dot point) one aspect of the tax office claim.
The delegate’s reasoning continues in this vein with references to the applicant’s evidence, and findings about different aspects of her evidence. This culminates in the finding expressed at the first dot point at CB 171:
· “I find that the applicant has fabricated a series of claims, based around her ethnicity, employment and travel dates, as a means of supporting her protection visa application. I therefore find that her claims when considered as a whole are not credible.”
In her submissions to the Court, the applicant was careful to submit that what appears at the two impugned dot points contains an implicit acceptance by the delegate of the applicant’s claims. Plainly, there is no express finding there.
However, the applicant’s selective and isolated reading of the two dot points is exposed when regard is had to the finding made by the delegate in not accepting her claim for staying at her job (at the fifth dot point), and ultimately finding that amongst other things, her claims: “…around her…employment” were fabricated by her. (The first dot point at CB 171).
Far from making a finding accepting her claims, even implicitly (as set out at the impugned dot points), the delegate made an express finding that these were a fabrication.
In her submissions to the Court, the applicant also drew attention to the fifth dot point (at CB 170) which was a part of the reasoning under the same subheading:
·“In this context, I find it implausible that the applicant would be targeted instead of other higher profile public servants, including her supervisor and the Minister at the time. Especially considering that the applicant claims she felt coerced and had no control whatsoever over the operations, she was just and employee and her work had to be first and foremost, authorised by her superiors.”
[Error in the Original.]
The assertion was that the delegate found that she had been performing work as a tax inspector in the lead up to the elections, and she carried out an order to gather information from companies that opposed the government.
How the applicant could seriously make such a submission given the explicit, and specific, rejection of all of her employment claims as fabrications (as set out at two dot points later – the first dot point at CB 171), was not made clear.
An attempt was made to argue that the words: “Especially considering that the applicant claims…” (as they appear at the fifth dot point at CB 170) was a finding made by the delegate that the applicant was coerced at work, and had no control over what she was told to do.
It is clear when regard is had to how the delegate approached the assessment of the applicant’s claims (as set out above), that what is set out at this particular dot point is the inconsistency between two aspects of the applicant’s claims.
That is, she claimed that she was targeted. The delegate found this was implausible. This finding was supported (in the delegate’s reasoning) (“Especially considering…”) by another aspect of her claims that she was “just and [sic: an] employee”.
When read fairly, what the delegate reasoned was that the applicant’s claim that she was singled out and targeted (for the covert work), was inconsistent with her claim to be, in effect, a junior employee.
This reading of the delegate’s decision can be understood when regard is had to the previous dot point (at CB 170), where the delegate referred to country information regarding: “…the treatment of former low level government employees…”
In all, therefore, the applicant would have been on notice as a result of the delegate’s decision, that her claims to fear harm in relation to, and as a result of, her employment (and, for that matter, ethnicity and travel) were all fabrications, and her claims were not credible.
The applicant’s ground is premised on the proposition that the Tribunal failed at the hearing to put the applicant on notice that on the issue of her employment, and in particular the covert operation aspect of her employment, it would make a different finding to that of the delegate.
As set out above, this relies on an unfair, and it must be said, in some sense, inexplicable reading of the delegate’s decision.
The Tribunal in fact, in relation to the employment claim, and the integer of the covert operation claim, made, and came to the same ultimate conclusion, as the delegate. Albeit, expressed with far greater precision and clarity.
The Tribunal accepted some of the applicant’s claims that she worked as a tax inspector ([26] at CB 391). But, echoing the delegate’s reasoning, found that it was not plausible that as a “casual contractor” (that is, not a high level employee) she: “…would have been directed to undertake sensitive and covert surveillance work for the secret service unit…” of the tax office ([27] at CB 391).
The matter of her status as an employee was discussed at the Tribunal hearing. (See transcript of Tribunal hearing at Annexure “B” of Ms Metledge’s affidavit of 19 February 2019 at T 12, Line 42 – T 14, Line 9, T 16, Line 28 – T 17, Line 34, and as to the status of the job at the tax office see T 18, Line 33, to T19, Line 16, and in particular T 39, Line 27 – Line 41).
The applicant would have been on notice following the delegate’s decision that the credibility of her claim to have done covert work for the tax office was at issue. In these circumstances, there is no failure of procedural fairness by the Tribunal pursuant to its obligation arising from s.425 of the Act. In all, ground five is not made out.
Consideration: Ground Six
Ground six asserts that the Tribunal failed to engage in an active intellectual exercise before rejecting certain corroborating evidence.
The particulars draw attention to a psychologist’s report submitted to the Tribunal by the applicant. The particulars assert that the Tribunal “dismissed” the applicant’s “history” set out in the report, without considering that the psychologist had been treating the applicant on a continuous weekly basis for about a year, the psychologist’s expertise and experience, and that the psychologist attended the hearing and was available for questioning about the applicant’s history.
The applicant relied on CSO15 v Minister for Immigration and Border Protection (2018) 353 ALR 666 (“CSO15”) at [65] – [66]. In that case, the Federal Court found that the Tribunal (which also had before it a “practitioners report”) was required to engage in an active intellectual exercise in considering the report. In short, the applicant submitted that the Tribunal is obliged to make more than a mere “passing reference” to the report, but was required to give it active consideration.
The applicant also relied on BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 (“BZD17”) at [60] for essentially the same proposition. In that case, the Tribunal was found to have given only “lip service” to the report in that case by accepting some aspects of the report, but failed to engage in the requisite sense, with the expert’s opinion about a significant matter in the review before it.
In this light, the applicant drew attention to the psychologist’s report in the current case (CB 279 – CB 291). The applicant’s submission drew attention to the author’s qualifications, and that he had conducted “weekly counselling sessions” with the applicant for about 11 months.
Further, that the report set out an outline (under the heading of “Assessment”) of the applicant’s family history, education and employment history (including discrimination), and her “torture and trauma experiences” (CB 283 – CB 284).
Following an explanation of the methodology he employed, the psychologist set out a summary of the applicant’s symptoms (from CB 288.9 – CB 289.2):
“[The applicant] exhibits a range of symptoms that appear directly related to her past traumas and current situation as an asylum seeker. These symptoms have decreased over the course of treatment but still include low mood, reduced motivation to engage in enjoyable activities, an irregular sleep pattern, and rumination about leaving her home and family, particularly her mother who is currently receiving treatment for cancer.
[The applicant] acknowledges the fact that she feels better in Australia for having freedom from discrimination that was denied her in Georgia. [The applicant] currently displays some symptoms of anxiety, depression and PTSD, but her mental health is improving as she makes connections and goals for herself in Australia and attempts to move on from her difficult life in Georgia.”
The applicant’s submission was that the Tribunal had before it an expert report that linked her current “range of symptoms” to her “past traumas”. That is, providing corroboration as to the credibility of the claimed traumatic events that gave rise to those symptoms.
However, the Tribunal simply made a “passing reference” to the report without engaging with the content of the expert’s report in any active and realistic intellectual sense. Therefore, the applicant argues that in light of the authorities on which she relied, this reveals jurisdictional error.
As set out above, the applicant relied on two authorities for that proposition. In my respectful view, a proper understanding is required of the context within which the two Full Federal Courts’ expressed the findings on which the applicant now relies.
In BZD17 the Full Court had concerns about what it found to be “serious difficulties” with the Tribunal’s reasoning in that case (see at [59]). These difficulties were exposed variously throughout the Court’s judgment.
That part relied on now by the applicant was a further example of additional concerns held by the Full Court. To be clear, I do not respectfully say this in any way to lessen the direction and guidance to this Court by what was set out at [60] of the Full Court’s judgment. However, it provides context for the following consideration.
In that case, the applicant claimed to fear harm if he were to return to his home country by reason of his homosexuality (at [6]). The Tribunal in that case “comprehensively rejected” the applicant’s claims (at [10], and see [15] – [17]).
In that case, the applicant had provided two reports from a social worker and psychologist in support of his claim to be homosexual. Both had relevant expertise and experience. Further, both reports were prepared based on: “…extended periods of time with the appellant” (at [60]).
As set out above, the Tribunal in that case found that it could not place “much weight” on these reports. The lack of intellectual engagement was found to be that in making that finding, the Tribunal simply relied on its finding that the applicant had fabricated his claim to be homosexual (and his various evidence in support of this), without engaging in the requisite intellectual sense with the contents of the reports, which it otherwise found to have been prepared by persons with relevant expertise and experience.
This was in the circumstances where the Full Court had earlier stated at [32]:
“32. It is well established that findings as to credit are not immune from judicial review. Rather, as the Full Court recently held in DAO16 at [30(1)]:
While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings … are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).”
What I, relevantly, understood from all of this is that in judicially considering findings on credibility made by the Tribunal, it is necessary to analyse what the decision maker has actually reasoned and decided.
In the current case, the Tribunal expressed concerns about the applicant’s “truthfulness and credibility” in relation to her tax office claims. This also in part influenced its rejection of her claim that she would face harm for reason of sexual violence. The claim relating to her ethnicity was not based on any adverse credibility finding, but on country information.
The parts of CSO15 relied on by the applicant now (as referred to above) must also be read in context of the entire circumstances of that case.
In that case, the applicant made claims to fear harm based on: “…specific events that he had experienced, or specific attributes he said were personal to him, as well as claims based more generally on his religion…” (at [11]).
As with the current case, the applicant in CSO15 provided a psychologist report, which before the Court he argued the Tribunal did not “deal with”, particularly in the context of its “general negative…assessment” of the applicant’s claims (at [56]).
At [65] – [66] (on which the applicant now relies) the Full Court stated:
“65.It is true that the Tribunal did not refer back to the practitioner’s report at every point where it made a finding about the appellant’s credibility. However, it was not required to do so. The way it dealt with the practitioner’s report discloses it was conscious of the opinion the practitioner had given. There were no specific submissions from the appellant’s representative, based on the report, which could have directed the Tribunal’s attention to how low level intellectual functioning could explain specific inconsistencies. If there had been detailed submissions at that level, the Tribunal may well have had to deal with them. However, that was not the situation confronting the Tribunal.
66.The Tribunal’s consideration of the psychologist’s report cannot be dismissed as a “passing reference”, and is not for a “different” or “narrower” purpose. The report was provided (in part) to explain why the appellant may have provided inconsistent accounts of events generally. The Tribunal rejected that explanation, in relation to a significant claim made by the appellant (harm targeted specifically at the appellant and his family). This involves an active intellectual process in considering the report. Where no specific submissions were made to it about the use or uses to which the Tribunal should put the report in assessing the credibility and reliability of the appellant’s narrative about what had happened to him in the past, and the opinions in it, the Tribunal was entitled to deploy it at various parts of its reasoning as it saw appropriate, which is what it did.”
What, in my respectful view, emerges as relevant to the disposition of the applicant’s ground, is as follows. Both Full Court judgments made clear that the question raised by ground six in the current case requires analysis of what the decision maker has actually decided. That includes, for current purposes, how it dealt with the psychologist’s report, and the expert opinions given in it. In that consideration, the purpose for which the report was given is also important, as it provides the necessary scope and understanding for the Tribunal’s reasoning. (See also in this context CSO15 at [61] – [64]).
The “Psychological Report” in the current case is reproduced in the Court Book at CB 279 – CB 291. It was prepared by a registered psychologist. It is dated 31 October 2015.
At that time, the applicant was represented by the Refugee Advice & Casework Service (“RACS”), who on 3 November 2015 made written submissions to the Tribunal on her behalf (CB 235 – CB 237). The psychologist’s report was enclosed with the submissions and was said to be, along with other “enclosed” documents, for the Tribunal’s “reference” (CB 235.8). These documents included written statements from the applicant.
There is nothing in the written submissions to explain the actual purpose of putting the report before the Tribunal, other than the general description of “for your reference”.
The submissions (and enclosures) were sent electronically to the Tribunal by email (CB 234). While specific reference was made to the psychologist’s report, its purpose was, again, left unexplained:
“Dear Registry
Please find attached a summary of the Applicant’s claims and a number of enclosures, including a psychologist report from Mr John O’Connor. Please note that Mr John O’Connor will be attending the hearing as a support person and not as a witness.
Sincerely…”
The reference in the email to the attendance of the psychologist as a “support person” rather than a witness could reasonably imply that the psychologist was not seeking to give evidence about the applicant’s claims to fear harm, but that the report (enclosed) was to support the proposition that the applicant was in need of psychological assistance, which was also to be provided to her at the hearing (in a support capacity).
Before the Court the applicant’s submissions proceeded on the basis that the psychologist’s report was provided to the Tribunal to corroborate the applicant’s claim to fear harm on return to Georgia.
There was nothing in the applicant’s submissions however, to provide a basis, or provenance, for that proposition.
The psychologist’s report does provide a psychological assessment of the applicant. It sets out that the assessment was derived from weekly counselling sessions with her for about 11 months.
The psychologist set out his qualifications and experience which then leads to: “In my opinion, this experience enables me to comment on [the applicant’s] psychological state” (at CB 282.10).
This, when coupled with the nature of the psychologist’s attendance at the hearing, provides a further reasonable basis (particularly in the absence of anything expressed to the contrary in the RACS submissions) that the purpose of preparing and submitting the report was to provide “comment”, or an opinion (and, in context, an expert opinion) on the applicant’s psychological state.
The report sets out the applicant’s circumstances as to past events, as she conveyed them to the psychologist during the weekly sessions, and the methodology employed by the psychologist to explain the “Summary of symptoms” set out in the report (CB 288.9).
The Tribunal did refer to the report in its decision record (at [23] and [24] at CB 390 – CB 391):
“23. The Tribunal has also had regard to the report from the applicant’s psychologist provided by the applicant. The psychologist’s report incorporates information presented to him by the applicant regarding her circumstances in Georgia’s and why she fears return. As a professional psychologist, it is not his role to test or question the credibility of the patient but rather to take that into account in regard to dealing with the patient’s mental health situation. In making the above comment the Tribunal accepts this as completely appropriate, that it is a professional action on the part of the psychologist and that the psychologist is doing what he says, reporting what the patient/applicant said to him. However, in determining a protection visa claim the Tribunal is not bound to accept the history recounted in the report, rather the Tribunal is required to make an appropriate assessment of the applicant’s claims.
24. The Tribunal has noted the psychologist’s assessment that the applicant displays symptoms indicative of anxiety, depression and PTSD, which have improved during the time of her treatment, albeit with an increase in anxiety recently, which he has suggested may be related to her hearing and the uncertainty about the outcome of her protection claim. Apart from one instance during the hearing when the applicant became distressed and a break was called, the Tribunal found the applicant cogent and logical in her evidence and that her capacity was not impaired by her mental health. Further, the Tribunal finds that the psychologist’s report does not alter the Tribunal’s credibility findings in any way.”
[Error in the Original.]
Before the Court the applicant relied on [23] to argue that the Tribunal did not engage in the requisite sense with the psychologist’s report. Three points emerge from this.
One, the context of the referral to the Tribunal of the report as set out above. The psychologist who prepared the report attended the Tribunal hearing in a “support” capacity. This is explained in the report given the summary in the report of the applicant’s psychological state and mental health, and by what follows, which was expressed as the psychologist’s opinion arising from this summary of symptoms (CB 288.8 – CB 289.2).
Two, what the Tribunal considered at [23] was whether the report was of assistance in, or relevant to, its task of assessing the applicant’s claims to protection. That is, whether the report could provide corroboration to her claims of past harm and her claimed fears said to arise from that past harm.
Contrary to the applicant’s contention now, the Tribunal did engage meaningfully with the report as expressed at [23]. The Tribunal reasoned that given that the report was based on what the applicant told the psychologist regarding her circumstances in Georgia, and why she claimed to fear harm, that that went to the question of her mental health, not to the question of the “credibility of the patient”. It was reasonably open in the circumstances for the Tribunal to find that the testing of her credibility, in her claims to protection, was its, and not the psychologist’s, task.
As the Tribunal found, it was not bound to accept the history recounted in the report, in the task of assessing the applicant’s claims to protection.
As set out above, the applicant’s contention now is that the Tribunal did not engage in an active intellectual sense with the contents of the report and the opinion expressed there.
But by evaluating the provenance of the information recorded in the report, and the purpose for which the report was created, the Tribunal did exactly that. It could not be that the applicant now seeks to argue that the Tribunal was bound to accept the credibility of the claims set out in the report, given they were no more than another recitation of the applicant’s claims made by the applicant herself to the psychologist. The psychologist’s acceptance of those claims was appropriate to the task set for him by his professional involvement with the applicant.
Nor can it be said that in the circumstances the matters recorded in the report as to past events provide corroboration for the applicant’s claims, given they were a repetition obtained from her of those very same claims.
Further, nor does the psychologist’s opinion as to her symptoms provide corroboration in circumstances where he proceeded (appropriately) to uncritically accept what she had said. The methodology for the assessment of the applicant’s emotional and psychological state (as explained in the report at CB 287.5) proceeds on the basis of the uncritical acceptance of what the applicant said about past events.
Three, before the Court the applicant’s argument did not satisfactorily engage with what the Tribunal set out at [24] of its decision record.
The Tribunal considered the “psychologist’s assessment” in the context of the applicant’s capacity to meaningfully participate at the hearing.
As is clear, ground six does not assert jurisdictional error on the basis of a breach of s.425 of the Act. However in the circumstances leading up to, and including the provision of the report to the Tribunal, it was appropriate, if not necessary, for the Tribunal to consider the question of the applicant’s capacity to give her evidence at the hearing.
The Tribunal invited the applicant to the hearing by letter dated 5 August 2015 (at CB 222). The hearing was scheduled for 10 November 2015 (CB 223). It was sent to her authorised recipient (RACS) (see CB 221 – CB 222).
RACS sent, on the applicant’s behalf, a completed “Response to Hearing Invitation” form (CB 228 – CB 230). This was dated 27 August 2015. The applicant did not request that the Tribunal take evidence from any other person.
On 30 October 2015 RACS sent an email to the Tribunal advising that the applicant: “…would like to bring [the psychologist] as a support person to the hearing…” (CB 231).
An officer of the Tribunal, at the request of the Tribunal member, sought clarification of the psychologist’s status in relation to the applicant’s request (CB 232). Ultimately, RACS responded that he was to attend as: “…the applicant’s psychologist” (CB 233). That is consistent with RACS’ earlier advice.
Given the link made by the applicant’s representative (RACS) between the report of the applicant’s psychologist and his attendance at the hearing to “support” her, it was reasonable, and appropriate, of the Tribunal to understand that this raised the question of her capacity to meaningfully participate at the hearing.
In considering this matter, the Tribunal not only had regard to what occurred at the hearing, but considered what had been relevantly stated in the psychologist’s assessment in his report.
In that light also the Tribunal engaged, appropriately, in an active intellectual sense, with the report. In all, ground six is not made out.
Consideration: Ground Three
In ground three, the applicant asserts that the Tribunal erred by misconstruing the applicant’s claims. The particulars draw attention to [30] of the Tribunal’s decision (at CB 392):
“30. Nor was the applicant able to offer a coherent explanation of the link between the prison sexual abuse videos and the videos she had allegedly made for the GTO – how a video she allegedly took of a small business owner saying they intended to vote for Georgian Dream might result in their torture or how she knew this was what her videos were used for (paragraph 16.I). Given the vague and speculative nature of her claim that the government believes she knew about the sexual abuse and violence (paragraph 12.a); and the fact that the applicant first introduced in her evidence to the Tribunal (supplementary submission and evidence at hearing), notwithstanding that the prison abuse scandal broke in Georgia in September 2012 before the election, it is the Tribunal’s view that the applicant embellished her evidence in this regard in an attempt to strengthen her case.”
The applicant’s argument was that the applicant did not claim to have actual knowledge of the torture, or the use to which the videos (which she made) were to be put.
Her argument now is that she consistently only claimed to be imputed with an anti-government opinion. This was said to be due to her occupation as a tax inspector who conducted covert and illegal video surveillance of those opposed to the then government.
The Tribunal’s error was said to be revealed because it described her claim as “vague and speculative”, and in doing so failed to understand that the actual claim was based on the implication that may arise from her being seen in the videos.
The applicant referred the Court to AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 (“AVQ15”), in particular at [23] – [24] and [28]. The applicant submitted that this was authority for the proposition that adverse credibility findings by the Tribunal need to be made after a careful and thoughtful approach to the claims before it.
Further, the applicant referred to SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 (“SZLGP”) at [25]:
“25. Notwithstanding the breadth of the Tribunal’s discretion to make weight and credibility determinations, the requirement described in WAIJ to make those determinations “judicially” imposes limits that credibility and weight determinations be made rationally and logically, and be articulated properly. It is worth noting in this context that such requirements are not unique to Australia. Indeed, the United States Court of Appeals for the Ninth Circuit has stated that for a migration Tribunal’s adverse credibility finding to survive appellate scrutiny, there must be a “legitimate articulable basis” for the Tribunal’s finding and the Tribunal “must offer a specific, cogent reason for any stated disbelief”: Stoyanov v INS (9th Cir 1999) 172 F3d 731, 736 (internal citations and quotation marks omitted). The Court in Stoyanov went on to state that “minor inconsistencies cannot support an adverse credibility finding” and that “trivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible”: Stoyanov at 736 (internal citations and quotation marks omitted).”
The applicant referred to her statutory declaration made on 31 October 2013 (CB 78 – CB 84), where she set out her claims to fear harm, in particular at [17], [20] – [25] and [30] – [32]. Further, to her representatives’ written submissions reproduced at CB 121 – CB 154, dated 17 January 2014, and in particular at [6] on page 10 of the submissions (CB 130). Even further, she referred to her representatives’ subsequent submissions enclosing her statement of 28 October 2015 (CB 277 – CB 278) particularly at [5]. (See also the applicant’s representative’s submissions of 1 December 2015 (CB 343 – CB 348, particularly at CB 344 at [1.3])).
Before the Court, the applicant referred to country information provided to the Tribunal by her then representatives as part of the submissions dated 1 December 2015 (CB 343 – CB 348). This was said now to be consistent with country information referred to by the Tribunal (at [28], CB 391):
“28. As discussed with the applicant, the Tribunal accepts that, under the previous government, there was extensive use of illegal surveillance, evidence of which emerged following the transfer of power to Georgian Dream after the October 2012 elections, including a cache of some 26,000 video and audiotapes held by the Ministry of Interior. As widely reported by independent sources, the illegal recordings were used for blackmail and were generally of three different types: recording of sexual situations; recordings of meetings and conversations with political elements, mainly politicians, journalists and civil society activists; and videos of sexual abuse in prisons.3 Some of the previously recorded videos were leaked by Georgian Dream for political advantage back in 2012 and more recently in late 2015 on Ukrainian and Georgian TV, as mentioned by the applicant at paragraph 16.h4.”
[Errors in the Original.]
[Footnotes Omitted.]
The applicant also referred to her evidence given at the Tribunal hearing:
(1) at T 13, Line 35 – T 14, Line 8):
“[The Applicant]: I needed to check how the small businesses, small and medium businesses, were working, more towards their financial situation. If they were hiding the tax. If there was the case that they were hiding tax or they were doing some wrong things and we were giving them the fines. And then in May when they started fighting coming up to the elections and the government who won the election with the - putting some information about the prison violence and when they were starting coming to this election, we were ordered that we needed to take some videos and we were going around into these businesses and we were asking them questions which government they were supporting and we were taking the video of that. And after that we were taking this video to the Tax Office and then according to these videos, then those people were punished. The reason that I have a fear, after my arriving in Australia, there were found (indistinct) 15,000 videos were found where there was facts about torturing people - about these 15,000 videos which were found, there is a program and I want you to see it and I've got it. Some of the videos were on Ukrainian and Georgian television four weeks ago and these videos shows how people are raped. On 28 December, I was attacked.”
(2) at T 17, Line 12 – Line 34:
“MS MOUSTAFINE: And you were filming them telling you who they were going to vote for?
[The Applicant]: (Direct) Yes. Yes.
MS MOUSTAFINE: And what happened - - -
[The Applicant]: (Through interpreter) Yes.
MS MOUSTAFINE: - - - with the video after that?
[The Applicant]: And after that I was taking this video to the Tax Office.
MS MOUSTAFINE: What happened after that to that video?
[The Applicant]: And when we took these videos to the Tax Office then according to the videos, they were either punished or some people were tortured. After I arrived here there were 15,000 videos and they were found, how people were tortured. And the part of it was already shown on the television. Then I have a fear that from where there's people from my videos that they will see me in this video and (indistinct) government election will be making these videos open to public.”
The applicant’s submission now was that this was an oral articulation of her claim that she feared harm because of her appearance in these videos, as there would be an imputation that she was a supporter of the previous government which was no longer in power.
The applicant’s contention before the Court was that the Tribunal’s “misconstruction” of the applicant’s claim can be seen in [30] (CB 392) of the Tribunal’s decision (see above at [207] of this judgment).
In short, the applicant’s argument was that she did not say she actually knew of the use to which the videos would be put, but rather, that she appeared in the videos and would be imputed with an anti-government opinion by the people who saw her in the videos.
Therefore, the applicant’s assertion of legal error on the part of the Tribunal is that it misunderstood, or misconstrued, her claim. The applicant’s claim in relation to the videos, was that she would be identified by the new government as someone who had taken videos on behalf of the previous government, in relation to supporters of the new government. This would lead to a perception that she had an anti-current government political opinion.
As set out above, the applicant’s argument sought to take issue with the Tribunal’s findings as set out at [30] of the decision record (see above at [207]).
The actual central finding made by the Tribunal at this part of its decision record (at [30] CB 392) was that the applicant had not been able to offer a: “…coherent explanation” between what was described as “sexual abuse videos” and the videos she said she had made for the tax office.
The context for this was as follows. The applicant says she had claimed to have made videos involving the personnel of companies and businesses opposed to the former government.
The Tribunal had before it country information that the former government had extensively used videos to blackmail opponents. There were three different types of such videos. One type was the recording of sexual situations (at [28], CB 391).
Paragraph 30 of the Tribunal’s decision record must be read holistically, and in context. Contrary to the applicant’s argument now, it is clear that the Tribunal understood that her claim was that she made videos involving businesses opposed to the government, and for this reason she would be, on return, imputed by the current government with a political opinion that she played a role in covertly spying on opponents of the previous government, and supporters of the current government, in support of the former government.
The Tribunal plainly understood the imputed political opinion aspect of the applicant’s claim. The heading above [25] (at CB 391) makes that clear (“Imputed political opinion – making illegal videos for the GTO”). Further, at [25] the Tribunal set out its understanding of this claim in terms consistent with what the applicant now says was her claim, and importantly, consistent with the claims as put before the Tribunal.
The Tribunal accepted that the applicant worked for the tax office (at [26], CB 391). It also referred to country information that the then Georgian government’s tax office did recruit people to conduct covert checks to see that businesses were compliant with their tax paying obligations by visiting these businesses as customers (at [26], CB 391).
However, the Tribunal did not find as plausible the applicant’s claim that she was involved in making the videos. It gave reasons for this probative of the evidence before it. (See in particular at [27], CB 391).
While the Tribunal accepted, based on country information, and as it discussed with the applicant at the hearing, that the previous government extensively used illegal surveillance videos (at [28], CB 391), it did not accept that the applicant had covertly, or in any other fashion, recorded any such videos.
The applicant’s selective focus now on what the Tribunal stated at [29] (CB 392) of its decision record can only be understood as an attempt to obscure the paucity of the basis for the applicant’s ground.
What the Tribunal found in relation to the video claim was not based on any misunderstanding of the character of the applicant’s claim. That is, the Tribunal plainly understood that the applicant was claiming she would be imputed with an anti-government political opinion, because she had covertly conducted video surveillance for the tax office under the former government.
The Tribunal’s critical findings are that the applicant had not made any such videos, notwithstanding country information that the former government did use this mechanism. Nor that the applicant worked for the tax office secret service unit which, according to the country information, did make such videos (at [32], CB 392).
The Tribunal’s reason for this was the: ‘…implausibility that a low level casual contractor without any security vetting’ would be employed to make those videos (at [27], CB 391).
Further, that she did not directly respond when asked at the hearing to comment on the country information (at [29], CB 392), and was unable to offer “a coherent explanation” for the links between the videos she said she took, and the use to which these videos were put as revealed by the country information (at [30] CB 392).
Given the specific allegation of legal error in ground three (misconstruction of the claim), it is important to note that the Tribunal made specific reference to the applicant’s own evidence as given at the hearing before it in relation to the video claim. (See the various references throughout the section in the Tribunal’s decision record dealing with the video claim (at [25] – [34], CB 391 – CB 392), and to [16] at (CB 387 – CB 390) in which the Tribunal summarised the applicant’s evidence).
Before the Court, the applicant’s submissions also sought to focus on what was said to be the Tribunal’s adverse credibility finding about the applicant’s video claim.
Although the applicant focused on what the authorities require from the Tribunal in making adverse credibility findings, the submissions did not satisfactorily explain how this related to the actual reasoning and findings made by the Tribunal in relation to the video claim in this case.
The Tribunal did not reject the factual basis of the applicant’s video claim because of some general adverse finding about her credibility. As set out above, it rejected this claim on the basis of findings arising from reasoning relevant to the applicant’s own evidence, and country information before it.
The Tribunal’s expression of concern about the: “…applicant’s truthfulness and credibility”, as set out at [34] (CB 392) of its decision record, arose reasonably from the analysis that preceded that paragraph. That is, given the authorities to which the applicant now referred, it engaged meaningfully, thoughtfully, and carefully with the evidence, and the character of the claim before it.
A final point in relation to this ground is that at particular c. of ground three, the reference is made to the applicant having made a consistent claim of fearing harm because of an imputed anti-government political opinion, because of having made the videos. Some of her submissions before the Court made a similar point.
The Tribunal’s analysis of the video claim did not rely on any claimed inconsistency in the applicant’s expression in the various accounts of this claim. Rather, the Tribunal focused generally on the claim in the context in which it had been variously put to it, and specifically on the applicant’s evidence at the hearing.
In all, ground three is not made out.
Consideration: Ground Two
Ground two asserts a breach of s.424AA and s.424A by the Tribunal. The particulars focus on [34] (CB 392) of the Tribunal’s decision. It is in the following terms:
“34. The Tribunal’s concerns about the applicant’s truthfulness and credibility are compounded by her readiness to provide false information and documents in the context of her student visa application. As the applicant has admitted to providing false information in order to get her student visa (paragraph 16.s): ‘I needed to leave the country, so I was prepared to do anything’, the Tribunal has to question whether she might also have given false evidence in order to secure a protection visa. In this context, the Tribunal notes that when making her protection visa application, the applicant did not voluntarily advise the Department that she provided false information in her student visa application when she had the opportunity to do so.”
The applicant’s argument was that the Tribunal relied on information given in the applicant’s student visa application, found inconsistency between this information and what was put in her protection visa application, yet did not give the applicant a meaningful opportunity to comment on this information.
The applicant’s contention was that such a meaningful opportunity required the Tribunal to give her a copy of the student visa application form, thereby giving her clear particulars of the relevant information. Further, that she was not given the opportunity to respond or comment on the information, as is required by s. 424AA. (See T 27, Line 30 – T 27, Line 39).
When regard is had to the relevant statutory context, s.424AA does not exist in a vacuum. Section 424AA is a mechanism by which the Tribunal may elect to discharge the obligations set out in s.424A orally at the hearing. Conversely, the Tribunal may elect not to raise information at the hearing, but write to the applicant pursuant to s.424A (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46).
The mere fact that the Tribunal used language at the hearing that may appear to be language consistent with the provisions of s.424AA does not of itself mean that s.424A was engaged. (SZTNL v Minister for Immigration and Border Protection [2015] FCA 463).
The obligation in s.424A is directed to information that is the reason or a part of the reason for affirming the delegate’s decision. In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) the High Court gave direction as to what constitutes information for the purposes of s.424A. (See in particular at [17] – [18]).
It is the case that in its decision record, the Tribunal noted (at [16]q. CB 389):
“[16]q. In accordance with s.424AA of the Act, the Tribunal discussed with the applicant inconsistencies in her evidence regarding her employment between her student visa application (paragraph 14), her protection visa application (paragraph 3) and at hearing (paragraph 16.d), noting that they raised doubts about her truthfulness and credibility. This included that she made no mention in the protection visa context of the ‘LTD Universe Business Group’, from whose Director General she provided a letter stating that she had worked in his company for a long time. Likewise, she did not mention in the student visa context her employment at Lariwin, from whose director she provided a letter stating that she had been sacked because of her Ossetian ethnicity or for David Tevzadze.”
It is difficult to see why the Tribunal felt that it needed to utilise s.424AA. As the High Court made clear in SZBYR (and with reference to VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123) at [18], “inconsistencies” (and for that matter: “…gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps…”) in an applicant’s accounts is not information for the purposes of s.424A.
In any event, when [34] (CB 392), on which the applicant now relies, is fairly read, it is clear that the applicant was given a meaningful opportunity to address the Tribunal’s concerns in this regard.
Following on from the part of the transcript relied on by the applicant now, the Tribunal proceeded to tell the applicant what it said were the inconsistencies in her student and protection visa applications in relation to her employment in Georgia (T 28, Line 13 – T 30, Line 10, and in particular see T 28, Line 37 – Line 44):
“MS MOUSTAFINE: The first one was the Bank of Georgia from September 2010 to February 2011. The second was LTD Universe Business Group.
INTERPRETER: LTD?
[The Applicant]: LTD Universe Business Group from March 20l1 to August 2011---
INTERPRETER: Till when?
MS MOUSTAFINE: August 2011. And you provided a letter from Mr Roman Badalyn written on 31 October 2012 to say that you had worked in his company for a long time and had a very big potential in relationship with partners and you would be in Australia. You will study and also find partners at the same time - business partners. I want to give you the information and then you can talk. Then it also talked about you had been employed in the State Revenue Service as a tax inspector for seven months.
That is very different to what was in your protection visa application and also what you told me today because there you talked about working for - in this form it says Davide Tavadza, Atsinassi, then you worked for the Bank of Georgia from September 2010 to February 2011, then you worked for Lariwin from September to December 2011 and then you worked for the Georgian Taxation Department. So there are inconsistencies between what you put in your student visa application and what you've said in your protection visa application. Hang on, hang on. That's the information that is inconsistent and what I have to say to you - the reason it is relevant is that it raises doubts on which one is true. Is it true what you've put in your student visa application or is it true what you put in your protection visa application? You can answer now or you can ask for more time. If you're happy to answer now, please go ahead, but I have to make - - -
[The Applicant]: (Through interpreter) When I had an interview, I explained it at the interview. When I decided to come here, I needed to have final show support. I didn't have any money on my account and when I was told that I needed money on my account, I tried to find the people who could have helped me. That person, he was my - you know, he was known to me. He's Armenian. He's - - -
MS MOUSTAFINE: Sorry, what-hello?
INTERPRETER: Yes.
[The Applicant] [But in context, the Tribunal Member]: Sorry. All I got was "he's Armenian" and then we lost you.
INTERPRETER: Yes, I don't think she said anything after that.
MS MOUSTAFINE: Okay.
[The Applicant]: I asked him for the help that I needed the financial support from him and because I needed the support, he illegally put me on this company. He knew about me. I hadn't mentioned him before because I didn't want him to have some problems because he helped me. He saved me, so when I came here I didn't want to come here and talk about him (indistinct) here, where I worked, how long I worked and if you need any information about that, I can get that.
MS MOUSTAFINE: Is there any reason why you didn't mention the fact that you worked at Lariwin in your student visa application?
INTERPRETER: What didn’t she mention, sorry?
MS MOUSTAFINE: Apart from mentioning this Universe Business Group, there’s no mention here about either Tavadza or any mention of Lariwin when you made your student application, even though you were asked, “Give details of your employment history since leaving school, college or university.”
[The Applicant]: When I was filling this application, my English was not good and my friend was helping me and we just wrote approximate things, we didn’t like correct it. Because he helped me, I didn’t want him to have any problems.
MS MOUSTAFINE: Yes, I heard you say that, but my questions after that we relating to – had nothing to do with him or any problems. You actually signed a document which said that what you were submitting was true:
‘The information I have supplied in this application is complete, correct and up to date in every detail.’
The second issue arising from that student visa application is the issue of where you studied. Sorry?
[The Applicant]: I needed to do (indistinct) to leave the country. I needed to leave the country so I was prepared to do anything. If I was helped by some other people, this is how I did it. I didn't have enough English to understand everything and I was just saving my 1ife, so I wanted to get out.”
[Emphasis Added.]
[Errors in the Original.]
Even if s.424A had been engaged (which on the issue of inconsistencies, it was not), the Tribunal clearly gave the applicant the opportunity to comment at the hearing, or later. This is entirely consistent with the relevant requirement in s.424AA.
As to the information provided by the applicant herself at the hearing, there was no obligation on the Tribunal to repeat this to her in any s.424A context. Plainly, information given by an applicant to the Tribunal for the purposes of the review is exempt from the obligation in s.424A(1) (s.424A (3)(b)) and therefore there is no need to employ s.424AA.
In all, ground two is not made out.
Consideration: Ground Four
Ground four asserts that the Tribunal failed to give the applicant a meaningful opportunity to present her case pursuant to s.425 of the Act.
The applicant’s complaint in relation to this ground appears to arise from the same circumstances as in ground five. That is, the video claim. In ground four however, the focus is on [30] of the Tribunal’s decision (see above at [207] of this judgment).
The assertion of error is said to be that the Tribunal did not put any question to the applicant at the hearing about the: “…link between the prison sexual abuse videos and the videos she had allegedly made for the GTO”. The applicant argues that what was put to her at the hearing was (at T 23, Line 7 – T 23, Line 14):
“MS MOUSTAFINE: What I'm trying to understand is how a video that you took of someone who says, "I'm going to vote for Georgian Dream"' can be used to then torture someone and how you know that that's what they were used for.
[The Applicant]: I don't know exactly how they (indistinct) but I can say that they came because of these video and I was attacked and I was in the (indistinct) square or square and also I was in a hospital.”
[Errors in the Original.]
It must be said that this “complaint”, common to much of the applicant’s arguments before the Court, is selective.
The matter addressed at [30], in the broader context of the whole of the video claim assessment (as referred to above), was the applicant’s inability to provide a coherent explanation for the link between the videos she said she had made for the tax office, and her claim that what the subjects of the videos might have said resulted in their torture by the former government.
The applicant’s claim concerning the videos was discussed at the Tribunal hearing. (See T 22 Line 3 – T 24 Line 14, T 26 Line 19 – Line 38).
As set out above, the Tribunal rejected the applicant’s claim that she was compelled to covertly make these videos for the tax office. The Tribunal gave a number of reasons for this finding.
The impugned part of [30] is but one element of those reasons. Specifically, the applicant’s inability to explain, in the context of the country information, the link between the videos, and what would happen to those who were the subjects of the videos.
It is important to note that the applicant herself raised the matter of “torture” at the hearing with the Tribunal (at T 22, Line 42 – Line 44):
“[The Applicant]: It was very complicated, that if after those videos they would find the people who they wanted to torture and I was stuck in the middle”.
What follows provides the basis for the Tribunal’s impugned analysis at [30] (see T 23, Line 1 – Line 14):
“MS MOUSTAFINE: How do you know that?
[The Applicant]: They wanted to use us as against the old government and they needed - they wanted to use us, our videos, and those videos were shown on television.
MS MOUSTAFINE: What I'm trying to understand is how a video that you took of someone who says, "I'm going to vote for Georgian Dream", can be used to then torture someone and how you know that that's what they were used for.
[The Applicant]: I don't know exactly how they (indistinct) but I can say that they came because of these video and I was attacked and I was in the (indistinct) square or square and also I was in a hospital.”
In all, ground four is not made out.
Conclusion
None of the applicant’s grounds reveal jurisdictional error in the Tribunal’s decision. It is therefore appropriate to dismiss the application, as amended. I will make that order.
I certify that the preceding two hundred and sixty-six (266) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 1 August 2019
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