BXP16 v Minister for Immigration
[2019] FCCA 1946
•18 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BXP16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1946 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – Administrative Appeals Tribunal affirms decision of Delegate not to grant – applicant claimed that the Administrative Appeals Tribunal committed jurisdictional error in not giving to the applicant Facebook account information for the purposes of s.424A or s.424AA of the Migration Act 1958 (Cth) and denied procedural fairness by not honouring an alleged undertaking to address it on potential concerns or holding a further hearing – Facebook account information was not “information” for the purposes of s.424A and did not need to be given to the applicant but in any event Facebook account information was given to the Administrative Appeals Tribunal by the applicant under s.424A(3)(b) and hence s.424A was rendered inapplicable and no unequivocal undertaking as alleged was given by the Administrative Appeals Tribunal – no jurisdictional error established – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 424AA |
| Cases cited: AWA15 v Minister for Immigration [2018] FCA 604 BTU18 v Minister for Home Affairs [2019] FCA 540 Minister for Immigration & Citizenship v Brar (2012) 201 FCR 240 Minister for Immigration & Citizenship v Chamnam You [2008] FCA 241 NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 SZLJD v Minister for Immigration & Citizenship [2008] FCA 1094 SZNKO v Minister for Immigration & Citizenship (2010) 184 FCR 505 SZTNL v Minister for Immigration (2015) 231 FCR 204 SZUXO v Minister for Immigration & Border Protection [2016] 162 ALD 62 Zeng v Minister for Immigration & Border Protection [2016] FCA 627 |
| Applicant: | BXP16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1934 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 18 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 18 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Chia of Counsel |
| Counsel for the First Respondent: | Mr T. Reilly of Counsel |
| Solicitors for the First Respondent: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Amended Application filed in this Court on 13 December 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1934 of 2016
| BXP16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of Pakistan aged 25 years, having been born on 6 September 1993.
By Amended Application filed in this Court on 13 December 2016 he seeks to quash and have re‑determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 29 June 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 4 September 2014 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).
Background
The Applicant arrived in Australia on 15 June 2012 as the holder of a Student (Vocational Education and Training Sector) (Class TU) (Subclass 572) visa (Student visa). He travelled offshore on 28 November 2013 and returned to Australia on his Student visa on 24 December 2013. On 22 January 2014 the Applicant lodged his application for the Protection visa.
The Applicant is the son of his father’s second wife and has a full brother from that marriage. The Applicant’s father had died in 1999.
The father of the Applicant also had two sons and two daughters from his first marriage who were thus half-brothers and half-sisters of the Applicant. Relevantly for this proceeding, one half-brother was Mr ABC (i.e. a pseudonym).
The Applicant claimed before the Delegate and the Tribunal that there was enmity between his stepmother and half-siblings on the one hand and his mother, full brother and himself on the other hand.
Claims for Protection
In short, the Applicant claimed to fear returning to Pakistan because he feared he would be recruited or harmed by Islamic extremists associated with Mr ABC.
It is sufficient for present purposes to summarise the Applicant’s claims to protection as follows:
a)the Applicant’s late father had been a politician representing the Pakistan People's Party (PPP) prior to his passing away in 1999. After his father's death the family of his father's first wife tried to chase his mother out of Lahore. Mr ABC blamed the Applicant's mother for his father's death and demanded that she repay the money that his father had given to her. The Applicant and his mother knew that Mr ABC was involved in politics, was very powerful and had many militants working for him, and they became very wary of him;
b)the Applicant and his mother moved to Karachi, from where she was originally from, and moved into a new house in the Gulistan-e-Jauhar neighbourhood. In Karachi, the Applicant came to be involved with the local mullah (the mullah), who ordered him to work at the mosque and attend his madrassa. The mullah discussed politics with the Applicant, preaching his fundamentalist beliefs and saying that he would arrange for the Applicant to join Mr ABC. In a Statement dated 31 December 2013 (Statement) in support of his Protection visa application, he stated:
During the discussions with the Mullah he started advising me about Taleban, Al Qaeda and the war against the USA and the UN forces. He was repeatedly blaming the USA for disgracing our Holy Prophet and our culture. He was telling me about the mass murder of innocent Muslims in North West Frontier Province (NWFP) and blamed the USA for waging a holy war against the Muslims of the world. He was insisting that we as Pakistani's who owned this country with nuclear capabilities should not fear for the USA or any other countries in the world. He said that we had to become braver and learn the political history of Pakistan together with our Islamic scripture, so that I could become a leader in the future. He mentioned about my step brother [Mr ABC] and said that he had been involved in canvassing among the Pakistani Muslims to stop having any political interference from the USA. He said that he is mostly canvassing to stop the drone attack which was killing many political leaders and terrorist leaders who support the Taleban and Al Qaeda who were in fact created by the USA. He said that Bin Laden had been treated like an animal by the USA, who entered our country illegally, without the knowledge of the authorities and shot him. He said that unlike my father, [Mr ABC] who was determined to work against the Pakistan People's Party, and support the Pakistani Taleban which is known as Tehrik-e-Taleban Pakistan [(TTP)] to introduce Sharia law in all parts of Pakistan so that traitors could be punished and the country could be saved from US influence and presence. He told me that he would speak to [Mr ABC] who is well known to him and that I should work along with him as he is my stepbrother. When I told the Mullah that we were not in good terms, he said that he knew our whole family history from the beginning as he was very closely associated with my father and my stepbrother [Mr ABC]. He said that he would talk to him on my behalf and encourage him to take me along with him to NWFP where I could obtain the basic military training to enter the political arena in Karachi. When I heard this, I feared that I would ruin my life if I joined [Mr ABC] as the Mullah was unable to realise the enmity that he had against my mother for a long time. I told him that I would speak to my mother about what he said, knowing that my mother would never approve of me joining [Mr ABC];
c)the Applicant's mother ordered him not to return to the mosque but in January 2012 the mullah summoned him, asked him why he had not attended the mosque and confirmed that Mr ABC had agreed to take the Applicant to the North West Frontier Province of Pakistan for military training. The Applicant's mother made arrangements for the Applicant to travel overseas. After the Applicant arrived in Australia in June 2012, he claimed that Mr ABC's men had arrived to take him away and ordered his mother to contact him immediately. Mr ABC also started to recruit his younger brother to his cause. When the Applicant returned to Pakistan in November 2013, he stayed with his mother's aunt. There was a raid one night by ISI officers looking for TTP members and the Applicant's uncle informed them that they feared Mr ABC. The Applicant's mother was called by Mr ABC who said he knew the Applicant had returned from overseas. The Applicant was hidden at a friend's house until he returned to Australia. He claimed that if he returned to Pakistan Mr ABC would ruin his life by sending him to a tribal area to train as a militant.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Decision of Delegate
The Applicant attended an interview with the Delegate on 1 September 2014.
As a result the Delegate, based on cumulative credibility concerns about the information before her, found that the Applicant’s claims were “primarily fabricated, and that the purpose of his travel to Australia was not to seek protection, but to obtain employment and economic prosperity on a permanent basis in Australia”. The Delegate also was not satisfied that the Applicant’s explanation about his 18 month delay in lodging his application for a Protection visa was reasonable, nor was his explanation as to why he returned to Pakistan to visit his family in late 2013 if he genuinely feared harm in Pakistan.
The Delegate found that the Applicant did not satisfy the Refugees Convention criterion or the complementary protection criterion, and refused to grant the Protection visa to the Applicant.
As they are relevant to the Grounds relied upon by the Applicant and considered below, I reproduce two passages from the Decision Record of the Delegate:
(a)… After his father died, he moved from Lahore to North Nazimabad in Karachi with his mother and brother. They could not remain in Lahore because of the ongoing personal enmity between his step-family and his mother. His step-family disputed the inheritance that his mother received from his father's estate. His mother was intimidated by his [half-brother, Mr ABC] in particular. His [half-brother, Mr ABC] later became involved in politics in Lahore.
(from page 4 of the Decision Record of the Delegate)
(b)The applicant was shown a photograph obtained from a Facebook page under the profile name of [Mr ABC] [see Folios 72 – 73 at Court Book 62 – 63]. The applicant identified his [half-brother] as the person in the photograph (on the left). The photograph of [Mr ABC] indicates that it was taken during his participation in election activities…
…The applicant confirmed the ownership of his own Facebook (FB) account, and also identified the accounts of his brother and mother. Screenshots of the FB accounts identified were presented to the applicant, which list his [half-brother] [Mr ABC] as a friend on the FB accounts of his mother, brother and himself [see Folios 66 – 70 at Court Book 64 – 68] [(Facebook information)]. It was put to him that this information could be considered to be evidence that the relationship between his family and stepbrother was amicable, and did not support the circumstances that he claims. Initially, the applicant could not provide a plausible explanation why his family would maintain links through a social networking profile to someone they claim to fear. After this adverse information was put to him, he stated that the family had not been contacted by [Mr ABC] for many years until recently. He stated that [Mr ABC] began communicating with his family again, and had been friendly and nice. [Mr ABC] attempted to persuade the applicant and his brother into joining him in politics, because they had a duty to honour the previous political work of his father. The applicant stated that he was suspicious of [Mr ABC]'s motives and activities, and had told [Mr ABC] that he was not interested. [Mr ABC] then began to harass his mother, and threatened to take both him and his brother away.
I acknowledge that information disclosed by a person on social networking websites may not accurately depict the reality of the actual circumstances of an individual. However, in light of the … claims before me, I give significant weight to the fact that all three members of the same family have engaged in social networking with a person who they claim has genuine intentions to inflict serious or significant harm. The applicant could not offer any plausible reason when this adverse information was put to him at interview, other than to recant previous elements of his testimony discussed in my findings above.
(emphasis added)
(from pages 9 and 10 of the Decision Record of the Delegate)
Tribunal Decision
The Applicant lodged an application for merits review with the Tribunal on 30 September 2014 and provided a copy of the Decision Record of the Delegate to the Tribunal at that time. He then appeared before the Tribunal on 22 February 2016 to give evidence and present arguments together with his registered migration agent and with the assistance of an interpreter in the Urdu and English languages.
From [18] – [35] of its Decision Record the Tribunal recorded the Applicant’s claims as made in his Statement and at [36] it noted that the Applicant had provided it with a copy of the Delegate’s Decision Record.
At [37] of its Decision Record the Tribunal recorded the Applicant’s claims as made at the interview with the Delegate on 1 September 2014, relevantly as follows:
[37] …
· The delegate showed the applicant a photograph obtained from a Facebook page under the profile name of [Mr ABC]. The applicant identified his half-brother, [Mr ABC], as the person in the photograph. The photograph indicates it was taken during his participation in election activities.
And with regard to the Facebook information:
[37] …
· The applicant confirmed the ownership of his own Facebook account and identified the accounts of his brother and mother. Screenshots of the accounts identified were presented to the applicant showing that [Mr ABC] was a friend on the Facebook accounts of his mother, brother and himself. It was put to him this information could be considered to be evidence that the relationship between his family and stepbrother was amicable and this was not consistent with his evidence that the family were afraid of [Mr ABC].
At [38] of its Decision Record the Tribunal recorded the claims made by the Applicant in a statutory declaration forwarded to the Tribunal and dated 15 February 2016. At [40] the Tribunal noted that the Applicant had “brought a number of documents to the hearing”, namely:
a)a copy of his passport;
b)a large number of photographs apparently taken from Mr ABC’s Facebook site and captioned by the Applicant; and
c)copies of text messages said to have been made between family members and which were claimed to be threatening in nature.
Then at [43] of its Decision Record the Tribunal summarised its findings on the Applicant’s credibility in the following terms:
[43] The Tribunal did not find the applicant to be a credible or reliable witness. His evidence was confused, irrational and incoherent at times. There were some significant inconsistencies in his various accounts and some recanting of evidence. The Tribunal considers that the applicant has not given an accurate or truthful account of his claims.
The Tribunal then turned in its Decision Record to considering the Applicant’s family’s relationships, and relevantly to the Grounds to be considered below found as follows:
[47]The applicant described a hostile and poor relationship between himself and his eldest, [Mr ABC]. He also stated that his mother and her relatives in Karachi are afraid of [Mr ABC]. He claimed that [Mr ABC] is motivated by jealousy and malice towards the applicant because the applicant looks and sounds like his father and [Mr ABC] is afraid he will follow in his father's footsteps.
[48]The Tribunal does not accept that the applicant and [Mr ABC] have a hostile relationship and that he, his mother and brother are afraid of [Mr ABC]. The Tribunal asked the applicant to explain why his mother, his brother and [Mr ABC] were connected as friends on social media if they were afraid of [Mr ABC]. The Tribunal also asked the applicant why [Mr ABC] had his mother's telephone number if she did not want any contact with him. He told the Tribunal that [Mr ABC] was very powerful and the family had to respect him so they were linked on social media. He also told the Tribunal that [Mr ABC] visited them in Karachi from time to time but they did not enjoy the visits; in the past [Mr ABC] had hit him and his mother. With respect to the telephone number, his mother needed her telephone for work and could not change it frequently to avoid contact with [Mr ABC].
[49] In his first statement he claimed that after his father's death in 1999 there was enmity between the family of his father's first wife and the applicant's mother. He stated that [Mr ABC] blamed his mother for their father's death and there were continuing disputes about money and property. He stated that once they moved to Karachi they tried to avoid contact with [Mr ABC].
[50]However, in his evidence to the Tribunal he stated that [Mr ABC] had visited their home and kept contact with the family once they moved to Karachi. He stated that they had to respect and obey him because he was a powerful person.
[51]The Facebook extracts show that [Mr ABC], his brother, his mother and he are named as friends on Facebook.
[52]When the delegate put the Facebook information to the applicant at the interview he was not able to satisfactorily explain why they were connected on social media. He claimed that after some years [Mr ABC] had started communicating with them on social media and wanted the applicant and his brother to join him in politics but that they did not trust him.
…
[55] The Tribunal does not accept that [Mr ABC] and the applicant have a poor relationship and that he is afraid of him. Considering the totality of the information it considers that whilst the families may not be close they are not estranged and that the applicant, [Mr ABC] and other family keep in contact through social media and that [Mr ABC] has visited the family in Karachi from time to time.
In the result the Tribunal affirmed the Delegate’s decision not to grant the Protection visa to the Applicant.
Grounds of Attack on Tribunal Decision in this Court
At the hearing, Mr Chia of Counsel appeared for the Applicant and Mr Reilly of Counsel appeared for the Minister.
The Applicant relied on the following Amended Grounds:
1. The second respondent failed to comply with the requirements of section 424A of the Migration Act 1958 (“Act”) in respect of information a delegate of the first respondent had obtained from the website “Facebook”.
2. Further or in the alternative, the second respondent failed to conduct a review under subsection 414(1) of the Act or failed to “invite” the applicant under subsection 425(1) of the Act to respond to concerns it had regarding photographs provided to it at or immediately prior to the hearing on 22 February 2016.
In amplification of Ground 1, Mr Chia submitted as follows:
a)pursuant to s.424A of the Migration Act 1958 (Cth) (the Act) the Tribunal was bound to give clear particulars of the Facebook information to the Applicant, because it was documentary material which “would be the reason, or part of the reason, for affirming the decision” under review, but did not do so;
b)notwithstanding that the Applicant had given the Decision Record of the Delegate to the Tribunal, s.424A(3)(b) of the Act did not render the obligation under s.424A(1) inapplicable because the Facebook information referred to in the Decision Record of the Delegate (see [13(b)] above) was to the Facebook accounts of the Applicant, his mother and full brother, whereas Folios 66 – 70 (at Court Book 64–68) comprised the Facebook accounts of the Applicant’s mother and Mr ABC. Mr Chia at the hearing submitted at TP26:
MR CHIA: That the delegate’s decision doesn’t refer to the Facebook account, a screenshot of Mr ABC’s Facebook account showing the applicant as a friend on Facebook…
There’s – well, in my submission, there’s no reference to the screenshot of Mr ABC’s Facebook account showing that the applicant is a friend on Facebook. Only to the accounts of the mother, brother and himself…; and
c)in his Written Submissions, Mr Chia at [33] submitted:
[33]Yet the Tribunal did not invite the applicant to comment on the Facebook information in writing or orally at the hearing. The Facebook information was not discussed at the Tribunal hearing. The Tribunal did not give information and invitation in compliance with the procedures in either subsection 424A(1) or section 424AA of the Act.
Consideration
Ground 1
In my view this Ground fails to establish that the Tribunal’s decision was affected by jurisdictional error for the reasons that follow.
First, nothing comprised in or related to the Facebook information constituted “information” for the purposes of s.424A of the Act and did not need to be given to the Applicant either under s.424A or s.424AA.
The Facebook information did not contain or comprise a rejection or denial of the Applicant’s claims for protection, nor in its terms did it undermine them as pieces of information in their own right. Rather, it was only relevant to the Applicant’s credibility, being inconsistent with his claim that he, his mother and full brother did not have a good relationship with Mr ABC, because, in short, they were connected as friends together on social media: see the findings and reasoning of the Tribunal extracted at [19] above. The Tribunal’s approach in this regard mirrored the Delegate’s approach, as evidenced by the Decision Record of the Delegate extracted at [13(b)] above: see generally SZUXO v Minister for Immigration & Border Protection [2016] 162 ALD 62 at 72 – 73 [33] per Katzmann J.
Further, as Griffiths J said in SZTNL v Minister for Immigration (2015) 231 FCR 204 at 220 [53]:
[53]The relevant two pieces of information became material only because the Tribunal relied upon them in finding inconsistencies in the appellant’s evidence, which lead to the conclusion that he was not a truthful witness. I accept the Minister’s submission that it was these inconsistencies (or the process of comparison between the appellant’s evidence and the factual statements with which the evidence was compared) that counted against him, however, neither inconsistency nor such a comparative process constitutes “information” for the purposes of s 424A(1) (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 [(SZBYR)] at [18] and SZJBD v Minister for Immigration and Citizenship [2009] FCAFC 106; (2009) 179 FCR 109 at [104] per Buchanan J, with whom Perram J agreed).
At [18] of SZBYR Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ had stated:
[18]… However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.
Second, in my view the Applicant in any event gave the Facebook information to the Tribunal for the purposes of s.424A(3)(b) of the Act when he gave the Decision Record of the Delegate to the Tribunal, and accordingly the obligation in s.424A(1) was rendered inapplicable. In this respect I note that whether information is given to the Tribunal by an applicant within the meaning of s.424A(3)(b) is ultimately a question of fact: see Zeng v Minister for Immigration & Border Protection [2016] FCA 627 at [7] per Pagone J with respect to the analogous provision s.359A. Further, the requirement to “give” information does not necessarily extend to requiring disclosure of the entirety of any document in which “information” is contained: SZNKO v Minister for Immigration & Citizenship (2010) 184 FCR 505 at 512 [23] per Flick J.
In this case the Decision Record of the Delegate set out the Facebook information, as extracted at [13(b)] above. It is there stated that the Applicant “confirmed the ownership of his own Facebook account” and that screenshots of the Facebook “accounts of his mother, brother and himself” were identified to the Applicant. In fact, it would appear that the screenshots referred to at Folios 66 – 70 were of his mother and Mr ABC’s Facebook accounts, and not those of his full brother and himself.
There is no explanation of this apparent disconformity between the written reasons of the Decision Record and the referenced screenshots contained in the Folios. However, any possible discrepancy in this regard is unimportant and irrelevant because the fact that the Applicant’s full brother and Mr ABC were friends on the mother’s Facebook account and the Applicant and his full brother were friends on Mr ABC’s Facebook account meant necessarily that:
a)the Applicant must have had his own Facebook account, as he had indeed confirmed to the Delegate; and
b)Mr ABC appeared as a friend not only on the mother’s Facebook account, but also on the Facebook accounts of the Applicant and his full brother;
having regard to the required bilateral nature of relationships between Facebook accounts on the Facebook social networking website.
Accordingly, the Decision Record of the Delegate was given to the Tribunal which correctly understood its meaning and effect in connection with the Facebook information and the Facebook screenshots when it stated that the Applicant’s mother, full brother and Mr ABC were named as friends on Facebook at [48] and [51] of its Decision Record, extracted at [19] above.
In my view the Applicant “gave” the information to the Tribunal for the purposes of s.424A(3)(b) of the Act, consistently with the decision of Minister for Immigration & Citizenship v Chamnam You [2008] FCA 241 per Sundberg J and Minister for Immigration & Citizenship v Brar (2012) 201 FCR 240 at 259 [74] per North, Greenwood and Besanko JJ.
Ground 2
At the hearing Mr Chia clarified that this Ground was directed at certain photographs and translated text messages which had been given to the Tribunal on behalf of the Applicant prior to and after the Tribunal hearing, in the context where the Tribunal member had relevantly stated at the Tribunal hearing on 22 February 2016 as follows:
TRIBUNAL MEMBER: …Ok, before we start the hearing, I just want to be clear on what extra documents we have or new documents we have. I have just received documents walking into the room. I am just wondering what they are and why they were given to me when I don't have a chance to read them?
INTERPRETER: I sent most of the documents through email…
(page 3 of the transcript of the Tribunal hearing)
TRIBUNAL MEMBER: So let's go through them just to make sure I have got everything. Ok, so I have got a copy of your passport, and then there is a number of photographs. So the photographs, you've put captions on them have you saying what they are?
INTERPRETER: Yes
TRIBUNAL MEMBER: So where did the photographs come from?
INTERPRETER: Some of them I got from relatives and some of them from facebook.
TRIBUNAL MEMBER: Some from ...
INTERPRETER: Facebook and relatives
TRIBUNAL MEMBER: and
INTERPRETER: Relatives
TRIBUNAL MEMBER: So where did the relatives get the photos from?
INTERPRETER: My cousins and my sisters-in-law she got the messages and some of the photos are from these messages.
TRIBUNAL MEMBER: So you said you got some of the photos from your relatives, where did your relatives get the photos from?
INTERPRETER: My step-brother he has sent one message to my cousin in London and he has sent one message to my sister-in-law in Karachi and one message he sent to my mother.
TRIBUNAL MEMBER: Sorry are they the photos or the messages?
INTERPRETER: These are messages.
TRIBUNAL MEMBER: I asked you about the photos. You said some of them are from facebook and some from relatives so where did your relatives get the photographs?
INTERPRETER: All of them are from facebook.
TRIBUNAL MEMBER: Ok, so the messages were from relatives?
INTERPRETER: Yes, that's correct.
TRIBUNAL MEMBER: So the messages were text messages in Urdu is that correct?
INTERPRETER: Yes in Urdu.
TRIBUNAL MEMBER: And you had them translated?
INTERPRETER: Yes
TRIBUNAL MEMBER: And what is the date of the messages?
INTERPRETER: Just a few months ago.
TRIBUNAL MEMBER: These messages were sent after your application for protection visa was refused?
INTERPRETER: Yes, end of 2015.
TRIBUNAL MEMBER: And so why do you think suddenly after all this time, that you would get these messages or people ... your relatives would get these messages?
INTERPRETER: Um this is like the way [Mr ABC] does it, like he would disappear for a while and then come back he would start pressurising us and then threatening us and then he would disappear again, he has been doing this since his childhood. As at the beginning there was no facebook, but now he is using facebook as a means of sending messages
TRIBUNAL MEMBER: The only messages like this that you've got are the things that have taken place pretty recently.
INTERPRETER: Yes
TRIBUNAL MEMBER: The translations aren't really good translations because it's a little bit difficult to understand what the meaning is.
INTERPRETER: He is a person who originally wrote these messages, these are his style of writing. As he has written originally in Roman Urdu so his style of writing is this.
TRIBUNAL MEMBER: I will have to have a good look at those after the hearing
INTERPRETER: Yes please.
TRIBUNAL MEMBER: So if there's anything that um concerns me about the photographs, I may either have to write to you or get you to come in again to give evidence.
(emphasis added)
(pages 4 – 5 of the transcript of the Tribunal hearing)
TRIBUNAL MEMBER: Um what I am going to do is I am going to read through the material and if there is anything that I need to put to you further I will either put it in writing or invite you to another hearing.
INTERPRETER: Whenever you ask me to come I will come definitely. These things are important for me and all these pictures I have provided please go though it and whenever you want you can call me. Whatever I have said is, these pictures and these documents they support my sayings and my evidence.
TRIBUNAL MEMBER: Ok so until I have a look at that material I can't really make up my mind if you need another hearing or whether I can send you a letter and the reason is that I have a legal obligation to discuss any new issues with you at the hearing or invite you to a hearing to discuss it. So without considering that material I can't really decide whether there is a new issue or not.
INTERPRETER: I can understand your position.
(page 40 of the transcript of the Tribunal hearing)
REPRESENTATIVE: But I confirm we have covered everything that we wish to discuss today.
TRIBUNAL MEMBER: Alright, well as I said I have to read through the material before I decide whether to invite the applicant to another hearing or if there is anything there that I need to put to him in writing.
(emphasis added)
(page 41 of the transcript of the Tribunal hearing)
Mr Chia submitted at [40] of his Written Submissions that “… the Tribunal recognised… that, if it had concerns in relation to the material, it would "need to" and had "a legal obligation to" invite the applicant to comment in writing or at a further hearing. The "need" to invite the applicant was conditional only upon the Tribunal having "concerns" arising from the material; and what was not certain, at the time of the hearing, was whether concerns would in fact arise and whether the opportunity to address those concerns was to be afforded to the applicant by way of a further hearing or, alternatively, by way of a written invitation”.
Mr Chia relied on the decision of the High Court in NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1 (NAFF) in which case, at the end of a Refugee Review Tribunal hearing, the tribunal member had said that she would write to the applicant about inconsistencies with regard to detentions which the applicant had claimed to have occurred and had given him 21 days to respond to her questions. Nevertheless, despite that statement the tribunal member did not write to the applicant but rather proceeded to affirm the decision not to grant a Protection visa, and the High Court held that the applicant had been denied procedural fairness, even though there was no evidence that he had relied on the statement from the tribunal member.
Nevertheless, the simple fact of the matter is that this case is not analogous or similar to the circumstances in NAFF. In NAFF there was an unequivocal undertaking by the tribunal member at the conclusion of the tribunal hearing, with the tribunal member saying to the applicant:
Given that there are some inconsistencies with regard to the dates of the detentions and the number of detentions, I will have to write to you about those. So what I will do is to write to you in the next couple of days and you will have 21 days in which to respond to my questions and to put any more information that you wish to the Tribunal.
(NAFF at 6 [11])
In this case no such unequivocal undertaking was given. The Tribunal member was merely holding out the possibility that after she had been afforded a greater opportunity to consider the relevant documents it was possible that she might wish for further clarification or evidence from the Applicant. When the Tribunal member referred to “anything that… concerns me about the photographs” she was simply referring to the potentiality of the photographs troubling or worrying her in some way which required further elucidation. Nevertheless, it is apparent from the Decision Record of the Tribunal that in the event the Tribunal member must have come to the view that she did not need further comment or explanation from the Applicant and she came to and expressed clear views about the text messages at [54] of the Decision Record of the Tribunal, and at [71] – [72] in relation to the photographs.
The facts and circumstances of this case are similar to those of SZLJD v Minister for Immigration & Citizenship [2008] FCA 1094, where at [26] Reeves J said as follows in distinguishing NAFF:
[26]In my opinion, the first matter appears to be an allegation of a denial of procedural fairness along the lines identified by the High Court in NAFF and is not made out on the facts. In NAFF the Tribunal clearly indicated to the applicant that it would be writing to the applicant (see [11] and [31]) whereas here, the Tribunal member merely indicated he was going to check with the Australian Embassy in Tokyo about the visa documentation produced by the appellant. He concluded the hearing saying ‘Now I am going to close the hearing. You may hear from me in the form of a letter. Then you will have time to respond if you get such a letter’. Unlike in NAFF where there was an unequivocal statement that the Tribunal would be taking further steps in relation to the applicant’s application, in this matter the Tribunal indicated that it would be making further enquiries about the appellant’s visa and may write to her, obviously depending on the outcome of those enquires. In my view, there was no denial of procedural fairness in this case of the kind identified by the High Court in NAFF.
Finally, the Tribunal is not required to give an applicant a running commentary on its thought processes. As was said by the High Court comprised of Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ in SZBEL v Minister for Immigration & Indigenous Affairs (2006) 228 CLR 152 at 165 – 166 [47] – [48]:
[47]… It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor…
[48]Secondly, as Lord Diplock said in F Hoffmann La Roche & Co AG v Secretary of State for Trade and Industry:
“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
More recently, Wigney J in BTU18 v Minister for Home Affairs [2019] FCA 540 at [53] said as follows:
[53]Procedural fairness generally requires an administrative decision-maker to put a person who might be affected by the decision on notice of “any adverse conclusion which has been arrived at which would not obviously be open on the known material”; but that does not extend to the disclosure of the decision-maker’s “mental processes or provisional views”: Cmr for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [29]. Nor is it necessary to disclose the decision-maker’s opinions, doubts or subjective appraisals: Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 at [413] (Kiefel J); Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9] (French CJ and Kiefel J).
In my view Ground 2 also fails to establish that the decision of the Tribunal is affected by jurisdictional error.
Conclusion
The Applicant has failed to establish jurisdictional error and the Amended Application filed in this Court is to be dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 18 July 2019
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