CNW15 v Minister for Immigration

[2016] FCCA 3495

FEDERAL CIRCUIT COURT OF AUSTRALIA

CNW15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3495

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal breached s.425 of the Migration Act 1958 (Cth) – whether the Tribunal erred by failing to notify the applicant of credibility issues – credibility clearly raised as an issue - no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.425

Cases cited:

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

SZTKE v Minister for Immigration & Border Protection [2015] FCA 1002

Applicant: CNW15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3257 of 2015

Judgment of: Judge Smith

Hearing date: 13 October 2016

Date of Last Submission: 13 October 2016

Delivered at: Sydney

Delivered on: 13 October 2016

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco

Solicitors for the Applicant: Shelly Legal

Solicitors for the Respondents: Mr R. White, Mills Oakley

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800 dollars.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG3257 of 2015

CNW15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant in this matter is a citizen of Afghanistan who arrived in Australia on 24 July 2012.  He lodged an application for a protection visa on 26 February 2013.  His claims in support of that application were described as follows by the Tribunal. 

2. The applicant came from a village in the Wardak province.  The applicant’s father operated a business transporting goods in his vehicle to Kabul and other cities in Afghanistan.  He delivered some goods for a Pashtun man who refused to pay (the customer).  The customer and his son assaulted the applicant and his father when they approached him about that. 

3. One week later the applicant was in the local area with some friends when the customer’s son appeared.  The applicant’s friends assaulted the customer’s son, and the applicant fled from there to a relative’s stall in a nearby marketplace, where he called home and learnt that his father had been taken away by the customer. 

4. The applicant fled to his uncle’s home in Kabul and stayed with his uncle.  From there, at his uncle’s behest, he went to Herat where he remained for two months.  The applicant came back to Kabul and then left Afghanistan.  His father had not returned to the family and the applicant feared harm from the customer, his associates and his son.  After arriving in Australia the applicant was told that one of his friends who assaulted the customer’s son had been killed. 

5. On 15 August 2013, a delegate of the Minister made a decision not to grant the applicant a protection visa.  The delegate accepted the claims made by the applicant concerning what had happened to him in Afghanistan but, nevertheless found on the basis of country information relating to relocation to Kabul, that he was not owed protection obligations by Australia. 

6. The applicant then applied to the Refugee Review Tribunal[1] for review of that decision.  He attended a hearing conducted by the Tribunal on 6 August 2015, gave evidence and made submissions about the issues on the application for review.  The quality of his opportunity to do so is in issue in these proceedings, and I will return to what occurred at the hearing in further detail later in these reasons. 

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

7. On 2 November 2015, the Administrative Appeals Tribunal (Tribunal) made a decision to affirm the delegate’s decision.  Critically, for the purposes of this application, the Tribunal found the applicant was not telling the truth about what had occurred in Afghanistan and disbelieved his account in its entirety.  The Tribunal also dealt with claims concerning potential harm to the applicant for other reasons, but those issues did not arise in these proceedings and I need not set them out at all. 

8. The applicant now seeks judicial review of the Tribunal’s decision. The only ground raised is a breach of s.425 of the Migration Act 1958 (Cth) (Act).  It is asserted that the Tribunal failed to adequately put the applicant on notice that his credibility was in issue in respect of his claimed feud with a family, resulting in his father being abducted and possibly killed. 

9. Section 425 of the Act provides, subject to irrelevant exceptions, that the Tribunal must 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. The leading authority on that provision is that of the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (SZBEL).  It is necessary to set out a number of passages from that judgment, and I set out [35] and [36] below.

   35.The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

   36.It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant’s favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal’s invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant’s favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.

10. The Court later explained briefly at [43] the reasons for which it concluded that the Tribunal in that case had not complied with its obligations under s.425 of the Act. In particular, it said nothing in the delegate’s reasons for decision indicated that these aspects of his account were in issue, and the Tribunal did not identify for the applicant these aspects of his account as important issues. The Tribunal did not challenge what the appellant said. It did not say anything to him that would have revealed to him that these were live issues. Based on what the delegate had decided, the appellant would and should have, understood the central and determinative question on the review to be the nature and extent of his Christian commitment. Nothing the Tribunal said, or did added to the issues that arose on the review.

11. After concluding that the appellant was entitled to relief for the reasons explained at [43], the Court went on to make a number of further general points.  The first of these was at [47], and I set that out below:

    First, there may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

12. The applicant relies upon a decision of Bromberg J in SZTKE v Minister for Immigration & Border Protection [2015] FCA 1002 (SZTKE), and in particular at [33] through to [35] which I set out below:

    33Further guidance may be derived from SZBEL as to what is required to “identify” issues.  The facts there were that the Tribunal had elicited the same description of events from SZBEL as he had given in an earlier statutory declaration.  Therefore, that an issue is the subject of oral evidence before the Tribunal, or that the appellant’s version of events is elicited, is insufficient by itself to identify an issue. 

    34What is required is that the appellant be somehow alerted to the fact that the issue is live.  That may be done in a number of different ways including by the Tribunal challenging what the applicant has said and asking the applicant to explain why his or her account should be accepted.  But, that does not require the Tribunal to put to the applicant (in so many words) that he or she is lying or embellishing, nor to disclose what it is minded to decide.

    35Counsel for the Minister submitted, “as long as there’s nothing the tribunal member says that gives the appellant the impression his evidence will be accepted then that is sufficient,” and that “nowhere in that passage could it be suggested to the appellant that his claim about offering a bribe to be released from detention was going to be accepted or that the delegate’s finding was going to stand in relation to that point.  So there has been no procedural unfairness … .”  That was in keeping with the Minister’s submission elsewhere that it was sufficient for the appellant to have been given an opportunity to explain himself in regard to a particular issue

13. In my view, the Tribunal did not fall into the error identified either by the High Court in SZBEL or by Bromberg J in SZTKE.  Rather, in my view, it was plain from its conduct of the hearing that the entirety of the applicant’s credit was in issue and that each aspect of his claims was also in issue.  This is for a number of reasons. 

14. I first note that the structure of the Tribunal’s hearing was as follows.  First, there was a short introductory passage: pages 1 to 5 of Annexure A to the affidavit of Rowand Ali Hinti dated 19 April 2016 (the transcript).  Next[2] the Tribunal asked questions eliciting an expansion of, and giving greater detail of the claims made by the applicant.  There was a brief break in proceedings, before the third section[3], in which the Tribunal put to the applicant a number of matters which raised doubts in its mind about the credit of the applicant in certain respects.  Fourthly[4], the Tribunal raised certain country information with the applicant for comment.  Finally[5], the applicant’s representative made submissions in respect of the issues arising on the review.  At [32] to [35] of the transcript the Tribunal said the following:

    32.To decide these issues, I’m going to ask you questions about why you’re afraid to go back to Afghanistan.

    33.I also ask these questions because I have to assess your credibility.

    34.Even if the Immigration Department believes some or all of your evidence.

    35.It’s still my task to decide whether or not you’re telling the truth.

    [2] Pages 5 to 15 of the transcript.

    [3] Pages 16 to 21 of the transcript.

    [4] Pages 22 to 23 of the transcript.

    [5] Page 24 of the transcript.

15. The applicant argued that this was insufficient to put the applicant on notice that his credibility was in issue.  I disagree.  The Tribunal said in so many terms that it was deciding whether or not the applicant was telling the truth.  It did not identify every minuscule or small part of the applicant’s case with which it was concerned at this point, however it was clearly raising as an issue at the very start of the proceedings, that all of the applicant’s claims were in issue.  This, then, is a case which falls within what was described by the High Court at [47] of SZBEL. 

16. I accept however, the submission that to some extent it may not always be sufficient for the Tribunal only to say such a high-level statement at the beginning of a hearing.  However, that is not all that the Tribunal did.  In the second part of its hearing as I have noted[6], the Tribunal asked very specific questions, inviting an expansion of the applicant’s evidence and claims in respect of the critical elements upon which he relied for his claim to be entitled to a protection visa.  The Tribunal started with questions about the father’s business in general.  It asked specific questions about the customer, how many trips had been done or made by the father for the customer, and explained at [117] that the Tribunal wanted to “go through this in some detail”. 

    [6] Pages 5 to 15 or [94] – [312] of the transcript.

17. One might ask the question why the Tribunal was doing this if, like the delegate before it, it was going to accept all of these claims.  The answer is clearly that it was not necessarily going to accept all of those claims.  By these questions, I find that the Tribunal made it even clearer than it had previously done so, that everything was in issue. 

18. Coming to the third part of the Tribunal’s hearing[7], there a number of occasions on which the Tribunal put to the applicant for comment differences in the evidence that he had given in respect of his particular claims[8].  The Tribunal said “So can you comment on why what you told me today is different from what’s in your statement”.  Clearly, the aspect which the Tribunal was asking about, was an issue for the Tribunal, and in the words of the High Court in SZBEL at [47], asking the applicant to explain why the account should be accepted. At [333] the Tribunal noted that something said by the applicant was different to what had been said in his statement. The Tribunal at [336] asked him to clarify which account was correct. At [348] the Tribunal noted that the evidence of the applicant was not what he had told the Tribunal earlier in the day and asked “Is what you said in your statement correct?” The Tribunal discusses a telephone conversation with the applicant’s mother and asks “Is there any reason you did not mention that to me when I asked you what your mother had said to you?”[9], again raising the issue of whether or not the Tribunal should accept the applicant’s evidence. 

    [7] Page 16, starting at [320] of the transcript.

    [8] For example at [324] of the transcript.

    [9] Page 18, at [367] through to [373] of the transcript.

19. Further inconsistencies were raised by the Tribunal at [404], [417], [426] and [428] where it asked whether the applicant’s evidence was true.   The Tribunal asked the applicant[10] to expand on various aspects, again harking to the words of the High Court at [47]. At [443] the Tribunal said to the applicant “And you didn’t mention any of this”, and at [445] said “I do find it also just a little bit difficult to accept that your father would be calling you on the telephone and saying these things to you when [name] had abducted him and taken him away.” The Tribunal then moved on to discuss country information.

    [10] Page 21, at [430] to [441] of the transcript.

20. Before moving to the aspect of the hearing at which the representative made submissions, I should note that the applicant argued today that the questioning by the Tribunal in the passages to which I have just referred, did not go far enough in that they did not raise:

    (i)the credibility specifically of the applicant’s claims;

    (ii)that there was a blood feud with a particular family;

    (iii)that the applicant’s father was subsequently beaten; and

    (iv)that there was a fight at which a Pashtun man was possibly killed. 

21. It appears that the broad proposition upon which the applicant relies, is that in order to comply with s.425 of the Act the Tribunal must specifically state or raise, and put to the applicant, any adverse finding that it proposes to make. That proposition is inconsistent with the authorities and has no support in either SZBEL or SZTKE, the authorities relied upon by the applicant. 

22. I note that, contrary to the submission by the Minister in that case (see [35]), the Minister did not submit here that so long as there is nothing the Tribunal member says that gives the appellant the impression his evidence will be accepted, then that is sufficient.  His Honour’s rejection of that proposition is clearly correct and consistent with SZBEL. 

23. If it was not already plain that the applicant’s credibility as a whole was in issue, then what was said by the representative in submissions overcomes any residual doubt.  At [507] the representative said “What I would like to provide in detail in writing is some reflections in terms of how the member might consider credibility in relation to this applicant”.  Indeed, in line with that submission the representative did send further submissions to the Tribunal after the hearing dated 17 August 2015.  The question of credibility was not a minor issue in those submissions but covered some seven pages[11].  Those submissions reveal that at least the representative, who was at the hearing, was well aware that the entirety of the credibility was in issue. 

    [11] See Court Book pages 229 through to 236.

24. In my view, the Tribunal’s statement at the beginning of the hearing together with the questions and propositions put to the applicant at the hearing, made that issue as plain as a pike-staff. For those reasons, I am not satisfied that the Tribunal did not meet the obligations imposed on it by s.425 of the Act. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     20 July 2017