CCL16 v Minister for Immigration
[2017] FCCA 694
•30 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CCL16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 694 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – first applicant claiming a fear of harm in Fiji – applicant not believed – whether the Tribunal was biased, breached ss.424A or 425 of the Migration Act 1958 (Cth) or misunderstood the applicant’s evidence considered – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 424A, 424AA, 425 |
| SZBEL v Minster for Immigration (2006) 228 CLR 152 SZBYR v Minister for Immigration (2007) 235 ALR 609 SZRUI v Minster for Immigration [2013] FCAFC 80 SZSOG v Minister for Immigration [2014] FCA 1053 |
| First Applicant: | CCL16 |
| Second Applicant: | CCM16 |
| Third Applicant: | CCM16 |
| Fourth Applicant: | CCO16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2052 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 30 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 30 March 2017 |
REPRESENTATION
The First and Second Applicants appeared in person
| Counsel for the Respondents: | Mr M Cleary |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The application is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2052 of 2016
| CCL16 |
First Applicant
| CCM16 |
Second Applicant
| CCN16 |
Third Applicant
| CCO16 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 28 June 2016. The Tribunal affirmed a decision of the delegate of the Minister (delegate) not to grant the applicants protection visas. There are four applicants who are a husband, his wife, and their two children. The first applicant, the applicant father, was the principal applicant. References in this judgment to “the applicant” are intended to be references to him.
Background facts relating to the applicants’ protection claims and the decision of the Tribunal on them are set out in the Minister’s legal submissions filed on 23 March 2017.
The applicant is a citizen of Fiji. On 22 May 2014, the applicant applied for a protection visa. The applicant claims to fear harm in Fiji from the military[1].
[1] Court Book (CB) 241-245
The applicant claimed he worked in Fiji at the ANZ Bank. He claimed that in June 2013 military personnel targeted the applicant and sought information from him on various people’s financial and bank details. He claimed to have been taken in to custody by the army and subjected to “harsh treatment”.
On 12 March 2014, the applicant claimed he was instructed by four soldiers, who came to the front counter of the bank branch where the applicant worked, to gather information regarding the details of about 50 people. He was asked by the branch manager to take a few days off after this incident. He then left Fiji and came to Australia.
Since being in Australia, the applicant claimed that he has been advised that his name now appears on the Fiji military’s “airport watch list”, and that the military have visited his mother-in-law’s house in Fiji asking when the applicant would be returning to Fiji. The applicant has also claimed to fear harm because of his political and religious views. He supported the SDL party in Fiji, by assisting them in the marketing and promotion of the party. The applicant also participated in a protest in Sydney on 31 August 2014.
On 10 October 2014, the delegate refused the applicant’s application for a protection visa[2].
[2] CB139-162
The applicant sought a review of the delegate’s decision in the Tribunal.
On 3 February 2016 the applicant appeared before the Tribunal and gave evidence[3].
[3] CB245
The applicant attended a further hearing on 15 June 2016, where the second applicant was provided with an opportunity to give evidence before the Tribunal[4].
[4] CB245, [16]
The Tribunal’s decision
On 28 June 2016 the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.
The Tribunal’s decision was based on adverse credibility findings it made against the applicant[5]. The Tribunal had significant concerns about the claims made and was not satisfied that the applicant had suffered any of the claimed harm. The Tribunal found the overall basis of the applicant’s claims to be implausible and improbable and it was not satisfied as to the applicant’s reasons in relation to why he did not apply for protection on one of his earlier visits to Australia.
[5] CB246 and 250
The Tribunal found that the applicant also gave inconsistent evidence regarding the feedback he received from his manager when he raised the “issues” with her[6].
[6] CB250
The Tribunal was not satisfied that the applicant faced a real risk of significant harm if he were to return to Fiji because of his political or religious views. The Tribunal concluded that the applicant did not satisfy the criteria in ss.36(2)(a), or 36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act)[7].
[7] CB252
The present proceedings
These proceedings began with a show cause application filed on 1 August 2016. The applicants continue to rely upon that application. Notwithstanding a stated intention to file an amended application and provision being made by orders made by a registrar to facilitate that, no amended application has been filed. The applicant told me from the bar table that this was because he had run out of time although he had listened to the recording of the hearing conducted by the Tribunal. There are three grounds in the application:
Ground 1
The Tribunal denied the applicant a meaningful opportunity to participate in the hearing as required by s.425 of the Migration Act 1958 (Cth).
Particulars
The Tribunal at various stages of the hearing asked the applicant a number of questions in relation to his claims. When the applicant tried to provide a response to the questions asked, the Tribunal's attitude was dismissive. At (D[20]) the Tribunal described the applicant's response as “nonsensical”. At (D[21]) the Tribunal stated: “This explanation did not satisfy the Tribunal” and at (D[22]) the Tribunal stated it “was not satisfied that this was a plausible explanation”.
A crucial aspect of the Tribunal's conduct of the hearing as evidenced at (D[24]) was when the Tribunal stated: “The Tribunal came to the conclusion that because of the significant credibility concerns outlined in the previous five paragraphs, the Tribunal could not be satisfied as to the veracity of the applicant's claims and therefore was not satisfied that the applicant was targeted by the military to provide information nor that he was taken to the Blackrock camp and subjected to harsh treatment.”
Having dismissed the applicant's claims in totality at (D[24]) the Tribunal then just went through the motions of conducting a 'hearing'. The applicant was denied a meaningful opportunity in taking part in a hearing in which the applicant was to give evidence and to present arguments.
The Tribunal did not provide any reasonable explanation at this juncture for not accepting the evidence as provided by the applicant right at the outset of the hearing and did not advise the applicant that it was dismissing his evidence because of it concerns of the applicant's credibility. The Tribunal's failure to make any mention to the applicant on this key issue and the relevance that it had on his overall claims resulted in no weight being given to the evidence that the applicant was putting forward in support of his case. This constitutes jurisdictional error.
Ground 2
The Tribunal fell into jurisdictional error in not complying with the legislative requirements under s.424A (l)(a) and s.424AA of the Migration Act to give the applicant “clear particulars of any information that the Tribunal considered would be the reason, or part of the reason for affirming the decision that was under review. The Tribunal gave significant weight to its own assumptions and conclusions without putting the applicant on notice that its reasons would be the reason or part of the reason, for affirming the decision under review.
Particulars
At (D[42]) the Tribunal stated that in “considering the evidence overall including the written claims and oral evidence provided by the first and second named applicants, the Tribunal had significant concerns about the claims. The Tribunal was not satisfied that the applicant suffered any of the claimed harm. The Tribunal found the overall basis of the applicant's claims implausible and improbable ... “ The Tribunal then provided its reasons from (a) to (f).
Noting that this was a crucial adverse finding by the Tribunal, it therefore became imperative for the Tribunal to give the applicant clear particulars of the information that was going to be the basis for affirming the decision under review.
While at (D[44] the Tribunal mentions putting the discrepancies in evidence as part of s424AA, the Tribunal failed to ensure that 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 that was under review. This constitutes jurisdictional error.
Ground 3
The Tribunal made an erroneous adverse finding against the applicant' s evidence by relying on a miscomprehension of the evidence and/or failing to consider the evidence.
Particulars
The Tribunal's findings and reasons from paragraphs (D[20] - [24] adversely dealt with the whole of the applicant's claims in a dismissive and condemning manner. Treating the applicant's response as “nonsensical” and one that had “significant credibility concerns” as well as stating that the applicant's responses were “implausible and improbable”, the Tribunal did not fully consider in depth the [claims for protection and the credibility of those claims].
I drew to the applicant’s attention that page 5 of the application form is missing from the electronic file and that the particulars to Ground 3 finish in mid-sentence. The applicant told me from the bar table that he had received assistance in completing the application, and that there were only three grounds in it. The applicant adopted my suggestion that the particulars to Ground 3 should finish with the words “claims for protection, and the credibility of those claims.”
The application is supported by a short affidavit which I received subject to the proviso that paragraphs 5 and 6 of it were treated as submissions.
I also have before me as evidence the court book filed on 19 October 2016.
Only the Minister prepared written submissions in advance of today’s hearing in accordance with the Registrar’s procedural orders.
I invited oral submissions from the first and second applicants this morning. The second applicant did not wish to make any submissions. In relation to the first ground, the applicant contends that he was not given a fair hearing opportunity. He contends that the Tribunal was wrong to make its adverse credibility conclusions, and that the assertive questioning of his claims at the hearings was unfair. I suggested to the applicant that the particulars to the first ground appeared to be an allegation of bias. He did not dispute that characterisation.
In my view, there was no breach of s.425 of the Migration Act as asserted. The applicants were invited to attend two hearings before the Tribunal and the first and second applicants provided evidence to the Tribunal. There is no transcript available of what occurred before the Tribunal at those hearings. The Tribunal’s hearing record indicates that there was detailed questioning of both applicants at the hearings. The Tribunal was plainly troubled by the evidence given orally when compared to the written claims and when the first and second applicant’s oral evidence was compared to each other.
The applicants take issue in particular with [20] of the Tribunal’s reasons where the Tribunal stated:
The Tribunal asked the applicant if he had any trouble leaving Fiji. He responded by saying that he did not wear his work uniform on the day of his departure and as military officers are sometimes stationed at the airport he stayed in the toilet until it was time to board the flight. The Tribunal put it to the applicant that it would be inappropriate to wear his uniform because he was not attending work on the day of his departure. It was also put to the applicant and that by the time he was in the boarding lounge he would have already passed through the immigration check and therefore if he had not been stopped at that point it was unlikely that he would have been prevented from leaving the country subsequently. The applicant's response was nonsensical and the Tribunal was satisfied that the applicant did not have trouble departing Fiji. The Tribunal explained to the applicant a second time that his explanation of whether or not he had any difficulties in living Fiji raised concerns about his credibility. To this he responded that maybe the authorities did not believe he was leaving and that perhaps his name might not have been in the system yet. The applicant's further reasoning did nothing to reassure the Tribunal that he had any difficulty leaving Fiji.
The applicants are affronted at the description of the first applicant’s evidence as nonsensical. I invited submissions in particular from the first applicant in relation to that paragraph. He reviewed the essential details of his evidence before the Tribunal. The Tribunal is entitled to test claims and on occasion it may need to do so vigorously. Such testing is not of itself indicative of error.
On the basis of the material before me, I am not able to say whether the applicant’s response to a particular question was or was not nonsensical. What is clear is that the Tribunal reasoned that if the first applicant was to encounter trouble leaving Fiji, that should have been apparent when he passed through immigration control at the airport. The fact that the first applicant chose not to wear his uniform on that day, and that he spent time in a toilet in order to avoid attention, the Tribunal did not regard as material. I see no error in the Tribunal’s approach.
On the basis of the material before me, there is nothing to support a proposition that the Tribunal exhibited bias, whether apprehended or actual. The inquisitorial nature of the Tribunal’s proceedings must be taken into account, such that the Tribunal is necessarily required to test an applicant’s evidence, often vigorously[8].
[8] see SZRUI v Minster for Immigration [2013] FCAFC 80 at [4]
In the second ground, the applicants assert a breach of ss.424A or 424A of the Migration Act. In particular, the applicant claims the Tribunal was obliged to put the matters set out at [42], items (a) to (f), and [43] of the Tribunal decision to the applicant under ss.424A and/or 424AA.
The items set out in subparagraphs [42] (a) to (f) are the reasons given by the Tribunal (ie its thought process) as to why it had concluded that the applicant’s claims were “implausible and improbable”. They contain conclusions based on factual findings: for example, subparagraph (b) contained a factual finding that the Tribunal was not satisfied with the applicant’s explanation of whether or not he had any difficulties living in Fiji. These factual findings related to claims made and evidence given by the applicant, and in those circumstances the obligations in s.424A (or s.424AA) were not enlivened by the items set out in subparagraphs (a) to (f) of [42].
In relation to [43], it appears that the applicant claims that the Tribunal breached s.424AA (or more correctly, s.424A) by not putting to the applicant the “discrepancy” that the “request for information” from his wife (the second applicant) caused her “great stress and anxiety”, whereas the wife gave evidence she was “a little bit concerned”. However, this inconsistency was not “information” for the purpose of ss.424A and 424AA of the Migration Act for the following reasons.
To be “information” under ss.424A or 424AA it must, “contain in [its] terms a rejection, denial or undermining of the [applicant’s] claims to be persons to whom Australia owes protection obligations”[9]. 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”[10].
[9] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [13]-[17]
[10] SZBYR at [18]
In the present case the “information” (namely the discrepancy between the evidence of two applicants regarding the wife’s reaction to a request of information made by the husband) is merely an “inconsistency” in the evidence of the two applicants, and not information (such as evidentiary material or documentation from a third party) that amounted to a “rejection, denial or undermining” of their claims. As the High Court held in SZBYR at [18], “‘information’ was not to be found in inconsistencies or disbelief”.
In SZSOG v Minister for Immigration[11] Rares J found that the Tribunal did not need to put “inconsistencies” in the evidence of a husband and wife applicant to each other for comment, as the inconsistencies did not amount to an undermining of their claims. SZSOG is a case very similar to the present case in terms of this issue, and I am bound to follow it.
[11] [2014] FCA 1053
For these reasons, the “information” relied upon by the applicants (namely, the discrepancy between the evidence of two applicants regarding the wife’s reaction to a request for information made by the husband) is not “information” within the meaning of ss.424A or 424AA. Rather, it is an “inconsistency” in evidence given by both applicants, and therefore the provisions in ss.424A or 424AA were not enlivened or engaged.
While the Tribunal purported to go through a process of disclosure at the Tribunal hearing, this was not, in my view, required by the legislation. It may be that the Tribunal was seeking to ensure that the applicants understood the significance of the issue of their credibility. In that regard, I accept the Minister’s submission that no disclosure was required, pursuant to s.425 of the Migration Act.
The Minister submits, and I accept that, in this particular case, the Tribunal was not obliged under s.425 of the Migration Act[12] to give notice to the applicant that his credibility would be an issue in the Tribunal.
[12] as elaborated on by the High Court in SZBEL v Minster for Immigration (2006) 228 CLR 152
It is clear from the delegate’s decision that the issue of the applicant’s credibility was a dispositive issue in the delegate’s decision. At CB151 the delegate found the applicant had given testimony that was “vague, inconsistent and implausible”, and that he had “exaggerated his claims”.
Further, it is clear from the Tribunal’s decision that the issue of the applicant’s credibility was also a dispositive issue arising in the review. At [21] and [24][13] the Tribunal member came to the conclusion that there were significant credibility concerns with the applicant’s evidence.
[13] CB246-247
In SZBEL the High Court held that, if:
… the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”.
In other words, if an issue was dispositive in the delegate’s decision and that same issue was also dispositive before the Tribunal, then the Tribunal was under no obligation under s.425 (as elaborated by the High Court in SZBEL) to give notice that the issue (in this case, the applicant’s credibility) would be an issue before the Tribunal. This was the case in the present application before the court. The issue of the applicant’s credibility was clearly an issue before the delegate, and it was clearly an issue arising under the review in the Tribunal.
As the issue of the applicant’s credibility was dispositive to both the delegate’s decision and the Tribunal’s decision, no jurisdictional error of the kind identified by the High Court in SZBEL was committed by the Tribunal in the present case.
Further, the Tribunal is not required to give a running commentary upon what it thinks about evidence that is given[14]. There was no obligation on the Tribunal to tell the applicant what the Tribunal Member was thinking about the applicant’s credit during the hearings on 3 February 2016 and 15 June 2016.
[14] SZBEL at [48]
In any event, the Tribunal put the applicant on notice that his credibility was in issue[15]. This was no doubt done out of an abundance of caution and no jurisdictional error arises as a result.
[15] CB245, [20]
In the third ground, the applicants again take issue with the Tribunal’s adverse credibility conclusions. They assert that these conclusions were erroneous because the Tribunal relied upon a miscomprehension of their evidence, or a failure to consider their evidence.
I accept that credibility findings, like other factual findings by the Tribunal, are amenable to judicial review. Where an adverse credibility finding is based upon a miscomprehension of the facts or a failure to consider material evidence, the Tribunal may fall into jurisdictional error. In the present case, however, the applicants were unable to point to any particular evidence which was ignored or misunderstood.
The Tribunal’s reasons revealed to me that the Tribunal engaged in detail with the applicant’s claims and evidence in reaching its adverse credibility conclusions. I conclude that the Tribunal did not overlook or misunderstand anything in reaching its conclusions.
In his closing submissions, the applicant referred to the time he and his family have spent in Australia and the difficulty they would face in relocating back to Fiji. These are humanitarian considerations which are beyond the scope of this proceeding. They are matters that could be taken into account by the Minister should he be minded to do so.
I conclude that the applicants are unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is, therefore, a privative clause decision and the application must be dismissed. I so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,500. This is significantly below the Court’s scale and is appropriate in the circumstances of this case. The applicants did not wish to be heard on costs.
I will order that the first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,500.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 7 April 2017
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