CQO15 v Minister for Immigration
[2016] FCCA 2948
•22 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CQO15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2948 |
| Catchwords: MIGRATION – Application for protection visa – whether the Tribunal failed to consider an integer of claim made by the Applicant – held Tribunal failed to consider an integer of claim giving rise to jurisdictional error – whether the Tribunal failed to accord the Applicant procedural fairness by failing to raise a live issue during the course of the Tribunal hearing – the Tribunal failed to accord the Applicant procedural fairness in relation to one live issue not raised by the delegate of the First Respondent – held this failure did not give rise to jurisdictional error – writs issued quashing the decision of the Second Respondent and remitting the matter back to the Second Respondent to be determined according to law. |
| Legislation: Migration Act 1958 (Cth) ss.36(2)(a), (aa), 425(1) |
| Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 |
| Applicant: | CQO15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2724 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 16 August 2016 |
| Date of Last Submission: | 16 August 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 22 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Grinberg |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr Yuile |
| 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 12 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 Applicant for review of the delegate of the First Respondent’s decision.
The First Respondent pay the Applicant’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2724 of 2015
| CQO15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of Papua New Guinea (“PNG”). He is a member of the Mulayau tribe and came from the Enga province of PNG. His occupation in PNG was that of teacher and he taught at various schools in the Enga province and Port Moresby. He travelled to Australia at various time during 2008 to 2009. In July 2011 he arrived in Australia on a visitor’s visa. He remained in Australia and applied for a Protection (Class XA) visa (“the visa”) on 23 January 2013.
On 23 June 2014, his application for the visa was refused by a delegate of the Minister for Immigration and Border Protection (“the delegate”). The Applicant, now represented by a migration agent, applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of the delegate’s decision. The Applicant was invited to, and attended, a hearing conducted by the Tribunal on 20 February 2015. On 12 November 2015, the Tribunal affirmed the decision under review. The Applicant applied for judicial review on 10 December 2015. By his amended application for judicial review filed on 28 July 2016, there are two issues for determination:
a)Whether the Tribunal failed to consider an integer of his claim that, in order to avoid harm in PNG, he acted discreetly and modified his appearance and profile; and
b)whether the Tribunal failed to comply with its obligation under s.425 of the Migration Act 1958 (“the Act”) to afford procedural fairness to the Applicant because it failed to raise with the Applicant an issue (which had not been raised in the delegate’s decision or by the Applicant) which was dispositive to the Tribunal’s decision that the Applicant did not satisfy the criterion under sub-ss.36(2)(a) or (aa) of the Act: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”). The issue the Applicant asserts falls within the scope of SZBEL arises from the adverse credibility findings made by the Tribunal.
The Applicant’s claims to protection relate to his fear of harm from an enemy tribe (the Depau tribe) and associated tribes because of his membership of, or race as a member of the Mulayau tribe, because of his status as a teacher/government employee and a perception that he is wealthy person (CB 166).
Tribunal decision
With respect to the Applicant’s claims that he experienced harm or threats of harm from tribal groups, the Tribunal found that the Applicant was not a credible witness and provided four reasons for this finding (CB 360 to 361 at [33]):
a)The Tribunal considered that the Applicant’s evidence about the claimed 2008 school assemble attack was “fundamentally inconsistent”. The Applicant told the Tribunal it was only his groin which was struck with a spear, however in his application for a protection visa, he stated that he was struck on his head with an axe;
b)The Tribunal considered the Applicant’s account of the 2008 school assembly attack far-fetched and implausible. The Tribunal said it was neither plausible or credible, in circumstances where the Applicant had already been wounded and there were four heavily armed men trying to kill him, that he would have been able to escape and avoid further injury or death;
c)The Tribunal did not accept as plausible that members of the Depau tribe came to his school in 2000 to target him but that he was not the subject of further attacks until 2007; and
d)The Tribunal did not accept the Applicant’s explanation for his delay in applying for a protection visa. The Tribunal considered that the Applicant’s visa history and significant delay in applying for protection detracted substantially from his credibility.
The Tribunal then proceeded to reject the Applicant’s claims of harm or threats of harm as follows (CB 362 at [34]):
Given these highly significant concerns I have about the applicant’s credibility, I do not accept that in 2000 whilst teaching in the village of Par that members of an enemy tribe came to his school to look for him and that he escaped. I do not accept that in 2007 whilst teaching at a school he was attacked by men with machetes and that he was injured. I do not accept that in 2008 he was attacked by members of an enemy tribe and injured. I do not accept that when he moved to Port Moresby that faeces were left [in] his office at school by members of an enemy tribe or anyone else. I do not accept that bottles were thrown at his home in Port Moresby. I do not accept that enemy tribesmen ever came to his school to look for him or that a lady nut-seller outside the school gate heard people talking about him. I do not accept that the applicant went to the police in Port Moresby after any of these incidents and they asked him for money. I do not accept that the applicant has ever been targeted or harmed or been of adverse interest to the Depau or any other enemy tribe for any reason including jealousy or his education or because he viewed as a threat to their old ways.
The Tribunal stated that it did not accept that the Applicant has ever been harmed or been of adverse interest to opposition tribes (CB 362 at [36]).
The Tribunal noted the Applicant’s claim that he would have to be involved in fights if he returned to PNG. The Tribunal found it remote that the Applicant would become involved in fights in the future, noting that the Applicant is an educated teacher who had not claimed to have been involved in “any of those fights” in the past (CB 362 at [37]).
The Tribunal accepted that the Applicant’s uncle was killed in a tribal fight and that another uncle was killed when he went looking for a pig and “was in the wrong place at the wrong time” (CB 362 at [36]-[37]). The Tribunal accepted that the Applicant’s brothers had been involved in fights and that one was speared in the past (CB 362 at [37]). However, the Tribunal considered it speculative that the Applicant would seek to involve himself in such fights, and considered it remote that he would become caught up in one or that he would be targeted or harmed because of his brothers.
The Tribunal accepted that the Applicant had some scar marks, however did not accept that they were the result of the events claimed by the Applicant (CB 362 at [35]).
The Tribunal found that the risk the Applicant would be harmed because of his tribe, being a member of a tribe at conflict or because of his family, was remote (CB 362 at [37]).
The Tribunal accepted that that teachers or government employees did constitute particular social groups in PNG, and that the Applicant was a member (CB 363 at [38]). The Tribunal noted submissions of the migration agent that contained information about incidents where teachers were the victims of violence, however, the Tribunal noted that there are 45,000 teachers in PNG and that country information does not indicate that individuals are targeted in PNG because they are government employees. The Tribunal noted its finding that the Applicant has not been harmed in the past and stated that, considering the country information as a whole and his individual circumstances, the risk that the Applicant would be harmed for being a member of those particular social groups was remote (CB 363 at [38]).
The Tribunal did not accept that the Applicant was a member of a particular social group of ‘wealthy persons’ in PNG, or that he would be imputed to be a member of such a group (CB 363 at [39]).
The Tribunal accepted that there was a substantial level of criminal violence throughout PNG, however the Tribunal did not accept that the Applicant had ever been a victim of crime in the past (CB 363 at [41]).
The Tribunal did not accept that the Applicant would face a discriminatory withholding of state protection for any reason under the Convention, including his membership of the Mulayau tribe (CB 364 at [42]).
The Tribunal concluded that the Applicant was not a person in respect of whom Australia has protection obligations under the Refugees Convention (CB 364 at [47]).
In considering the complementary protection criteria, the Tribunal stated that (CB364 at [48]):
Having concluded that the Applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Judicial Review
Ground 1 – Failure to consider a claim
The Applicant’s first ground of judicial review is as follows:
1.The Tribunal’s decision is affected by jurisdictional error because the Tribunal failed to consider an integer of the applicant’s claim that, in order to avoid harm, he would be compelled to act discreetly and modify his appearance and profile by not working as a teacher and not associating with member of his own tribe/or failed to consider whether there was a real chance that the applicant would suffer persecution.
Particulars
(a)It was an express claim of the applicant, that if returned to Papua New Guinea, he would be compelled to act discreetly and modify his appearance and profile in order to avoid serious harm.
(b)In support of this claim, the applicant gave extensive evidence regarding the efforts he had previously made to live discreetly in order to avoid harm.
(c)The Tribunal failed to consider this claim and failed to take the evidence into account in determining whether the applicant had a well-founded fear of persecution.
The Applicant submits that the Tribunal failed to consider an integer of claim he made; namely, that the Applicant modified his behaviour whilst he lived in PNG in order to avoid harm from tribal groups.
The Applicant relies on the decision of Justice Bromberg in MZABA v Minister for Immigration and Border Protection [2015] FCA 711, in which his Honour helpfully summarised the authorities in regard to a failure to consider claims as follows at [23]-[24]:
23. Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547 concerned an allegation that the Tribunal had failed properly to address a key question in assessing whether MZYTS was owed protection obligations. That question was how volatile and dangerous it was in Zimbabwe for persons who were Actual or perceived supporters of the Movement for Democratic Change, but not leaders or high-profile persons (at [15]). Kenny, Griffiths, and Mortimer JJ stated at [31] that while the description “failure to consider more recent information” may explain the path leading to error, the error itself is a failure to perform the statutory task imposed on the Tribunal by the Act. That task involves (at [34]):
[F]irst, correct understanding of the basis (or bases) on which the visa Applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.
That task could not be lawfully undertaken without “a consciousness and consideration of the submissions, evidence and material advanced by the visa Applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground in Zimbabwe for him if he were to be returned there” (at [38]). The Court said later as follows:
[68] In SZJSS at [27]-[28] (a passage extracted by Robertson J in [Minister for Immigration and Citizenship v SZRKT [2013] FCA 317] at [96]) the joint judgment of the Court recognised as a proposition flowing from Yusuf that “jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power”. In this passage, the Court is not dealing with relevant considerations in the Peko-Wallsend sense. Rather, as we consider Robertson J recognised in SZRKT (at [97]), it is describing an example of jurisdictional error where, in a given case, ignoring relevant material demonstrated a failure to perform the statutory task cast upon it by the combined provisions in the Migration Act because of the nature of the claims made and the nature of the material ignored.
…
[70] With respect, we consider this is the conclusion reached by Robertson J in SZRKT, most directly expressed at [98], where his Honour states that the identification of jurisdictional error cannot “put out of account the Actual course of decision-making by the Tribunal” and cannot proceed “by reference to categories or formulas”, observing that “there are many ways, Actual or constructive, of failing to consider the claim”. His Honour develops this at [111] by disavowing any jurisdictional/non-jurisdictional distinction between claims and evidence and instead finding, correctly in our respectful opinion, that 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”. We agree with his Honour’s analysis.
24. In SZSSC v Minister for Immigration and Border Protection (2014) 317 ALR 365, Griffiths J set out the Minister’s submissions as to the state of the authorities at [75]–[78] (which he accepted subject to provisos not here relevant), and at [81] set out additional principles relevant in determining whether the Tribunal committed jurisdictional error in failing to address a substantive and clearly-articulated submission. I will endeavour to summarise from Griffiths J’s judgment (and the authorities his Honour cited) the principles here relevant: first, the Tribunal’s duty is to review, which requires it to consider and deal with clearly-articulated submissions of substance (SZSSC at [81(a)]); second, a failure to consider a submission that was substantial and clearly articulated (SZSSC at [75], [78], citing Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24]) or an undertaking of the task of review “without a consciousness and consideration of the submissions, evidence and material,” (SZSSC at [76], citing MZYTS at [38]), could amount to jurisdictional error. Those may be different ways of expressing the same principle (SZSSC at [77], citing SZRBA v Minister for Immigration and Border Protection (2014) 314 ALR 146 at [23]–[24]); third, not every failure to deal with a submission, evidence, or other material, will constitute jurisdictional error (SZSSC at [81(b)], citing SZRKT at [97]). Some evidence may be irrelevant and some contentions misconceived, though there is a distinction between failure to advert to evidence that might have led to a different factual finding, and failure to address a contention which, if accepted, might establish well-founded fear for a convention reason (SZSSC at [81(c)], citing Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46]); fourth, it may be appropriate to have careful regard to the Tribunal’s statement of decision and reasons including its summary of submissions received (and how it dealt with them) and its structure (SZSSC at [81(e)]); fifth, the burden is on the appellant to persuade the Court that any failure to deal with a submission is a jurisdictional error (SZSSC at [81(g)], citing MZYTS at [53]), and the Tribunal’s reasons are not to be approached with an eye keenly attuned to detection of error (SZSSC at [81(h)], citing Salahuddin v Minister for Immigration and Border Protection (2013) 140 ALD 1 at [19]–[20])
The Applicant relies on the judgment of McHugh and Kirby JJ in decision of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affair (2003) 216 CLR 473 (“Appellant S395”) at [43] where their Honour said at [43]:
The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many - perhaps the majority of - cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.
The Applicant submits that the Tribunal failed to consider, in deciding whether the Applicant had experienced harm in PNG on the grounds alleged, his integer of claim that he had already modified his behaviour. That is, that it failed to consider whether the Applicant’s found lack of harm in the past might be due to him acting discreetly. The Applicant notes that he had provided recent country information about the deterioration in circumstances in PNG and the Tribunal needed to consider his integer of claim in the context of this information in relation to the reasonably foreseeable future. In failing to consider these claims, the Tribunal thereby failed to consider whether, if returned, the Applicant would again live discreetly in order to avoid harm. The Applicant notes that in Appellant S395, McHugh and Kirby JJ said (at [58]):
…neither the persecution of members of a particular social group nor the past persecution of the individual is decisive. History is a guide, not a determinant.
And at [74], Gummow and Hayne JJ noted:
Even if the decision maker disbelieves and Applicant’s claims for protection that decision maker must still consider whether on any other basis asserted a well founded fear of persecution exists.
The Applicant argues that his integer of claim, that he altered his behaviour because of his fear of harm, is apparent from the submissions of his migration agent and the evidence given by him at the Tribunal hearing. An affidavit affirmed by Laura Jean Minette Free on 27 July 2016 was filed on 28 July 2016. Annexure LF– 1 to the affidavit contains a copy of the transcription of the audio recording of the Tribunal hearing prepared by Spark and Cannon. The Applicant submits that, in the submission provided to the Tribunal on his behalf, the Refugee and Immigration Legal Centre (RILC) said (CB 167) that there was persecution of the kind referred to by the High Court in Appellant S395, whereby the Applicant would be compelled to act discreetly and modify his appearances in profile by not working as a teacher and not associating with members of his own tribe to avoid serious harm.
The evidence by the Applicant in relation to this integer of claim at the Tribunal hearing is identified as:
a)living in army barracks where he felt safer (transcript p.4, l.27-32);
b)leaving his workplace whenever he heard that enemy tribes’ members were nearby (transcript p.9, l.30-45);
c)going to work late and coming home late and changing his routine (transcript p.26, l.5-20);
d)being always aware of his location and his behaviour, and not allowing himself to be seen by members of enemy tribes (transcript p.28, l.13-33, and p.30, l.6-18);
e)ensuring he would not be in enemy territory (transcript p.32 l.19-29);
f)having other people go to the city to do his banking for him so that he could remain inside the army barracks where he felt safer (transcript p.36, l.3-14); and
g)always being on the lookout or being alert, protecting himself and avoiding situations where he would be harmed (transcript p.46,
l.15-25).In oral submissions, counsel for the Minister accepted that the Applicant made claims that he had modified his behaviour in the past. However, the Minister submits that these claims must be considered in the context in which claims were made about past harm. The Minister argues that the Applicant’s claims of past harm cannot be separated from the integer of claim that he altered his behaviour in order to avoid past harm. In other words, the Applicant claimed he had been attacked on a number of occasions, that he was fearful as a result of those attacks and that this fear manifested itself by his behaviour in certain ways; such as, living on an army base where he felt safe.
The Minister submits the Applicant’s misconceives the propositions for which Appellant S395 stands. The Tribunal in that case had found that the Applicants had lived, and would continue to live, discreetly in Bangladesh, thus not drawing attention to their homosexual relationship. The Court held that the Tribunal had erred by not considering the reason why the Applicants were living discreetly. The Minister notes that in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [89], Kirby J said that “the common ground in the two joint majority reasons in S395 was the need for the decision-maker to focus attention on the propounded fear of the individual Applicant and whether it was ‘well-founded’”. In Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 at [17], French CJ, Hayne Kiefel and Keane JJ said:
The essential reasoning in S395 was that the Tribunal had diverted itself from its task of determining whether there would be a real chance that the applicants would be persecuted if they returned to Bangladesh, by focusing on an assumption about how the risk of persecution might be avoided. Gummow and Hayne JJ said that the enquiry was what might happen if the applicants returned, not whether adverse consequences could be avoided. It followed that the issue to which the correct enquiry was directed – whether the fear of persecution was well founded – had not been addressed.
The Minister notes that in Appellant S395, McHugh and Kirby JJ also said (at [58]):
Whether a particular individual has been persecuted in the past usually assists in determining whether that person is likely to be persecuted future.
The Minister further notes that in a decision referred to by McHugh and Kirby JJ in their judgment, Minister for Immigration v Guo (1997) 191 CLR 559 at 574, the High Court said:
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have probably occurred and the likelihood of the introduction of new or other events that may distort the cycle of regularity.
It follows, the Minister submits, that the essence of the task that the Tribunal was required to undertake, including to comply with the requirements of Applicant S395, was to assess whether there was a real chance that the Applicant would be persecuted if he was to return to Port Moresby. The Minister says that the Applicant’s claim was that, if he was sent back to PNG, he would be required to modify his behaviour in order to avoid serious harm (this being an aspect of the claim that, in the future, the Applicant would be at risk of persecution).
The Minister submits that the Tribunal properly undertook the task of determining whether or not the Applicant would be at risk of harm if he was to return to PNG. In contrast to Appellant S395 and the subsequent cases that have invoked it, the Tribunal’s conclusion did not turn on a finding that the Applicant would be living, or would need to live, in a particular way (discreetly). Rather, it turned on the Tribunal’s findings of fact that:
a)the Applicant had “never been targeted or harmed or been of adverse interest to the Depau or any other enemy tribe for any reason” (Tribunal at [34]);
b)“the chance or risk that [the Applicant] will be seriously harmed or significantly harmed on account of his membership of a particular social groups … is remote” (Tribunal at [37]);
c)the Applicant has not ever “been harmed in the past in PNG despite years of work as a teacher and government employee” (Tribunal at [38]);
d)the Applicant had not “ever been involved in fights” and that the chance the Applicant would be “seriously harmed or significantly harmed in a criminal Act to be remote” (Tribunal at [40] and [41]);
e)there was not a real chance that the “Applicant will face a discriminatory withholding of state protection for any reason under the Convention” and the Applicant had not claimed that he had been harmed in the past by the Police (Tribunal at [42] and [44]).
The present case is said by the Minister to have some resemblance to MZABT v Minister for Immigration and Border Protection [2015] FCCA 1727, as the Tribunal in that case rejected the Applicant’s past claims, which were the centrepiece of his fear of harm for the future.
The Minister submits that in the present case, the Tribunal legitimately made a prediction about the future based in part on past events (MZAAD v Minister for Immigration and Border Protection [2015] FCA 1031 at [41]). Having found that the claimed past events did not occur, and based on the Applicant’s profile and the country information, there was no basis for a finding that the Applicant would be at risk of future persecution. The Minister argues that the Tribunal’s findings on credibility were central, and undermined any further claim based on the Applicant having to modify his life in PNG. It is argued that the Tribunal simply did not accept that the Applicant would be at risk of harm in the future, whether he lived discreetly or otherwise.
In coming to that conclusion, the Tribunal properly assessed the risks to the Applicant if he was returned to PNG, without stipulating how he would have to live in PNG. Thus, it is argued, the Tribunal properly carried out its role as required.
Consideration
It seems to me that the reference by the Applicant’s counsel to the first ground of review being a “S395 claim” and the reliance on certain extracts of the judgments of the members of the Court in Appellant S395 proved to be somewhat of a distraction.
I note that in their submission, the RILC expressly described a source of persecution as being the fact that the Applicant will be compelled to modify his behaviour to avoid being the direct target of serious harm. However, it is clear from the Applicant’s evidence given during the interview with the delegate and at the Tribunal hearing, that a basis of the Applicant’s claims to fear persecution was the fact that he took steps to avoid harm whilst in PNG.
The claims of the Applicant about taking action to avoid harm were first raised in his interview with the delegate (CB 131). The delegate records in his decision that the Applicant said:
·His parents and five siblings still reside in Enga Province.
·He lived between Enga and Port Moresby for more than seven years. He moved from place to place to avoid his enemies (following the interview, he provided more detail of his addresses during the past ten years: folios 49-50).
·He used to change schools two or three times per year to evade his enemies. Most of the time he worked in Port Moresby but he sometimes also worked in different districts in Enga Province. He also used to return to Enga during term breaks.
·He was first attacked in 2000. He was attacked again in 2007 and 2008. The attacks occurred in different parts of Enga Province.
·He was never harmed while living in Port Moresby. There was one incident where he suspected he was going to be attacked so he ran out of the classroom.
(my emphasis)
The evidence given by the Applicant at the Tribunal hearing in relation to this integer of claim is set out at [21] above.
The Applicant’s first ground of review focuses not on the second step of the Court’s statutory task with respect to the future, but on the Applicant’s bases for his claim of past harm.
The formation of the state of satisfaction required for the purposes of ss.36(2)(a) the Act involves two steps, which were explained in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (MZYTS ) (at [34] per Kenny, Griffiths and Mortimer JJ) as:
…first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.
The Tribunal may fall into error if it fails to correctly understand the basis, or the bases, upon which an applicant claims a well-founded fear of persecution. The jurisdictional error, in such a case, is the failure of the Tribunal to perform the statutory task imposed on it by the relevant provisions of the Act: MZYTS at [31].
It is argued by the Applicant that the Tribunal misconstrued or overlooked the Applicant’s claim that he took action to avoid harm. There is no doubt that the Applicant claimed he was attacked and suffered harm from tribal groups (claims which the Tribunal rejected). As I understand the Applicant’s argument, he claims that the Tribunal failed to consider his additional integer of claim about avoiding harm whilst he lived in PNG, and thereby failed to take into account this integer of claim in determining whether the Applicant had a well-founded fear of persecution.
In SZTQP v Minister for Immigration and Border Protection [2015] FCAFC 121 (“SZTQP”), the Full Court identified what it said were some relevant principles to the question of whether a Tribunal falls into jurisdiction error if it fails to consider a claim made for protection. Commencing at [50], it said relevantly:
50. The relevant legal principles relating to the question whether or not the Tribunal falls into jurisdictional error if it fails to deal with an element of an applicant’s claim, were conveniently summarised by the Full Court in NABE at [55] and [63] (per Black CJ, French and Selway JJ):
“Failure to Deal with a Claim - Express and Implied Claims
[55] Although the discussion in S20 did not set any precise limit upon the scope of factual error which may amount to or indicate jurisdictional error there is, in the case of Refugee Review Tribunal decisions, one circumstance in which it is clearly established that the absence of a finding of a relevant fact may amount to jurisdictional error. Where the Tribunal fails to make a finding on ‘…a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction - Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act. The joint judgment of Gummow and Callinan JJ in Dranichnikov described the task of the Tribunal where the Applicant relied upon membership of a particular social group. Their Honours said (at [26]):
‘… the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the Applicant is a member of that class. There then follow the questions whether the Applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason.
“…
[63] It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the Applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the Applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an Applicant's claim, may be of no consequence to the outcome…
51. Applying those principles here, we consider that the Tribunal fell into jurisdictional error for the following reasons. First, the appellant’s primary claim was that he feared serious harm and/or significant harm if he were returned to Rwanda because of his close relationship with the General and the harm which he had experienced while he was in Rwanda as a result of that association. An integer or element of that claim was that he had received threatening telephone calls around mid-2011 in which express reference was made to his association with the General. As noted at [40] above, those phone calls were made only a few months before he left Rwanda for Australia.
52. Secondly, in order to discharge its statutory review function, the Tribunal was required to consider the appellant’s claims and their integers. In the circumstances here, this obliged the Tribunal to determine whether or not it accepted that the threatening telephone calls had been made and, if it found that they had, to proceed to determine whether it accepted the appellant’s claims that he was threatened in those calls that he would “disappear from the earth” and that such threats were made because of his association with the General. If the Tribunal made findings of fact which were favourable to the appellant on these matters, they would be material in that they could indicate that, contrary to the Tribunal’s ultimate finding, the appellant remained a person of interest in mid-2011 because of his association with the General. If that fact was accepted, it indicated that the appellant was a person of interest well after he ceased reporting to the police the previous year, contrary to the Tribunal’s finding.
…
56 . The claims relating to the threatening phone calls were an element of the appellant’s claim to fear serious or significant harm if he were returned to Rwanda. The Tribunal appreciated that this was a claim which was expressly made and one which arose clearly on the materials before the Tribunal (see NABE at [61]-[62]). Because of the way the Tribunal dealt with that claim, it remains “unresolved”. As Flick J observed in not dissimilar circumstances in SZRRD v Minister for Immigration and Border Protection [2015] FCA 577 at [17]:
“It matters not why the now Appellant’s claim remains unresolved; it may not have been resolved by reason of error, misunderstanding, or inadvertence on the part of the Tribunal. However it occurred, the jurisdictional error remains.”
There is no dispute that the Applicant made an integer of claim that he modified his behaviour to avoid harm or attacks from tribal enemies. The Minister argues that this claim is indistinguishable from the Applicant’s claims to have experienced harm or to have been the subject of attacks from members of enemy tribes. The Minister contends that the Applicant engaged in this behaviour because of the attacks and consequently, this integer of claim cannot be separated from the Applicant’s specific allegations of having suffered harm or attacks from tribal enemies. As the Tribunal did not accept these specific allegations of harm or attacks because of its adverse views of the Applicant’s credibility, the Tribunal effectively dealt with the Applicant’s claim to have modified his behaviour to avoid harm, in deciding whether the Applicant had a well-founded fear of persecution. The Applicant submits that the integer of claim that he modified his behaviour was separate from his claim to have suffered harm or to have been the subject of attacks from tribal enemies. The Applicant submits that the failure of the Tribunal to identify this integer of claim and to give it active and conscious consideration has the effect that the Tribunal failed to perform its statutory task; namely, to decide whether the Applicant had a well-founded fear of persecution. The Applicant asserts that this integer of claim which is grounded in the past was relevant to the Tribunal’s consideration of the future; namely, whether there was a real chance he would be harmed if he were returned to PNG and thereby might need to act discreetly.
In SZTQP, the Full Court held that, in order for the Tribunal to discharge its function of statutory review, it was obliged to identify all of the Applicant’s claims and integers of claim. As pointed out by Judge Wilson in MZANX v Minister for Immigration and Border Protection [2016] FCCA 2564, the concept of an “integer of claim” has attracted little judicial consideration. His Honour said, and I respectfully concur, at [25]:
Surprisingly little judicial attention has been devoted to the concept of an “integer” of a claim, as that phrase was coined in Htun. That may explain why in 2013 Robertson J in SZRKT took the view that the authorities illuminated no clear distinction between “claims” on the one hand and “mere” items of evidence on the other. The phrase “integer” seems to have been used interchangeably with “component of claim” (Htun) yet in Tran v Minister for Immigration and Multicultural and Indigenous Affairs (Kiefel, RD Nicholson and Downes JJ) the opportunity for exposition was not taken up as the Full Court of the Federal Court of Australia merely stated that the tribunal was “required to deal with all integers of an applicant’s claim”, without providing elucidation about what an integer was. His Honour Judge Manousaridis has held that an “integer” may be taken to be the equivalent of a material question of fact. His Honour so held in SZURJ v Minister for Immigration and Border Protection that an integer was a meaningful subset of material questions of fact, which, in combination with other meaningful subsets of material questions of fact, ought to lead the Tribunal to conclude in a particular way. In my respectful view, his Honour’s consideration of the subject is accurate. It appears to be one of the only statements of principle on point. …
(footnotes omitted)
Utilising the analysis applied in SZTQP, I am satisfied that the Applicant’s primary claim was that he feared harm, if he returned to PNG, from enemy tribal groups because of his membership of or his race as a member of the Mulayau tribe and because of his occupation as a teacher/government employee. An integer of this claim was that he had suffered harm and was the subject of attacks from the enemy tribal groups. I am satisfied, having regard to the evidence given by the Applicant to the delegate and to the Tribunal, that another integer of claim was that he modified his behaviour to avoid harm and, as is apparent from the transcript of proceedings before the Tribunal, he did so from the period 2003 to 2011 (T4.29).
I do not accept the Minister’s submission that the Applicant’s integer of claim that he modified his behaviour to avoid harm is indistinguishable from his integer of claim relating to specific incidents of harm and attacks. I am satisfied, having regard to the evidence given by the Applicant, that the Applicant’s integer of claim that he modified his behaviour to avoid harm arose from the alleged attacks. However, this behaviour persisted over a continuous period of around eight years and was not only engaged in as a reaction to the specific incidents the Applicant alleged occurred in 2000, 2007 and 2008. It reflected his general fear of harm from members of enemy tribes.
At [34] (CB 362) of the Tribunal decision record, because of its adverse credibility findings, the Tribunal rejected the Applicant’s specific claims to have suffered harm or been the subject of the attacks. At [36] of the Tribunal decision record, the Tribunal accepted that, “tribal conflict is a serious problem in the PNG Highlands and Enga province.” However, it said it did not accept, “the applicant has ever been harmed or been of adverse interest to opposition tribes.” This conclusion clearly follows the Tribunal’s rejection of the Applicant’s integer of claim as to specific incidents of harm or attacks from members of enemy tribes. This more general finding can only be said to have been based on the Tribunal’s rejection of this integer of claim. It is clear from the reasoning adopted by the Tribunal, in its decision record, that this general finding formed the basis for its ultimate conclusions that the Applicant does not face a real chance of persecution in the reasonably foreseeable future for any convention reason and that the Applicant did not meet the alternative criteria in s.36(2)(aa) of the Act.
I am satisfied, having regard to the Tribunal’s decision record, that the Tribunal failed to identify the Applicant’s integer of claim; namely that over a period of time, he modified his behaviour to avoid harm.
The Applicant’s claim was that he engaged in this behaviour until he left PNG for Australia in July 2011. I have already found that this integer of claim was distinguishable from and not subsumed under the Applicant’s integer of claim specific incidents of harm.
I observe that this integer of claim is not at all affected by the Tribunal’s adverse credibility findings regarding the Applicant’s evidence, as these related to the alleged specific incidents of harmin 2000, 2007 and 2008. Had the Tribunal made findings of fact which were favourable on these matters, they would be material in that they could indicate that, contrary to the Tribunal’s ultimate finding, the Applicant was a person of interest to opposition tribes until he left PNG in mid-2011, and that the fear of persecution because of tribal conflict was not remote.
I find that the Tribunal, having failed to understand the bases on which the Applicant put his claim because it failed to identify the integer of claim; and having failed to give genuine and active consideration to the claim which may have been material to its ultimate conclusion, failed to perform its statutory task and engaged in jurisdictional error.
Ground 2 - Failure to comply with s.425 of the Act
The Applicant’s second ground of judicial review is as follows:
2.The Tribunal’s decision is affected by jurisdictional error because the Tribunal failed to afford the applicant procedural fairness and failed to comply with its obligations under s425(1) of the Act.
Particulars
(a)In the decision under review by the Tribunal, a delegate of the first respondent accepted all claims of past harm of the applicant. In particular, the delegate accepted the applicant’s claims that he was targeted in events in 2000, 2007 and 2008.
(b)The only dispositive issue before the delegate was the applicant’s ability to relocate to Port Moresby.
(c)The claims of past harm were a crucial aspect of the applicant’s claim to fear future harm.
(d)In contrast to the finding of the delegate, the Tribunal rejected the applicant’s claims to have suffered any instances of past harm.
(e)On the basis of the rejection of past harm and negative credibility findings, the Tribunal found the applicant did not have a well-founded fear of harm.
(f)The Tribunal failed to indicate to the applicant that his credibility regarding the 2000, 2007 and 2008 incidents was in issue, and so failed to notify the applicant that these matters were issues arising in relation to the decision under review.
The Applicant’s second ground relies on the majority judgment of the High Court in SZBEL, where Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said at [35] to [36]:
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.
The following statement reflects the settled principle regarding the requirements of procedural fairness (Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591, which was affirmed in SZBEL at [32]):
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.
The Applicant argues, correctly, that the issue of his credibility was not one raised in the decision record of the delegate. Indeed, the delegate stated: “I have no reason to doubt the credibility of the Applicant’s claims” (CB 131). The delegate accepted that the Applicant was attacked by members of an opposing tribe in 2000, 2007 and 2008 as claimed (CB 131). The delegate’s refusal to grant the Applicant the visa turned on the delegate’s view that the Applicant could relocate to Port Moresby. By contrast, the Tribunal rejected each of these specific claims, and did so on the basis of its adverse findings regarding the Applicant’s credibility. There is no doubt that the Tribunal’s rejection of these claims on the basis of the Applicant’s credibility was dispositive to the ultimate conclusion by the Tribunal that the Applicant was not owed protection obligations under the Act.
The Applicant was entitled, in the absence of being informed by the Tribunal, to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to the delegate’s decision. The question becomes, therefore, did the Tribunal raise with the Applicant the issues that were determinative in its decision; namely, its adverse findings as to his credibility in relation to his claims of attacks from enemy tribes in 2000, 2007 and 2008 and, thereby, was he given the opportunity of giving evidence and making submissions on these issues.
The Applicant submits that the Tribunal member did not inform the Applicant that his credibility regarding these incidents were live issues before the Tribunal.
It should be noted that the Tribunal did not inform the Applicant in writing by way of correspondence to him or his migration agent, either before or after the hearing, that these were live issues for the Tribunal to consider.
The Applicant relies on the following observation by Justice Bromberg in SZTKE v Minister for Immigration and Border Protection [2015] FCA 1002 (“SZTKE”) at [36]:
… More is required than that the Tribunal abstain from positively indicating to an appellant that his or her account will be accepted. More is required than that an appellant be merely given an opportunity to explain himself or herself. So much is evident from the fact that in SZBEL the relevant evidence was “elicited” by the Tribunal without further comment and that, notwithstanding that elicitation, it was held that procedural fairness had not been afforded. There must be something that indicates to the appellant that the issue is live.
Counsel for the Applicant took the Court in some detail to the consideration by Justice Bromberg of the nature of questions asked of the Applicant; in particular, the use of the phrase, “what you want me to believe”. At [46], Bromberg J said:
… In my view, the proposition that merely raising matters is sufficient is irreconcilable with SZBEL. Nor do I think that the words “what you want me to believe,” in context, indicate scepticism. There had gone before those words a series of questions and answers concerning the appellant’s obtaining of a passport, including quite a lengthy answer immediately before the emboldened passage in the Tribunal’s reasons. The emboldened passage, which commences “So what you’re saying,” seems to me to do no more than repeat for the purposes of confirmation what the Tribunal understood the appellant’s evidence to be. Although I accept that the phrase “what you want me to believe” could, in other contexts, indicate that the Tribunal doubted a proposition, I do not think that is the meaning it here conveys. I do not think it expresses doubt, nor asks for amplification, nor invites explanation of why the claim ought be accepted. Indeed, what the question was likely to elicit from the appellant was either an answer in the affirmative (as occurred, with the proffering of additional relevant information), or in the negative so as to indicate that his evidence had been misunderstood. It was not likely to elicit an explanation from the appellant as to why his evidence ought be accepted, and it did not.
Counsel for the Applicant noted in respect of one issue, that the use by the Tribunal of the phrase, “I find it extremely difficult to believe” was held sufficient by Justice Bromberg to express the Tribunal’s reservations, in the context where the Tribunal’s comments prompted a defensive response from the Applicant. Counsel for the Applicant also referred in some detail to the approach of Justice Bromberg in deciding whether the procedural unfairness gave rise to jurisdictional error. At [51] to [54], his Honour considered various authorities:
51. There is force in the appellant’s submission. In Re Refugee Review Tribunal; ex Parte Aala (2000) 204 CLR 82, McHugh J said as follows (at [104]):
Not every breach of the rules of natural justice affects the making of a decision. The decision-maker may have entirely upheld the case for the party adversely affected by the breach; or the decision may have turned on an issue different from that which gave rise to the breach of natural justice. Breach of the rules of natural justice, therefore, does not automatically invalidate a decision adverse to the party affected by the breach. This principle was acknowledged by this Court in Stead v State Government Insurance Commission when it said that “not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial”. Nevertheless, once a breach of natural justice is proved, a Court should refuse relief only when it is confident that the breach could not have affected the outcome because “[i]t is no easy task for a Court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome”. …(citations omitted; emphasis added)
52. Further, in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1, Kirby J said as follows at [84]–[85] (a passage cited in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [81]) (citations omitted, emphasis added):
It is not the function of judicial review to retry the merits or, as such, to re-assess the merits of the case and excuse an established departure from fair procedures because the merits seem strongly one way. If the departure from procedural fairness might have affected the outcome, the function of judicial review is to say so. Subject to the consideration of any residual discretion to deny relief, the Courts will set aside the flawed decision. This is because, in the eye of the law, it is not a “decision” as contemplated by law.
Every person, in respect of whom material decisions are made by a repository of public power conferred by the Parliament, is ordinarily entitled to have such power exercised in accordance with law. That includes, relevantly to this case, in accordance with the requirements of procedural fairness. The ultimate outcome of such insistence on fair procedures might eventually be the same. But where the issue is whether additional evidence and submissions might have affected the outcome of the decision-maker’s consideration of the matter, it cannot normally be said with certainty that affording such an opportunity was futile.
53. Relatedly, Kirby J said at [81] (in a passage also cited in VAAD, at [79]):
…
decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person’s credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person’s entire evidence in a new light.
54. This sets a high bar. Especially relevant is that departure from fair procedures ought not be excused only because the merits seem strongly against the appellant. Having found that there was procedural unfairness in the Tribunal proceedings, it is necessary to consider whether this is a case where it can confidently be concluded that the unfairness could have had no bearing on the outcome.
Finally, at [57] to [58], his Honour said:
57. Most of the Tribunal’s findings were unaffected by procedural unfairness. However, procedural unfairness creeps in at the third step of the Tribunal’s reasoning and that arguably infects all subsequent and resultant findings. As the Court said in VAAD
(at [79]):… an assessment of credibility is not necessarily linear. It is possible that had the Tribunal considered the UNP Letter as part of the file received from the Secretary, it may have accepted it as genuine. If so, it is possible that the Tribunal would have been more likely to accept other aspects of the appellants’ account of their experiences in Sri Lanka. As Gleeson CJ commented in Aala at [4]:
‘… Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive …’
58. I think that, had the Tribunal afforded procedural fairness to the appellant consistently with SZBEL, it would probably still have found that the appellant was not of interest to the authorities. It gave many reasons apart from the two affected claims for disbelieving the appellant’s claims, including some that appear have been quite probative. But I cannot say with confidence that the denial of natural justice could have had no bearing on the outcome. It seems to me not impossible that, if procedural fairness had been afforded to the appellant regarding his claims to have been released from the Camp, and to have obtained a passport by payment of bribes, he might have offered a sufficiently convincing explanation in order to be believed by the Tribunal, as he was by the delegate. Although the Tribunal might have decided against him anyway (as, indeed, did the delegate), I cannot say that that was an inevitability. Thus, I cannot accede to the Minister’s submission that I ought to decline relief.
Counsel for the Minister commenced his submission by pointing out that the majority in SZBEL clarified that, at [48]:
… Procedural fairness does not require the Tribunal to give an applicant a running commentary on what it thinks about the evidence that is given. On the contrary, to adopt such a course would likely run a risk of conveying an impression of prejudgment.
The Minister submits that the manner in which the Applicant prosecutes his argument, in effect, places a burden on the Tribunal member to give the Applicant a running commentary about its views of the Applicant’s evidence in relation to the alleged 2000, 2007 and 2008 incidents.
The Minister notes that in SZBEL, the majority also stated at [47]:
… 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 Minister contends that while it can be accepted that, as noted in SZTKE at [36], abstaining from indicating concern about an account may not be sufficient, all that is required is “something that indicates to the appellant that the issue is live” (emphasis added). It is submitted that the “something” need not be overt. The Minister points out that in SZBEL, the High Court was dealing with the situation where nothing had been said – the Applicant was simply allowed to explain his story. It was insufficient, in that case, for the Tribunal to say nothing at all; however, all that was necessary was for the Tribunal to indicate that something was in issue, which might be done in many ways.
The Minister notes that in SZTKE, Bromberg J said at [34] that the Applicant might be put on notice:
… 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.
The Minister points out that in other cases, little has been required for the Court to accept that a matter has been raised. Reference is made to SZQDI v Minister for Immigration and Citizenship (2012) 207 FCR 106, where the Tribunal said to the Applicant that it “got concerned” about the story that was being told, that it didn’t understand the case put, and that “if all these very serious things happened” then that was “a concern to me” (see [59]-[60]). Katzmann J accepted that, at [61]:
In other words, the tribunal was concerned that the account given by all the appellants did not stack up. Put differently, at the hearing the Tribunal raised as an issue the question of whether “all these very serious things” happened.
The Minister also notes that in SZAKD v Minister for Immigration [2004] FMCA 78, it was sufficient for the Tribunal to say that an account of events “suggested that the recent claims … are of recent invention and a fabrication…” (at [16]), and that the Tribunal had a “difficulty” with other aspects of the claims (at [17]).
It is self-evident that whether or not the Tribunal informed or alerted the Applicant to the fact that it had doubts about the credibility of his claims regarding various incidents in 2000, 2007 and 2008 will depend on the nature of the questions asked, the context and the responsiveness of the Applicant to those questions.
It is necessary first to set out the transcript where the Tribunal raises these issues. The focus is on those extracts from the transcript where the Tribunal member deals with the alleged incidents in 2000, 2007 and 2008.
In relation to the 2000 incident, the following exchange takes place commencing T10.3 to T10.7:
MEMBER:I may just think that, you know, these men arriving at the school, who had arrived in (indistinct) in 2000 weren’t specifically looking for you. I mean, they didn’t harm you in the village or attempt to harm you and, from your evidence, they haven’t appeared to go after you at that time or even later for several years despite the fact that you were in the same province.
The Applicant’s response is interpreted as follows (T10.7 to T10.15):
INTERPRETER: Yes, he said in that time in 2000 when the guys came to the school that’s because his sister had warned him, and already there was rumours going round that he was the target, so he is aware that he is a target, that if he hears anything that he will be killed. So he doesn’t have to wait around or if he was teaching in there, whichever school he was in, if he hears something he doesn’t have to wait around so he can physically get harmed. Because he knows that they won’t just harm you, they intention is to kill him.
The Applicant submits that in this passage the Tribunal has not sufficiently expressed disbelief or doubts about the entire event in 2000 happening at all. It is argued that it is clear from the Applicant’s answer that he does not understand that the Tribunal’s comment is expressing a disbelief that the 2000 event happened at all. The Applicant submits that, at most, the Tribunal is expressing doubt about the intentions of the men that arrived at the school and whether they were specifically looking for him.
The Minister submits that, by the Tribunal’s statement that the men did not “go after” the Applicant subsequently or later for several years despite the fact the Applicant was in the province, was sufficient to indicate to the Applicant that it had doubts about whether the alleged 2000 attacks occurred.
With respect to the alleged attacks in 2007, the following exchange takes place commencing T18.18 to T18.36:
MEMBER:But I mean according to the information you provided the department you’ve worked in Port Moresby at several schools. I mean, I’m struggling to understand why if you had been subject to such a vicious attack in 2007 with them trying to kill you and physically harming you that in those circumstances you would go back to Enga.
INTERPRETER: So you said in the incident like in 2007 he did have the notion of – like the thought of having to come to teach outside. He came to Moresby just to backdate his pay so that when he goes back – it’s the formalities that he can go back to the same area where he is teaching. He can get her release letter so that that will release him to leave that environment. So he was still teaching there but the situation in 2008, that prompted him because he realise that his life was an Actual danger in terms that those people in anger didn’t appreciate him teaching there. They physically want to kill him. So he might as well just leave the environment. But those changes to him thinking about saving his own life came about from the second incident in 2008. That’s when he had to leave Enga, just to come and teach outside.
The Applicant argues that in this exchange, in relation to the alleged 2007 incident, the Tribunal member’s statement that he is struggling to understand relates primarily to the Applicant’s decision to return to Enga, rather than whether the 2007 attack happened at all. The Applicant argues it is evident from his response that that is the way the he interpreted the question. The Applicant relies on the finding of Justice Bromberg in SZTKE that simply expressing a lack of understanding was not enough to comply with the obligations under s.425 of the Act.
The Minister submits that when the Tribunal member uses the word “understand”, prefaced by the phrase “struggling to”, the question is fairly understood to be a question about credibility. Moreover, the doubts expressed about the Applicant’s return to the Enga province is in fact a question about whether the alleged attack occurred at all. That is, in context, the question is “if something happened, why would you go back?”
I now turn to the parties’ submissions regarding the exchange between the Tribunal and Applicant in relation to the 2008 attack. The Applicant’s complaint is that the miscommunication and confusion evident from the transcript in relation to the alleged 2008 attack, in the absence of reasonable attempts being made by the Tribunal to overcome the evident confusion, had the effect that the Tribunal failed to raise with the Applicant that his credibility in relation to the alleged 2008 incident was a live issue. The extracts from transcript, where the Tribunal member is questioning the Applicant about the alleged 2008 attack, which is relied on by the Applicant, is reproduced below in full (T23.36 to T24.45):
MEMBER:In your application for a protection visa you describe an attack during the school morning assembly and you say that the axe got your head and the same axe cut the child’s left shoulder. You’ve told me today that this was the only time during a school assembly that you were attacked and you told me that you’d been struck in the side, not in the head, and you’ve said that you’re not aware of any of the children being struck. So that seems to be very different to what you claimed in your protection visa application.
INTERPRETER: Member, he’s just asking which attack because the head was a different place (indistinct) in the assembly is different place. Which one are you referring to?
MEMBER:I’m talking about the school morning assembly attack that you’ve been speaking about today.
INTERPRETER: Member, he’s asking – you probably might want to repeat your question again. The incident you’re referring to, he’s asking you if you’re referring to that morning that he was attacked at the assembly or is it the other incident?
MEMBER:That’s right, that incident, not the one in 2007 when you’re upstairs it is.
INTERPRETER: You might ask your question again and put it back.
MEMBER:You said to me today that there was the school morning assembly where you were speared in the side and you weren’t aware of the child being struck, and you’ve said that that was the only time there was an attack on you during a school morning assembly. So you can translate that. But in your application for a protection visa we’ve got very nice handwriting you’ve said that the axe got your head and the same axe cut the child’s left shoulder. That’s just different to what you told me today.
INTERPRETER: Member, is it alright with you if I just explain a bit because it’s getting a bit confusing here?
MEMBER:Okay, go ahead.
INTERPRETER: The axe you’re referring to is probably – I have to ask along this line (foreign language). Member, it’s just a bit confusing because you’re wanting to know about the axe or the weapon used or are you wanting to know about the attack, was at the same time and assembly or howl? So he’s getting confused.
MEMBER:I am putting to you what you’ve told me today is just – and will have a break later and you can discuss it with your advisor but what you’ve told me today is very inconsistent with what you’ve put in your protection visa application.
INTERPRETER: Member, he’s asking if it’s all right if he can just speak to his representative first. He’s confused.
MEMBER:Okay. We’ll keep going but will have a break and you can speak to your representatives then. After this incident at the school in Kundis what did you do?
The Applicant then proceeds to give evidence that he went to his family members and then he left for Port Moresby.
The Applicant submits that the Tribunal could have raised the issue again after it had given the Applicant an opportunity to speak with his advisor and again tried to communicate to the Applicant the significance of his question. Alternatively, the Tribunal could have also notified the Applicant of its concerns subsequent to the hearing and invited further submissions. It is submitted that the Tribunal’s attempts to convey to the Applicant the live issue regarding the 2008 attacks were not sufficient in the face of the evident misunderstandings and confusions. Counsel for the Applicant noted that the Minister has, in their submissions, pointed to a number of other points in the transcript where the Tribunal raised other topics such as later incidents in Port Moresby and the delay in applying for a protection visa (see [76]-[77] and [91]-[95] below). Counsel for the Applicant submitted that the Applicant does not complain that those topics were not sufficiently raised by the Tribunal. What is argued is that the Tribunal did not indicate to the Applicant that his claims and his credibility in relation to those three alleged attacks between 2000 and 2008 were in issue.
The Minister submits that that the Tribunal member’s reference to the alleged attack by an axe at a school assembly in 2008 in the following terms, “[s]o that seems to be very different to what you claimed in your protection visa application” (T23.41), is sufficient to indicate to the Applicant there was a live issue about the inconsistency in his evidence given at hearing and in his statutory declaration attached to his application for the visa. Likewise, it is argued that the Tribunal’s statement (about that particular alleged attack) that, “what you’ve told me today is very inconsistent with what you’ve put in your protection visa application” (T24.37), again sufficiently drew to the Applicant’s notice that the inconsistencies in his evidence in relation to this alleged attack in 2008 was a live issue before the Tribunal.
The Minister also relies on the Tribunal Member’s indication to the Applicant, at the commencement of the hearing, that the failure of the Applicant to make an application for the visa in a timely manner was an issue. At T37.9, after the Tribunal member had observed that the Applicant had come to Australia on three occasions after the claimed incidents in 2007 and 2008 and, in circumstances where he spoke English and was an educated person, the member said:
…I mean that may make me doubt your credibility and that you do have a fear of harm in Enga or indeed Port Moresby. I’m just wondering if you have any comments about that?
The Tribunal repeated this concern at T37.33, after referring to the delay by the Applicant in applying for a visa :
… I mean that may make me doubt that you have a subjective fear and your credibility.
The Applicant responded at the Tribunal hearing to these statements made by the Tribunal Member in some detail, stating in effect that when he had the opportunity to come to Australia to work he did so, he delayed applying for the visa because he was concerned he would be sent back to PNG but eventually overcame his fear and applied for the visa.
The Minister submits that the Tribunal member’s direct indication to the Applicant that he may doubt his credibility, whilst arising from the question of the Applicant’s delay in applying for the visa, was an indication that the Tribunal would doubt the entirety of the Applicant’s evidence.
The Minister submits that, in the context of all the passages in the transcript referred to, the Tribunal fairly raised its concern and gave the Applicant an opportunity to respond, including an opportunity to the Applicant to discuss the issues it had raised with his advisor. The Minister submits that the Tribunal accorded the Applicant procedural fairness by providing him with an opportunity to give evidence and make submissions in relation to a live issue which was not apparent from the delegate’s decision.
Counsel for the Applicant accepts that the Tribunal’s statement regarding the delay in applying for a protection visa might affect the Tribunal’s decision as to whether or not the Applicant had a well-founded fear of persecution returning to PNG. However, it is submitted that the Tribunal’s comments regarding the delay were not sufficient to put the Applicant on notice that the Tribunal had concerns whether the events in 2000, 2007 and 2008 happened at all.
Consideration
The Tribunal’s findings that the Applicant was not a credible witness were critical to, indeed they formed the basis for, its finding that the Applicant was not harmed or attacked as he claimed in 2000, 2007 2008. The Tribunal expressly gave four reasons for its adverse credibility findings (see [4] above). One of those reasons formed the basis for the Tribunal not accepting the Applicant’s claim in relation to an attack 2000. A second reason produced a general finding that,
“I consider that his history and significant delay in applying for protection detracted substantially from credibility.” The two further reasons related to the Applicant’s claim that he was attacked in 2008.
In relation to the 2008 claim, the Tribunal found the Applicant’s evidence about the weapon used in the area of his body which he alleged was injured, was fundamentally inconsistent. The Tribunal also found that the Applicant’s evidence, that he escaped from four heavily armed man who sought to harm him when he was already wounded, without further injury, not credible and implausible.
In circumstances where the delegate, “found no reason to doubt the credibility of the Applicant’s claims”….. and accepted “that he was attacked by the Depau tribe and its allies in Enga province in 2000, 2007 and 2008 as claimed”, the Tribunal was obliged to draw to the Applicant’s attention that his credibility was a live issue for the Tribunal in relation to those claimed incidents.
There is no doubt that the Tribunal made it perfectly clear to the Applicant at the hearing that, in circumstances where he had visited Australia on three occasions subsequent to the alleged incidents of harm, where he spoke English and was an educated man, his delay in applying for a visa was something that might cause the Tribunal to doubt his credibility and fear of persecution (see [76] and [77] above).
I do not accept the Minister’s submission that this statement by the Tribunal member amounted to a statement that the member doubted the credibility of his evidence in its entirety. The Tribunal expressly identified four reasons for its adverse credibility findings, only one of which was related to delay (see [4] above).
Turning to the Tribunal member’s questions regarding the claimed 2000 incident (see [66] above) and the submissions made by the parties.
I am satisfied that the Tribunal sufficiently conveyed to the Applicant that it may doubt that the alleged attackers were not in fact looking for him as they did not look for him in the village immediately after the attack or thereafter for a period of years. That, in my view, is sufficient expression of doubt of the Applicant’s claim by the Tribunal.
The Applicant’s answer as translated is responsive, he sought to provide an explanation why he avoided the attack in 2000 and how he avoided those attackers thereafter. The Tribunal’s question is sufficiently connected to the Tribunal’s disbelief of the evidence expressed by the Tribunal (CB 361 at [33]):
The applicant has claimed that in 2000 members of the Depau tribe came to a school he was teaching at to target him. However, according to the applicant at the hearing he continued to teach at the school and lived outside the school for a month but did not encounter any further problems with them in that time. He stated he later saw them at gatherings but his evidence did not indicate that they attempted to harm him. The applicant has not claimed to have been the subject of any further attacks until 2007. In all these circumstances, I do not accept it as being plausible or credible that members of the Depau tribe came to his school in 2000 to target him as he has claimed.
As noted earlier, the Tribunal identified two bases upon which it doubted the Applicant’s credibility in relation to the claimed 2008 attack by members of the enemy tribe. Reading the relevant extracts from transcript (see [72] above), there is no doubt, as the Applicant claims, that there was confusion about what precisely the Tribunal was indicating it had concerns about. The responses by the Applicant made through the interpreter indicated that he was not clear which incident the Tribunal was referring to, and the interpreter made it clear he was having difficulty adequately conveying the member’s questions about the weapon used in the attack and the part of the Applicant’s body he alleged was injured. In those circumstances I am not satisfied that the Tribunal member’s statement that “[s]o that seems to be very different to what you claimed in your protection visa application” (T23.41) indicated to the Applicant with sufficient clarity the issue the Tribunal was concerned with.
Indeed, reading the extracts from the transcript as a whole, it is apparent that the Tribunal member canvassed with the Applicant only one issue it was concerned with in relation to the claimed 2008 attack. This was the weapon used in the attack and the part of his body which the Applicant claimed was injured. The Tribunal member did not canvass the further issue which ultimately formed the basis for its adverse credibility finding; namely, the implausibility that the Applicant escaped without further injury from four armed men who sought to attack him, when he was already injured.
In these circumstances, the Tribunal member’s statement to the Applicant, after informing him that he would have the opportunity to speak to his representative about the matters raised, that “what you’ve told me today … is very inconsistent with what you’ve put in your protection visa application” (T24.37) can only be understood to be an indication that there was a live issue about the matters canvassed. In other words, it could not be taken to have raised with the Applicant and/or his representative that a further live issue in relation to the 2008 incident was the implausibility of the Applicant’s claim that he escaped from four armed men.
I am satisfied that the Tribunal’s statement to the Applicant, “what you’ve told me today … is very inconsistent with what you’ve put in your protection visa application” (T24.37) sufficiently indicated to the Applicant and his representative that the inconsistency in the Applicant’s evidence, as between his statutory declaration attached to his application for a visa and the evidence given at the Tribunal hearing regarding the weapon used in the part of his body which he alleged was injured in the 2008 attack, was a live issue. If the Applicant did not understand that this was a matter which may have implications for the Tribunal’s credibility findings, his representative certainly would have understood. The Applicant was given time to consult with his representative towards the end of the Tribunal hearing. I have examined the evidence given by the Applicant and the submissions made by the representative after the break at the Tribunal hearing. No evidence or submissions were made regarding this consistency. I disagree with the Applicant that the Tribunal ought to have taken further steps, by allowing the Applicant to make post-hearing submissions or by corresponding with the Applicant through his migration agent, identifying these live issues and inviting a response. The Applicant was represented. His representative would have understood that a request could be made to the Tribunal to provide post-hearing submissions. This step was not taken by his representative.
However, I am not satisfied that the Tribunal statement to the Applicant, “what you’ve told me today … is very inconsistent with what you’ve put in your protection visa application” (T24.37) sufficiently indicated to the Applicant that there was a live issue that the Tribunal might find his evidence, of escaping from four armed men, implausible or lacking credibility. Accordingly, I find that the Tribunal failed to provide the Applicant with an opportunity to give evidence and make submissions in relation to this issue.
There are various exchanges recorded in the transcript of the Tribunal hearing that the Minister relies on in written submissions, I assume, for the proposition that the Tribunal sufficiently raised its disbelief about the Applicant’s particular claims after 2008. Counsel for the Applicant indicated that the Applicant does not dispute the Minister’s submission regarding these matters. In one sense, it may be thought unnecessary to consider these submissions, as the Applicant’s complaint is about the alleged failure of the Tribunal member to indicate to the Applicant that his credibility in relation to his claims of harm or attacks in 2000, 2007 and 2008 were live issues. However, in my opinion, these exchanges are relevant to the question whether jurisdictional error arises from any finding by the Court that the Tribunal failed to accord the Applicant procedural fairness.
I accept the Minister’s argument that when the Tribunal member dealt with a particular claim that enemy tribe members left faeces in his office at a school in Port Moresby (where the Applicant says he moved after the alleged 2008 attack), the Tribunal member made its disbelief about this evidence known to the Applicant when it said (at T28.7), “I find it very difficult to believe…”. This specific claim was rejected by the Tribunal (CB 362 at [34]). I do not accept the Minister’s argument that, in relation to the Applicant’s claim that bottles had been thrown at his home, the Tribunal member indicated that it was a live issue.
The Minister relies on the following extract from transcript for this proposition (T 29.45 to T30.4).
You're saying members of the enemy tribe knew where you lived so they could throw bottles at you or at your property but they didn't take any further action against you. Members of this tribe had been trying to kill you in the past and were still trying to kill you and yet you were able to somehow avoid being harmed by them in Port Moresby.
The Applicant’s response was to the effect that he took steps to avoid harm. There is nothing in this exchange which would indicate to the Applicant the Tribunal’s disbelief of this evidence.
I agree with the Minister that, having regard to the following exchange, the Applicant was on notice that the allegations concerning his uncles would not lead to the Applicant being found to be at risk of harm (T32.37 to T32.40):
I may think, you know, given the circumstances of these two deaths - I mean your first uncle went to a fight and your second uncle just wandered into the wrong tribal area - that these wouldn't mean that you yourself would be facing a real chance of persecution or significant harm.
I further agree that the Tribunal member’s statement (T33.17 to T33.19), that the Applicant had not “been involved in fights in the past and, you know, you're an educated man and a teacher. I mean I might think you wouldn't involve yourself in these matters in the future”, conveyed to the Applicant its doubt about the Applicant being involved in such fights in the future. Furthermore, there is no doubt that when the Tribunal said to the Applicant, in relation to his claimed fear of harm from the police (T35.8 to T35.11):
I mean you haven't said that you've been harmed in the past by the police and you don't seem to be a person who is going to commit crimes back in Papua New Guinea, so I mean I may think the chance that the police would harm you is remote.
that the Applicant was on notice that this was a live issue for the Tribunal.
I accept the following submissions of the Minister in relation to other matters:
a)in relation to tribe violence generally, the Tribunal noted that it had not identified any reports of conflict between the Applicant’s tribe and the enemy tribe in Enga or Port Moresby, which “may make me think that the chance of you being seriously harmed or significantly harmed is remote” (T36.30);
b)the Tribunal put to the Applicant that his delay in seeking protection, even after multiple trips to Australia, led it to doubt his credibility generally. The Tribunal said regarding the fact that noted the Applicant made three trips to Australia without seeking protection that, “I mean that may make me doubt your credibility and that you do have a fear of harm in Enga or indeed Port Moresby” (T37. 10);
c)the Tribunal put to the Applicant that it may seem a remote chance that the Applicant would be seriously or significantly harmed on the basis of being a teacher, based on the information before it (T40.25). The Tribunal also said to the Applicant, it might find it remote that the Applicant was at risk of harm based on the Applicant being a “government employee” (T41.29 to T41.33);
d)the Tribunal also put to the Applicant that:
i)he had not claimed to have been specially targeted from a criminal act, and so the chance of the Applicant being targeted was remote (T42.39 to T42.42);
ii)that any crime that might eventuate would not be because of Convention reasons (T43.44 to T44.5).
iii)it might not consider there to be any discriminatory withholding of state protection (T45.18 to T45.22); and
iv)there would not be any risk enlivening the complementary protection provisions (T45.33 to T45.37).
I have found that the Tribunal member failed to accord the Applicant procedural fairness in that it did not indicate to the Applicant that there was a live issue in relation to his claims regarding the 2008 attack; that being that the Tribunal might find his evidence of escaping from four armed men, implausible or lacking credibility.
The question that then arises is whether this failure to accord procedural fairness gives rise to jurisdictional error. For the following reasons I find that it does not:
a)the failure to accord procedural fairness was in relation to one of two integers of claims the Applicant made in relation to the alleged 2008 attack;
b)there were three other bases his upon which the Tribunal found the Applicant was not a credible witness which led to it to reject his claims regarding past harm;
c)consequently, I do not find that this failure to accord procedural fairness carried on to infect the Tribunal’s other and further findings; and
d)the Tribunal made further findings rejecting all of the Applicant’s claims of attacks or by members of enemy tribes after 2008 (see [94] to [95] above).
I am not satisfied, in these circumstances, that had the Applicant been afforded procedural fairness in relation to his integer of claim about the 2008 alleged attack, this would have had any bearing on the outcome of the review.
Accordingly, I find that no jurisdictional error arises from the Applicant’s second ground of judicial review.
Conclusion
For the reasons set out in this judgment I will make Orders quashing the decision of the Second Respondent, remitting the matter back to the Second Respondent to be determined in accordance with law and an Order for costs to be paid by the First Respondent.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 22 November 2016
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