BXK15 v Minister for Immigration
[2017] FCCA 889
•26 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BXK15 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 889 |
| Catchwords: MIGRATION – Protection visa application – whether the Tribunal failed to consider corroborating evidence provided by the Applicant – whether any failure to consider corroborating evidence gave rise to jurisdictional error – whether the Tribunal’s exercise of discretion under s.424AA of the Migration Act 1958 (Cth) (“the Act”) gave rise to jurisdictional error – whether the Tribunal failed to comply with sub-s.425(1) of the Act – whether the Tribunal failed to comply with s.499 of the Act because it failed to consider Departmental guidelines pursuant to Ministerial Direction 56 – no jurisdictional error found – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 351, 422B, 424A, 424AA, 425(1), 499 |
| Cases cited: ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 |
| First Applicant: | BXK15 |
| Second Applicant: | BXL15 |
| Third Applicant: | BXM15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2145 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 7 March 2017 |
| Date of Last Submission: | 7 April 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 26 May 2017 |
REPRESENTATION
| Counsel for the Applicants: | Ms Costello |
| Solicitors for the Applicants: | FCG Legal Pty Ltd |
| Counsel for the Respondents: | Mr Aleksov |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The Second Further Amended Application for judicial review filed 7 March 2017 be dismissed.
The Applicants pay the First Respondent’s costs in a fixed amount.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2145 of 2015
| BXK15 |
First Applicant
| BXL15 |
Second Applicant
| BXM15 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and Background
This decision is in relation to an application for the judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 21 August 2015, affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) refusing to grant the Applicants Protection (Class XA) visas (“the visa”).
At the hearing on 7 March 2017, the Applicants were granted leave to file a Second Further Amended Application, containing six grounds of judicial review. Counsel for the Applicants informed the Court that the Applicants no longer pursued ground five.
The First Applicant (“the Applicant”) is a citizen of India, who resided in Punjab, India, from birth until he arrived in Australia. The Second Applicant is his wife (“the Second Applicant”), and the Third Applicant is their daughter (“the Third Applicant”). The Applicant first arrived in Australia on 17 July 2009, and was granted a visa as a dependent of the Second Applicant, who held a Subclass 572 (Vocational Education and Training Sector) visa. After the Second Applicant’s Subclass 572 visa expired, she made an unsuccessful application for merits review for a further student visa, and subsequently, an unsuccessful application for Ministerial intervention pursuant to s.351 of the Migration Act 1958 (“the Act”). Following this, the Applicants lodged an application for the visa on 10 December 2013.
The Applicant’s claims for protection, contained in his application for the visa (CB 15-19), are, in my opinion, fairly summarised by the Tribunal in its decision record as follows (CB 194-195 at [11]-[17]):
11. The applicant claimed in his protection visa application that he was tortured by the Punjab police on the behest of other villagers on the basis of suspicion and old rivalry. He claimed that when the police found the dead body of [Mr S], son of [Mr CK] in a water drain on about 2 May 2003, on the basis of the longstanding rivalry between the family of the deceased and the applicant’s family, the deceased’s family falsely framed him for murder. Although he was not named in the First Information Report (FIR), the applicant claimed he was picked up by the Punjab police on 20 May 2003 from his house, along with his friends, [Mr R] and [Mr G]. They were kept in various police stations of Jagraon for three months during which time they were severely beaten by CIA staff and were not given any food. They were taken to hospital a few times in a state of unconsciousness due to the injuries and beatings. The applicant claimed their parents could not do anything. The police demanded two lakhs each to release them. He claimed the police knew that he and his friends were innocent but the opposing family wanted to frame them to teach them a lesson. The applicant claimed they may have paid money to the police to harass them or used their influence to frame them as [Mr CK] was a Shiromani Akali Dal activist. The applicant claimed that his father paid two lakh to the police inspector who released him along with his friends.
12. The applicant claimed that the matter got silent for about 5 years. They were occasionally called to the police station in Sadar, Jagraon. On 28 April 2009 the police raided his home and arrested him on the same account. He was taken to the police station where he was beaten mercilessly on the behest of [Mr CK] and his ally [Mr J]. He was beaten for several days in their presence and was later hospitalised. He claimed that before this he was falsely framed in another criminal case and beaten and humiliated but was “compromised” on request of the elders of the village. The applicant claimed soon after the incident in 2009 when he was picked up by the police, his friend [Mr G] was picked up by Jagraon police in June 2009, tortured and killed in police custody. He claimed he was afraid and planned for his family to flee abroad to save his life as his enemies threatened to shoot him in daylight in the village. The Tribunal notes the applicant later amended his evidence regarding the timing of [Mr G]’s death from June 2009 to March 2009 by way of a notification of incorrect answer form received by the Department on 24 January 2014.
13. The applicant claimed that he accompanied his wife to Australia and they returned to India to visit their parents in 2010 and 2011 for short periods. During his last visit to India in 2011, on approximately 25 or 26 March, the police raided his house but he was not there. He was in the village Malak. He claimed he escaped to Australia soon after.
14. Around 5 January 2013, the police picked up his other friend [Mr R] and he was beaten and died a few days after, in police custody. He claimed the police threw [Mr R]’s body in front of his house on 13 January 2013. Although there was a great tension in the area due to the death of [Mr R], no further action was taken by the authorities against the police responsible for his death. The applicant claimed he was to travel to India around that time but postponed his plans due to fear of death. The applicant claimed his fear came to be true when last week police picked up his father from their house and beat him to pressurise him to come back from Australia for reasons best known to Jagraon police or his enemies. After his father’s release, his father called to warn him that he should never come to India because the police will surely kill him or falsely frame him in some heinous crime. The applicant claimed that this was the reason he left India and does not want to return.
15. The applicant claimed that he fears he will be killed by the Punjab police or his opponents/enemies in Dall village who are very influential and in power in the State of Punjab. He claimed they have links with other gangsters in various parts of India. He may be falsely framed in another criminal case or may be jailed or tortured or humiliated.
16. In response to the question “Why do you think this will happen to you if you go back?”, the applicant claimed this is a matter of political cum village rivalry dating from a long time back. He stated that he and his family are Congress workers and voted and supported the Congress Sarpanch MLA’s. He claimed Akali leaders want to eliminate them. They made the death of a villager a reason to harass them. His two friends were also Congress men and they had been killed over the same issue, in the same way. The applicant stated that he will also face the same tragedy if he returns.
17. The applicant claimed that the authorities would not protect him as his enemies belong to the ruling Shiromani Akali Dal (Badal) and have political influence in the area. They are in connivance with the Punjab police, who have tortured him and killed his two friends in the past.
In addition to the Departmental interview that the Applicant attended on 28 May 2014, and the evidence that the Applicant gave at the Tribunal hearing on 6 August 2015, the Applicant provided documentary material in support of his application for the visa (CB 39-54, 69-96, 103-108).
Tribunal Decision
The Tribunal found the Applicant’s claims of past harm were not credible because of “numerous inconsistencies and discrepancies” in his evidence (CB 195 at [21]).
These inconsistencies and discrepancies are set out in the Tribunal decision record (CB 195-199 at [21]-[32]). The Tribunal’s findings flowing from the identified inconsistencies and discrepancies are as follows (CB 199 at [33]):
33. Based on the many significant inconsistencies and discrepancies in the applicant’s evidence, as discussed above, the Tribunal does not find the applicant to be a credible witness or his claims for protection genuine. Further, the Tribunal finds the applicant’s return to India despite the alleged targeting of him over a period of some six years and his delay in seeking protection raises further doubts about the veracity of his fear. As such, the Tribunal does not accept that the applicant or his friends were ever arrested and detained in 2003 or at any subsequent time for any reason including because they were suspected of being responsible for the death of a young man or because of any long standing dispute with a rival family or because of the actions of Akali Dal members, particularly [Mr CD]. The Tribunal therefore does not accept that the applicant lived in various places for several years to avoid any harm from either the police, [Mr CD], [Mr CK] (the father of the alleged dead young man), [Mr J], the Akali Dal or anyone associated with any of these people. It does not accept that the applicant was required to go to the police to make any statements in relation to this alleged incident in 2003 or that he was occasionally called to the police station in his village, as he claimed in his protection visa application. The Tribunal does not accept that the applicant was physically assaulted by a group of boys in 2007 or that he was falsely framed in another criminal matter which occurred in 2008 and tortured by police during this incident. Nor does the Tribunal accept that the applicant was taken to the police station and detained in 2009 or that his friends were also detained and killed in custody in 2009 and 2013. It therefore follows that the Tribunal also does not accept that the applicant’s father was threatened by people sent by [Mr CD] and [Mr CK] after the applicant departed India or that the police picked his father up from the family home and beat him so as to “pressurise the applicant to return to India”.
Accordingly, the Tribunal did not accept that the Applicant faces a real chance of persecution from Akali Dal, Mr CD and Mr J, the family of the boy allegedly killed in 2003, including his father Mr CK, or anyone associated with any of these groups, including the police, if he returns to India (CB 199 at [34]).
The Tribunal also dealt with claims in respect of the Third Applicant and the Second Applicant to fear of harm, including rape and sexual violence, and by reason of their association with the Applicant. The Tribunal did not accept that the Second Applicant or the Third Applicant face a real chance of persecution, for a convention reason, if they returned to India.
The Tribunal further was not satisfied that the Applicant met the requirements of the complementary protection provisions (s.36(2)(aa) of the Act). The Tribunal said (CB 200-201 at [40]-[41]):
40. Based on the findings and reasons of the Tribunal above regarding the applicant’s claims that he faces harm from the Akali Dal, [Mr CD], [Mr J], [Mr CK] and his family who are long standing rivals of the applicant’s family or anyone associated with any of these groups, including the police, the Tribunal finds that there are no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm, including being killed. Nor does the Tribunal accept that the applicant or applicant wife face a real risk of suffering significant harm, in an act of revenge by these alleged people or groups. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).
41. The Tribunal also does not accept on the basis of the somewhat vague claims made during the hearing and limited material before it, that there is a real risk that the applicant child will be kidnapped or that either the applicant wife or applicant child will be subjected to criminal acts in the form of violence, including sexual violence, on the return to India. The Tribunal finds the applicants [sic] claims in this respect to be speculative. The Tribunal does not accept on the evidence provided by the applicant in the hearing that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to India that there is a real risk the applicant wife and applicant child will suffer significant harm because they are women or for any other reason.
Judicial review
Grounds one and three
At the hearing, Counsel for the Applicants dealt with grounds one and three together. They are as follows:
1. The decision is affected by jurisdictional error in that when purporting to make the correct or preferable decision on the materials before it, the Tribunal failed to consider the corroborating evidence of two witnesses - [Mr S] and [Mr P] - who provided statutory declaration in support of the main applicant’s claims.
…
3. The decision is affected by jurisdictional error in that the Tribunal failed to give proper, genuine and realistic consideration to the corroborating evidence provided by the applicant. As set out in paragraph 32 of its decision, the Tribunal rejected out of hand the documentary evidence without considering the nature, content or quality of the documents in light of the applicant’s claims.
The Applicant provided two witness statements to the Delegate in support of his case. The first witness statement was a notarised, translated statement dated 16 January 2014, which was prepared by the Applicant’s father, Mr S (CB 94-95). The second witness statement was a notarised, translated statement dated 16 January 2014, which was prepared by a member of the Applicant’s village, Mr P (CB 96).
In his witness statement, the Applicant’s father, Mr S, stated that (CB 94-95):
a)following the recovery of the dead body of the son of Mr CK on 2 May 2003, the Applicant was arrested under a “murder conspiracy” on 20 May 2003. Mr S stated that “[Mr CK] of our village belongs to Akali Dal party of our opponent party”;
b)the Applicant’s two friends were arrested and kept in separate police stations at Jagraon for three months, where they were beaten mercilessly until unconscious and were not given food;
c)this was all done under a “political conspiracy”;
d)they begged the police to hear their case but were not heard as Mr CK “was having high political approach”;
e)with the help of other people (including Mr P, the second witness), they managed to free the Applicant and his friends by making payments to the police;
f)the case was “hidden for about 5 years and several time [sic] police called my son and his friends to Police Station…”;
g)during 2009, the police raided his home, and on 28 April 2009 they arrested the Applicant and beat him “mercilessly”;
h)the Applicant then went to Australia on a student visa, following which, both he and the Applicant were threatened and harassed;
i)the police threatened to shoot the Applicant; and
j)both of the Applicant’s friends have already died and “they also want to kill [the Applicant] under a conspiracy”.
In his witness statement, Mr P said that (CB 96):
a)the Applicant and his two friends, Mr R and Mr G, were falsely implicated in a murder case;
b)they were kept in different police stations for three months and were “beaten mercilessly”;
c)Mr CK’s son was murdered by another person, but under “some conspiracy”, the Applicant and his two friends were considered responsible and harassed illegally;
d)Mr P, with the help of “other well renowned personnel”, managed to free the Applicant and his friends by giving some money to the inspector;
e)after some time, the matter was “with held”, but suddenly the police started harassing their families;
f)both of the Applicant’s friends were picked up by the police and beaten to death. Now the opposition party, through the police, is harassing their families and threatening dire consequences; and
g)the Applicant’s life is in danger because they want to kill him “under a big conspiracy as per his friends.”
Counsel for the Applicants submitted that there was no dispute as to the applicable principles, which are set out at [18] of the written Submissions of the Minister. The relevant authorities are cited at [28]-[29] below.
At the hearing, Counsel for the Applicants submitted that there are two stages of analysis that the Court must engage in:
a)first, was the material ignored?; and
b)secondly, did the material matter enough to amount to a constructive failure to exercise jurisdiction?
Counsel for the Applicants submitted that the real question is the gravity of the material, as recognised in ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 (“ARG15”) at [65]-[66]:
65 . It may be accepted that, merely because there is no express reference to the solicitor’s submission or the Home Office Report information in the Tribunal’s reasons, does not necessarily mean that the matter was not considered by the Tribunal at all (see Minister for Immigration and Citizenship v SZGUR [2011] HCA 1, 241 CLR 594 (SZGUR) at [31] and Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 (SZSRS) at [34]). But as the Full Court further observed in SZSRS at [34]:
… where a particular matter, or particular evidence, is not referred to in the Tribunal's reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant's claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].
66. The reference to MZYTS is a reference to the Full Court’s earlier decision in Minister for Immigration and Border Protection v MZYTS (2013) FCAFC 114; 230 FCR 431 (MZYTS). In that case, the Full Court found that the Tribunal had fallen into jurisdictional error by not considering the most recent country information which had been provided to it. The Tribunal’s reasons for decision contained no explicit reference to country information which had been provided to it by the visa applicant in a post-hearing submission. The Full Court stated at [52]:
In the present case, the issue is squarely whether the Tribunal's reasons do identify the material questions of fact necessary for it to address the claims made by the visa applicant, and how the evidence and material it has set out may be used to infer it has, or has not, addressed those claims. It is not, as in SZGUR, a procedural issue. Further, the omission cannot be sensibly understood as a matter considered, but not mentioned, as contemplated by French CJ and Kiefel J at [31] of SZGUR. The issue here was, as we have explained above, an essential integer of the visa applicant's claim; evidence of which was led to consolidate his claim and contradict information raised by the Tribunal at the hearing. In the particular circumstances of this claim, if the material had been considered, one could expect that it would be referred to, even if it were then rejected.
(emphasis in original)
In ARG15, the Full Court, having found at [67] that “the country information was not considered (and not merely not mentioned) by the Tribunal”, stated at [68]-[69]:
68. There remain two further issues as to whether the failure of the Tribunal to consider the Home Office Report amounts to jurisdictional error.
69. First, was the information relevant and material? Secondly, was any error a jurisdictional error?
Counsel for the Applicants submitted that, in its decision record, the Delegate of the Minister failed to expressly refer to these documents. Likewise, Counsel for the Applicants submitted that there was no specific reference to these documents by the Tribunal in its decision record. Counsel for the Applicants noted that, after making its credibility findings regarding the Applicant’s claims, the Tribunal said as follows (CB 199 at [32]):
The Tribunal notes that the applicant provided a number of documents to substantiate his claims for protection including FIRs, receipts for FIRS, death certificates, hospital documents and newspaper articles. However, given the Tribunal’s concerns regarding the applicant’s credibility, the Tribunal places little weight on these documents. Further, the Tribunal has had regard to country information it put to the applicant in the hearing, including information from DFAT Country Information Report on India dated 15 July 2015 regarding the prevalence of document fraud in India. According to this report, there are no classes of documents which are not open to fraud.
Counsel for the Applicants submitted that, on a fair reading of this extract from the decision record, it can be said that the Tribunal displays a consideration of other corroborative evidence provided by the Applicant, but not the statutory declarations. Counsel for the Applicants further submitted that the failure of the Tribunal to consider the witness statements is evident from the Tribunal is decision record as a whole.
First, Counsel for the Applicants submitted that, in setting out the Applicant’s claims (CB 194 at [10]), there is no reference by the Tribunal to these witness statements.
Secondly, Counsel for the Applicants noted that, where the Tribunal refers to the incident that the Applicant alleged to have occurred in 2003, the Tribunal stated that it “has carefully considered the evidence provided by the applicant regarding the particular incident, and the subsequent problems he claimed to have experienced...” (CB 195 at [21]). Counsel for the Applicants argued that it would be expected that if the Tribunal had considered the two statements of the witnesses, the Tribunal would have referred to the evidence of the Applicant and the two witnesses.
Thirdly, where the Tribunal addressed the Applicant’s claim that the 2003 incident occurred because of an old rivalry between his family and the deceased boy’s family, the Tribunal said (CB 196 at [23]):
… Additionally, the Tribunal finds that there is nothing in either the applicant’s protection visa application or in his statutory declaration to indicate that his arrest took place around the time of local village elections or that his father had any association with a farmers union. In fact, as the Tribunal noted in the hearing, in the protection visa application, the applicant claimed that he had his family were Congress workers “since quite long back” and that they voted for and supported the Congress Sarpanch.
Counsel for the Applicants submitted that the failure to refer to the witness statements suggests that the Tribunal had completely overlooked the witness statements that referred to opposition parties.
Fourthly, Counsel for the Applicants submitted that the Tribunal’s criticism of the Applicant for failing to recall (at the hearing) when he and his friends were arrested after the police discovered the deceased body (CB 196 at [24]), reveals no consideration of the witness statement of the Applicant’s father, which set out the date that the deceased body was found and the date that the Applicant was arrested.
Counsel for the Applicants submitted that the witness statements were relevant and were material, corroborative evidence in relation to the incident in 2003 and the incident in 2009, which the Tribunal found did not occur because of inconsistencies and discrepancies in the Applicant’s evidence. Counsel for the Applicants argued that the Applicant is not required to establish that, had the Tribunal taken into account or considered the witness statements, the Tribunal’s decision would have been different. The Court is only required to satisfy itself as to the possibility of a different outcome, had the Tribunal given the correlative evidence conscious and active consideration. Counsel for the Applicants submitted that, because the statements were material, corroborative evidence in relation to the incident in 2003 and the incident in 2009, had the Tribunal properly considered the evidence, the Court can infer that there is a possibility that the outcome may have been different.
Counsel for the Minister submitted that the fact that the Tribunal did not expressly mention the two statutory declarations does not provide a basis for inferring that the Tribunal ignored those documents.
Counsel for the Minister submitted that, the use of the term “including” at [32] of the Tribunal decision record, makes it plain that the Tribunal was not purporting to set out an exhaustive list of the documents provided by the Applicant, but rather, that the Tribunal chose to mention only the documents listed there. Counsel for the Minister argued that the Tribunal is not required to refer to every piece of evidence in its statement of reasons: Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67]. Counsel for the Minister accepted that whether an inference may be drawn that some matter was not considered from a failure to mention it in the reasons, will depend on the objective importance of the relevant document: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99.
Counsel for the Minister argued that the Tribunal found that the Applicant’s internal narrative was replete with inconsistencies and discrepancies as it advanced through the various stages of the protection visa process, and therefore was not credible. Counsel for the Minister submitted that it is permissible for the Tribunal to make such a determination on credibility prior to, and perhaps without, evaluating purportedly corroborative evidence advanced by an Applicant: Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 (“SZNSP”); Chen v Minister for Immigrationand Citizenship [2011] FCAFC 56 (“Chen”) at [35].
Counsel for the Minister noted the headnote in the reported decision of SZNSP, which is as follows:
(2) There is nothing irrational about the Tribunal rejecting the witness statement by giving it no weight. In circumstances where the provenance of the document is unproved, but it is proffered by a witness whose credibility has been destroyed, the document has no more credit than the person proffering it. [36], [50].
Counsel for the Minister submitted that, in light of the Tribunal’s conclusions regarding the Applicant’s credibility, it was unnecessary for the Tribunal to undertake any lengthy evaluation of the witness statements. Counsel for the Minister argued that the Tribunal decision record makes it clear that the Applicant’s lack of credibility, together with the ease of document fraud in India (CB 200 at [32]), meant that the documents advanced could not be regarded as reliable. In any event, Counsel for the Minister argued that even if the Court did infer that the Tribunal failed to consider these documents, no jurisdictional error arises as those documents could not have affected the outcome of the review: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141. This is because, Counsel for the Minister submitted, the Tribunal affirmed the decision of the Delegate by reference to difficulties with the Applicant’s own evidence, thus any reference to the statutory declarations could not have overcome the difficulties identified by the Tribunal with the Applicant’s own evidence.
Counsel for the Minister also referred to the decision of Griffiths J in SZSSC v Minister for Immigration and Border Protection [2014] FCA 863 (“SZSSC”) at [81], where his Honour summarised legal principles to be considered in determining whether or not the Tribunal has committed jurisdictional error by failing to evaluate a substantive and clearly articulated submission. In particular, Counsel relied on the following subparagraph from [81] of SZSSC:
(f) in SZRKT, in considering whether the Tribunal is obliged to consider a document, Robertson J said, consistently with VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [77], that much depends on the circumstances of the case and the nature of the document. Justice Robertson added that relevant factors to be considered where the question is whether there was a failure to consider corroborative evidence, include the cogency of the evidentiary material and also the place of that matter in the assessment of the applicant’s claims. In my view, similar factors are also relevant in considering whether the failure to deal with a submission of substance gives rise to a jurisdictional error (at [112]);
Counsel for the Minister argued that it is for the Applicant to displace the presumption of regularity; in this case, to persuade the Court that the documents referred to did not include the two witness statements and that the Tribunal did not deal with the substance of the Applicant’s claims.
In reply, Counsel for the Applicants argued that the Minister’s reliance on the headnote in SZNSP is misplaced as, in that case, the Tribunal considered the relevant material but gave it no weight. Counsel for the Applicants likewise argued that Griffiths J provided a helpful summary of relevant principles in SZSSC [81], and further relied on his Honour’s observation that (SZSSC at [76]):
76 . The Minister also contended that the same conclusion could be arrived at if the reasoning of the Full Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 136 ALD 547 (MZYTS) applied to the particular circumstances. In MZYTS, in describing the Tribunal’s statutory obligation or task in reviewing a decision refusing an application for a protection visa where the applicant argued that there were growing risks of politically-motivated violence for people like him in Zimbabwe (for which he had provided in support updated country information which was not considered by the Tribunal), the Full Court stated at [38]:
That task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the tribunal an accurate picture of the ongoing circumstances on the ground in Zimbabwe for him if he were to be returned there… (Emphasis added).
(emphasis in original)
Counsel for the Applicants submitted that, read fairly, the Tribunal’s reasoning as a whole does not disclose that the Tribunal considered the corroborative evidence contained in the two witness statements.
Counsel for the Applicants repeated her earlier submission that had the Tribunal consciously dealt with the witness statements, there was a possibility of a difference in the outcome of the review because the witness statements were material and relevant to key aspects of the Applicant’s claims; namely, that he was seriously harmed (as were his friends) in 2003 and later in 2009, for “trumped up” reasons, that being the death of the son of Mr CK (a long-time family rival and a person with powerful political connections).
Consideration
The two witness statements were, without doubt, corroborative evidence provided by the Applicant to support his claims that he suffered serious harm in 2003 (as did his friends), that he was further beaten in 2009 (as was his father), and that his friends were subsequently killed. In my opinion, it is apparent from the summary of the contents of these witness statements (at [13] and [14] above), that this was evidence that was relevant and material to the Applicant’s claims. I am satisfied that the Tribunal was obliged to consider this evidence.
The question is whether the Tribunal did consider this evidence. In deciding whether the Tribunal considered the evidence, regard must be had to the structure and reasoning of the Tribunal’s decision record.
The Tribunal commenced its consideration of the claims and evidence of the Applicant at [10] of its decision record, where it refers to the sources of the Applicant’s claims (being his protection visa application, a departmental interview and the Tribunal hearing). I disagree with the Applicant’s submission that the failure of the Tribunal, in this paragraph, to refer to the two witness statements is suggestive of a failure by the Tribunal to consider the witness statements. In this paragraph, the Tribunal was dealing with the claims, or issues raised by the Applicant. It was unnecessary for the Tribunal to refer to corroborative evidence. The Tribunal then proceeded to set out the content of the Applicant’s claims (CB 194-195 at [11]-[17]). At [19] of the Tribunal’s decision record, it defined the primary issue in the review, and at [20] of the Tribunal’s decision record, it stated its conclusion that the decision under review should be affirmed. The Tribunal then stated that, due to numerous inconsistencies and discrepancies, it did not accept that the Applicant’s claims regarding his past problems in India are credible (CB 195 at [21]). The Tribunal then proceeded to set out, in detail, the inconsistencies and discrepancies in the Applicant’s claims and evidence over the course of the proceedings (CB 195-199 at [22]-[31]). The Tribunal then noted that “the applicant provided a number of documents to substantiate his claims…” (CB 199 at [32]). As is apparent from the Full Court decision in Chen and SZNSP, there is nothing wrong with such an approach.
No jurisdictional error arises merely because a tribunal makes findings regarding the Applicant’s credibility prior to considering an Applicant’s corroborative material.
In Chen, the Full Court of the Federal Court held (Chen at [35]):
35 . We do not accept that the Tribunal’s decision record shows, as a matter of structure and language, that it arrived at its findings on credibility without considering the totality of the material before it. However even if the Tribunal did not consider the corroborative material until after reaching its conclusions on credibility, there is no error (S20 at [49]; SZNSP at [34]; SZOHB v Minister for Immigration and Citizenship [2010] FCA 1394 at [21]).
In Chen, however, the Full Court found that the Tribunal had considered the corroborative evidence.
In SZNSP, the Full Court stated relevantly (SZNSP at [37]-[38]):
37. Several further observations should be made concerning the type of situation addressed in Applicant S20/2002 198 ALR 59. The case does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence.
38. The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. Applicant S20/2002 198 ALR 59 does not sanction a practice of disregarding corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence. Consequently, the observation concerning the dicta of McHugh and Gummow JJ at [49] in Applicant S20/2002 198 ALR 59 made in SZDGC v Minister for Immigration and Citizenship (2008) 105 ALD 25 at [23] is probably misdirected. Those observations addressed the situation where the corroborative evidence was disregarded.
I am not satisfied that the Tribunal’s general reference to “a number of documents to substantiate” the Applicant’s claims together was the use of the word “including” (CB 199 at [32]) can be said to disclose that the Tribunal considered the two witness statements. It seems to me that the particular documents referred to as being included in this general statement, “FIRs, receipts for FIRs, death certificates, hospital documents and newspaper articles” are of an entirely different character to evidence given in the form of notarised witness statements by two individuals. I can see nothing in the remainder of the Tribunal’s reasons which suggests that the Tribunal did consider the two witness statements.
I agree with the Applicant that, had the Tribunal considered the witness statements, where the Tribunal referred to the incident in 2003 and stated that it “has carefully considered the evidence provided by the applicant regarding this particular incident, and the subsequent problems he claimed to have experienced…” (CB 195 at [21]), one might have expected the Tribunal to refer to both the evidence of the Applicant and of the two witnesses.
I find, therefore, that the Tribunal overlooked, failed to consider or disregarded the corroborative evidence.
Although I have found that the Tribunal overlooked, failed to consider or disregarded the two corroborative witness statements provided by the Applicant, I am not satisfied that this gave rise to jurisdictional error. This is because I am not satisfied that, had the Tribunal considered the material, there is some possibility that the outcome would have changed.
The Tribunal’s adverse findings about the Applicant’s evidence were overwhelming. Its adverse credibility findings were set out in some detail, and concerned not merely the Applicant’s incapacity to recall the time periods of the alleged incidents, but inconsistencies as between his claims on his protection visa, his claims made at the Departmental interview and his claims made at the Tribunal hearing, regarding his evidence about the reasons why the Applicant and his two friends were framed. The Tribunal noted that the Applicant claimed that the arrest of the Applicant and his friends in 2003 was because of political reasons, whilst in his protection visa the Applicant claimed it was because of family rivalry (CB 195-196 at [22]-[23]). As the Applicant’s father, in his witness statement (summarised at [13] above), referred to a “political conspiracy”, consideration of this witness statement would hardly have addressed this identified internal inconsistency in the Applicant’s evidence.
The Tribunal identified inconsistencies in relation to the Applicant’s evidence about whether or not he was taken by the police during his period of detention, to be treated at a hospital, or a local doctor (CB 196 at [25]). The two witness statements would not have assisted in relation to this issue. In any event, based on country information, the Tribunal found the Applicant’s claim that he was taken for treatment at all to be implausible (CB 196 at [25]). There were further inconsistencies, including where the Applicant lived following his release from detention from 2003 to 2007 (CB 196-197 at [26]), an alleged attack in 2007 (CB 197 at [27]), and the harm he suffered in 2009 (CB 197-198 at [28]). Further, the Tribunal identified an inconsistency between the Applicant’s claims in his protection visa and at hearing regarding the circumstances in which he claimed his father were beaten (CB 198 at [29]). I do not see how his father’s witness statement would have assisted the Tribunal in considering this inconsistency.
A further reason given by the Tribunal for not accepting the Applicant’s claims was the delay in the Applicant’s decision to apply for the visa. This delay involved a period of four years after arriving in Australia (CB 198-199 at [31]). In these circumstances, the Tribunal did not accept the Applicant’s explanation for the delay, and stated that it raised concerns about the genuineness of his fear.
Moreover, the Tribunal’s views, based on country information, regarding the authenticity of documents, were made very clear. It said, based on the Department of Foreign Affairs and Trade (“DFAT”) Country Information Report on India (“the DFAT Report”) that, “[a]ccording to this report, there are no classes of documents which are not open to fraud” (CB199 at [20]). Given this view of the Tribunal, it is likely the Tribunal would have regarded the witness statements with the same scepticism.
For the reasons set out above, I find that no jurisdictional error arises on the basis of grounds one and three.
Ground two
Ground two is as follows:
The Tribunal’s decision is affected by jurisdictional error in that the Tribunal erred in exercising its discretionary power in [sic] under s.424AA of the Migration Act.
Particulars
a. On two occasions, the Tribunal erred in exercising its discretion under s.424AA to put information orally to the applicant that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review.
b. First, the Tribunal orally put information from a DFAT Country Information Report on India dated 15 July 2015 (“DFAT Report”) regarding the prevalence of document fraud in India to the applicant during the hearing (see [32] at CB 198 and the transcript of the hearing).
c. In exercising its discretion under s.424AA to put the country information regarding document fraud to the applicant, the Tribunal breached s.424A and acted in a legally unreasonable manner in that:
i. the Tribunal did not give clear particulars of the information to the applicant;
ii. the Tribunal did not orally invite the applicant to comment on or respond to the information; and
iii. the Tribunal did not advise the applicant that he could seek additional time to comment or respond to the information.
d. Secondly, the Tribunal orally put information regarding Punjab police (“Police Information”) to applicant during the hearing (see [25] at CB196 and the transcript of the hearing).
e. In exercising its discretion under s.424AA to put the Police Information to the applicant, the Tribunal breached s.424A and acted in a legally unreasonable manner in that:
i. the Tribunal did not give clear particulars of the information;
ii. the Tribunal did not ensure, as far as was reasonably practicable, that the applicant understood why the information was relevant to the review, and the consequences of the information being relied on in affirming the decision under review;
iii. the Tribunal did not orally invite the applicant to comment on or respond to the information; and
iv. the Tribunal did not advise the applicant that he could seek additional time to comment or respond to the information.
(emphasis in original)
The Applicant’s argument in relation to this ground was, in summary, as follows:
a)in its decision record, the Tribunal stated that at the hearing it put to the Applicant country information, including the DFAT Report;
b)the transcript of the Tribunal hearing discloses that the Tribunal did not put this information to the Applicant;
c)under s.424AA of the Act, the Tribunal may orally give to an applicant particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review. Under s.424AA(1)(b) of the Act, if the Tribunal does give particulars of the information, then the Tribunal must do so in a way that complies with the matters set out in s.424AA(1)(b) of the Act;
d)the exclusion in s.424A(3)(a) of the Act does not apply to s.424AA of the Act; and
e)the Tribunal, having not complied with s.424AA(1)(b)(i)-(iii) of the Act, fell into jurisdictional error.
The Applicant, in written submissions, acknowledged that:
… there is Federal Court authority contrary to this ground: SZMCD v Minister for Immigration and Citizenship and Another (2009) 174 FCR 415. In SZMCD, the Court held that s424AA and s424A needed to be read together and the only consequence of non-compliance with all of the requirements of s424AA is that the Tribunal does not get the benefit of s 424(AA) [sic]. It is respectfully submitted that the Court in SZMCD is wrong. Section 424AA does not refer to s 424A and should be given its plain meaning, which does not exclude country information from its ambit. While this Court is bound by SZMCD, the Applicants seek to preserve this argument for possible appeal.[1]
[1] Applicant’s Outline of Submission filed 29 December 2016 at [21].
The Court is bound by the decision in SZMCD v Minister for Immigration and Citizenship and Another [2009] FCAFC 46; (2009) 174 FCR 415 (“SZMCD”). In SZMCD, the majority said (SZMCD at [73]):
Section 424A is obligatory. Non-compliance with its provisions will very often amount to jurisdictional error. Section 424AA is discretionary. Non-compliance with its provisions will result in the Tribunal not having the benefit of s 424A(2A). In that event, it must strictly comply with s 424A.
The majority held that non-compliance with the provisions of s.424AA of the Act does not constitute jurisdictional error (SZMCD at [74]-[75]). The majority said that (SZMCD at [77]):
The immediate effect of a failure properly to comply with s 424AA is that the Tribunal will have purported to exercise a procedural discretion but will have in fact failed to do so in the manner required by the statute. The relevant sections when read together in their context suggest that the overriding obligation to provide the applicant with clear particulars of relevant information subsists and will be required to be discharged by other means (ie through s 424A(1)).
Relevantly, the majority found that (SZMCD at [88]):
If the information under consideration by the Tribunal is the type of information covered by subs (3) of s 424A or if the Tribunal has engaged the provisions of s 424AA and complied with the requirements of that section, it need not meet the requirements of s 424A(1). This is because s 424A(2A) relieves the Tribunal of the obligation to do so if s 424AA has been complied with and s 424A(3) relieves the Tribunal of the obligation to do so if the information is of a kind covered by that subsection.
Accordingly, I find that ground two does not give rise to jurisdictional error.
Ground four
Ground four is as follows:
The Tribunal failed to comply with s.425(1) of the Migration Act 1958 (Cth) in that the Tribunal did not give the applicant a sufficient opportunity to give evidence, or make submissions, about determinative issues.
Particulars
Police Information:
a. At [25] of its decision, the Tribunal stated:
“As the Tribunal put to the applicant in the hearing, the independent information regarding the Punjab Police, particularly in the early 2000s reports on their practice of arbitrary detention of suspects, engaging in torture and extrajudicial killings and ‘disappearances’…”
b. The Tribunal did not put any such independent information to the applicant during the hearing.
c. The Tribunal’s rejection of the applicant’s claim that the police falsely implicated him in a murder case on the behest of others was based on the independent information that was not put to the applicant.
DFAT Report:
d. At [32], the Tribunal stated:
“the Tribunal has had regard to country information it put to the applicant in the hearing, including information from DFAT Country Information Report on India dated 15 July 2015 regarding the prevalence of document fraud in India. According to this report, there are no classes of documents which are not open to fraud.”
e. The Tribunal did not put the contents of the DFAT Report to the applicant during the hearing.
f. The Tribunal’s rejection of the applicant’s corroborating documentary evidence was based on the contents of the DFAT Report.
The Applicant submitted that the Tribunal failed to comply with s.425(1) of the Act, in that the Tribunal did not give the Applicant a sufficient opportunity to give evidence, or make submissions, about determinative issues. These were identified by the Applicant as independent information regarding the Punjab police and the DFAT Report, regarding the prevalence of document fraud in India.
Counsel for the Applicants submitted that the Tribunal’s rejection of the Applicant’s claim that the police falsely implicated him in a murder case at the behest of others, was purportedly based on independent information about Punjab Police that was not put to the Applicant.
Counsel for the Applicants further argued that The Tribunal’s rejection of the Applicant’s corroborating documentary evidence was purportedly based on the information contained in the DFAT Report, which the Tribunal said that it had put to the Applicant at the hearing, in circumstances where it had not.
The Minister submitted, in written submissions, that:
26. The Minister accepts that the obligation under s 425(1) extends to requiring that there be conducted a hearing at which the applicant is able to give evidence and present arguments relating to the issues arising in relation to the decision under review. In substance, this requires that the hearing be real and meaningful, which may require the Tribunal to draw to the applicant’s attention any “issue” in the review that is not obvious from that statutory context or the circumstances of the review.[2]
27. The obligation upon the Tribunal does not extend to requiring the Tribunal to “put” country information to an applicant during the course of a hearing under s 425. The importation of any such requirement is inconsistent with the procedure set out in ss 424A and 424AA, and in particular, the exception of country information from the obligations of the Tribunal to give clear particulars of adverse information to an applicant under s 424A(3)(a). It would also elevate the obligation to draw to the applicant’s attention “issues” in the review to, effectively, the standard of the common law hearing rule. This is inconsistent with s 422B.
28. Accordingly, even though the applicant’s factual allegations are essentially correct, ground four is incapable of amounting to any species of “jurisdictional error”.
[2] SZBEL v Minister for Immigration (2006) 228 CLR 152.
Consideration
It is not disputed that s.425(1) of the Act obliges the Tribunal to invite an applicant to give evidence and present arguments in relation to issues arising from the decision under review. This sub-section sits within various provisions that together provide an exhaustive statement of the natural justice hearing rule (s.422B of the Act).
I do not accept the Applicant’s submission that the Tribunal rejected his claim that he was falsely implicated by the police based on independent information about the Punjab police. It is evident, from the Tribunal’s decision record, that the Tribunal relied on this country information in rejecting the Applicant’s evidence that, whilst he was in detention and being beaten, the police took him to either a hospital or local doctor for treatment. There were many other reasons as to why the Tribunal rejected the Applicant’s claim, most of which were to do with the inconsistencies and discrepancies in his evidence. However it is evident from the Tribunal’s decision record that it had regard to country information, including the DFAT Report, in dismissing the Applicant’s corroborative evidence.
Following the hearing, I became aware of a decision, not referred to by either party in written or oral submissions, but which seemed to have relevance to this ground of review. The decision is that of Justice Bromberg in ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 (“ABV16”). By correspondence from my Chambers, the decision was drawn to the attention of the Applicant’s and First Respondent’s solicitors, who were invited to make any written submissions on the relevance of this decision to ground four. Supplementary Written Submissions were filed by the Applicant and the First Respondent.
In ABV16, the Minister filed a Notice of Contention (“NoC”) which appears to be at idem with the Minister’s submissions in the present case. The relevant extracts from Justice Bromberg’s decision in relation to the NoC are as follows (ABV16 at [42]-[58]):
42. The NoC contained an additional contention by which I was invited to dismiss the appeal in the following terms:
The country information referred to at [66]-[68] and [70] in the decision of the second respondent (Tribunal) fell within [s 424A(3)(a)] of the Migration Act 1958 (Cth) and did not enliven any obligation on the part of the Tribunal under s 425(1) of that Act.
43. In support of that contention, the Minister advanced three points. First, that to find that the post-hearing COI gave rise to a hearing obligation under s 425(1) would undermine the purpose of s 424A(3)(a). Second, that to discharge its obligation under s 425(1), the Tribunal would have had to have provided sufficient particulars in relation to the Chinese policy change that it would, in essence, have provided the particulars of the post-hearing COI. To require the Tribunal to do so, it was said, would cut across the exception provided by s 424A(3)(a) to render it superfluous. And third, that to require the Tribunal to hold a further hearing would impermissibly import the obligations under s 424A into s 425(1).
44 . Section 424A provides relevantly as follows:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
…
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
…
45 . The Minister’s first point in support of the NoC invokes the purpose of s 424A(3)(a), however when I asked the Minister what that purpose was, he was unable to point to any particular mischief the section had been designed to remedy. It was made clear by the High Court in Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) that s 424A(3)(a) had the effect of reducing the content of the Tribunal’s statutory procedural fairness obligation in relation to COI to a level below that of the common law. However, I doubt that that could be said to be an end of the provision in itself.
46 . Section 424A(3)(a) is cast as an exception to the requirement in s 424A(1) that the Tribunal provide particulars of information that is adverse to a visa applicant’s case. It is not immediately clear from the terms of the provision why it should provide any additional exception to the obligation in s 425(1) to provide a hearing in relation to the issues, as contended for by the Minister’s NoC. It was uncontentious that there is a distinction between the evidence relating to an issue and the issue itself: SZHKA at [103].
47 . I see no reason why the effect of s 425(1) ought to be constrained by s 424A(3)(a). The two provisions are concerned with different subjects and have an operation that is independent of one another.
48. I nevertheless accept that, in certain circumstances, both the issues and the evidence relating to the issues may overlap where they arise from the same source. Further, it is true, as the Minister said, that s 424A does not distinguish between information of a specific and general nature. However I do not accept the contention that the mere mention of the Chinese policy change by the Tribunal would necessarily engage the terms of s 424A. Before it was ever a particular of a CNN report, the Chinese policy change existed in the world as its own freestanding fact capable of forming the basis of an issue for the purposes of s 425(1). That it was reported, and hence came within the ostensible scope of s 424A(3)(a), cannot subsequently deprive it of that character.
49 . In the present case, the Tribunal may have satisfied its s 425(1) obligation by holding a subsequent hearing at which the Tribunal told the appellant that it may form a view that the policy no longer applies to the appellant. I find it to be a manifestly unattractive proposition that disclosure in such limited terms could offend s 424A(3)(a) simply because that information had been reported in some COI. The logical extension of the Minister’s argument in this regard would be to excuse the Tribunal of its obligation to provide a hearing in relation to any issue arising solely from the general conditions in the country of origin, as reported in the COI. I cannot accept that proposition.
50. In support of his third argument under the NoC, that it is impermissible to import into s 425(1) the requirements of s 424A(1), the Minister relied on the decision of the Full Court in Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 (Emmett, Weinberg and Lander JJ). At [88] their Honours said:
The short answer to the applicant’s submission based upon SZBEL is that s 425 does not require the RRT to identify the significance of the questions that it puts to a claimant or the ultimate matter or issue to which those questions go. That is not what is required by SZBEL, and is an attempt to import the requirements of s 424A(1) into s 425.
51 . However that case was concerned with a complaint that the Tribunal had not identified with sufficient particularity the significance of the questions put to the appellant. It was implicit in their Honours’ reasoning that the asking of questions, framed generally, was sufficient to put the visa applicant on notice of the issue and discharge its s 425(1) obligation. No complaint of that sort can be made in the present appeal because no questions on the subject of the ongoing applicability of the Chinese policy were asked by the Tribunal. To the extent that their Honours’ reasoning demands a separation of the obligations in ss 424A and 425, I would respectfully agree, and say that that reasoning only serves to underscore the conclusion I have already reached that in most, if not all, cases the obligation generated by s 425(1) can be satisfied without reference to the particulars of any COI.
52. The Minister also relied upon recent Federal Court authority to support the proposition put in the NoC. There is not much assistance to be found in either ACC15 v Minister for Immigration and Border Protection [2016] FCA 97 (Gilmour J) or BEV15 v Minister for Immigration and Border Protection [2016] FCA 507 (Bromwich J). In neither case were their Honours required to squarely confront the question of any conflict between the two provisions. In BEV15, Bromwich J observed at [57] that the obiter observation made in ACC15, upon which the Minister here relied, may be specific to the facts of that case and (at [58]) that it was unnecessary for the interaction between ss 424A(3)(a) and 425(1) to be resolved in BEV15.
53 . While I do not consider it strictly necessary to decide, in my view, to the extent that there is any conflict between s 424A(3)(a) and s 425(1), the terms of the Migration Act dictate that the s 425 requirement to hear a visa applicant in relation to all of the issues in the proceeding must prevail.
54 . To arrive at that conclusion I have taken into account the statement of principle of McHugh, Gummow, Kirby and Hayne JJ at [70] of Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, where their Honours said (footnotes omitted, emphasis added):
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
55. As between s 425(1) and s 424A(3), I consider s 425(1) to be the leading provision and s 424A(3) to be subordinate. Section 425(1) is the centrepiece of Div 4 of Part 7 of the Migration Act’s exhaustive scheme of procedural fairness (s 422B) in relation to applications for review before the Tribunal. It is the only provision which provides a visa applicant with the opportunity to appear and present material on all of the matters the subject of the review. By contrast, any opportunity to present material provided by s 424A is limited to that information which the Tribunal has identified as being adverse to the visa applicant.
56 . Moreover, the terms of the provisions themselves are instructive and reinforce my conclusion that s 425(1) leads s 424A(3). Section 425(1) is framed mandatorily, such that the Tribunal must invite the applicant to appear. By contrast, s 424A(3)(a) contains no mandatory prohibition on the Tribunal providing notice of adverse COI. Rather the provision merely relieves the Tribunal of any positive obligation to provide such notice under s 424A(1).
57 . Furthermore, the construction I prefer better facilitates the objective inherent in s 422B(3) of having the terms of Div 4 of Pt 7 applied “in a way that is just and fair”.
58 . The consequence is that if in order to give a visa applicant a meaningful opportunity to address the issues under review it becomes necessary to identify the particulars of the information which founds a given issue, then, according to the terms of s 425(1), the Tribunal must do so.
(emphasis added)
There is no dispute that during the Tribunal hearing, the Tribunal Member did not put to the Applicant the information regarding the Punjab police and the country information about the prevalence of fraudulent documents in India.
The question to be resolved is what effect, if any, do the provisions of s.424A(3)(a) of the Act (which relieves the Tribunal of the obligation to provide the Applicant with particulars of information which may be adverse to his case, where this information is generally referred to as “country information”), have on the obligation imposed on the Tribunal under s.425(1) of the Act. Having considered the decision in ABV16, it seems that the answer to this may well depend on the distinction between the concept of “issue(s)” and evidence relating to the issue.
The Applicant’s Supplementary Written Submissions are as follows:
5. In this proceeding, the Applicants have contended that the Tribunal failed to comply with s 425(1) of the Migration Act, in that the Tribunal did not give the Applicant sufficient opportunity to give evidence or make submissions about determinative issues. The two determinative issues that the Applicants have said the Tribunal mishandled are: first, issues arising in country information evidence about the prevalence of document fraud in India; and secondly, issues arising in country information about the nature of the Punjab police (see ground 4 of the Applicants’ amended application).
6. Both issues bore upon the Tribunal’s consideration of the Applicants’ claims and evidence. The Tribunal’s rejection of the Applicants’ corroborating documentary evidence was purportedly based in part on the contents of a 2015 DFAT Report. The Tribunal said at [32] of its Decision that it had put this information to the Applicants at the hearing, when in fact it had not: the transcript filed by the Applicants establishes that the Tribunal did not put the contents of the DFAT Report to the applicant during the hearing with any level of identification of the source or any specificity or granularity as to its contents.
7. The Tribunal’s rejection of the main applicant’s claim that the police falsely implicated him in a murder case on the behest of others was purportedly based on independent information about Punjab Police. In its decision, the Tribunal referred at [25] to country information that the Tribunal said it put the applicant. In fact, the transcript filed by the Applicants establishes that the Tribunal did not put any such independent information to the applicant during the hearing.
8. ABV16 brings fresh judicial attention to the requirement in s 425(1) of the Migration Act for the Tribunal to give a visa applicant a fair and meaningful hearing invitation. ABV16 applied the High Court case of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, which established that s 425(1) obliges the Tribunal to provide applicants with an opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review: at [44] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
9. It was already the law before ABV16 was decided, that the invitation and opportunity to appear before the Tribunal to give evidence and present argument must be meaningful and cannot be a hollow shell or empty gesture (see for example Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [33] and [37] per Gray, Cooper and Selway JJ).
10. Here, the Tribunal breached s 425(1) in its manner of dealing with the two relevant issues discussed above at [5]-[7]. It is respectfully submitted that the reasoning and result of ABV16 supports the Applicants’ case.
The Minister’s Supplementary Written Submissions can be appropriately summarised as follows:
a)to the extent that the decision in ABV16 considered the NoC by the Minister, and to the extent the Minister’s submissions in support of that NoC were not the basis for his Honour’s ultimate decision, it is obiter dictum;
b)the decision in ABV16 does not suggest that s.425(1) of the Act creates any general obligation to give to an Applicant country information that may be adverse to their interests. Rather, as Bromberg J identified, that case turned on whether “the application of the policy to the appellant in light of the Chinese policy change gave rise to an “issue” for the purposes of s 425” (ABV16 at [22]);
c)Justice Bromberg opined that, insofar as country information gave rise to an “issue” in the review, the operation of ss.422B(1) and 424A(3) of the Act did not exclude the obligation to draw that issue to the Applicant’s attention; and
d)in ground four, the Applicant alleges that there was a failure to conduct a hearing at which the Applicant had a meaningful opportunity to give evidence and present argument (as required by s.425(1) of the Act) because the Tribunal did not put to him country information regarding the Punjab Police. However, there was no “issue” emerging from the country information in relation to which the Applicant did not have an adequate opportunity to respond, or of which he was not aware. This is because the relevant issue was whether or not the Punjab Police had falsely implicated the Applicant, which was raised by the Applicant himself.
In my opinion, it is important first to identify and distinguish precisely the issues relied on by the Tribunal, and the evidence in relation to this issue or issues.
The Tribunal’s reference to country information on the prevalence of fraudulent documents in India (the DFAT Report) was not a freestanding issue. Rather, it was evidence that the Tribunal had regard to when considering the claim made by the Applicant about his false imprisonment. I find that, in these circumstances, the Tribunal was not obliged by s.424A(3) of the Act to draw this evidence to the Applicant’s attention. Nor, in my opinion, did the evidence fall within the overall obligation under s.425(1) of the Act to give the Applicant an opportunity to give evidence and make submissions on “issues” arising under the review.
Similarly, the Tribunal’s reference to independent information regarding the conduct of Punjab police was, in my opinion, evidence that it had regard to when considering the Applicant’s claim that he was detained and beaten by the Punjab police. I find that, in these circumstances, the Tribunal was not obliged by s.424A(3) of the Act to draw this evidence to the Applicant’s attention. Nor, in my opinion, did the evidence fall within the overall obligation under s.425(1) of the Act to give the Applicant an opportunity to give evidence and make submissions on “issues” arising under the review.
I find, therefore, that no jurisdictional error arose out of ground four of the Second Further Amended Application for judicial review.
Ground Six
Ground six is as follows:
The Tribunal erred by failing to take into account the PAM3 Complementary Protection Guidelines when considering the evidence in light of s 36(2)(aa) of the Migration Act 1958 (Cth).
Particulars
a. This ground invokes Ministerial Direction Number 56. In contravention of s 499(2A) of the Act, the Tribunal failed to take into account the PAM3 Complimentary Protection Guidelines when it made findings in relation to s 36(2)(aa). The argument is supported by ARS15 v Minister for Immigration & Anor [2015] FCCA 2135 (7 August 2015).
b. The Tribunal stated at [9] that it was obliged to take the Complementary Protection Guidelines into account, but then the Tribunal did not actually do so.
c. In the section under the heading “Complementary Protection” the Tribunal purportedly referred to “findings above” under the heading “Relevant law”, but there simply was no heading “Relevant law” in the decision.
The Applicants submitted that the Tribunal, in determining whether it was satisfied that they met the complementary protection provisions, being s.36(2)(aa) of the Act, it was obliged under s.499(2A) of the Act to, but did not, take into account the policy guidelines contained in the Procedures Advice Manual 3: Refugee and humanitarian – Complementary Protection Guidelines (“PAM3”), as required by Ministerial Direction No 56 – Consideration of Protection Visa Applications (signed 21 June 2013) (“Direction 56”).
Counsel for the Applicants submitted that the only reference in the Tribunal’s decision record to PAM3 is at [9] of the Tribunal decision record, where the Tribunal stated (CB 193-194):
9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian – Complimentary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Counsel for the Applicants relied on the decision in ARS15 v Minister for Immigration & Anor [2015] FCCA 2135 (“ARS15”) to support the Applicants’ submissions. In particular, the Court was taken to the following parts of the decision by Judge Street (ARS15 at [2], [4], [10]-[11]):
2. In this case, the first respondent conceded that the nature of the reasoning and findings of the Tribunal were such as to require, as a mandatory matter, an engagement with the principles the subject of the PAM3 Refugee and Humanitarian Complementary Protection Guidelines…
…
4. This is not a case, as was pointed out by counsel for the applicant, where there is any actual acknowledgement of the engagement and application of the PAM3 beyond the reciting of the force of the direction as identified in para.9. It was in those circumstances that the applicant submitted that when one had regard to the analysis of the reasoning by the Tribunal, notwithstanding the reference to prison conditions, the duration and degrading treatment, this was a case where the Court should be satisfied that there was a failure by the Tribunal to engage in the application of those guidelines. I take into account that the decision must be read as a whole and without a keen eye for error.
…
10. In my opinion, the reasoning of the Tribunal in para.91, in which the Tribunal identified it had taken into account the representative’s submissions and the supporting country information, is decisive in this case. That reasoning in para.91 is consistent with the Tribunal, in this case, having failed to have regard to and engage with the guidance in the PAM3 in relation to the imprisonment and prison conditions, which it was necessary for the Tribunal to do in light of the findings made as to the risk of imprisonment in this case.
11. I am satisfied that the failure to engage with the application of the PAM3 in this case amounts to a jurisdictional error. I reject the submissions on behalf the first respondent that it is an error that could not have made any difference in this case. Accordingly, there will be issued a writ of certiorari quashing the decision of the Tribunal dated 10 April 2015, and then a writ of mandamus requiring the Tribunal to determine the matter according to law.
Reference was also made to the decision of Justice Nicolas in AYI15 v Minister for Immigration and Border Protection [2016] FCA 1554 (“AYI15”) where his Honour was required to determine whether the Tribunal took into account the PAM3. In that case, the appellant’s claims to protection were that he would be imprisoned, tortured, abducted or killed if he were to return to Sri Lanka. The appellant also claimed to fear harm as a failed asylum seeker or because he departed Sri Lanka illegally.
His Honour helpfully set out relevant extracts from and commentary about the PAM3. I say helpfully, because, despite the Applicants’ reliance in this case on the failure of the Tribunal to take into account the PAM3, the Court was not provided a copy of that document. The relevant extracts from AYI15 are as follows (AYI15 at [8]-[13]):
8. Direction No. 56 was issued pursuant to s 499 of the Act on 21 June 2013. It relevantly provides:
1. This Direction applies to a decision-maker performing functions or exercising powers under section 65, 414 or 415 of the Migration Act 1958 (the Act) when considering an application for the grant of a Protection Visa and when reviewing a decision to refuse to grant a Protection Visa. This direction is subject to the Migration Act and Regulations and other applicable laws.
2. In performing functions or exercising powers under section 65, 414 or 415 of the Act, the decision-maker is to take account of the following guidelines prepared by the Department of Immigration and Citizenship to the extent that they are relevant to the decision under consideration.
‘PAM3: Refugee and humanitarian – Complementary Protection Guidelines’
‘PAM3: Refugee and humanitarian – Refugee Law Guidelines’
…
9. The second of the documents referred to in clause 2 of Direction No. 56 (“the Guidelines”) contain guidelines and related information concerning the background, purpose and application of the complementary protection provisions of the Act. The purpose of the Guidelines is to provide advice and assistance to decision makers on the law relevant to the assessment of whether Australia owes protection obligations to applicants under the complementary protection provisions of the Act. In particular, the Guidelines contain advice for decision makers concerning the meaning of “torture”, “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” as defined in s 5(1) of the Act. The Guidelines state in Part 14 that:
14. Torture, cruel or inhuman treatment or punishment and degrading treatment or punishment
The terms ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or Punishment’ are defined in s 5(l) of the Act. The definitions derive from, and require decision makers to tum their minds to, international jurisprudence.
The definitions have been provided to assist decision makers to determine whether a particular type of claimed harm amounts to significant harm. They are also intended to confine significant harm to acts which could engage a non-refoulement obligation.
10 . The Guidelines state in Parts 21 and 22:
21. Severe pain or suffering
An act or omission that intentionally inflicts severe pain or suffering, but is not inflicted for one of the purposes listed in the definition of torture, will amount to cruel or inhuman treatment or punishment provided it is inconsistent with Article 7 of the ICCPR. If relevant, also consider the section Is the act or omission inconsistent with Article 7 of the ICCPR.
22. Pain or suffering and ‘reasonably regarded as cruel or inhuman in nature’
Alternatively, cruel or inhuman treatment or punishment may be an act or omission that intentionally inflicts pain or suffering (but which does not meet the threshold of severity to amount to torture) so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature.
If, taking into account all relevant considerations, pain or suffering is intentionally inflicted by an act or omission that can be regarded as cruel or inhuman in nature, then that ill-treatment would constitute cruel or inhuman treatment or punishment, provided it is inconsistent with Article 7 of the ICCPR.
Decision makers should interpret this part of the definition by reference to the international jurisprudence on the meaning of cruel or inhuman treatment or punishment in the context of Article 7 of the ICCPR. For further guidance on this, see Is the act or omission inconsistent with Article 7 of the ICCPR.
The assessment of whether particular conduct or conditions amounts to cruel or inhuman treatment or punishment is subjective, in that it depends on the characteristics of the victim (such as sex, age, state of health). For example, the exploitation of phobias or particular cultural taboos could conceivably amount to cruel or inhuman treatment or punishment for one person where it may not for another person.
Even if decision makers are satisfied that an act or omission, in all the circumstances, could reasonably be regarded as cruel or inhuman in nature, they would also need to be satisfied that the act or omission would be inconsistent with Article 7 of the ICCPR in order to conclude that it meets the definition of cruel or inhuman treatment or punishment.
(Underlining original)
11 . The Guidelines state that the definition of the term “degrading treatment or punishment” is based upon the United Nations Human Rights Committee (“UNHRC”) jurisprudence. The Guidelines state in Part 25:
25. Will cause extreme humiliation
To meet the definition of degrading treatment or punishment, an act or omission must cause extreme humiliation. It is intended that the meaning of the term ‘extreme humiliation’ will be informed by international jurisprudence considering when treatment would constitute degrading treatment or punishment in breach of Article 7 of the ICCPR.
Treatment is degrading if it is such as to arouse in the person subjected to it feelings of fear, anguish and inferiority capable of humiliating and debasing the person and possibly breaking their physical or moral resistance. Treatment may also be said to be degrading if it grossly humiliates a person in front of others or drives the person to act against their will or conscience.
Whether the treatment or punishment is performed in public or not may be a relevant factor in determining whether it causes extreme humiliation, although the failure to publicise particular treatment or punishment will not prevent it from being characterised as degrading.
For example, the UNHRC has held that certain practices exercised for the purpose of humiliating prisoners and making them feel insecure constituted degrading treatment. These included repeated solitary confinement, subjection to cold and persistent relocation to a different cell.
A measure that does not involve physical ill-treatment but lowers a person in rank, position, reputation or character may also constitute degrading treatment but again provided it is of a minimum level of severity, thereby interfering with human dignity. The assessment of this minimum depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical or mental effects and, in some instances, the sex, age, state of health or other status of the victim.
The UNHRC has stated that ‘for punishment to be degrading, the humiliation or debasement involved must exceed a particular level and must, in any event, entail elements beyond the mere fact of deprivation of liberty’. For more information on when prison conditions may amount to degrading treatment or punishment, see Imprisonment / Prison conditions.
The assessment of whether particular conduct or conditions amounts to degrading treatment or punishment is subjective, in that it depends on the characteristics of the victim (such as sex, age, state of health). For example, the exploitation of phobias or particular cultural taboos could conceivably amount to degrading treatment or punishment for one person where it may not for another person. It may also be appropriate to take into account the societal context within which the harm is occurring.
There is some degree of overlap between the degree of humiliation described and mental suffering (included in the definition of cruel or inhuman treatment or punishment). A person who suffers severe, but not extreme, humiliation, may fall within the definition of ‘cruel or inhuman treatment or punishment’ on the basis of mental suffering, provided the treatment would be inconsistent with Article 7 of the ICCPR.
Intended to cause
To meet the definition of degrading treatment or punishment, an act or omission must be intended to cause extreme humiliation. An act or omission that is not intended to cause extreme humiliation but inadvertently did so would not fall within the definition.
In certain circumstances it may be appropriate to infer an intention to inflict extreme humiliation where it is evident that humiliation was or may be knowingly inflicted.
Unreasonable
In determining whether the treatment is unreasonable, the decision maker should apply the principle of proportionality in light of the specific circumstances of the case. Although the use of force may be justified or necessary in connection with an arrest or breaking up a violent demonstration, even the use of mild force (such as slapping) may constitute degrading treatment when this contradicts the principle of proportionality in light of the specific circumstances of the case.
(Endnotes omitted. Underlining original)
12 . The Guidelines refer at some length to the matter of imprisonment and detention in the context of Article 7 of the ICCPR which states that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment …”. Part 29 of the Guidelines includes the following:
Imprisonment / Prison conditions
Detention is not of itself a breach of Article 7, although particularly harsh conditions of detention may constitute a violation of Article 7. Prison conditions may constitute cruel, inhuman or degrading treatment or punishment if they seriously or systematically deprive a detainee of human dignity.
As with all types of torture and cruel, inhuman or degrading treatment or punishment, a minimum level of severity is necessary in order to breach Article 7. The assessment of this minimum depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical or mental effects and, in some instances, the sex, age, state of health or other status of the victim.
Examples of conditions which have been held to constitute breaches of Article 7 include:
· Ÿextremely cramped or unsanitary conditions, exposure to cold or inadequate ventilation or lighting
· Ÿlack of adequately nutritious food or water, lack of adequate clothing or a separate bed, threats of torture or death, lack of opportunity for adequate exercise
· Ÿprolonged solitary confinement or total isolation
· Ÿdenial of medical treatment
· Ÿharsh rules of conduct restricting fundamental rights of prisoners; the use of harsh punitive measures such as frequent resort to solitary confinement or being forced to maintain a certain position for prolonged periods of time; unfair procedures for deciding on disciplinary measures; inadequate protection against reprisals by warders; lack of a credible complaints mechanism and frequent use of protective measures such as leather handcuffs and
· Ÿviolent treatment in detention (force may be used to enforce discipline, but must be proportionate in light of circumstances), including acts such as beatings or assaults by prison warders, repeated death threats, mock executions, theft or destruction of personal possessions or displaying prisoners in a cage to the press.
The existence of one relatively minor condition (for example, a small cell) may not be sufficient to breach Article 7. However, the accumulation of a combination of poor or unreasonably restrictive conditions (for example, a small cell, overcrowding, prolonged detention and lack of opportunities for exercise) may raise the severity of the treatment above the necessary threshold.
The assessment of whether particular conduct or conditions amounts to torture, cruel, inhuman or degrading treatment or punishment is subjective, in that it depends on the characteristics of the victim (such as sex, age, state of health). For example, the exploitation of phobias or particular cultural taboos could conceivably amount to cruel, inhuman or degrading treatment or punishment for one person whereas it may not for another person.
If an applicant claims that they face a disproportionately long period of time in prison, this should be considered as a cumulative factor that may render other conditions cruel, inhuman or degrading. For example, overcrowding in a cell for a person detained overnight may not breach Article 7, although it may do so if a person faces a lengthy prison sentence. There are limited circumstances where prolonged detention itself may amount to a breach of Article 7. These are where prisoners on death row suffer mental anguish while waiting for the determination of their fate. It is also arguable that sentencing a juvenile to life imprisonment without the possibility of release may constitute a breach of Article 7.
[…]
(Endnotes omitted)
13 . This is followed by a discussion in Part 30 of the Guidelines of various decisions of the UNHRC concerning complaints relating to conditions of detention. Of the six decisions discussed, four concern cases in which the complainant was physically abused or beaten by prison officers or guards and one was concerned with a failure to provide the complainant with adequate medical treatment. The third decision, in which it was found that there was violation, concerned the transportation and “strip searching” of the complainant.
(emphasis in original)
In AYI15, Justice Nicholas, having referred to extracts from the Tribunal’s decision in which it considered the appellant’s claims to fear harm as a failed asylum seeker and a person who departed Sri Lanka illegally, found that (AYI15 at [26]-[28]):
26 . In its Reasons at [19] the Tribunal expressly noted that it was required to take account of the Guidelines. On a fair reading of the Tribunal’s Reasons, I think it should be accepted that the Tribunal did this: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 271-272.
27 . I came to the same conclusion in a very similar matter in SZTCV v Minister for Immigration and Border Protection [2015] FCA 1309 (“SZTCV”) at [14]. In that matter, the Tribunal included the following paragraph in its reasons:
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian- Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - to the extent that they are relevant to the decision under consideration. I have done so.
(Emphasis added)
See also AJW15 v Minister for Immigration and Border Protection [2016] FCA 197 at [46]-[49] (per Barker J).
28 . In the present case, as counsel for the appellant stressed, the words “I have done so” do not appear in the corresponding paragraph and he sought to distinguish SZTCV on that basis. However, in my view this is far from determinative. In circumstances where the Tribunal expressly acknowledged that it was required to take account of the Guidelines, I would not infer merely from the absence of these additional words that it had not done so.
Counsel for the Applicants submitted that the “boilerplate” reference to PAM3 at [9] of the Tribunal’s decision record cannot satisfy this Court that the Tribunal took into account the PAM3. Counsel for the Applicants submitted that the reliance by the Tribunal, under the heading, “Complementary Protection Obligations”, on “the findings of the Tribunal above” under the heading “relevant law” (CB 200 at [39]) does not reveal that the Tribunal had regard to or engaged with the PAM3 in dealing with the complementary provisions of the Act. Counsel for the Applicants noted that there is no heading in the decision record entitled “relevant law”. Counsel for the Applicants submitted that the Tribunal’s reasoning does not disclose that it engaged with the PAM3.
The Minister submitted as follows:
a)the Tribunal mentioned Direction 56, and the requirement to take into account the PAM3 (CB 193-194 at [9]). In what is an otherwise detailed and well-expressed statement of reasons, an inference of the kind urged by the Applicant is not available;
b)it is for the Applicant to identify the basis on which the Court can be persuaded that the Tribunal ignored the PAM3. The only feature pointed to by the Applicant is the typographical slip in the Tribunal’s reasons, in having included the words “as set out under the heading ‘relevant law’ above” (CB 200 at [39]) (there being no such heading). This is insufficient for the Court to be satisfied that the Tribunal ignored the PAM3; and
c)properly read, the Tribunal’s statement at [39] can be summarised as follows:
i)the Tribunal had regard to the definition of significant harm under s.36(2A) of the Act;
ii)in evaluating the Applicant’s complementary protection claims, it relied upon its factual findings set out in the earlier paragraphs of its reasons. This approach involves no error: SZSGA v Minister for Immigration [2013] FCA 774 at [56]; and
iii)The Tribunal’s reference to the “heading ‘relevant law’” is simply a cross-reference to the summary of legal propositions only, which it is evident that the Tribunal correctly understood from its decision record.
Consideration
There is no dispute that the issue of whether the Tribunal took account of the PAM3 was essentially one of fact.
The relevant extracts from the Tribunal’s decision record are as follows (CB 200-201 at [39]-[42]):
39. Having regard to the definition of significant harm in s.36(2A) of the Act as set out under the heading ‘relevant law’ above, and the findings of the Tribunal above, the Tribunal does not accept that what the applicant might experience upon return to his home in India will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture; or to cruel or inhumane treatment or punishment; or to degrading treatment or punishment.
40. Based on the findings and reasons of the Tribunal above regarding the applicant’s claims that he faces harm from the Akali Dal, [Mr CD], [Mr J], [Mr CK] and his family who are long-standing rivals of the applicant’s family or anyone associated with any of these groups, including the police, the Tribunal finds that there are no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm, including being killed. Nor does the Tribunal accept that the applicant or applicant wife face a real risk of suffering significant harm, in an act of revenge by these alleged people or groups. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).
41. The Tribunal also does not accept on the basis of the somewhat vague claims made during the hearing and limited material before it, that there is real risk that the applicant child will be kidnapped or that either the applicant wife or applicant child will be subjected to criminal acts in the form of violence, including sexual violence, on their return to India. The Tribunal finds the applicants [sic] claims in this respect to be speculative. The Tribunal does not accept on the evidence provided by the applicant in the hearing that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to India that there is a real risk the applicant wife and applicant child will suffer significant harm because they are women or for any other reason.
I agree with the Minister’s submission that the mere fact that the Tribunal, in considering whether the Applicant met the complementary protection provisions, erroneously referred to its “findings above” as being located under a non-existent heading, cannot satisfy the Court that the Tribunal failed to engage with the PAM3, so far as it was relevant. The Applicant is asking the Court to engage in a process which it is not permitted to; namely, reading the Tribunal decision with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259. In my opinion, fairly read, the Tribunal was referring to its findings set out at [10]-[34] of its decision record.
I should add that the Court was not assisted by Counsel for the Applicants’ failure to identify specifically which of the PAM3 guidelines the Applicant asserted were relevant and which the Tribunal did not take into account.
Unlike the circumstances in ARS15, where the Tribunal failed to acknowledge the existence of the PAM3, here the Tribunal correctly said that, “[i]n accordance with Direction No. 56, made under s.499 of the Act, the Tribunal is required to take account of [PAM3]”.
The Applicant’s reasons to fear serious harm and significant harm arose from the same claims which were rejected by the Tribunal.
I agree with the Minister’s submission that the Tribunal’s reasons for rejecting the Applicant’s claims to fear serious harm were detailed and lengthy. It is evident from the Tribunal’s reasoning at [39] and [40] of its decision record that it relied on those findings. It is, in my opinion, evident from [39] of the Tribunal decision record that it had regard to the statutory meaning of “significant harm”, and to that extent can be said to have had regard to the relevant parts of the PAM3 as extracted by Justice Nicholas in AYI15 (see [82] above).
It is further evident that the Tribunal rejected the Second Applicant’s and the Third Applicant’s claims to fear significant harm (CB 201 at [41]). In my opinion, the reasons given were cogent and open to the Tribunal.
Accordingly, I am not satisfied that the Tribunal failed, as is asserted by the Applicant, to take into account or engage with the PAM3.
I find, therefore, that no jurisdictional error arises from ground six.
Conclusion
For the reasons set out in this judgment, Orders will be made dismissing the Applicants’ Second Further Amended Application for judicial review and requiring the Applicants pay the First Respondent’s costs in a fixed amount.
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 26 May 2017
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