CKG15 v Minister for Immigration & Anor
[2017] FCCA 938
•10 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CKG15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 938 |
| Catchwords: MIGRATION – Application for review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision of a delegate of the Minister for Immigration and Border Protection not to grant applicant a protection visa – whether Tribunal considered prior consistent evidence of applicant as evidence the applicant did not concoct his claims – whether by rejecting expert opinion evidence on the ground it did not accept the factual premises on which it was based the Tribunal made a jurisdictional error by not considering or giving weight to the opinion that was based on the factual premises the Tribunal did not accept – whether the Tribunal considered evidence of a video – whether it was reasonably open to the Tribunal to conclude the video was a fabrication – whether the Tribunal had regard to a want expressed by the applicant that the Tribunal take oral evidence from a particular person – whether the Tribunal made a jurisdictional error by failing to disclose to the applicant a certificate purportedly issued under s.438 of the Migration Act 1958 (Cth) – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 424AA, 425, 426, 427, 438, 459A, 475A |
| Cases cited: BIE15 v Minister for Immigration and Border Protection [2016] FCCA 2978 |
| Applicant: | CKG15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3102 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 2 June 2016 |
| Date of Last Submission: | 2 June 2016 |
| Delivered at: | Sydney |
| Delivered on: | 10 May 2017 |
REPRESENTATION
| Counsel for the Applicant: Mr R Clark |
| Solicitors for the Applicant: Fragomen Australia |
| Counsel for the Respondents: Mr B Kaplan |
| Solicitors for the Respondents: Australia Government Solicitor |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3102 of 2015
| CKG15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a citizen of Bangladesh, seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (class XA) visa (Protection visa).
Claims for protection and evidence before Tribunal hearing
The applicant articulated his claims for protection on four occasions before he gave evidence to the Tribunal at a hearing on 28 September 2015.
The first occasion was on 12 April 2013 at his entry interview.[1] The applicant claimed he was compelled to leave Bangladesh because his uncles had (falsely) accused him of murder because he had a relationship with his uncle K’s daughter, and K did not like the relationship. The applicant also claimed he and his father were supporters of the Bangladesh Nationalist Party (BNP) while his uncles were supporters of the Awami League. The applicant claimed he had been arrested twice because K reported the applicant was disturbing K’s daughter.
[1] CB264, [3]. The applicant arrived in Australia on 28 March 2013 as an “offshore entry person” – see CB96
The second occasion on which the applicant articulated his claims is in a statutory declaration made on 6 June 2014 that accompanied his application for a Protection visa.[2] The applicant repeated he had commenced a relationship with K’s daughter in 2010, and that he and his father were BNP supporters, and his uncles were Awami League supporters. The applicant said he worked in a family clothing store. The applicant further claimed as follows:
[2] CB36-42; CB264-CB266, [4] - [11]
a)The applicant fabricated the murder claim and his being harassed and charged by police on several occasions because the applicant was told by a smuggler that he would not be able to lodge a successful protection visa application unless he could demonstrate that he was being imprisoned by the police for fraudulent claims against him.
b)In 2012 K discovered the relationship between the applicant and K’s daughter and K began to use Awami League supporters to harm the applicant.
c)In May 2012 Awami League supporters came to the store, beat the applicant and the applicant’s father, looted the store of cash (one lakh) and other goods, and destroyed property.
d)One week later, after the applicant had been discharged from hospital, Awami League supporters came to his house and demanded 10 lakhs, and warned the applicant they would harm him if he did not make the payment.
e)One week later, the applicant was kidnapped by men unknown to the applicant who told him they had come to collect the 10 lakhs. The applicant’s father secured the applicant’s release by paying the money; but the money was provided to the applicant’s father by K, in return for the land on which the clothing store was located.
f)The applicant and his father reported the incident to the police, but the police refused to charge K. After the applicant’s father heard from his friends that K was aware the applicant and his father had attempted to file a police complaint against him, the applicant feared for his life, fled his home, and hid elsewhere in Bangladesh.
g)On around 30 June 2012 Awami League members attempted to find the applicant by breaking into his family home. The Awami League supporters harmed the applicant’s family, looted the house, and damaged property. The applicant’s family also fled their home.
h)In about July 2012 Awami League members arrived at the village in which his aunt lived, being the place where the applicant was hiding. After the villagers informed the applicant’s aunt that Awami League members were looking for the applicant, the applicant realised he would be sought out regardless of where he was in Bangladesh. He continued to hide in different places in Bangladesh until February 2013 when a maternal uncle assisted the applicant to flee Bangladesh by boat from Chittagong.
i)In around June 2013 the applicant heard his father was severely beaten by Awami League supporters when he returned to his village to collect some debts.
j)In around July 2013 the applicant’s father advised the applicant his sister was also harmed by Awami League members.
The third occasion the applicant articulated his claims was during his interview by the delegate on 17 September 2014 where he expanded on his claims in response to questions asked of him.[3] The applicant also included claims based on his having been informed in March 2014 he had been affected by a data breach that involved details of persons, such as the applicant, who were held in immigration detention on 31 January 2014.
[3] CB266-CB268, [12]-[22]
The fourth occasion on which the applicant articulated his claims is in a statutory declaration dated 14 August 2015.[4] The applicant stated he was seeking asylum in Australia “on the grounds that my homosexuality has resulted in me being ostracised, beaten, humiliated, received death threats and imprisoned in my home country Bangladesh”. The applicant claimed as follows:
[4] CB173-175
a)When he was in Bangladesh he was attracted to boys and had a homosexual relationship with R.
b)The applicant and R used to have sex in the school bathroom, but were caught doing so. The applicant and R were locked up and reported to the headmaster. The headmaster beat them, called the applicant’s and R’s father, and expelled them from school.
c)The applicant’s father tied the applicant to a tree and beat him, the applicant ended his studies in 2004, and the applicant’s father locked the applicant in his room for six months.
d)The applicant joined “political progress” with his father, but the applicant was unhappy. The applicant stole tk1000 from the shop and bought a mobile phone. The applicant sent the phone to R through one of his friends. R’s parents beat R and asked him not to associate with the applicant. R died in 2007 in a car accident.
e)In 2008 the applicant went to a concert where he met a boy, A, and in 2009 they had sex, and continued to do so in 2010.
f)In 2010 the applicant began a relationship with K’s daughter so that the applicant’s friends would not find out he was homosexual.
g)In June 2012, on the day after the applicant and his father went to the police station to complain about K and his gang, the applicant’s parents and his sister went to the applicant’s maternal uncle. The applicant called A to come to the applicant’s house. The applicant and A had sex while the window was open and “some people of our village took photos” of A and the applicant having sex.
h)The photos were shown to the councillor of the village, and to the imam; and copies of the photographs were distributed to everyone in the village.
i)The villagers locked the applicant and A in the mosque. Some people wanted to call the police and some wanted to punish the applicant and A according to Islamic law. After two days, however, the applicant and A broke the window and escaped.
j)The applicant went to his mother who told the applicant that K already knew the applicant and his father complained about K. The applicant’s mother also told him he would be punished because of his homosexuality. She gave the applicant money and asked him to flee.
k)The applicant went to his aunt’s house. In July 2012 Awami League members went to the applicant’s aunt’s house in search of the applicant. The applicant then sought refuge in other places until December 2012 when, at his mother’s request, the applicant’s maternal uncle organised the applicant’s departure from Bangladesh.
l)The applicant commenced a homosexual relationship with Mr RM on 20 September 2013 while in detention.
The fifth occasion on which the applicant articulated his claims was before the Tribunal on 28 September 2015.
Documentary evidence in support of claims
The applicant supported his claims for protection with documentary evidence. First, on 24 September 2015 Mr Kelleher, a person assisting the applicant, provided to the Tribunal four photographs, a letter in Bangla, and another document in Bangla bearing the logo of the BNP.[5] Mr Kelleher provided translations of these documents on 28 September 2015.[6] The letter purports to be from Mr R who describes himself as the president of a particular branch of the BNP.[7] The letter is addressed to the applicant. It refers to the applicant’s mother and maternal uncle visiting Mr R to discuss how the applicant’s father was killed and “to collect the receipt which shows that you were a member of BNP”. The letter also stated that “if you return to Bangladesh, your uncle and the villagers won’t let you live”, that the applicant’s “step-uncle and his gangs are still looking for you”; that “the villagers are still angry with you for your homosexual acts that you committed with [A] and then caught red handed”; that A “is now behind bars for committing homosexual acts with you”; and that if the applicant wanted to return to Bangladesh “we won’t be able to help you from the party” because “the people in our BNP are still angry with you too for your homosexual acts”.
[5] CB270, [30]
[6] CB270, [31]
[7] CB202-203
Second, Mr Kelleher provided to the Tribunal a transcript in Bangla of what is spoken in a YouTube video to which the applicant’s representative had previously provided a link, together with the translation.[8] As summarised by the Tribunal,[9] the video purports to record proceedings before an adjudication committee in relation to the applicant and A having been photographed committing homosexual acts. The proceedings also refer to the applicant’s having a relationship with K’s daughter and the applicant’s kidnapping, although it represents the villagers as saying the applicant and his father falsely accused K of involvement in the kidnapping.
[8] CB270, [33]. The translation of the transcript is at CB206-209
[9] CB270-271, [33]
In the proceedings before me, the applicant relies on an affidavit made by Mr Knibbs, a volunteer advocacy support worker at Darwin Asylum Seeker Support and Advocacy Network. According to a letter he sent to the Tribunal on 29 September 2015[10] (to which I refer later in these reasons), before his retirement in November 2013, Mr Knibbs worked for 21 years as a sexual health and HIV nurse as a result of which he had daily contact with gay men from a variety of backgrounds, ethnicity and cultures. He said the Darwin Asylum Seeker Support and Advocacy Network received a referral from Ms Sarah Ross, an Asylum Seeker Advocacy Worker in Perth, who had been supporting the applicant and Mr RM before their transfer to Wickham Point Immigration Detention Centre. Mr Knibbs said that the applicant and Mr RM “disclosed their sexuality and relationship to Sarah and as a gay man I accepted the referral”.
[10] CB236-237
In his affidavit, but not in his letter, Mr Knibbs stated he has known the applicant and Mr RM since July 2015 when he “first started providing them with advocacy support”. Mr Knibbs further said:[11]
I have viewed the video at this internet address. At approximately 8 minutes into the video a photograph is held by a man up to the camera. That photograph depicts a man performing oral sex on another man. The face of the man performing oral sex can be seen on the photograph. The face of the man reciving [sic] oral sex cannot be seen. I confirm that the person that can be seen performing oral sex (that is, the person whose face can be seen) is the applicant.
[11] Affidavit of P G Knibbs, 24.02.16, [8]
The Minister objected to my reading this part of Mr Knibbs’ affidavit, but only on the grounds of relevance. I read this paragraph subject to my ruling on whether the evidence is relevant. In my opinion, this part of Mr Knibbs’ affidavit is not relevant. On the view I have taken of the evidence, the Tribunal was aware the video captured a photograph that depicted the applicant performing oral sex on another male.
Third, the applicant relied on a statement of Mr RM with whom the applicant claimed he was in a homosexual relationship.[12] In that statement, Mr RM said he left Bangladesh in 2009 because he is a gay man, and homosexuality is illegal in Bangladesh. After giving a history of his relationships with other men, Mr RM referred to meeting the applicant at a detention centre in August 2013, and commenced having a sexual relationship with him on the evening of 20 September 2013.
[12] CB255-256
Fourth, the applicant provided to the Tribunal a letter from Mr Knibbs dated 29 September 2015 to which I have already referred. After setting out some background, including his having worked for 21 years as a sexual health and HIV nurse, Mr Knibbs referred to meeting the applicant and Mr RM who had “a plethora of questions about life for gay men in Australia and were particularly interested in same sex marriage”. Mr Knibbs expressed the opinion that the applicant and Mr RM “genuinely are gay and are in a committed sexual and loving relationship”.
Tribunal decision
The Tribunal did not accept the applicant’s claims because the Tribunal did “not regard him as a witness of truth”, and because it considered the applicant was “prepared to say things which he knows are not true if he thinks that this will help his application for a protection visa”.[13] The Tribunal relied on a number of matters.
a)First, in the statutory declaration that accompanied his application for a Protection visa, the applicant admitted he made false claims at his entry interview. In that statutory declaration the applicant said he made the false claims because he was told to do so by a smuggler, whereas at the Tribunal hearing the applicant explained that he had just come out of the ocean by boat, he had been in fear, he was new in Australia, and he did not know what to do. The Tribunal said that even if it were to accept the applicant made false claims because a smuggler suggested he do so, that still suggests the applicant is “someone who is prepared to say things which he knows not to be true if he thinks that this will help his application for a protection visa”.[14]
b)Second, the applicant prepared the statutory declaration of 6 June 2014 that accompanied his application for a Protection visa after he said he had received assistance from a lawyer, yet he did not mention in that declaration that he was homosexual.[15]
c)Third, the Tribunal could not reconcile claims the applicant made in the statutory declaration of 6 June 2014 with the claims he made in his statutory declaration of 14 August 2015. In his 6 June 2014 declaration the applicant claimed he had completed Year 9, and the applicant had confirmed that claim at the Tribunal hearing; yet in his 14 August 2015 statutory declaration he said he had been expelled from school because he was found having sex with another boy in the school bathroom.[16]
d)Fourth, the Tribunal considered the applicant’s claims that he had been involved in the BNP because of his father’s support for the BNP and his own conservative Islamic beliefs to be inconsistent with the applicant’s claims he was actively involved in homosexual activity.[17]
e)Fifth, in his statutory declaration of 6 June 2014 the applicant claimed he was careful to ensure his relationship with K’s daughter remained secret, yet in his statutory declaration of 14 August 2015 the applicant said he began his relationship with K’s daughter so that his friends would not find out he was homosexual.[18]
f)Sixth, the Tribunal could not reconcile what the Tribunal considered to be inconsistent claims about the circumstances in which the applicant left his village. In his 6 June 2014 statutory declaration the applicant claimed he had to leave his village because K wanted to kill him after the applicant and his father complained to the police about K. In his statutory declaration of 14 August 2015, on the other hand, the applicant said he left the village because he and A had been photographed having sex.[19]
[13] CB282, [70]
[14] CB278, [60]
[15] CB278-279, [61]
[16] CB279, [62]
[17] CB279, [63]
[18] CB279-280, [64]
[19] CB280, [65]
The Tribunal also considered the evidence on which the applicant relied.
a)First, the Tribunal referred to the YouTube video and the translation of the transcript. The Tribunal found it was clear from the link the applicant sent to the Tribunal that the video was posted on YouTube on 8 September 2015, after the applicant claimed he was homosexual.[20] In response to the applicant’s stating that he had known about the video long before, that a friend had told the applicant about it and had asked for money, threatening to tell K about the video or post the video on YouTube, the Tribunal said there was “no independent evidence of the existence of this video before 8 September 2015”.[21]
b)Second, the Tribunal referred to a purported letter from Mr R.[22] The Tribunal put to the applicant that, unlike the letter from Mr R the applicant produced to the delegate, the letter the applicant provided to the Tribunal was unsigned and was not on any letterhead. In response to the applicant’s claim that the letter was sent to him by email, but he had not produced the email message, the Tribunal said it gave “greater weight to the problems” it had identified with the applicant’s evidence than it did to the letter.[23] The Tribunal also found the purported letter from Mr R to be “expressed in such vague and general terms as to be of limited value in corroborating” the applicant’s claims.[24]
c)Third, the applicant referred to Mr RM’s statement. The Tribunal said it gave weight that Mr RM has come to Australia to seek protection and that he and the applicant “therefore seek to benefit by giving mutually corroborating evidence regarding their homosexuality”. The Tribunal concluded it gave greater weight to the problems it had already identified with the applicant’s evidence than it did to Mr RM’s evidence.[25]
d)Fourth, the Tribunal referred to the letter from Mr Knibbs. The Tribunal said:[26]
I accept that Mr Knibbs sincerely believes that [the applicant] is homosexual and that he and Mr [RM] are in a committed homosexual relationship. However it appears that Mr Knibbs has based his opinion on what [the applicant] and Mr [RM] have told him and on his belief that it would be difficult for someone who was not homosexual to have composed the narrative set out in [the applicant’s] statutory declaration made on 14 August 2015. It is unclear whether, or to what extent, Mr Knibbs is aware of the previous claims made by [the applicant]. I give greater weight to the problems which I have identified above with [the applicant’s] evidence than I do to the evidence of Mr Knibbs.
[20] CB280, [66]. A copy of the YouTube page is at CB258.
[21] CB280, [66]
[22] CB280-281, [66]. A copy of the translated letter is at CB202.
[23] CB281, [66]
[24] CB281, [68]
[25] CB281, [67]
[26] CB281, [67]
Ground 1 – failure to consider evidence
The first ground is as follows:
The Tribunal engaged in jurisdictional error in failing to consider the applicant’s evidence.
Particulars
a.The Tribunal rejected the applicant’s claim to be homosexual.
b.The Tribunal received evidence from Peter Knibbs (Mr Knibbs), who stated that a volunteer asylum caseworker in the Yongah Hill Immigration Detention centre (Yongah Hill IDC) had referred the applicant and [Mr RM] to him.
c.The referral was on the basis that the applicant and [Mr RM] were in a homosexual relationship.
d.The Tribunal did not refer to, or make any findings in relation to the evidence that the applicant and [Mr RM] must have separately disclosed their homosexual relationship to the volunteer asylum seeker caseworker while detained at Yongah Hill IDC.
This ground claims the Tribunal failed to consider the evidence identified in paragraph (d) of the particulars, namely, “evidence that the applicant and [Mr RM] must have separately disclosed their homosexual relationship to the volunteer asylum seeker caseworker while detained at Yongah Hill IDC” (emphasis added). The evidence is described less narrowly in the applicant’s written submissions, and is said to consist of two items. The first is the following passage from Mr Knibbs’ letter:[27]
I have been a volunteer with the Darwin Asylum Seeker Support and Advocacy Network since November 2014. We received a referral from Sarah Ross, an Asylum Seeker Advocacy Worker in Perth who had been supporting [the applicant] and his partner, [Mr RM] at Yongah Hill Immigration Detention Centre prior to their transfer to Wickham Point Immigration Detention Centre. They had disclosed their sexuality and relationship to Sarah and as a gay man I accepted the referral.
[27] Applicant’s Outline of Submissions, [28]
The second item is evidence that was before the Tribunal “at least in broad terms of the period in which the applicant was in Yongah Immigration Detention Centre”.[28] Counsel for the applicant identified that evidence to be the information provided in item 14 of form 956 dated 19 September 2014 to the effect the applicant was then at Yongah Hill,[29] and the applicant’s address specified in his application for review dated 5 June 2015, which indicated the applicant was held at Wickham Point Immigration Detention Centre.[30] The applicant also relies on an affidavit made by Mr Varess which annexes documents that show the applicant was in Yongah Hill from 28 August 2014 until 24 March 2015.
[28] Applicant’s Outline of Submissions, [29]
[29] CB77
[30] CB120
The significance of this evidence, counsel for the applicant submitted, is that it was clear, on any reading of the evidence, that the applicant’s disclosure of his homosexual relationship with Mr RM “occurred some period of time before the applicant made his claims before the tribunal”.[31] According to his written submissions, the applicant submitted that evidence was important for the following reasons:[32]
(a)The Tribunal found that the Applicant was not a witness of truth (CB282 [70]), and thus corroborative evidence from third parties about his homosexuality was particularly relevant in an assessment of his credibility;
(b)The person in question, Ms Ross must have been sufficiently persuaded of the Applicant’s homosexuality and his relationship with Mr [RM], in that she referred them to Mr Knibbs;
(c)The disclosure of the relationship and homosexuality to Ms Ross occurred months before the Applicant first raised his claims of being homosexual to the Tribunal, which would have meant that it would be difficult for the Tribunal to have simply dismissed the evidence as being concocted to support the Applicant’s claim, as the Applicant had made no claim of that fact at the time;
(d)The Tribunal was concerned about other evidence which it found had been created following the Applicant’s claims such as the Youtube video . . . , however, that concern would not have arisen in relation to this evidence;
(e)The evidence corroborated not only the Applicant’s story, but Mr [RM’s] in that the evidence would tend towards showing that they were in a relationship, as it had been disclosed to a third party prior to that relationship’s relevance to the Applicant’s claims.
[31] T16.25
[32] Applicant’s Outline of Submissions, [31]
The applicant’s submissions do not distinguish between the evidence the applicant submits the Tribunal failed to consider – the applicant’s and Mr RM’s having communicated their relationship to Ms Ross (Communication Evidence) – and the inferences the applicant submits are reasonably available to be drawn on the basis of that evidence. That is an important distinction because there is no doubt the Tribunal was aware of the Communication Evidence, the essentials of which is contained in Mr Knibbs’ letter. The Tribunal accurately set out Mr Knibbs’ letter in its reasons for decision, which indicates the Tribunal read and understood the letter.[33] The applicant’s real contention appears to be that the Tribunal failed to appreciate the Communication Evidence was reasonably capable of supporting the credibility of the applicant’s claims that he had been in a homosexual relation with Mr RM, but the Tribunal failed to consider whether that evidence did support the applicant’s credibility. In other words, the applicant’s true complaint is the Tribunal failed to appreciate the relevance of evidence – the Communication Evidence - that was before it of whose existence the Tribunal was aware.
[33] CB277, [58]
Three questions arise:
a)Was the Communication Evidence reasonably capable of supporting the credibility of the applicant’s claims that he was in a relationship with Mr RM?
b)Did the Tribunal in any event not consider whether the Communication Evidence was capable of supporting the applicant’s claim he was in a relationship with Mr RM?
c)Assuming the Tribunal did not consider whether the Communication Evidence was capable of corroborating the applicant’s claims, did the Tribunal make a jurisdictional error?
Was the Communication Evidence reasonably capable of supporting the applicant’s credibility?
That a person has made a statement on one occasion (prior consistent statement) that is consistent with a statement the person made on a later occasion (later statement) does not by itself render more probable the truth of the prior consistent statement or the later statement. A person may as consistently repeat a falsehood as he or she may consistently repeat a truth. The making of a prior consistent statement, however, may be relevant to the credibility of the later statement if the credibility of the later statement is called into question. One set of circumstances where that might occur is where it is suggested the later statement was invented after the events to which the later statement refers occurred.[34] Here, evidence of a prior consistent statement might enhance the credibility of the later statement because, if accepted, the person’s having made a prior consistent statement would tend to repel the suggestion that the person invented the later statement.
[34] See, for example, Heydon, J. D., Cross on Evidence Tenth Australian edition, LexisNexis Butterworths at [17250]. There are other examples where a previous consistent statement may be relevant. These, too, are discussed in Cross on Evidence at [17260]-[17355]
The applicant does not submit the Communication Evidence by itself was reasonably capable of supporting or enhancing the credibility of the applicant’s claim he was in a relationship with Mr RM. The applicant submits the evidence was relevant because the communication was made “months before the Applicant first raised his claims of being homosexual to the Tribunal”. That, in turn, is said to be relevant because it is evidence which, if accepted, would have made it “difficult for the Tribunal to have simply dismissed the evidence as being concocted to support the Applicant’s claim”. In other words, the applicant submits the Communication Evidence was relevant because, if accepted, it would have had the tendency to repel the suggestion the applicant concocted the claim he was homosexual which he made on 14 August 2015.
The applicant’s submission is premised on two implied assumptions. The first is that the Tribunal did not accept the applicant’s claim he was homosexual and in a relationship with Mr RM for reasons that included a finding that the applicant concocted that claim. The second assumption is that the Tribunal found, or at least assumed, that the applicant concocted his claim after he first communicated to Ms Ross his being a homosexual and in a relationship with Mr RM. Neither of these assumptions is correct.
It is true that, given the Tribunal’s rejection of the applicant’s claim that he was homosexual and in a relationship with Mr RM, and the Tribunal’s findings that the applicant was not a witness of truth but was prepared to say things which he knows to be false, the Tribunal must be taken to have concluded that the applicant concocted the claim he was in a homosexual relationship with Mr RM. That, however, is a conclusion the Tribunal arrived at for reasons that did not include a finding that the applicant concocted the claim. Those reasons included the applicant’s having admitted to having made false claims in his application for a Protection visa, the applicant’s not having claimed he was a homosexual in his statutory declaration of 6 June 2014, even though he said he had received the assistance of a lawyer, the Tribunal’s findings of inconsistencies between the claims the applicant made in the statutory declaration of 6 June 2014 and the claims he made on 14 August 2015, and the Tribunal’s finding the applicant’s claim to have conservative Islamic beliefs to be inconsistent with his claim to have engaged in homosexual sex.
If, contrary to what I have concluded, the Tribunal can be said to have relied on a finding, or proceeded on the assumption, that the applicant concocted the claim he was a homosexual and in a relationship with Mr RM, to the extent it can be inferred the Tribunal made such finding at any particular point in time, a fair inference is the Tribunal found or assumed the applicant had concocted his claim of being homosexual and in a relationship with Mr RM before he represented to Ms Ross matters to that effect. The basis of that inference would be the grounds on which the Tribunal did not accept Mr Knibbs’ opinions. The Tribunal did not accept those opinions because it appeared to the Tribunal that “Mr Knibbs based his opinion on what [the applicant] and [Mr RM] told him”.[35] That implies the Tribunal gave no credit to the statements the applicant made, not only to Mr Knibbs, but also to Ms Ross, that he was homosexual and in a relationship with Mr RM; and that, to the extent the Tribunal found or should be taken to have assumed the applicant concocted his claim to be homosexual an in a relationship with Mr RM, the Tribunal found or assumed the applicant concocted that claim before he communicated to Ms Ross that he was homosexual and in a relationship with Mr RM.
[35] CB281, [67]
For these reasons, and given the Tribunal’s actual reasoning, I am not satisfied the Communication Evidence was reasonably capable of supporting or enhancing the credibility of the applicant’s claim that he was homosexual and in a relationship with Mr RM.
Did the Tribunal consider the Communication Evidence?
It follows from what I have already said that the Tribunal did not consider whether the Communication Evidence was capable of dispelling a finding of concoction. That, however, does not mean the Tribunal did not consider whether what the applicant said to Ms Ross was credible. I am not satisfied the Tribunal did not impliedly consider that question when it considered whether to accept Mr Knibbs’ opinions. The Tribunal did not accept Mr Knibbs’ opinions because they were based on what the applicant told Mr Knibbs and, by implication, what the applicant told Ms Ross, which the Tribunal was not prepared to credit as being truthful.
Jurisdictional error?
If, contrary to my conclusions, the Communication Evidence was relevant to the question of whether the applicant’s claim he was a homosexual and in a relationship with Mr RM, and the Tribunal failed to consider it, did the Tribunal make a jurisdictional error? The applicant submits the Tribunal did make a jurisdictional error. He submits the Communication Evidence was substantial and consequential. The applicant relies on the following passage from the judgment of Young J in MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs:[36]
On the authorities, the Tribunal is obliged to consider at least three types of claim: first, those that are explicitly put by the applicant; secondly, those that are implicit in the material before the Tribunal; and thirdly, those that emerge from the Tribunal’s findings or conclusions.
[36] [2006] FCA 497 at [39]
The applicant also relies on the following passage from the judgment of Robertson J in Minister for Immigration and Citizenship v SZRKT:[37]
In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
[37] [2013] FCA 317 at [111] (see T.19)
There are a number of matters to note. First, the passage from MZWDG refers to claims, and the passage from SZRKT refers to evidence that is “substantial and consequential”. It is difficult to apply these notions to the material the applicant submits the Tribunal failed to consider. As I have already noted, it cannot be said the Tribunal was unaware of the Communication Evidence. The applicant’s real complaint is that the Tribunal failed to appreciate, and therefore, failed to consider, what the applicant submits was the relevance of the Communication Evidence. It is a complaint the Tribunal failed to follow a particular chain of reasoning on the basis of evidence of which it was aware. That cannot easily be described as a claim; nor can it easily be described as evidence.
Second, assuming the asserted relevance of the Communication Evidence can properly be characterised as a claim, I am not satisfied the asserted relevance of the Communication Evidence was one that implicitly arose on the material that was before the Tribunal. The applicant did not submit to the Tribunal Mr Knibbs’ letter proved the applicant had made prior consistent statements about his being a homosexual and in a relationship; the only purpose for which it can reasonably be inferred the applicant submitted the letter was to bring before the Tribunal the opinion of Mr Knibbs that the applicant was in a homosexual relationship with Mr RM, and that the applicant and Mr RM had consulted with Mr Knibbs. That is supported by what the applicant wrote in the “Response to hearing invitation” he submitted to the Tribunal on 14 August 2015. In that document, under the words “describe this person’s evidence and how it is relevant to your case”, the applicant wrote: “witness to the genuine relationship between the applicant and his partner”.[38] It is also supported by what the applicant wrote in the “Response to hearing invitation” he completed on 18 August 2015, namely, “witness to the [illegible] relationship between the applicant was [sic] his partner”.[39] Had the applicant intended to rely on his having made consistent statements to Ms Ross, he would have given evidence of that fact. As it is, the applicant put forward no evidence about when, and in what circumstances he first communicated to Ms Ross about his being homosexual, or what he said to her.
[38] CB172.
[39] CB189
Third, assuming the asserted relevance of the Communication Evidence can properly be characterised as evidence, I am not satisfied it was substantial and consequential. As I have already noted, although the Tribunal’s ultimate findings necessarily import a finding that the applicant concocted the claim he was homosexual and in a relationship with Mr RM, that was a conclusion based on matters that did not include any finding that the applicant had concocted that claim. Given the reasoning on which the Tribunal relied to conclude the applicant was not a credible witness, it is difficult to see how the fact that the applicant had made a prior consistent statement to Ms Ross could have affected the Tribunal’s decision.
In any event, had the applicant submitted to the Tribunal that he had made a prior consistent statement to Mr Knibbs, and that such consistent statement should be taken as evidence the applicant did not concoct the claim he was a homosexual and in a relationship with Mr RM, the Tribunal would still have made the same decision. It would have rejected the truth of the prior consistent statement for the same reasons the Tribunal rejected the claims the applicant made in the statutory declaration he submitted on 15 August 2015. That, in fact, is what the Tribunal did. The Tribunal did not accept Mr Knibbs’ opinions because they were based on what the applicant had told Mr Knibbs and, by implication, Ms Ross; and the Tribunal was not prepared to give any credit to what the applicant told Mr Knibbs or Ms Ross.
Conclusion on ground 1
For these reasons, ground 1 fails.
Ground 2 – failure to consider expert opinion
The second ground relates to the manner in which the Tribunal dealt with the opinion Mr Knibbs expressed. The Tribunal did not accept Mr Knibbs’ opinion because the Tribunal said it gave greater weight to the problems it had identified with the applicant’s evidence.
The applicant submits the Tribunal “failed to consider that the opinion of Mr Knibbs was made not only on the basis of what he was told, but also on the basis of his special expertise”.[40] In his written submissions, the applicant reproduces numbered paragraphs 2 and 3 of Mr Knibbs’ letter. Numbered paragraph 2 refers to information the applicant disclosed in a conversation about his only liking receptive anal sex, and Mr Knibbs’ opinion that this would be unusual for a straight man, especially from Islamic background. Numbered paragraph 3 refers to the applicant having disclosed having a problem with his anus following an episode of sex.
[40] Paragraph (d) of particulars to ground 2 of grounds of application.
This ground assumes the Tribunal was required to assess Mr Knibbs’ opinion, not only on the basis of what the applicant told Mr Knibbs, but also on the basis of Mr Knibbs’ expertise. The applicant does not explain why that necessarily is so. It is a matter of common sense that whether or not it is reasonably open to a tribunal of fact to accept an expert’s opinion as evidence of the existence of a fact about the existence of which the opinion is expressed depends on at least two things. First, the tribunal of fact must be satisfied that the facts on which the opinion is based are true, or at least substantially true. Second, the opinion is one that it is within the field of expertise of the person who gives the opinion. To the extent the tribunal of fact is not satisfied the facts on which the opinion is based exist, it would reasonably be open to the tribunal to give the opinion less weight. Where the tribunal of fact is not satisfied that any of the assumed facts on which the opinion is based exist, it would reasonably be open to the tribunal to give the opinion no weight at all.[41]
[41] See the discussion in Paric v John Holland Constructions Pty Ltd (1984) 2 NSWLR 505 at pages 509-510; Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844 at page 846
Assuming Mr Knibbs had the relevant expertise, the facts concerning the applicant and Mr RM on the basis of which Mr Knibbs expressed his opinions were based entirely on what the applicant and Mr RM told Mr Knibbs and, by implication, Ms Ross. The Tribunal, however, had formed the view that, for the reasons it gave, the Tribunal was not prepared to give credit to anything the applicant said in support of his claim. In those circumstances, it was reasonably open to the Tribunal not to give any weight to Mr Knibbs’ opinion, because, for reasons that were reasonably open to it, the Tribunal was not prepared to credit the factual premises concerning the applicant and Mr RM on which those opinions were based. Stated another way, given the Tribunal did not accept the credibility of the applicant’s claims he was a homosexual and in a relationship with Mr RM, it was reasonably open to the Tribunal to give little or no weight to any opinion based on anything the applicant said to Mr Knibbs about his being a homosexual or engaging in homosexual activities.
Ground 2, therefore, also fails.
Ground 4 – YouTube video
The fourth ground on which the applicant relies is as follows:
The Tribunal engaged in jurisdictional error in failing to consider the applicant’s evidence.
Particulars
a.The Tribunal considered that the evidence of the applicant in the form of a YouTube video and translation was fabricated and created to support the applicant’s claims and thus was discounted by the Tribunal in making its findings.
b.The finding in (a) was not open to the Tribunal in the circumstances, given the inherent improbability that such video was fabricated and thus the Tribunal failed to consider corroborative evidence.
c.The finding in (a) was predicated only on the basis of the date the video was posted to YouTube, the Tribunal did not consider other evidence which would support the authenticity of the video and thus the Tribunal failed to consider corroborative evidence.
This ground does not identify the corroborative evidence the applicant submits the Tribunal failed to consider. From the applicant’s written submissions, however, it appears the applicant submits the corroborative material is the contents of the video itself. The particular matters contained in the video which the applicant submits corroborated the authenticity of the video is the video depicting a group of people clearly in the dozens, of a variety of ages, and in a setting which would appear to be consistent with a village in Bangladesh; and the depiction of a photograph in the video which showed a person whom Mr Knibbs identified as the applicant performing oral sex.[42] The applicant further submits the Tribunal did not view the video. The basis of that submission is that the Tribunal did not in its reasons refer to what the video is said to depict, namely “a group of people clearly in the dozens, of a variety of ages, and a setting which would appear consistent with a village in Bangladesh”;[43] nor did the Tribunal refer to the video depicting a photograph of a person engaging in oral sex. The applicant also relies on the Tribunal’s “comments about the Applicant’s immediate circle of friends being involved in the creation of the video further suggests that the Tribunal did not view the video, given that the video depicts a group of people clearly in the dozens, of a variety of ages, and a setting which would appear consistent with a village in Bangladesh”.[44]
[42] Applicant’s Outline of Submissions, [40]
[43] Applicant’s Outline of Submissions, [40]
[44] Applicant’s Outline of Submissions, [40]
Two questions arise:
a)Did the Tribunal not view the video?
b)Whether or not the Tribunal viewed the video, was it reasonably open to it to find the video was not genuine?
Did the Tribunal not view the video?
To answer this question, it will be necessary to refer to four items of evidence. I begin with an email Mr Kelleher sent to the Tribunal on 24 September 2015.[45] Mr Kelleher was a migration agent who, at least as at 15 August 2015, was considering providing pro bono assistance to the applicant.[46] In his email of 24 September 2015 Mr Kelleher attached a number of untranslated documents. The email stated:
The youtube [sic] clip below as [sic] been specifically requested by the applicant to be sent to the Tribunal for their consideration. Translation of this document will be forwarded as soon as it has been received”.
[45] CB191
[46] CB177
Below this passage is a link to a particular YouTube page.
Second, there is an email Mr Kelleher sent to the Tribunal on 28 September 2015 to which he attached translations of documents he had previously sent.[47] These included the translation of what is said to be a transcript of what is said in the YouTube video.[48]
[47] CB199
[48] CB206-209
Third, there is a copy of a YouTube page associated with the link Mr Kelleher had sent to the Tribunal on 24 September 2015.[49] It has the date “28/09/2015” which indicates the date on which the page was accessed, or at least the date on which a copy of the page was printed.
[49] CB198-199
Finally, there is the following passage from the Tribunal’s reasons (emphasis added):[50]
On 24 September 2015 the Tribunal received an email message from Brian Kelleher, a migration agent at Ward Keller who stated that he was not acting for [the applicant] but that he was assisting him by forwarding documents. . . . . He also provided a link to a video clip on YouTube which he said [the applicant] had specifically requested be sent to the Tribunal. . . .
Mr Kelleher also provided the Tribunal with a transcript in Bangla of the YouTube video for which he had previously provided the link together with a translation. The video purports to record proceedings before an adjudication committee held on 22 June 2012 in relation to [the applicant] and his boyfriend . . . having been photographed committing homosexual acts. It also refers to [the applicant’s] claims in relation to his relationship with his uncle’s daughter [M] and his kidnapping (although it represents the villagers as saying that he and his father falsely accused ‘our leader’ [K] of involvement in the kidnapping).
[50] CB270-271, [30], [33]
Given this evidence, I cannot be satisfied the Tribunal did not view the video. First, there is no evidence the applicant himself or through Mr Kelleher copied the YouTube page[51] associated with the link Mr Kelleher had sent the Tribunal. The email Mr Kelleher sent on 28 September 2015 describes the documents attached to the email, but none of those descriptions appear to suggest the email attached a copy of the YouTube page.[52] The likelihood, therefore, is that it was the Tribunal that accessed the page associated with the link, and copied that page,[53] and that it did so for the purpose of the hearing which took place on 28 September 2015. Second, the YouTube page contains a still 3 seconds into the video. That rationally permits the inference that the Tribunal watched at least three seconds of the video; and if it is accepted the Tribunal watched three seconds of the video, the probabilities are that the Tribunal would not have viewed only three seconds of the video, but that it would have viewed all of the video. Third, in its reasons, the Tribunal described what it said the “video purports to record”. That suggests the Tribunal viewed the video.
[51] By that, I am referring to the document that is at CB258
[52] That is, the document that is at CB258
[53] Being the document at CB258
Finally, I refer to the applicant’s submission based on the Tribunal’s “comments about the Applicant’s immediate circle of friends being involved in the creation of the video”. This submission may imply the Tribunal’s comments were to the effect that it was the applicant’s immediate circle of friends appeared in the video. That is not what the Tribunal said. It referred to the applicant’s immediate circle of friends who were involved “in making the” video.[54]
[54] CB282, [72]
Was it reasonably open to the Tribunal to find the video was not genuine?
The ground on which the applicant submits it was not reasonably open to the Tribunal to find the video was not genuine is what the applicant submits is the inherent improbability that the applicant, while being in detention, would have been able to fabricate the matters recorded in the video; that is, a large group of people, of a variety of ages, in an apparent village setting.
The difficulty with this submission is that it ignores the matters on which the Tribunal relied for finding the video had been fabricated. First, as the applicant accepts, the Tribunal relied on the date on which the video was posted on YouTube. It was posted on 8 September 2015, less than one month after the applicant submitted the statutory declaration in which he claimed he was homosexual. That is a matter on which it was reasonably open to the Tribunal to rely for concluding the video was a fabrication. Second, the Tribunal relied on its finding there was “no independent evidence of the existence of this video before 8 September 2015”.[55] That, too, was a matter on which it was reasonably open to the Tribunal to rely. Third, the Tribunal did not accept the applicant’s account of how he became aware of the video,[56] being a finding that was reasonably open to the Tribunal to make, given the Tribunal had made a comprehensive adverse credibility finding against the applicant. These last two findings meant there was no evidence before the Tribunal that could rationally account for the existence of the video, other than its having been fabricated by or at the request of the applicant. Fourth, the Tribunal relied on its finding, based on “the problems which I have identified with [the applicant’s] evidence”, that the applicant is not a homosexual as he claimed before the Tribunal.[57] In other words, the Tribunal also relied on a comprehensive credibility finding that was adverse to the applicant. It was reasonably open to the Tribunal to adopt that approach. That follows from the decision of the Full Federal Court in Minister for Immigration and Citizenship v SZNSP. [58]
[55] CB280, [66]
[56] CB282, [72]
[57] CB282, [72]
[58] [2010] FCAFC 50; (2010) 184 FCR 184 (North, Lander and Katzmann JJ)
In SZNSP the Refugee Review Tribunal (RRT) found the applicant had fabricated her claim of fear of persecution and, because of the adverse credibility findings it made against the applicant, the RRT decided not to give any weight to a witness statement that apparently corroborated the applicant’s claims. The words the RRT used were: “Given the adverse credibility finding, the Tribunal does not give weight to the document”.[59] The Full Federal Court said:[60]
Thus, consistently with Applicant S20/2002 [2003] HCA 30; 198 ALR 59 it was open to the RRT to assess the credit of the first respondent and then, in the light of that assessment, consider what weight should be given to the witness statement. This was the process followed by the RRT which it described in the sentence “Given the adverse credibility finding, the Tribunal does not give weight to the document”. Although expressed in the most cryptic terms, this statement shows that the RRT made an assessment of the value of the witness statement and then considered its effect in the light of the view it had formed to that point about the credibility of the first respondent.
[59] [2010] FCAFC 50; (2010) 184 FCR 184 at [13]
[60] [2010] FCAFC 50; (2010) 184 FCR 184 at [33] (North and Lander JJ; Katzmann J agreeing at [42])
That, at least in part, is what the Tribunal in the case before me did in relation to the video. The Tribunal found the applicant was not a witness of truth, and was a person who was prepared to say things he knows are not true;[61] and, for reasons that included those reasons, the Tribunal was not prepared to accept the video “shows events which happened in June 2012”.[62]
[61] CB282, [70]
[62] CB282, [72]
It was reasonably open to the Tribunal, for the reasons it gave, to conclude the video was a fabrication. Ground 4, therefore, also fails.
Ground 6 – failure to have regard to applicant’s request to take oral evidence
Ground 6 relies on s.426 of the Migration Act 1958 (Cth) (Act), and arises out of the circumstances in which Mr Knibbs presented his letter to the Tribunal. Before I set out the ground, it will be necessary to set out s.426 of the Act, and the factual context in which the ground is to be assessed.
Section 426
Under s.425(1) of the Act, subject to exceptions that are not relevant here, the Tribunal is required to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. Section 425A of the Act provides that, if the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
Section 426 of the Act provides as follows:
(1)In the notice under section 425A, the Tribunal must notify the applicant:
(a)that he or she is invited to appear before the Tribunal to give evidence; and
(b) of the effect of subsection (2) of this section.
(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(3)If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.
The Minister has referred to a number of principles in the cases concerning the application of s.426 of the Act.[63] Of some relevance to this ground is the following passage from the judgment of Lander J in SZJHR v Minister for Immigration and Citizenship:[64]
. . . the Tribunal must, when requested so to do by an applicant, give genuine consideration to the request. That requires consideration of the evidence that is sought to be led, the person by whom the evidence is to be given, the current state of the evidence before the Tribunal and the potential impact that the evidence, if accepted, might have on the applicant’s claims. Otherwise, the Tribunal would not be providing the applicant with a fair hearing which would demonstrate jurisdictional error . . .
[63] Submissions of the First Respondent, [28]-[32]
[64] [2007] FCA 1901 at [44]
It is necessary to be clear about what it is s.426(3) of the Act requires the Tribunal to have regard to; the Tribunal must have regard to the applicant’s “wishes”. The word “wishes” does not appear elsewhere in s.426. It is plain, however, that “wishes” refers to the “want” referred to in s.426(2) of the Act. The “want” is an applicant’s wanting the Tribunal to obtain oral evidence from a person or persons whom the applicant identifies in a notice provided to the Tribunal.
Facts relevant to ground
By letter dated 29 July 2015 addressed to the applicant’s authorised recipient, the Tribunal invited the applicant to appear before it on 19 August 2015 for the purpose of giving evidence and presenting arguments.[65] The letter enclosed a separate letter to the authorised recipient, also dated 29 July 2015, in which the Tribunal informed the applicant that if the applicant proposed that a witness give evidence at the hearing, a witness statement setting out the witness’s evidence should be provided to the Tribunal by 12 August 2015.
[65] CB130-133
By email sent on 3 August 2015 the applicant’s authorised recipient requested that the scheduled hearing of 19 August 2015 be adjourned.[66] By letter dated 4 August 2015 to the applicant’s authorised recipient, the Tribunal refused to grant the adjournment.[67] On 7 August 2015 the applicant again requested by telephone that the Tribunal postpone the hearing. The applicant said his previous migration agent had withdrawn.[68] By letter dated 7 August 2015 sent to the applicant’s email address the Tribunal informed the applicant the Tribunal decided not to postpone the hearing, but said the Tribunal would consider a postponement request if the applicant were to appoint a new representative.[69] On the same day, the applicant sent to the Tribunal a completed “Response to hearing invitation – MR Division” in which he requested that the Tribunal take oral evidence from one person, Mr RM.[70] Following furthers request for a postponement of the hearing, the Tribunal, by letters dated 10 August and 13 August 2015, informed the applicant the Tribunal was not prepared to postpone the hearing that was scheduled for 19 August 2015.[71]
[66] CB134
[67] CB135-138
[68] CB140
[69] CB148-149
[70] CB150-151
[71] CB161-169
By email sent on 14 August 2015, the applicant sent to the Tribunal a further completed “Response to hearing invitation” in which he requested the Tribunal take oral evidence not only from Mr RM, but also from Mr Knibbs.[72] The form gave Mr Knibbs’ telephone number as “047 . . .87”. An officer of the Tribunal entered into the Tribunal’s records the number the applicant gave as the telephone number of Mr Knibbs.[73]
[72] CB171-173. The response is dated 14 August 2015 but has a fax header bearing the date 7 August 2015.
[73] Affidavit of F Varess, Annexure C, pages 62, 64, and 70
In response to a request made by Mr Kadirgamar,[74] the Tribunal, by letter dated 18 August 2015, agreed to postpone the hearing to 28 September 2015.[75] On 18 August 2015 the Tribunal received a further “Response to hearing invitation” in which it was again requested that the Tribunal take oral evidence from both Mr RM and Mr Knibbs.[76] The form contained a telephone number for Mr Knibbs. The number was written in a manner, however, that could reasonably have been interpreted to begin with “0417”, rather than with the numbers “047”. An officer of the Tribunal entered into the Tribunal’s records the number “0417 . . . 858”.[77]
[74] CB177
[75] CB182
[76] CB188-189
[77] Affidavit of F Varess, Annexure C, page 67
At the hearing, the Tribunal attempted, but was unable to telephone Mr Knibbs. The applicant did not have Mr Knibbs’ telephone number on him, although he did utter the first three numbers “047, afterwards it’s written there”.[78] The applicant said he could go outside and check whether Mr RM had Mr Knibbs’ telephone number. The matter was adjourned for almost four minutes after which the applicant informed the Tribunal member the applicant had been unable to contact Mr RM and said he had “asked the officer to call him back”. The Tribunal suggested that if Mr Knibbs wanted to say something, “he can say it in writing, and I’ll take that into account”.[79]
[78] Affidavit of S Condon, page 4
[79] Affidavit of S Condon, page 5
The parties’ submissions
The applicant submits the Tribunal did not have regard to the applicant’s wishes, contrary to s.426 of the Act, because the applicant’s wishes “were that a particular person be contacted, by a particular telephone number”, but the Tribunal sought to contact that person by using a telephone number that was different from the telephone number the applicant had given the Tribunal. The Minister, on the other hand, submits the Tribunal gave genuine consideration to the applicant’s request. That is shown by the Tribunal’s having done everything in its power to contact Mr Knibbs by telephone, and giving Mr Knibbs the opportunity to give evidence in writing.
Did the Tribunal consider the applicant’s request?
The manner in which the applicant submits the Tribunal failed to comply with s.426(3) of the Act is that it failed to have regard to the applicant’s wishes “that a particular person be contacted, by a particular telephone number”. That, however, is not a wish of the sort to which s.426(3) of the Act is directed. As I have already observed, the wish to which s.426(3) of the Act is directed is the “want” referred to in s.426(2) of the Act that the Tribunal obtain oral evidence from the person or person the applicant identifies in a notice he or he gives to the Tribunal under s.426(2). The relevant wish the Tribunal in this case was required to have regard to was the applicant’s wanting the Tribunal to obtain oral evidence from Mr Knibbs. There is no doubt the Tribunal had regard to that want because the Tribunal decided it would obtain oral evidence from Mr Knibbs. That the Tribunal failed to obtain such evidence because it attempted to contact Mr Knibbs by using a telephone number which, unbeknown to the Tribunal member, was incorrect does not alter the fact that the Tribunal had regard to the applicant’s wish that the Tribunal obtain oral evidence from Mr Knibbs.
There is no question that the Tribunal’s being unable to contact Mr Knibbs presented a problem for the applicant: the Tribunal was unable to implement what it had already decided to do, namely, obtain oral evidence from Mr Knibbs. That problem, however, did not fall within the scope of the matters with which s.426 of the Act is concerned. Section 426 is concerned with an applicant’s wanting the Tribunal to take oral evidence from a person or persons identified by the applicant, and its scope ceases when the Tribunal has had regard to an applicant’s wish in that regard. As I have already concluded, the Tribunal did have regard to the applicant’s want that it take oral evidence from Mr Knibbs, and it decided it would do so. The difficulty that arose from the Tribunal’s being unable to implement its decision to take oral evidence from Mr Knibbs was a matter that fell within the Tribunal’s general power conferred by s.414 of the Act to conduct a review, having regard to the powers conferred on the Tribunal by, among other provisions, s.427 of the Act (which includes a power to adjourn), and s.420 of the Act (which provides, among other things, that the Tribunal act “according to substantial justice and the merits of the case”). The Tribunal dealt with the difficulty by permitting the applicant to submit a written statement by Mr Knibbs. The applicant did not submit to the Tribunal that this was an inappropriate solution to the Tribunal’s being unable to contact Mr Knibbs by telephone.
The applicant does not claim the Tribunal acted unreasonably in deciding that Mr Knibbs provide a written statement. The applicant does submit, however, that, had Mr Knibbs given oral evidence, he would have been able to answer the Tribunal’s questions and address the Tribunal’s concerns. The concern which the applicant particularly identifies is the Tribunal’s being unclear of the extent to which Mr Knibbs was aware of the previous claims the applicant made.
Assuming the Tribunal would have asked Mr Knibbs whether he was aware of the previous claims the applicant had made, it is difficult to see how Mr Knibbs’ answer to that question could have made any difference to how the Tribunal would have assessed Mr Knibbs’ opinion. If the applicant did not inform Mr Knibbs the applicant had made a previous claim that did not include a claim he was homosexual, that would have provided the Tribunal with an additional reason for not accepting the opinions of Mr Knibbs. If, on the other hand, the applicant had informed Mr Knibbs he had previously made claims that did not include a claim the applicant was homosexual, that could not reasonably have made a difference to the Tribunal’s assessment of the evidence of Mr Knibbs. The Tribunal concluded the applicant was not a witness of truth having regard to matters that included the applicant’s having made a previous claim which did not include a claim he was homosexual. The applicant’s having informed Mr Knibbs of the previous claims could not reasonably have led the Tribunal to take a different view of the credibility of the applicant, or of the opinions Mr Knibbs expressed on the basis of what the applicant told Mr Knibbs.
In my opinion, it cannot reasonably be supposed that Mr Knibbs’ giving oral evidence, rather than evidence by way of a statement, could have made any difference to the Tribunal’s assessment of the opinions Mr Knibbs expressed in his letter.
Conclusion on ground 6
For these reasons, ground 6 also fails.
Ground 7 – invalid certificate under s.438 of Act
After it was announced to the parties that I proposed to deliver judgment in the matter, the Minister disclosed that a certificate had been issued purportedly pursuant to s.438 of the Act (Certificate), and that the Tribunal’s decision might potentially be affected by the decision of Beach J in MZAFZ v Minister for Immigration and Border Protection.[80] By consent, on 21 March 2017 I ordered that the applicant be granted leave to file a further amended application containing one additional ground relating to the Certificate. I also directed that the parties file written submissions.
[80] [2016] FCA 1081
The Minister filed and served an affidavit made by Ms Dejean which exhibited the Certificate. It described the information covered by it as “Entry Interview”. Ms Dejean also exhibited the “Entry Interview” and deposed that, as suggested by the Full Federal Court in Minister for Immigration and Border Protection v Singh,[81] she placed the “Entry Interview” in an envelope. Ms Dejean further deposed the Minister makes no claim for privilege over the “Entry Interview”, and that a copy of the document was provided to the applicant’s legal representatives.
[81] [2016] FCAFC 183 at [67]
The applicant filed a further amended application that contains a new ground (ground 7) based on the claim that the Certificate is invalid. The further amended application was accompanied by written submissions.[82] The applicant accepted that the “Entry Interview” referred to in the Certificate is the document from which the Tribunal obtained the information that is set out in paragraph 3 of its reasons, and which I summarised earlier in these reasons. The applicant submitted that it is unnecessary for the Court to receive into evidence the “Entry Interview”, although the applicant said he does not oppose the Minister’s application that the “Entry Interview” be admitted into evidence. The Minister, in turn, filed written submissions in response to the applicant’s written submissions.
[82] The applicant later filed amended submissions ,and it is those submissions to which I refer later in these reasons.
The applicant and Minister agreed I should consider, without further hearing, ground 7 of the amended application on the basis of the written submissions the parties filed. They also agreed that I should receive into evidence Ms Dejean’s affidavit. I note here that I read Ms Dejean’s affidavit, and that I will mark as exhibits “HDD-1” and “HDD-2” the Certificate and the “Entry Interview” that are exhibited to Ms Dejean’s affidavit.
I should also note that it is common ground that the Certificate is invalid.
Ground 7 is as follows:
The Tribunal engaged in jurisdictional error in that it failed to accord the applicant procedural fairness.
Particulars
a.The Tribunal had before it a certificate which claimed the information in a particular document was subject to s 438(1) of the Act on the basis that it contained “information related to an internal working document and business affairs.”
b.This was not a basis on which to seek to withhold information pursuant to s 438(1) of the Act and thus the certificate was invalidly issued: MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 (MFAFZ) at [35]-[38].
c.The Court is entitled to assume the Tribunal acted on the basis of the validity of the certificate: MZAFZ at [40].
d.The Tribunal, in proceeding or acting on an invalid certificate did not engage in a process according to law and this of itself constituted a jurisdictional error: MZAFZ at [44].
e.In the alternative, if the certificate was valid, the Tribunal was required to, but did not:
i.disclose the existence of the certificate to the applicant;
iigive the applicant the chance to make submissions in relation to the validity of the certificate;
iii.disclose the extent to which the Tribunal intended to take account of matters in documents the subject of the certificate; and
iv.give the applicant an opportunity to seek a favourable exercise of s 348(3)(b) and it thereby fell into jurisdictional error: MZAFZ at [50]
In particular (c) the applicant claims the Court is entitled to assume the Tribunal acted on the basis of the validity of the Certificate. This claim relies on paragraph 40 of the reasons for judgment of Beach J in MZAFZ. Particular (c), however, is stated too broadly. In the paragraph from MZAFZ on which the applicant relies, Beach J said (emphasis added):
In the absence of evidence to the contrary, I am entitled to assume that the Tribunal acted in some unspecified way on the invalid certificate in relation to the documents the subject thereof in its possession.
The question is whether there is evidence that is contrary to the assumption the applicant claims the Court should make that the Tribunal before me acted in some unspecified way on the Certificate. The applicant addresses this question in his written submissions. He submits it is open to infer the Tribunal may have acted on the Certificate,[83] and it should be inferred the Certificate “may have led the Tribunal to fail to determine whether it ought to disclose to the applicant the contents of” the “Entry Interview” pursuant to s.424AA, 424A, 425, or 427 of the Act.[84] The basis of this submission is that it is said it should be inferred the Tribunal did not disclose to the applicant the contents of the “Entry Interview”. In those circumstances, the applicant submits, it is open to infer the Tribunal acted on the basis of the Certificate.[85]
[83] Applicant’s Outline of Further Submissions, [9(a)]
[84] Applicant’s Outline of Further Submissions, [9(b)]
[85] Applicant’s Outline of Further Submissions, [10]
These submissions ignore an important fact. The Tribunal disclosed to the applicant the contents of the “Entry Interview” in its reasons for decision, which the Tribunal provided to the applicant.[86] Had the Tribunal acted on the Certificate, as the applicant claims it did, the Tribunal either would not have disclosed the contents of the “Entry Interview” in its reasons for decision, or it would have done so only after giving a direction under s.440 of the Act as required by s.438(4) of the Act. The Tribunal did neither. That indicates the Tribunal was ignorant of the Certificate, or it was aware of the Certificate but did not consider it to be valid, or the Tribunal simply decided to ignore the Certificate. In these circumstances, it cannot be said the Tribunal acted on the basis of the Certificate. It is true the disclosure of the contents of the “Entry Interview” occurred at the time the Tribunal published its decision; but s.438(3) of the Act is capable of applying to the disclosure of information covered by a certificate issued under s.438 at the time the Tribunal publishes its decision.
[86] CB264, [3].
Let it be assumed, contrary to what I have concluded, that the Tribunal did act on the Certificate. The next question the passage from the judgment of Beach J in MZAFZ on which the applicant relies requires to be addressed is whether the evidence permits me to make a finding about whether and, if so, how the Tribunal acted on the Certificate. The answer is: “yes”. Unlike the information that was covered by the certificate in MZAFZ (which information was not before Beach J because his Honour did not permit the Minister to adduce evidence of the information), the information that is the subject of the Certificate, namely, the contents of the “Entry Interview”, is not only before me, but is included in the Tribunal’s reasons for decision. That means it should be apparent what the Tribunal did and did not do with the information that comprised the “Entry Interview” and, thus, whether the Tribunal made any jurisdictional error in connection with that information. It is not open to me to find, therefore, as Beach J found in MZAFZ, that the Tribunal in the case before me relied on the Certificate “in some unspecified way”, because there is evidence of what the Tribunal did and did not do with the information that is covered by the Certificate.
As I have already noted, the applicant submits it should be inferred the Certificate “may” have led the Tribunal to fail to determine whether it ought to disclose to the applicant the contents of the “Entry Interview” pursuant to s.424AA, 424A, 425 or 427 of the Act.[87] This submission is stated at the level of possibility, implying uncertainty in the state of the evidence about what the Tribunal did or did not do with the information that comprised the “Entry Interview”. The applicant’s submission, however, and the assumption on which it appears to be based, are not warranted by the circumstances of the case before me. As I have also already noted, the information that comprises the “Entry Interview” is set out in the Tribunal’s reasons for decision, and it should be apparent what the Tribunal did and did not do with that information. In particular, it should be apparent whether the Tribunal considered information contained in the “Entry Interview” would be the reason, or part of the reason for affirming the delegate’s decision; or whether the Tribunal relied on information without giving the applicant notice that it intended to rely on such information, contrary to s.425(1) of the Act.
[87] Applicant’s Outline of Further Submissions, [9(b)]
In his written submissions, the applicant submits:[88]
The Tribunal clearly did consider the information the subject of the certificate to be at least part of the reason for affirming the decision under review in that it expressly referred to the information in its reasons. Further, as also discussed, the information does not fall within s 424A(ba) [sic], so is not excluded information.
[88] Applicant’s Outline of Further Submissions, [13]
Strictly speaking, that the Tribunal may have relied on the information as a reason or part of the reason for affirming the delegate’s decision does not engage s.424A of the Act. That is so because “the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case”.[89] Nevertheless, the only evidence that is usually available from which it may be determined whether there was information the Tribunal considered would be the reason or part of the reason for affirming the decision is the reasons the Tribunal in fact employed in affirming the delegate’s decision. That is, if it is apparent from the Tribunal’s reasons that it relied on information as the reason or part of the reason for affirming the decision, it is an available inference that, at some point in advance of the Tribunal’s affirming the decision, the Tribunal considered that the information would be the reason or part of the reason for affirming the delegate’s decision.
[89] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [17]
The applicant does not identify the information contained in the “Entry Interview” on which he submits the Tribunal considered would be the reason or part of the reason for affirming the delegate’s decision. Whether or not, however, the Tribunal did so consider may be determined from the Tribunal’s reasons for decision.
The Tribunal referred to the Entry Interview in three places. The first was at the beginning of its reasons where the Tribunal summarised the claims contained in the “Entry Interview”.[90] The second is where the Tribunal summarised the claims the applicant made in the statutory declaration that accompanied the application for a Protection visa.[91] The Tribunal there sets out what the applicant said in paragraph 12 of his statutory declaration, [92] namely, that it was not correct, as the applicant said at his entry interview, that in 2011 he had been arrested and detained by the police because of his relationship with his uncle K’s daughter, or because his uncle K had fabricated a murder claim against him. Third, in the section of its reasons titled “Conclusions”, the Tribunal referred to its having put to the applicant, among other things, that, in his statutory declaration that accompanied the application for a Protection visa, the applicant had admitted he had made false claims when he had said at his entry interview that he had to leave Bangladesh because he had been falsely accused of murder, and that he had been arrested twice by the police because of his relationship with his uncle’s daughter.[93]
[90] CB264, [3]
[91] CB265, [4]-[11]
[92] CB38, [12]
[93] CB278. [60]
Although the Tribunal referred to the “Entry Interview”, I am satisfied the Tribunal did not at any time consider any of the information contained in that document would be the reason or part of the reason for affirming the delegate’s decision. The Tribunal did rely on the admissions the applicant made in the statutory declaration the applicant provided with his application for a Protection visa, and which he repeated before the Tribunal, that the applicant had fabricated a claim. But that is not the same thing as the Tribunal’s relying on what the applicant is recorded as having said in the “Entry Interview”. The Tribunal relied on the applicant’s admissions in concluding that the applicant “is someone who is prepared to say things which he knows not to be true if he thinks that this will help his application for a protection visa”.[94]
[94] CB278, [60]
Further, assuming the applicant’s admissions were “information” within the meaning of s.424A of the Act, the admissions, to the extent they were made in the statutory declaration, would be information the applicant gave “during the process that led to the decision that is under review” within the meaning of s.424A(3)(ba) of the Act, and was not information “provided orally by the applicant to the Department”. The admissions contained in the statutory declaration, therefore, would not be information to which s.424A of the Act applied. To the extent the applicant repeated the admission to the Tribunal, the admission would be information “the applicant gave for the purpose of the application for review” within the meaning of s.424A(3)(b) of the Act and, for that reason, would also not be information to which s.424A applied.
Even if, contrary to what I have concluded, the Tribunal did rely on information contained in the “Entry Interview”, the only information on which it could reasonably be found the Tribunal relied was the applicant’s claim that in 2011 he had been arrested and detained by the police because of his relationship with his uncle K’s daughter or because his uncle K had fabricated a murder claim against him. Even though the applicant may have first uttered the claim orally during his entry interview, the applicant himself disclosed the claim in his statutory declaration, and communicated it to the Tribunal. It is information, therefore, that falls within s.424A(3)(b) and s.424A(3)(ba) and, for that reason is not subject to s.424A of the Act.
I pause here to record my conclusions on this part of the applicant’s submissions:
a)There is evidence that permits me to determine whether the Tribunal acted on the Certificate and, if so, how it acted on the Certificate. For that reason, it is not open to me to find that the Tribunal relied on the Certificate in some unspecified way.
b)The Tribunal did not rely on the Certificate.
c)If, contrary to (b), the Tribunal can be said to have relied on the Certificate, the Tribunal did not act on the Certificate in a way that prevented it from engaging “in a process according to law”, as claimed in particular (d) to ground 7. That is so because:
i)the Tribunal did not consider any information contained in the “Entry Interview” would be the reason or part of the reason for affirming the delegate’s decision; the Tribunal relied on admissions the applicant made in the statutory declaration he provided in support of his application for a Protection visa, and which he repeated to the Tribunal;
ii)if, contrary to (i), the Tribunal did consider any information contained in the “Entry Interview” would be the reason or part of the reason for affirming the delegate’s decision, the information was repeated in a statutory declaration, and in evidence given before the Tribunal, which means the information falls within s.424A(3)(b) and s.424A(3)(ba) and thus is not information to which s.424A of the Act applies.
I have so far assumed that the “Entrance Interview” contains “information” within the meaning of s.424A of the Act. The Minister, however, submits the “Entrance Interview” does not contain any “information” because there is nothing in the “Entrance Interview” that itself rejects, denies, or undermines an applicant’s claims for protection.[95] I accept that submission. That provides an additional reason for concluding that the Tribunal, if it did act on the basis of the Certificate, did not prevent itself from engaging “in a process according to law”, as claimed in particular (d) to ground 7.
[95] Submissions of the First Respondent on Ground 7, [22] relying on SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [17]
I next turn to a submission the applicant makes on the assumption the Tribunal did not act on the Certificate. The applicant’s submission is as follows:[96]
Even if the Tribunal did not fall into error in the manner referred to above, the Tribunal did fall into error in that the Tribunal was obliged to disclose the existence of the certificate to the applicant, to allow him to make submissions on it, and there is no evidence to suggest that it did.
[96] Applicant’s Outline of Further Submissions, [11]
As I understand it, the applicant submits the Tribunal was obliged to disclose the Certificate to the applicant, even though the Tribunal did not act on the basis of the Certificate. The applicant relies on the following passage from my reasons for judgment in BIE15 v Minister for Immigration and Border Protection:[97]
. . . the only circumstance in which the Tribunal could come under a duty to disclose the existence of a certificate, and invite the applicant to make submissions about the validity of the certificate, and whether the Tribunal should exercise its discretion under s.438(3)(b) to disclose information covered by the certificate, is where the certificate covers information the Tribunal considers would be the reason, or part of the reason for affirming the decision under review, and the information covered by the certificate is not information that is otherwise excluded from the operation of s.424A by s.424A(3)(a), (b), and (ba) of the Act.
[97] [2016] FCCA 2978 at [59]
The applicant submits that “both conditions referred to were met”.
Whatever the merits of the opinion expressed in the passage from BIE15 on which the applicant relies, it does not apply to the circumstances of this case. I have concluded the Tribunal did not consider information comprised in the “Entrance Interview” would be the reason or part of the reason to affirm the delegate’s decision or, to the extent the “Entrance Interview” did contain such information, and the information was “information” for the purposes of s.424A of the Act, s.424A did not apply because the information was information of the sort specified in s.424A(3)(ba) and s.424A(3)(c) of the Act. Further, I have accepted the Minister’s submission that the information contained in the “Entrance Interview” is not “information” within the meaning of s.424A of the Act.
There is another matter to consider. It is not clear why, given the assumption on which this part of the applicant’s submissions rest, namely, that the Tribunal did not rely on the Certificate, the Tribunal, as the applicant submits, was nevertheless obliged to disclose to the applicant the existence of the Certificate. If the Tribunal did not rely on the Certificate, I can imagine no reason why the Tribunal would or should be required to invite submissions from the applicant about its validity.
The applicant also submits the decision of the Full Federal Court in Singh supports this part of the applicant’s submissions, even though Singh concerned s.375A of the Act which the applicant acknowledges differs from s.438 of the Act.[98] The applicant, however, does not articulate what he submits is the reasoning the Full Federal Court applied in Singh, and how that reasoning applies to a certificate issued under s.438 of the Act. It appears the applicant assumes the Full Federal Court’s decision in Singh is authority for the proposition that the Tribunal necessarily comes under an obligation to disclose the existence of a certificate that has been issued under s.375A of the Act, and that this principle should apply to certificates issued under s.438 of the Act. In my opinion, however, that is not what the Full Federal Court in Singh held or should be taken to have held.
[98] Applicant’s Outline of Further Submissions, [14]
First, the Full Federal Court in Singh referred to the Tribunal’s having provided particulars to Mr Singh. The Full Federal Court noted it was “not clear . . . whether these particulars touched on the material the subject of the certificate”, that the “relationship between the particulars given to Mr Singh and the certificate remains therefore opaque”, and that no submission was made to the Full Federal Court that the material subject to the certificate was irrelevant, but that, had such submission been made, it “would have required, for its assessment, that the Court examine the material itself”.[99] This suggests the Full Federal Court was of the view that whether or not the Tribunal was required to disclose the certificate depended, at least in some circumstances, on whether the Tribunal had provided to the applicant any particulars of the information that is covered by the certificate issued under s.375A of the Act.
[99] [2016] FCAFC 183 at [16]
What I say in the previous paragraph is reinforced by the following passage from the Full Federal Court’s judgment:[100]
There is, as we have already noted, a tension between the two provisions [i.e., s.359A and s.375A], but they are not inevitably completely at loggerheads. As Wilcox J explained in Burton, in many cases it may be possible to serve the procedural fairness aims of s 359A without compromising the secrecy requirements of s 375A. Carefully drafted particulars may have the effect of providing a fair hearing without disclosing the confidential information. That said, this will not always be possible. In such cases, it is necessary to identify which of the two provisions is the leading provision and to give it primacy: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [70]ff.
[100] [2016] FCAFC 183 at [55]
This passage suggests the Full Federal Court was of the opinion that it is possible for the Tribunal to satisfy its obligations to provide a fair hearing to an applicant without disclosing the existence of a certificate by giving appropriate particulars of the information covered by the certificate.
Second, the Full Federal Court in Singh appears to have drawn a distinction between a duty to accord procedural fairness in relation to a certificate issued under s.375A of the Act, and the discharge of that duty by disclosing to the applicant the existence of the certificate. The Full Federal Court appears to have been of the view that to discharge the duty to accord procedural fairness in relation to a certificate issued under 375A of the Act does not necessarily require the Tribunal to disclose the certificate. Thus, in the section of the Court’s judgment that appears under the heading “Right, interest or legitimate expectation”, the Court said (emphasis added):[101]
The effect of the certificate, if valid, is to require the Tribunal to conduct the review without disclosing the documents or information the subject of the certificate to an applicant. It is possible, as Wilcox J was inclined to think in Burton (at 31 [40]), that the Tribunal may be able to provide particulars of the confidential material sufficient to satisfy the requirements of s 359A whilst not infringing those of s 375A. But even where this occurs, the fact remains that the extent of an applicant’s participation in the review is circumscribed by the existence of the certificate which, even with particulars, denies access to relevant material. In that sense, the certificate has the immediate effect of diminishing an applicant’s entitlement to participate fully in the review process. That is a sufficient interest to enliven an obligation of procedural fairness.
[101] [2016] FCAFC 183 at [42]
At the end of this section of its reasons, the Full Federal Court said (emphasis added):[102]
Mr Singh therefore had a sufficient interest to give rise to an obligation to afford him procedural fairness upon the issue of the certificate. In this case, that obligation required the Tribunal to disclose to him the certificate which had been issued.
[102] [2016] FCAFC 183 at [52]
These passages appear to distinguish the obligation to afford procedural fairness from the discharge of the obligation “[i]n this case” in one particular way, namely, by the disclosure of the certificate.
If, contrary to my opinion, the Full Federal Court in Singh is to be taken as having held the Tribunal must in every case a certificate under s.375A of the Act disclose that fact to an applicant, I am of the opinion the differences between s.438 and 375A of the Act are such as to prevent the Full Federal Court’s reasoning in Singh from applying to s.438 of the Act. The principal, and important distinction, is that s.375A of the Act requires the Tribunal not to disclose the information that is covered by the certificate whereas s.438 does not so require. That means that a certificate issued under s.438 of the Act will not necessarily mean that the information covered by it will not be disclosed to the applicant. That, in turn, means that “an applicant’s participation in the review” will not necessarily be “circumscribed by the existence of the certificate”. Whether or not an applicant’s participation in the review will be circumscribed because of the issue of a certificate under s.438 of the Act will depend on the circumstances of the particular case.
In the case before me, the applicant’s participation in the review was not circumscribed in any way by the Certificate. The only information from the “Entry Interview” that could reasonably be considered relevant to the Tribunal’s review was the claim the applicant is recorded as having made in the “Entry Interview” which, in a later statutory declaration and before the Tribunal, the applicant admitted was a fabrication. The applicant himself introduced to the Tribunal the information he had disclosed at his entry interview; the Tribunal gave the applicant an opportunity to explain why he had fabricated the claim recorded in the “Entry interview”; and the Tribunal put to the applicant the applicant that even if the applicant made a false claim on the advice of a smuggler, that still indicated the applicant was someone who is prepared to say things which he knows not to be true if he thinks that will help his application for a Protection visa.[103]
[103] CB278, [60]
There is a final matter to note. Unlike Singh and MZAFZ, the Tribunal referred to the information that is the subject of the Certificate. The applicant now has the “Entry Interview”, and he has not submitted the Tribunal’s summary of what the applicant is recorded as having stated at the Entry Interview is inaccurate or incomplete. The applicant, therefore, has had an opportunity to consider whether the Tribunal made any jurisdictional error in connection with the Tribunal’s referring to the information contained in the “Entry Interview” or with any use the Tribunal made or failed to make of the information. The applicant does not submit the Tribunal made any jurisdictional error for these reasons. Instead, the applicant relies on the possibility of the Tribunal having made such jurisdictional error because of the Certificate. While that may be an appropriate approach where, as in Singh and MZAFZ, the information covered by the Tribunal has not been disclosed to the applicant, and has not been referred to by the Tribunal, and was not before the Court, it is not an appropriate response where, as in the case before me, the information the subject of a certificate issued purportedly by s.438 of the Act is not only before the Court, but is also referred to by the Tribunal itself in its reasons for decision.
Conclusion and disposition
The applicant has not succeeded on grounds 1, 2, 4, 6, and 7 of his further amended application, and the applicant did not press grounds 3 and 5.[104] I propose, therefore, to order that the application be dismissed.
[104] Applicant’s Outline of Submissions, [2(c), (e)]
I certify that the preceding one-hundred-and-nine (109) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 10 May 2017
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