COU15 v Minister for Immigration
[2018] FCCA 838
•18 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COU15 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 838 |
| Catchwords: MIGRATION – Protection visa – first applicant is the mother of second to fifth applicants – first applicant’s claims to fear persecution and/or significant harm because as a Coptic Christian Egyptian national, the applicants’ family was subjected to fatal attacks by extremist Muslims – the Tribunal held two hearings – at the first hearing, the applicants were assisted by a female Coptic Christian interpreter in the Arabic and English languages – at second hearing the interpreter was a Muslim male – first applicant requested that the Tribunal arrange for a Coptic Christian interpreter – the Tribunal Member refused the request – first applicant claims her ability to give evidence was compromised as a consequence – whether s.425 of the Migration Act 1958 (Cth) (“the Act”) was breached because first applicant was denied the opportunity to meaningfully participate in the second hearing – held first applicant lost the opportunity to meaningfully participate in the second hearing and give evidence in support of her case – held that had Tribunal acceded to her request, the first applicant might have succeeded in her claims, or alternatively, first applicant may not have been deprived of the possibility of a successful outcome – held jurisdictional error – whether Tribunal was unreasonable in a legal sense in refusing to adjourn the second hearing – held Tribunal exercised its statutory power unreasonably giving rise to jurisdictional error – whether Tribunal breached s.424A of the Act – held Tribunal did not breach s.424A of the Act – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 425 |
| Cases cited: BWL16 v Minister for Immigration and Border Protection [2017] FCA 628 |
| First Applicant: | COU15 |
| Second Applicant: | COV15 |
| Third Applicant: | COW15 |
| Fourth Applicant: | COX15 |
| Fifth Applicant: | COY15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2664 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 20 October 2017 |
| Date of Last Submission: | 20 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 18 April 2018 |
REPRESENTATION
| Counsel for the Applicants: | Ms Costello |
| Solicitors for the Applicants: | Erskine Rodan & Associates |
| Counsel for the Respondents: | Mr McDermott |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 4 November 2015.
A writ of mandamus issue remitting the matter to the Second Respondent and requiring it to determine according to law the application made to it by the Applicants for review of the delegate of the First Respondent’s decision.
The First Respondent pay the Applicants’ costs in a fixed amount.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2664 of 2015
| COU15 |
First Applicant
| COV15 |
Second Applicant
| COW15 |
Third Applicant
| COX15 |
Fourth Applicant
| COY15 |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This decision concerns an application for judicial review by the Applicants of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 4 November 2015, affirming a decision of a delegate of the First Respondent (“the Minister”) made on 13 December 2013 not to grant the Applicants Protection (Class XA) visas (“the visa”).
The First Applicant is the mother of each of the Second to Fifth Applicants. They are all citizens of Egypt, of Coptic Christian religion.
The Applicants claimed to fear persecution and/or significant harm if they returned to Egypt on the basis of their religion. In addition, the First Applicant fears persecution and/or significant harm if returned to Egypt as a wealthy Coptic Christian who was married to a strong supporter of the church, and that she would be imprisoned on false charges. The Applicants’ fears are that they will be killed or harmed by Muslim extremists. The First Applicant made claims on behalf of the Applicants in a statement attached to her visa application (Court Book (“CB”) 77-81). The First Applicant, the Fifth Applicant, and the First Applicant’s eldest son provided further claims and evidence to the Tribunal by statutory declarations, all dated 18 August 2014 (Supplementary Court Book (“SCB”) 73-81). Submissions and documentary material was also provided by the Applicants’ migration agent in support of the Applicants’ claims.
The First Applicant’s claims are helpfully summarised in the Applicants’ written submissions as follows:[1]
7. [The First Applicant] claimed protection because she feared that if she returned to Egypt she would be killed or harmed by Muslim extremists, and would be imprisoned on false charges. Her claims pertained to her prominence as a wealthy Coptic Christian whose deceased husband had been a strong supporter of the Coptic Christian church. She claimed her husband had built religious premises for the Coptic Church through his construction company and that he had worked to persuade girls not to convert to Islam.
8. Her husband and son were killed in a bus accident that she claimed was an ambush. Her brother in law took over her husband’s construction business after her husband’s death, but he too was killed by Muslim extremists. She remarried, to [Mr X]. [Mr X] took over the business but then left her after he too was threatened. She was then assisted by her brother, but he too was murdered.
9. She survived by living as if under siege in Alexandria, rarely venturing out. Attempts to kidnap her family members were made. More recently, a false charge against her in relation to polygamy were made.
[1] The Applicants’ Submissions filed on 6 October 2017 at [7]-[9].
There were two Tribunal hearings; the first on 26 August 2014, and a resumed hearing on 30 October 2014. At both Tribunal hearings, the Applicants were assisted by interpreters in the English and Arabic languages. At the first Tribunal hearing, the interpreter was a Coptic Christian female. At the second Tribunal hearing, the interpreter was a Muslim male. The Tribunal’s decision was made more than one year later, on 4 November 2015.
The Applicants’ Amended Application for judicial review (extracted in full below) raise two main issues for determination. The first is whether the refusal of the Applicants’ request at the second Tribunal hearing for a Coptic Christian interpreter in the English and Arabic languages resulted in jurisdictional error, either because it deprived the Applicants of the opportunity to be given a meaningful hearing invitation under s.425 of the Migration Act 1958 (Cth) (“the Act”), or because it was legally unreasonable to refuse to accede to that request, which would have resulted in an adjournment of the second Tribunal hearing. The second issue is whether information given by the First Applicant at her interview with the Department of Immigration and Border Protection (“the Department”) was not provided to the Applicants, in breach of the requirements of s.424A(1) of the Act.
Judicial Review
Ground One
The Applicants’ first ground of judicial review is:[2]
[2] The Applicants’ Amended Application filed on 6 October 2017.
1. The Tribunal’s decision is affected by jurisdictional error in that the primary applicant was not given a meaningful invitation to be heard under s.425 of the Migration Act 1958 (Cth) (the Act).
Particulars
The Tribunal did not accede to the primary applicant’s request for a non-Muslim interpreter. The primary applicant’s capacity to give evidence was diminished by her distress and intimidation in circumstances where the nature of her claims to fear persecution were that she feared persecution from Muslim men and she was unable to express her fears via the Muslim male interpreter provided at the hearing.
(Underlining omitted)
There is no dispute that s.425 of the Act imposes an obligation on a tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising from the reviewable decision. This opportunity must be real and meaningful, and not a hollow one. A failure to afford such an opportunity may vitiate a tribunal’s decision: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 (“SCAR”); Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 (“SZNVW”) at [73] per Perram J.
In SCAR, the Full Court of the Federal Court said (SCAR at [33], [37]):
33. Pursuant to s 425 of the Act the Tribunal is under a statutory obligation to issue an invitation to an applicant to attend a hearing. That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting argument. The invitation must not be a hollow shell or an empty gesture: Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 at [31].
…
37. On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a ‘real and meaningful’ invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.
It should be noted that in SZNVW, Perram J observed that there has been a running source of debate about whether an applicant would be deprived of the quality of a hearing in circumstances where a tribunal was unaware of the particular circumstances of an applicant, which denied him or her the opportunity to meaningfully participate in a hearing (SZNVW at [73]). As the Tribunal was made aware of the Applicants’ request to be assisted by a Coptic Christian interpreter in the English and Arabic languages, this issue does not arise in this case.
Counsel for the Applicants and Counsel for the Minister agree that there is no present authority on the particular point raised by the Applicants in their first ground of review.
The Applicants’ submissions
In support of this ground of judicial review, the First Applicant filed an affidavit on 6 October 2017. Two further affidavits were filed on behalf of the Applicants: an affidavit of Cheng Yee Phuah filed on 4 October 2017, annexing a copy of a transcript of the Tribunal hearing held on 26 August 2014, and an affidavit of Gabrielle Campbell filed on 2 December 2015, annexing a copy of a transcript of the Tribunal hearing held on 30 October 2014.
Counsel for the Minister objected to the admissibility of the First Applicant’s affidavit. The Minister’s objection to some matters deposed to in the affidavit was upheld. Despite the Minister’s objection to the admissibility of the affidavit, Counsel for the Minister did not seek to test the First Applicant’s evidence by way of cross-examination. In her affidavit, the First Applicant relevantly stated:[3]
[3] The First Applicant’s Affidavit filed on 6 October 2017 at [3], [5]-[9].
3. When I went to the hearing of my case before the Second Respondent on 26 August 2014 there was an interpreter there, who was a female Egyptian Christian. I felt comfortable with the interpreter and was able to explain my situation through that interpreter.
…
5. While I was waiting for the hearing to commence on 30 October 2014, a gentleman came and introduced himself as the interpreter for the day. I knew immediately from his name that he was an Egyptian Muslim.
6. I immediately became very anxious, as my whole case is about the conflict between Muslims and Christians in Egypt. I felt very worried and threatened about talking about my situation through a Muslim man.
7. My husband and youngest son were killed by Muslims in Egypt on 14 May 1999. Around six months later my brother-in-law was killed by Muslims and then on 11 September 2010 my brother was also killed by Muslims in Egypt.
8. My husband was very active in the Church and it was for this reason that my family was targeted in Egypt by Muslims.
9. Given all of this background, I am very afraid of Muslim men and the idea of there being one in the room while I walked [sic] about my case was terrifying. The fact that he was to be the interpreter was just totally outside of my comprehension.
The First Applicant deposes that she told her migration agent that she did not want to have that particular interpreter in the room for her hearing, that her migration agent spoke to the hearing attendant about this, and made a request for a Coptic Christian Egyptian interpreter. The First Applicant deposes that the hearing attendant said that she would speak to the Tribunal Member. The First Applicant then deposes that:[4]
12. When the Tribunal Member came to the room she seemed to be very angry and raised the issue of the interpreter immediately. The Tribunal Member said that the interpreter was professional and competent and proceeded with the case. She failed to give any consideration to my concerns about the interpreter.
13. I was extremely upset and did not know how to go on in the hearing. I could not concentrate. I could not speak freely in front of a Muslim man. I could not tell about how Muslims had destroyed my family. I could not talk about the Muslim religion and what was happening in Egypt through an Egyptian Muslim interpreter.
14. I tried to answer all of the Tribunal Member’s questions as best I could but I felt totally restricted in what I was saying and I felt that I was being attacked by the Tribunal Member.
…
16. I was extremely distressed throughout the hearing and at the end I could not stop crying because I felt that the Tribunal Member… did not listen to what I had to say.
[4] Ibid at [12]-[14], [16].
In their written submissions, the Applicants extracted the following from the transcript of the Tribunal hearing held on 30 October 2014:[5]
[TRIBUNAL MEMBER]: [First Applicant], it’s been raised with me that you might have some concerns with the interpreter due to your preference on the hearing invitation for an interpreter of Coptic background?
[THE FIRST APPLICANT] THROUGH INTERPRETER: She said please excuse me because we suffered a lot in (indistinct).
[TRIBUNAL MEMBER]: I just want to, as I mentioned at the first hearing, I just want to explain again that the interpreter that we used at the last hearing and at this hearing and at all hearings in this tribunal are professional interpreters and they are under a very strict duty of confidentiality which means that they are not allowed to disclose what is said by upon for anyone in the hearing to anybody else. I personally have used this interpreter that we have today many times over several years in a variety of cases using the Arabic language and I can attest that the interpreter that we have today is a very professional and extremely competent interpreter.
It is important that you and your children today say everything that you want to tell me, okay, because this will be most likely the last hearing that you will have before me. If at any time you feel that what you are saying is not being interpreted properly it is important that you say so immediately and I am also very happy to provide you with sometime after the hearing because you will be given a copy of the audio recording of this and the previous hearings and you can put any other concerns that you may have in writing. That’s all that I wanted to say on that matter and I would like to proceed with the hearing now. In doing so I’ll just ask the other applicants and your witness to please leave the room while I finish taking evidence from you, [First Applicant], and I understand that you have an observer here… is that correct?
[5] The Applicants’ Submissions filed on 6 October 2017 at [20]-[22]; the Affidavit of Gabrielle Campbell filed on 2 December 2017, Annexure B at 2, lines 16-43; CB 11.
In their written submissions, the Applicants make the following arguments:
a)the First Applicant gave evidence that the use of a Muslim male interpreter inhibited her from giving evidence because she could not speak freely in front of a Muslim man. Her evidence was that she was extremely upset, and could not tell the Tribunal how Muslims had destroyed her family;
b)the Tribunal erroneously recorded that (CB 291 at [141]):
…[a]fter the tribunal explained again to the applicants the impartiality and professionalism of interpreters used by the tribunal, and in particular, the interpreter present at the hearing, the applicants agreed to proceed with the hearing.
The Applicants submit that the use of the word “agreed” is simply wrong, as it is evident from the transcript that the Tribunal Member simply rejected the First Applicant’s request for a Coptic Christian interpreter. It is noted by the Applicants that none of them agreed to proceed with the Muslim interpreter;
c)
the Tribunal’s reasons for rejecting the Applicants’ claims included that it found the Applicants’ evidence to be vague, lacking in credibility, and lacking in detail (see for example
CB 289-290 at [135]-[137]). The Applicants argue that any shortcomings in the First Applicant’s evidence is likely to have been caused in part by her discomfort with the interpreter;
d)there is a possibility that if a Coptic Christian interpreter had been provided, the First Applicant would have given more detailed and specific evidence of her fears, and the delegate’s decision may not have been affirmed; and
e)in the circumstances, the Applicants were deprived of a meaningful hearing in breach of s.425 of the Act. This failure to comply with s.425 of the Act is a jurisdictional error.
At the hearing, Counsel for the Applicants submitted that the leading case on this ground of review is the decision in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 (“WZARH”). Counsel for the Applicants argued this was because the Minister’s submission was that the refusal of the Tribunal to change interpreters did not amount to practical injustice, and therefore did not amount to a jurisdictional error. Counsel for the Applicants argued that in its written submissions, the Minister did not submit that even if there was practical injustice, it would not have made any difference to the outcome of the case, or it would be futile to remit the matter to the Second Respondent.
The facts in WZARH may be summarised briefly. It concerned the process of Independent Merits Review (“IMR”) of a refugee status assessment. The applicant in WZARH was interviewed by a reviewer, who for unknown reasons became unavailable to complete the IMR. A different reviewer, unbeknown to the applicant, then assumed responsibility for the completion of the IMR. The second reviewer found that the applicant did not meet the criteria for the grant of a protection visa. The second reviewer did not interview the applicant, but based his decision on a consideration of various written materials, including the applicant’s original application, a transcript of his interview with the Departmental officer on Christmas Island, the submissions made on his behalf by his advisers, country information, and a recording and transcript of his interview with the first reviewer (WZARH at [6]-[7]).
Counsel for the Applicants relied on the following extracts of the joint judgment of Kiefel, Bell and Keane JJ (WZARH at [41]-[42]):
41. The opportunity for a decision‑maker to clarify areas of confusion or misunderstanding, and to form an impression based on personal observation as to whether an applicant is genuinely confused or seeking deliberately to mislead, may be especially important to a fair assessment of a claim to refugee status when English is not the applicant's mother tongue and he or she is obliged to seek to communicate through an interpreter. As Nicholas J rightly said:
The one situation in which oral hearings are most often thought to be desirable is where questions arise as to a witness’s credibility. An oral hearing will often assist in the resolution of credibility issues by allowing the decision‑maker to interact directly with the witness by asking the witness questions, considering his or her answers, and having regard to the witness’s demeanour.
42. The Full Court was right to conclude that it cannot be said in the present case that the respondent lost no opportunity to advance his case. As was said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs:
It is … not to the point to ask whether the [decision‑maker’s] factual conclusions were right. The relevant question is about the [decision‑maker’s] processes, not its actual decision.
(Footnotes omitted)
Counsel for the Applicants further relied on the following extract from the joint judgment of Gageler and Gordon JJ (WZARH at [60]):
60. Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.
(Footnotes omitted)
It is helpful to set out the earlier reasoning of Gageler and Gordon JJ to provide context for the above paragraph (WZARH at [57]-[59]):
57. That approach to the determination of the existence and consequence of a breach of an implied condition of procedural fairness governing the exercise of a statutory power is wholly consistent with the often-repeated observation of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam that the concern of procedural fairness is to “avoid practical injustice,” and with his Honour’s conclusion in that case that there was no denial of procedural fairness where “[n]o practical injustice ha[d] been shown”. The absence of practical injustice in Lam lay in the fact that “[t]he applicant lost no opportunity to advance his case” it was not “shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment”.
58. Contrary to the submission of the Minister in this appeal, and as has repeatedly been recognised in the Full Court of the Federal Court, Lam is not authority for the proposition that it is incumbent on a person who seeks to establish denial of procedural fairness always to demonstrate what would have occurred if procedural fairness had been observed. What must be shown by a person seeking to establish a denial of procedural fairness will depend upon the precise defect alleged to have occurred in the decision-making process.
59. There are cases in which conduct on the part of an administrator in the course of a hearing can be demonstrated to have misled a person into refraining from taking up an opportunity to be heard that was available to that person in accordance with an applicable procedure which was otherwise fair. To demonstrate that the person would have taken some step if that conduct had not occurred is, in such a case, part of establishing that the person has in fact been denied a reasonable opportunity to be heard.
(Footnotes omitted)
Counsel for the Applicants submitted that the circumstances in this case were such that the refusal by the Tribunal Member to accede to the First Applicant’s request at the second Tribunal hearing for an interpreter of a particular profile had the effect of denying her a meaningful opportunity to participate in the hearing. Counsel for the Applicants identified the following circumstances:
a)the First Applicant’s gender and religious profile;
b)the nature of her persecution claims;
c)the fact she had a Coptic Christian female interpreter at the first Tribunal hearing;
d)given that the Tribunal did not make its decision until over one year after the second Tribunal hearing, there was no rush; and
e)the fact the First Applicant made a request for a Coptic Christian interpreter, as she had at the first Tribunal hearing.
Relying on WZARH, Counsel for the Applicants emphasised the importance of giving the opportunity to an applicant to impress at an oral interview or hearing. Counsel for the Applicants submitted that if the Court comes to the conclusion that the refusal by the Tribunal Member to accede to the First Applicant’s request did deprive her of the possibility of a successful outcome, then that gives rise to jurisdictional error.
The Minister’s submissions
The Minister submits that there are a number of “fundamental difficulties” which establish objectively that the First Applicant was not denied a real and meaningful opportunity to be heard by the Tribunal. Accordingly, the Minister submits that no jurisdictional error arises from this ground.
The first difficulty identified by the Minister is based on a detailed analysis, in which the Minister compares the summary of evidence contained in the Tribunal’s decision record (CB 275-281 at [30]-[76]) with the transcript of the first Tribunal hearing, and the summary of evidence contained in the Tribunal’s decision record (CB 281-283 at [77]-[92]) with the transcript of the second Tribunal hearing.[6] The Minister’s purpose in this comparative analysis was to demonstrate that the Tribunal took a significant portion of the First Applicant’s evidence given by her at the first Tribunal hearing, and not at the second Tribunal hearing.
[6] The Minister’s Outline of Submissions filed on 18 October 2017 at [50].
The second difficulty identified by the Minister is that at the second Tribunal hearing, the First Applicant gave evidence about how the Muslim men she feared had adversely affected her life in Egypt, through the Muslim male interpreter. The Minister identifies various pages of transcript in which the First Applicant gave evidence at the second Tribunal hearing about the threats to her and her family by Muslim extremists.[7]
[7] Ibid at [51].
The third difficulty identified by the Minister (which is similar in content to the fifth difficulty) is that the neither the First Applicant, nor her migration agent, further complained to the Tribunal during the course of the second Tribunal hearing, or after the completion of the second Tribunal hearing, that the First Applicant felt constrained by the use of a Muslim male interpreter.[8]
[8] Ibid at [52], [54].
The fourth difficulty identified by the Minister is that the Tribunal’s multiple adverse credibility findings about each of the Applicants was not solely limited, or capable of being seen as confined to the evidence given by the First Applicant at the second Tribunal hearing. The Minister submits that the adverse credibility findings were referable to a broad array of matters, such as inconsistencies between information presented by the First Applicant to the Department and her later claims made in her statutory declaration and at the hearings, and the minimal weight that the Tribunal accorded to documentary evidence put forward by all of the Applicants (because of concerns as to how that material was obtained), as well as country information.[9]
[9] Ibid [53].
The final difficulty identified by the Minister is that the First Applicant made no attempt to specifically (and by reference to the transcript of the second Tribunal hearing) identify how her evidence was relevantly compromised by the presence of a Muslim male interpreter.[10] The Minister relies on the Full Court decision in SZNVW, and in particular, the judgment of Keane CJ (with whom Emmett J concurred), in which His Honour said (SZNVW at [34]-[37]):
34. …To say only that it is possible that a different view might have been taken of the respondent’s credibility had more information been made available to the Tribunal as to his psychological problems is to fall short of demonstrating that the respondent was denied a “real and meaningful” opportunity of giving evidence and presenting arguments in support of his application. In this case, in contrast to SCAR, it has not been established, as a fact, by the evidence subsequently adduced before the Magistrate, that the Tribunal’s adverse view of the respondent’s credibility reflects an impaired opportunity for him to give evidence and present arguments.
35. In summary to this point, there is nothing in the text of s 425, or in the statutory context in which it appears, or in the authoritative judicial exegesis of s 425, to suggest that it was the intention of the legislature that the Tribunal should take upon itself the role of ensuring that all possibly arguable lines of argument which might be available to an applicant in any given case are pursued to the applicant’s best advantage.
36. There was, in my respectful opinion, no foundation for the magistrate’s ultimate conclusion that “the applicant was denied a fair opportunity of having the Tribunal assess whether those defects [in addition to demeanour, memory, and consistency] were attributable to a mental impairment, or to concerns about veracity.” The Tribunal was not obliged to conduct an inquiry to discover whether the respondent’s case might be better put or supported by other evidence. The applicant had the opportunity to adduce such evidence as to his psychological state and its impact on his “demeanour, memory and consistency”, as he wished. There is no suggestion that his capacity to make decisions in his own interests in that regard was impaired by his condition.
37. The present case falls well outside the authority of this Court’s decision in SCAR. The further evidence subsequently adduced before the magistrate was not apt to, and was not found to, demonstrate an unfitness to “give evidence and present arguments” at the hearing. Nor was this a case where the integrity of the hearing under s 425 was subverted by a want of an appreciation on the part of the Tribunal that the respondent’s presentation of his case might have been adversely affected by an impaired mental state of which the Tribunal was oblivious.
[10] Ibid [56].
Consideration
In deciding whether the First Applicant was denied the opportunity to give evidence and present arguments in a real and meaningful way, such that this denial gave rise to jurisdictional error, the following circumstances of the case are relevant.
The First Applicant was a female Coptic Christian Egyptian national. Her claims to fear persecution and/or significant harm if she returns to Egypt were, in summary, that she and her family, as Coptic Christians, were subjected to attacks (resulting in death, including the death of her husband and son) and threats by extremist militant Muslims.
The Tribunal was clearly aware of the First Applicant’s claims, including her subjective fears of persecution and/or significant harm.
When regard is had to the totality of the Tribunal’s decision, it is clear that the Tribunal found the First Applicant’s evidence on many of her claims to be “vague and undetailed”. There are numerous points at which the Tribunal describes the First Applicant’s evidence, and other Applicant’s evidence, as vague and undetailed. The following extract reflects the tenor of the Tribunal’s findings on this point (CB 290 at [136]):
136. During the hearing, the tribunal observed that the majority of the evidence provided by the applicants in relation to past threats and attacks against them was vague and undetailed, with the exception of incidents for which police and medical reports were provided to the Tribunal…
In my opinion, it is evident from the Tribunal’s decision record that its findings that the Applicants’ evidence (including that of the First Applicant) was vague or lacked detail formed a significant (although not sole) basis for the Tribunal’s adverse credibility findings regarding the First Applicant, and ultimately the Tribunal’s rejection of their claims. I concur with the Minister that there were other reasons for the Tribunal’s adverse credibility findings. However in my opinion, it is the vagueness or lack of detail of the evidence that was undoubtedly a significant reason underlying the Tribunal’s ultimate decision to reject the Applicants’ claims and refuse to grant the Applicants visas.
There were two hearings conducted by the Tribunal, evidently because the giving of evidence in relation to the Applicants’ claims had not been completed at the first Tribunal hearing.
At the first Tribunal hearing, the First Applicant was assisted by a Coptic Christian female interpreter in the Arabic and English languages. The First Applicant did not raise any concerns about the interpreter.
At the commencement of the second Tribunal hearing, as soon as the First Applicant became aware that the interpreter was a Muslim male, she raised her concerns about the interpreter. The First Applicant did not prevaricate. She raised her concerns about giving evidence with the assistance of a Muslim male immediately. I accept the veracity of the First Applicant’s evidence that she felt fearful, given her subjective fears to persecution and/or significant harm as reflected in her claims, about being in the same room as the Muslim male interpreter.
It is apparent that the First Applicant had made a request for a Coptic Christian interpreter in the Arabic and English languages prior to the commencement of the second Tribunal hearing. The Tribunal Member was clearly aware of this request. The Tribunal Member did not ask the Applicant why she wanted a Coptic Christian interpreter. The Tribunal Member simply asserted that all interpreters used by the Tribunal were professional, stated that she had used the particular interpreter at many hearings over the years and vouched for his professionalism, and pointed out that he was bound by a duty of confidentiality. Having made these points, the Tribunal Member then proceeded to commence the hearing.
I am satisfied that, although the Tribunal Member was aware of the First Applicant’s claims, she failed to consider the relevance of the First Applicant’s claimed experience in Egypt as a Coptic Christian female in considering the First Applicant’s request for an alternative interpreter in the Arabic and English languages.
I am satisfied that, given the First Applicant’s claims and her attributes as a Coptic Christian female, the First Applicant’s capacity to give evidence through a Muslim male interpreter would have been affected.
The Tribunal Member stated that (CB 291 at [141]):
141. The tribunal notes that before the start of the second hearing, the first applicant raised an issue about the interpreter (not the same one used in the first hearing) because of concerns that he may not have been of the Coptic Christian faith. After the Tribunal explained again to the applicants the impartiality and professionalism of interpreters used by the Tribunal, and in particular, the interpreter present at the hearing, the applicants agreed to proceed with the hearing. The tribunal is satisfied that the applicants were able to effectively participate and give evidence at their hearing. The tribunal does not accept that any discrepancies or concerns regarding the applicants’ credibility are the result of interpreting issues.
There are a number of significant concerns with this extract. First, the concern of the First Applicant was not that the interpreter “may not have been of the Coptic Christian faith”; the concern on the part of the First Applicant was that the interpreter was a Muslim male. In my opinion, the Tribunal Member either overlooks or misunderstands this significant point. Second, a reading of the transcript of the second Tribunal hearing discloses, quite clearly, that none of the Applicants “agreed to proceed with the hearing”. It is apparent that the Tribunal Member made it plain that she did not accede to the request, and following the Tribunal’s Member’s explanation of the interpreter’s professionalism and his duties of confidentiality, the Tribunal Member proceeded without giving the First Applicant, or the other Applicants, any opportunity to indicate their views about whether they accepted the use of the Muslim male interpreter. I reject the Minister’s submission that the failure of the Applicants and their migration agent, both during the hearing and in post-hearing submissions, to raise the issue of the interpreter again is to be treated as acquiescence, and therefore agreement to the Tribunal’s use of the Muslim male interpreter. Third, the Tribunal’s satisfaction that the Applicants were able to effectively participate and give evidence is predicated on its statements that the First Applicant was concerned because the interpreter “may not have been of the Coptic Christian faith” and that the Applicants “agreed to proceed with the hearing” at the second Tribunal hearing, which are plainly incorrect. Fourth, the Tribunal makes it clear that it therefore rejected any suggestion that its adverse credibility findings arose from interpreting issues.
It follows that the Tribunal’s erroneous characterisation of the Applicants’ concern about the use of a Muslim male interpreter at the second Tribunal hearing and the impact on the Applicants’ (including the First Applicant’s) ability to participate and give evidence, was directly relevant to the Tribunal’s findings that the Applicants’ evidence was vague or lacked detail. It was directly relevant because the Tribunal did not consider that the vagueness or lack of detail in the evidence may have been as a result of the Tribunal Member’s decision to refuse the First Applicant’s request for a Coptic Christian interpreter in the Arabic and English languages.
Turning to the matters which the Minister has described as “difficulties”. The first difficulty (see [25] above) is, in essence, an argument which invites the Court to divide the evidence given at the first Tribunal hearing and the second Tribunal hearing, and attribute to each of the hearings the evidence considered and the findings made by the Tribunal in its decision record. Indeed, Counsel for the Minister invited the Court to look at what was said at each hearing, and compare the evidence to the findings made. It was argued that when this exercise is engaged in, it could not be said that the Tribunal’s findings that the First Applicant’s evidence was vague or lack detail, and its consequent adverse credibility findings, were referable to the second Tribunal hearing.
This approach urged by the Minister is to be rejected. The Tribunal engaged in one review; although that review required the Tribunal to conduct two hearings. The Tribunal’s statutory task to conduct the review was not complete until it had provided the Applicants with an opportunity to present arguments and give evidence in relation to their claims: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 at [42]. The Minister’s suggested approach assumes that the Tribunal’s consideration of the evidence and its findings were made separately at each hearing. This could not be the case; the Tribunal would have fallen into jurisdictional error having decided matters before the completion of the review. Furthermore, the approach urged by the Minister effectively invites the Court to consider the evidence contained in the transcript of the two hearings, and decide which findings of the Tribunal are to be attributed to the evidence given. In my opinion, this would result in this Court engaging in an impermissible merits review.
The second matter raised by the Minister is that when regard as had to the evidence given by the First Applicant at the second Tribunal hearing, it is apparent that she was able to give evidence about attacks and threats to her and her family by Muslim extremists (see [26] above). I do not find this argument to be convincing. The First Applicant was required to give evidence in response to questions from the Tribunal Member. The evidence extracted and relied on by the Minister says nothing about what evidence the Applicant might have said, or could possibly have said, had she been assisted by a Coptic Christian interpreter in the Arabic and English languages.
The third and fifth matters raised by the Minister (see [27] above) was that neither the First Applicant, nor her legal representative, made further requests or complaints during the second Tribunal hearing in relation to the interpreter. The Minister also argues that the concern now relied on by the First Applicant was not raised in post-hearing submissions made by the migration agent on the Applicants’ behalf. I am not clear about the relevance of this submission. If it is made to suggest that the First Applicant’s concern was not genuine, I reject this submission. The evidence is that the First Applicant raised her concerns at the first opportunity she had at the second Tribunal hearing. The Tribunal Member’s decision about the First Applicant’s request for another interpreter left no room for reconsideration. Furthermore, the failure of a migration agent to raise, on behalf of an applicant, an issue about the conduct of the hearing which may give rise to jurisdictional error, can have no relevance in determining whether there has been jurisdictional error.
The fourth matter raised by the Minister was that the Tribunal made multiple adverse findings which were referable to a broad array of concerns; not merely the Tribunal’s assessment of the Applicants’ evidence as being vague and lacking detail. I have already dealt with this issue (see [34] above).
The final matter raised by the Minister was that the First Applicant has made no attempt to identify precisely how the evidence she gave was compromised by the presence of a Muslim male interpreter at the second Tribunal hearing. For this argument, the Minister relies on the judgment of Keane CJ in SZNVW (extracted at [29] above).
I do not accept that the First Applicant was obliged to engage in this exercise in order to convince the Court that, because of the Tribunal Member’s refusal to accede to her request for a Coptic Christian interpreter (and not a Muslim male), she lost an opportunity to present her case in the sense identified in WZARH (see the decisions of Kiefel, Bell and Keane JJ at [41]-[42], and Gageler and Gordon JJ at [60], extracted at respectively at [19]-[20] above).
I reject the submissions of Counsel for the Minister that WZARH is not binding in this matter because WZARH concerned common law obligations of procedural fairness. The principles established in WZARH have been applied by the Federal Court of Australia in respect of tribunal decisions: see for example, YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [40]; SZTQD vMinister for Immigration and Border Protection [2016] FCA 339 at [55], [58].
In the circumstances of this case, I am satisfied that:
a)the First Applicant lost an opportunity, or was not given a fair opportunity, to present her evidence and advance her case through an interpreter; and
b)had the Applicants’ request for a Coptic Christian interpreter been acceded to by the Tribunal, it might have made a difference to the outcome of the Tribunal decision (see WZARH at [43] per Kiefel, Bell, and Keane JJ), or alternatively, the Applicants’ may not have been deprived of the possibility of a successful outcome (see WZARH at [60] per Gageler and Gordon JJ).
Accordingly, I am satisfied that the Applicants’ ground one of judicial review gives rise to jurisdictional error.
Ground Two
The Applicants’ amended ground two of judicial review is as follows:
2. The Tribunal’s refusal to adjourn or delay the second hearing in order to arrange a non-Muslim interpreter was legally unreasonable in circumstances where:
a. At the start of the hearing, when the primary applicant was faced with a male Muslim interpreter, she requested a non-Muslim, Coptic Christian interpreter.
b. At the previous hearing in August 2014, a female Coptic Christian interpreter had been provided.
c. The applicants’ claims included fear of Muslim groups, Muslim extremists and membership of a minority Coptic Christian religion in a Muslim dominated Egyptian society.
d. The Tribunal’s review had been on foot for a significant time and a delay or adjournment to obtain a non-Muslim interpreter would not have been unreasonable.
e. The Tribunal’s finding – that the applicants agreed to proceed with the interpreter after the Tribunal explained the impartiality and professionalism of the interpreter – was not open on the evidence.
f. The primary applicant was distressed during the hearing.
g. The Tribunal had discretionary power to adjourn the hearing under s.427(1)(b) of the Act.
(Underlining omitted)
Counsel for the Applicants addressed grounds one and two together, acknowledging that ground two flows from the submissions made in respect of ground one. The circumstances relied on by the Applicants to assert that the Tribunal’s refusal to adjourn or delay the second Tribunal hearing to arrange a non-Muslim interpreter was legally unreasonable are set out in the ground itself.
The Minister submits that grounds one and two are closely related, and for the reasons argued in relation to ground one, the Court should find that there was no jurisdictional error on this ground. Counsel for the Minister also submitted that strictly speaking, there was no formal application for an adjournment.
A tribunal’s refusal to adjourn or reschedule a hearing, if unreasonable, will amount to a failure to exercise its power according to law. In Gazi v Minister for Immigration and Citizenship [2013] FCA 1094 (“Gazi”), in referring to the High Court’s decision in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 87 ALJR 618 (“Li”), Logan J stated (Gazi at [34], [36]):
34. Li concerned a refusal by the Tribunal to adjourn a review hearing in the exercise of its power so to do conferred by s 363(1)(b) of the Migration Act, whereas this case concerns a decision by the Tribunal not to reschedule a hearing in the exercise of the power so to do conferred by s 362B(2) of that Act. That, though, is a distinction without a difference in terms of the question settled by Li. As with the power conferred by s 363(1)(b) of the Migration Act, the power conferred on the Tribunal by s 362B(2) of that Act must be exercised according to law and it will only be so exercised if it is exercised reasonably: Li at [26], [27], [28], [31] per French CJ; at [47], [63], [67], [68] and [76] per Hayne, Kiefel and Bell JJ and at [90], [92], [94] per Gageler J. It will not be exercised reasonably if it is exercised in a way that no reasonable tribunal could so exercise the power in the circumstances concerned.
…
36. For the reasons just given, a decision of the Tribunal might be quashed for jurisdictional error grounded in an unreasonable refusal to reschedule a review hearing. For the Tribunal to make such a decision would be not to conduct its “core function” (Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [19] per French CJ and Kiefel J) of review according to law.
I will first address the question of whether there was an application for an adjournment. The Minister is correct in submitting that there was no explicit request for an adjournment. However, it was implicit in, and a logical consequence of, the First Applicant’s request for an interpreter other than a Muslim male interpreter, that there would be an adjournment of some form. As Counsel for the Applicants pointed out, the adjournment may have been a very short one (had the Tribunal been able to readily locate an interpreter on that day), or the adjournment may have been to another day.
Consequently, I am satisfied that the First Applicant’s request at the second Tribunal hearing for a Coptic Christian interpreter amounted to a request for an adjournment.
In my opinion, it flows from my findings in relation to ground one that the refusal to adjourn the hearing to obtain an interpreter who was not a Muslim male, was an unreasonable exercise of the Tribunal’s statutory power. I agree with the Applicants’ submission that an additional consideration is the fact that there appeared to be no time constraint on the Tribunal making its decision, as the Tribunal’s decision was made more than 12 months following the second Tribunal hearing.
Accordingly, I am satisfied that the Applicants’ ground two gives rise to jurisdictional error.
Ground Three
The Applicants’ third ground of judicial review is:
3. The Tribunal breached s.424A(1) of the the Act [sic] in that it did not give the primary applicant particulars of oral information she had given to the Department about her relationship with [Mr X] and that information would be a part of the reasons for affirming the decision under review.
(Underlining omitted)
The basis upon which the Applicants claim that the particulars of the oral information that the First Applicant gave to the Department about her relationship with her second husband (“Mr X”) is set out in the following extract from the transcript of the first Tribunal hearing on
26 August 2014:[11]
[TRIBUNAL MEMBER]: I listened to the Department interview when the case officer asked you a lot of questions and you seemed very evasive about your relationship with your husband. I’m just trying to understand why.
[11] The Affidavit of Cheng Yee Phuah filed on 4 October 2017, Exhibit A, 26.
Section 424A of the Act relevantly provides that:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
...
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
…
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
…
In SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3 (“SZTGV”), the Full Court of the Federal Court summarised the steps involved in ascertaining whether s.424A of the Act had been breached. In respect of the first step, the Full Court stated (at [10]-[12], [18]):
10. In respect of question (1), what is information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review within the meaning of s 424A(1)(a)?
11. In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (SZBYR) the High Court explained that:
[16] …First, while questions might remain about the scope of para (b) of s 424A(3), it was accepted by both sides that information “that the applicant gave for the purpose of the application” did not refer back to the application for the protection visa itself, and thus did not encompass the appellants’ statutory declaration. In this regard, the parties were content to assume the correctness of the Full Federal Court decisions in Minister for Immigration and Multicultural Affairs v Al Shamry [(2001) 110 FCR 27; [2001] FCA 919] and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [(2006) 150 FCR 214; [2006] FCAFC 2]. Accordingly, no occasion now arises for this Court to determine whether that assumption was correct.
[17] Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason, or a part of the reason, for affirming the decision that is under review”. The statutory criterion does not, for example, turn on “the reasoning process of the Tribunal”, or “the Tribunal’s published reasons”. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that 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. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.
[18] Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [(2004) 206 ALR 471; [2004] FCAFC 123] that the word “information”
does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
12. In Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507; [2009] HCA 31 (SZLFX) the High Court reiterated this approach as follows:
[21] In SZBYR, it was stated that:
Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather, the Tribunal’s obligation is limited to the written provision of “particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”.
[22] Furthermore, it was emphasised that for s 424A(1)(a) to be engaged, the material in question should in its terms contain a “rejection, denial or undermining” of the review applicant’s claim to be a refugee. The Federal Magistrate approached the issue framed by reference to s 424A by considering whether the file note could or might undermine the credibility of the first respondent. He considered it could and also considered that no inference that the file note was not material to the decision should be drawn from the RRT’s failure to mention the file note.
[23] This approach was, with respect, flawed given the following observations in SZBYR:
[I]f the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1) … However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.
[24] As a Full Court of the Federal Court of Australia (Dowsett, Bennett and Edmonds JJ) pointed out correctly, shortly after SZBYR, in SZKLG v Minister for Immigration and Citizenship [(2007) 164 FCR 578; [2007] FCAFC 198], s 424A depends on the RRT’s “consideration”, that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review. Here, there was no evidence or necessary inference that the RRT had “considered” or had any opinion about the file note.
[25] As observed equally correctly by Heerey J in MZXBQ v Minister for Immigration and Citizenship [(2008) 166 FCR 483; [2008] FCA 319], s 424A speaks of information which “would”, not which “could” or “might”, be the reason or part of the reason for affirming the decision under review.
…
18. The reasoning of the High Court in SZBYR and SZLFX is not readily reconcilable with that in SZEEU and NBKS. What is clear from SZBYR and SZLFX is the High Court’s endorsement of the proposition that “information” within the meaning of s 424A(1) of the Act does not extend to the “prospective reasoning process” of the Tribunal. Further, the information must be information that “would”, not “could” or “might”, be the reason or part of the reason for affirming the decision under review. Such information necessarily involves a rejection, denial or undermining of the applicant’s claims.
(Emphasis in original)
In BWL16 v Minister for Immigration and Border Protection [2017] FCA 628, Yates J stated (at [26]):
26. …When s 424A(1)(a) of the Migration Act refers to information that would be the reason, or part of the reason, for the Tribunal affirming the decision under review, it is directing attention to, and referring only to, information that would stand as a rejection, denial or undermining of the visa applicant’s claims to be a person to whom Australia owes protection obligations under the Act: SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1; [2007] HCA 26 at [17]; Minister for Immigration and Border Protection v SZTJF (2015) 149 ALD 552; [2015] FCA 1052 at [30]-[31]; SZTNL v Minister for Immigration and Border Protection (2015) 231 FCR 204; [2015] FCA 463 at [50]…
In BFS16 v Minister for Immigration and Border Protection [2017] FCA 142 Robertson J said (at [45]):
45. …the Tribunal was under no obligation to put to the appellant, pursuant to ss 424A or 424AA of the Migration Act, any inconsistency between the information provided by the appellant in his application and the evidence given at the Tribunal hearing because the putative information was not information to which the obligation in s 424A(1) of the Act applied, as it was not information that would constitute “in [its] terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations”: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 at [17] per Gleeson CJ, and Gummow, Callinan, Heydon and Crennan JJ…
The Minister argues that this ground should be dismissed because it is not apparent, in relation to any of the Tribunal’s findings, that the “information” identified by the Applicants formed the reason or part of the reason for affirming the delegate’s decision. The Minister submits that in its findings, the Tribunal makes no reference to the information provided by the First Applicant in respect of her claims concerning her relationship with Mr X (CB 294-295 at [154]-[159]).
I agree with the Minister’s submission that the Tribunal’s decision record does not support a conclusion that the “information” relied upon by the Applicant was “information” that would form the reason, or part of the reason, for affirming the decision under review. For this reason, I would dismiss the Applicants’ third ground of judicial review.
Assuming that the “information” would form the reason, or a part of the reason, for affirming the decision under review, I would nevertheless find that the particular transcript relied on would be “information” in the sense contemplated by s.424A(1) of the Act.
The dispute between the Applicants and the Minister revolved around the characterisation of the “information”. The Applicants argued that the “information” was adverse in its own terms, in that it was evasive. The Applicants argued that this is not a case of an inconsistency or gap in the “information”; it is a case where the “information” itself was adverse. In this sense, the Applicants submit that it is different from the circumstances identified in SZBYR at [18].
In my opinion, the Minister’s characterisation of the “information” is correct: namely, that it was simply the Tribunal’s appraisal of the evidence given by the First Applicant at the Departmental interview, and not the content of information given by the First Applicant at the Departmental interview.
The Tribunal is clearly referring to its assessment of the manner in which the First Applicant gave information; that is, in an evasive manner. It was not information that would constitute “in [its] terms a rejection, denial or undermining of [the Applicants’] claims to be persons to whom Australia owed protection obligations”: see SZBYR at [17], SZTGV at [18], BWL16 at [26] and BFS16 at [45].
Accordingly, I do not find jurisdictional error arises on this ground.
Conclusion
For the reasons set out in this judgment, I shall make order that writs of certiorari and mandamus be issued. An order will also be made that the First Respondent pay the Applicants’ costs in a fixed amount.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 18 April 2018
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