CTV16 v Minister for Immigration
[2019] FCCA 686
•9 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CTV16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 686 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – applicants claiming a fear of harm in Fiji – applicants disbelieved in critical respects – matter previously remitted to the Tribunal and re heard – second applicant attending the second hearing to give evidence and sworn in, but asked no questions – her evidence from the first Tribunal hearing rejected on credibility grounds – breach of s.425 of the Migration Act 1958 (Cth) established. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424A, 425 |
| Cases cited: AAM15 v Minister for Immigration [2018] FCA 1143 AEK15 v Minister for Immigration [2016] FCAFC 131 ANF16 v Minister for Home Affairs & Anor [2019] FCCA 150 ARG15 v Minister for Immigration (2016) 250 FCR 109 BWU16 v Minister for Immigration & Anor [2018] FCCA 3051 Hossain v Minister for Immigration [2018] HCA 34 Minister for Immigration v SZKTI (2009) 238 CLR 489 Minister for Immigration v SZNSP (2010) 184 FCR 485 NAHI v Minister for Immigration [2004] FCAFC 10 QAAT v Minister for Immigration (2005) 149 FCR 299 SBRF v Minister for Immigration (2008) 101 ALD 559 SZDFZ v Minister for Immigration & Anor [2008] FCA 390 SZEPZ v Minister for Immigration (2006) 159 FCR 291 SZFPA v Minister for Immigration [2008] FCA 1220 SZHKA v Minister for Immigration (2008)172 FCR 1 SZMZL v Minister for Immigration [2010] FCA 843 SZRMQ v Minister for Immigration (2013) 139 ALD 436 SZRMQ v Minister for Immigration & Anor [2014] HCA Trans 110 SZTIN v Minister for Immigration & Ors [2015] FCCA 1972 VQAB v Minister for Immigration [2004] FCAFC 104 |
| First Applicant: | CTV16 |
| Second Applicant: | CTW16 |
| Third Applicant: | CTX16 |
| Fourth Applicant: | CTY16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2705 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 19 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 9 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Silva |
| Solicitors for the Respondents: | Ms K Morris of Clayton Utz |
ORDERS
A writ of certiorari shall issue removing the record of the Tribunal decision made on 2 August 2017 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to redetermine the review application before it according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2705 of 2017
| CTV16 |
First Applicant
CTW16
Second Applicant
CTX16
Third Applicant
CTY16
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 2 August 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. There are four applicants, who are a father (first applicant), his wife (second applicant) and their two sons (third and fourth applicants). The first applicant has been appointed the litigation guardian of the two minor applicants.
This is the second time this case has been before the Court. The applicants applied for protection visas on 15 October 2014.[1] The Tribunal made a decision on 5 September 2016[2] (first decision) which was quashed by this Court on 2 February 2017.[3]
[1] Court Book (CB) 1-50
[2] CB 119-134
[3] CB 135
The background to the applicants’ claims for protection and the decision of the Tribunal (most recently constituted) on them are derived from the Minister’s outline of submissions filed on 12 March 2019.
Claims before the Tribunal
The applicants are citizens of Fiji.[4] The second, third and fourth applicants were included as members of the family unit of the first applicant, and did not advance independent claims to fear harm.[5] The first applicant claimed to fear harm from the Fijian authorities if returned to Fiji, and alleged that:[6]
a)on 20 November 2013, he was taken to Rawaqa police station where he was interrogated on suspicion of being a member of a possible coup plot, because of his relationship with Metuisela Mua (Mua), a coup member in a previous failed coup plot. The first applicant claimed that he was questioned, beaten, locked up, then left on the side of the road at 3:30am;
b)on 24 July 2014, he was again summoned to a police station to see an Officer Mereoni, who accused the applicant of being involved with Mua in plotting a coup. The first applicant claimed that he had protested that Mua was merely a friend who drove the first applicant's taxi part time, but he was not believed, and he was then beaten, throttled, and released after approximately eight hours;
c)on or around August 2014, he was placed on a “watch list” because he had taken a USB containing commercially sensitive information from his former public service job;[7] and
d)the Fijian authorities had “haunted” him for “eight years from 2006 - 2014” due to his “vocal opinion” on democracy, and his affiliation with the SODELPA.[8] The first applicant claimed to fear harm from the authorities, if returned, by reason of these opinions.
[4] CB 12-49
[5] CB 12-49, 70, 74-75, 80, 89-94, 120 [2], 124 [19]
[6] Decision Record (DR) [21]
[7] DR [25]
[8] Social Democratic Liberal Party of Fiji; CB 19
Tribunal decision
The Tribunal ultimately was not satisfied that the first applicant had been “truthful in relation to his substantive claims” by reason of the cumulative impact of nine credibility concerns which it had identified.[9] In particular, the Tribunal did not accept that the first applicant was a vocal critic of the regime or “haunted” by the authorities;[10] found that the first applicant had “untruthfully sought to construct a claim” concerning the USB and “watch list”;[11] and was not satisfied that the applicant was potentially of adverse interest to the authorities in the past or presently, by reason of any connection with Mua or perceived involvement in coup activity, or that the claimed 2013 and 2014 events at the police station had occurred.[12] The Tribunal further was not satisfied that the first applicant was of adverse interest to the authorities for any other reason.[13] On these bases, it was not satisfied that the first applicant was a person to whom Australia owes protection obligations by virtue of ss.36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act)[14] and, therefore, that the second, third and fourth applicants likewise did not meet those criteria.[15]
[9] DR [37]-[94]
[10] DR [49]-[50], [96]
[11] DR [59]
[12] DR [95]
[13] DR [97]-[104]
[14] DR [106]-[107], [109]
[15] DR [108]
The current proceedings
The proceedings began with a show cause application filed on 29 August 2017. The applicants now rely upon an amended application filed on 9 November 2017. Only Grounds 1(a), 4 and 7 in the amended application were pressed. Those grounds are:
(1) The Tribunal made jurisdictional error in that it (a) failed to take evidence from the wife applicant thus denying the applicant procedural fairness and/or failed to take relevant consideration [into account]
…
Particulars
(i) Although the applicant wife was sworn to give evidence the Tribunal failed to take evidence from the wife which could have strengthened the applicant’s case;
…
(4) The Tribunal made jurisdictional error in that it misapprehended the applicant’s evidence and made a credibility finding adverse to the applicant
Particulars
The applicant did not say that Mua was involved in a coup plot in 2013. The applicant told the Tribunal that because there were rumours of a coup Mua may have been suspected of being part of a coup plot and may have been under surveillance.
…
(7) The Tribunal made jurisdictional error in making irrational, illogical and unreasonable findings critical to the applicants’ case
Particulars
(a) Finding that there is no evidence about political activity of Mua, thereby asking a wrong question whereas the question should have been whether the history of his political and anti-regime activities were such as to cause the regime to be apprehensive about his activities;
(b) Finding there was no threat of a coup whereas it had evidence about the potential coup in Fiji along with the history of coup in Fiji; and
(c) finding that the association with Metuisela Mua was not a close one.
(errors in original)
In addition to the court book filed on 10 October 2017, I have before me as evidence four affidavits:
a)the affidavit of the first applicant made on 8 November 2017, to which is annexed a transcript of the first Tribunal hearing conducted on 17 June 2016;
b)a second affidavit by the first applicant made on 8 November 2017, to which is annexed a transcript of the second Tribunal hearing conducted on 13 July 2017;
c)the affidavit of Sylvia Nicholas Silva made on 24 February 2019, to which is annexed a print out of a Wikipedia search; and
d)a second affidavit of Sylvia Nicholas Silva made on 17 March 2019, to which is annexed a print out of a Radio New Zealand web page article.
I received the last two affidavits subject to relevance. In the light of oral submissions by counsel for the applicants, I accept that the documents annexed to the affidavits have some bearing upon Grounds 4 and 7.
Consideration
Did the Tribunal afford the second applicant a fair hearing opportunity?
Applicants’ contentions
The complaint under Ground 1 is that the Tribunal made a jurisdictional error in that it failed to take evidence from the second applicant, thus denying the applicants procedural fairness and/or failed to take a relevant consideration into account.
In the submissions made to the Tribunal[16] the applicants’ representative had stated that:
His wife also would give evidence to support his claims. Obviously her credibility [can] be tested and the Tribunal is able to make up its mind on these claims.
[16] CB 169
Because the applicants’ representative requested the Tribunal to take evidence from the second applicant, the applicants submit that it became a relevant consideration in the applicants' case.
Although the second applicant was sworn to give evidence, the Tribunal failed to take evidence from her which could have strengthened the first applicant's case by corroborating his evidence.
The transcript[17] shows that the second applicant was sworn to give evidence:
[TRIBUNAL MEMBER]: Thank you. And just in the event that we need [the second applicant] to give evidence, can you promise to tell the truth as well please.
[SECOND APPLICANT], affirmed [1.33pm]
[17] page 2, lines 23-28
It is said to have been necessary for the Tribunal to take evidence from the second applicant at this hearing because it dismissed all the claims of the first applicant[18] including serious incidents about which the second applicant had already given evidence supportive of the first applicant’s claims.
[18] see [95]
The Tribunal however stated at [93]-[94] that:[19]
The Tribunal cumulatively considers these nine credibility concerns. In doing so, the Tribunal notes that the applicant and the second named applicant were broadly consistent in the first Tribunal hearing in providing details of their respective accounts as to the incidents on 20 November 2013 and 24 July 2014.
Notwithstanding this consistency in evidence, the Tribunal is not satisfied that the applicant has been truthful in relation to his substantive claims. The cumulative impact of the credibility concerns identified are seriously damaging, both in relation to specific claims, and as to the applicant's overall credibility. The credibility concerns also cause the Tribunal not to be satisfied as to the account of the second named applicant as to events on 20 November 2013 and 24 July 2014. Notwithstanding consistency with the evidence of the applicant, evidence can be rehearsed. (emphasis added)
[19] CB 208
The applicants contend that it is not enough to say that the first and second applicants were consistent in their evidence. If the Tribunal suspects that evidence could have been rehearsed, which itself is said to be a very serious adverse matter just based on “speculation”, the Tribunal should have provided an opportunity for the second applicant to give evidence and test her evidence and see if she had rehearsed the evidence or was telling the truth. Section 425 of the Migration Act requires that an applicant be given an opportunity to give evidence and make submissions. Therefore where that opportunity to give evidence was denied, s.425 was breached.
In Minister for Immigration v SZNSP,[20] the Full Federal Court held that:
Several further observations should be made concerning the type of situation addressed in Applicant S20/2002 [2003] HCA 30; 198 ALR 59. The case does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant's credit and then giving attention to the corroborative evidence.
The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. Applicant S20/2002 [2003] HCA 30; 198 ALR 59 does not sanction a practice of disregarding corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence. Consequently, the observation concerning the dicta of McHugh and Gummow JJ at [49] in Applicant S20/2002 [2003] HCA 30; 198 ALR 59 made in SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638; (2008) 105 ALR 25 at [23] is probably misdirected. Those observations addressed the situation where the corroborative evidence was disregarded.
On the other hand, it should be remembered that McHugh and Gummow JJ questioned whether the separate consideration of corroborative evidence was a preferable practice. The RRT should normally assess all the evidence together. Otherwise, it might be thought that the corroborative evidence is treated as a lesser category of evidence and that the RRT has not paid sufficient regard to it.
[20] (2010) 184 FCR 485 at [37]-[39]
The applicants submit that the import of this is that, if there is corroborating evidence it should be considered, especially if it is given by an eye witness. But then if the Tribunal does not even take evidence from a witness who can corroborate and whose evidence can be tested by the Tribunal, this is said to be worse, because the Tribunal does not even know what the evidence would have been.
Minister’s contentions
Ground 1
The Minister submits that this ground proceeds, primarily, upon a number of mistaken factual and legal assertions and upon a mischaracterisation of the Tribunal's decision:
a)first, it is apparent that both the first applicant and the second applicant were in fact invited to appear before the Tribunal, indicated that they would appear, and did ultimately appear at the Tribunal hearing.[21] Indeed, this was the second occasion on which the first and second applicants were invited to give evidence and to appear at a Tribunal hearing;[22]
[21] CB 164-166, 190 [4]
[22] CB 122 [14]
b)secondly, the Tribunal decision record also indicates that the second applicant had previously given oral evidence at the first Tribunal hearing.[23] Relevantly, the second applicant did not seek to put on written evidence (rather, the only written materials before the Tribunal were statements by the first applicant and submissions by the applicants’ representative concerning the first applicant’s claims);
[23] CB 208 [93]
c)thirdly, it is also clear that the content of the second applicant’s oral evidence was limited to corroborative evidence of the first applicant’s claims (in particular, as to the events of 20 November 2013 and 24 July 2014).[24] Likewise, it is clear that the applicants’ protection visa application was made solely on the basis of the first applicant’s claims to fear harm, and that the second to fourth applicants were merely included as part of the family unit and did not advance any claims to fear harm on their own part;[25]
d)fourthly, whilst the applicants’ representative had stated that the second applicant “also would give evidence”,[26] the Minister relevantly notes that an identical statement was made (in substantively identical submissions) prior to the first Tribunal hearing.[27] Notably, apart from submitting that the applicant and “his wife’s evidence are quite consistent. They are willing to be questioned”,[28] neither submission specified the evidence which the second applicant proposed to give. Furthermore the Minister submits that, when read in context, the submissions before the second Tribunal indicated that the second applicant had no further evidence to give to the Tribunal and merely wished to show the consistency of her evidence.[29] Contrary to the applicants’ submissions, the Minister submits that the applicants’ representative did not expressly request that the Tribunal “take evidence from the wife”;
e)fifthly, as noted above, the second applicant attended the hearing before the second Tribunal and was also plainly in the hearing room for the duration of the second Tribunal hearing as was the applicants’ legal representative (who had also attended the first Tribunal hearing).[30] Relevantly, despite the Tribunal:
i)making clear that the second applicant would only be called upon “in the event that we need [her] to give evidence”;[31]
ii)impliedly indicating to the applicants’ representative prior to the break that it did not intend to call upon the second applicant;[32] and
iii)raising with the applicants’ representative whether there was “anything else” they wished to raise before the conclusion of the hearing,[33] no objection was raised as to the fact that the second applicant did not give further evidence nor was any suggestion made that she should or could give further evidence;
f)sixthly, it is said to be plain that the Tribunal had regard to the second applicant’s evidence at the prior Tribunal hearing and in fact found that her and her husband’s claims were “broadly consistent” as to their accounts of the events of 20 November 2013 and 24 July 2014.[34] Further, whilst the Tribunal ultimately did not accept the first applicant’s claims, contrary to the applicants’ submissions at [9], the Tribunal did not reach that finding on the basis of any matter to which the second applicant’s evidence had been directed. Rather, this was based on the Tribunal’s adverse credibility findings (that the first applicant had not “been truthful in relation to his substantive claims”)[35] based in turn on its cumulative consideration of nine credibility issues[36] which outweighed the second applicant’s consistent corroborative evidence.[37] Likewise, contrary to the applicants’ submissions at [12]-[13], the Tribunal did not refuse to consider this corroborative evidence and, as already set out, plainly did consider the evidence as given; and
g)finally, it is to be noted that the mere fact that the first Tribunal decision was quashed does not mean “that all steps and procedures taken in arriving at that invalid decision are themselves invalid”.[38] In particular, the steps taken prior to an invalid decision to discharge the statutory obligations in ss.424A and 425 (for example) may be “a sufficient discharge of those statutory obligations for the purpose of making a subsequent and valid decision on the review”.[39] In the Minister’s submission, in the present case, there was no relevant “sufficient change in circumstances” between the first and second Tribunal hearings that necessitated the giving of further evidence by the second applicant.[40]
[24] CB 127-128 [41]-[43], [46]; transcript of first Tribunal hearing, pages 55-63
[25] CB 12-49, 70, 74-75, 80, 89-94, 120 [2], 124 [19]
[26] applicants’ submissions at [5]
[27] CB 168-169 cf CB 89
[28] CB 168
[29] CB 168
[30] see affidavit of first applicant made on 8 November 2017
[31] transcript of second Tribunal hearing page 2, lines 25-26
[32] transcript of second Tribunal hearing, page 22, line 22 to page 23, line 20
[33] transcript of second Tribunal hearing, page 27, line 29
[34] CB 208 [93]-[94]
[35] DR [94]
[36] DR [37]-[93]
[37] DR [93]-[94]
[38] SZEPZ v Minister for Immigration (2006) 159 FCR 291 at [39]; SZHKA v Minister for Immigration (2008) 172 FCR 1 at [88], [90], [97] (Besanko J); AEK15 v Minister for Immigration [2016] FCAFC 131 at [59]-[63]; SZMZL v Minister for Immigration [2010] FCA 843 at [13], [16], [20]
[39] SBRF v Minister for Immigration (2008) 101 ALD 559 at [24]-[25]; SZFPA v Minister for Immigration [2008] FCA 1220 at [20]; Minister for Immigration v SZKTI (2009) 238 CLR 489 at [51]
[40] cf SBRF at [31]; SZKTI at [51]; ANF16 v Minister for Home Affairs & Anor [2019] FCCA 150 at [51]-[60], [63]-[64]
The Minister submits that, when each of these factors are taken into account, there was no relevant non-compliance with s.425 or denial of an opportunity to be heard. In particular, in circumstances where the second applicant had already given evidence, was issued a further hearing invitation, did attend that second hearing (and was present for its duration), and neither she nor her representative sought (either prior to or at the Tribunal hearing) to put on further evidence or arguments relating to the second applicant, the Minister submits that the second applicant was not denied “a real and meaningful opportunity” to put on such evidence or arguments.[41] The second applicant’s invitation to the Tribunal hearing was not “an empty gesture”.[42] Furthermore, there was no error in the Tribunal proceeding on the basis that the evidence already given by the second applicant contained the entirety of the matters she wished to raise, and no further inquiry was required of the Tribunal.[43] In such circumstances the Minister submits that neither the first applicant nor the second applicant were deprived of procedural fairness, nor did the Tribunal fail to comply with its obligations under s.425 or otherwise fail to take into account relevant considerations. The Minister also notes that the applicants have not attempted to identify what evidence the second applicant might otherwise have given nor to demonstrate that any such evidence could have made a difference to the Tribunal’s decision.[44]
[41] SZRMQ v Minister for Immigration (2013) 139 ALD 436 (Allsop CJ and Robertson J); (special leave refused: SZRMQ v Minister for Immigration& Anor [2014] HCATrans 110)
[42] SZDFZ v Minister for Immigration & Anor [2008] FCA 390 at [22]-[23]; SZTIN v Minister for Immigration & Ors [2015] FCCA 1972 at [101]; AAM15 v Minister for Immigration [2018] FCA 1143 at [34]; CB 167-185
[43] AAM15 at [34]
[44] Hossain v Minister for Immigration [2018] HCA 34 at [31]; BWU16 v Minister for Immigration & Anor [2018] FCCA 3051 at [36]
Resolution
In my view, the Tribunal did fall into error in that it breached s.425 of the Migration Act by not affording the second applicant a fair hearing opportunity. While the second applicant only applied for protection as a member of her husband’s family unit, she provided important corroborative evidence and was a witness to two incidents with the police relied upon by the first applicant. Her evidence is relevantly recounted in the first Tribunal decision at [41]-[43]:[45]
The Tribunal also took evidence from the second named applicant in relation to this incident. She explained that at around 9 PM one evening while her husband was asleep. Police knocked on the door and asked to see her husband. She asked what their enquiries were about but was instructed to call him. When her husband came to the door the police officer said he needed to go to the police station. He asked if they had a search warrant and the police officer then demanded he keep quiet and go with them. Her husband returned at about 3:30 AM. She and the children spent the night waiting for him to return. The second named applicant said her husband walked home alone. It was about a 10 minute walk
The Tribunal invited the second named applicant to describe the condition of her husband when he returned home. She said they smashed his head and beat his back with a baton. When asked again to describe what physical signs of injuries he had she said he had a mark on his head and when it’s cold or raining he can still feel the impact on his back. The Tribunal asked if he needed medical attention. The second named applicant responded that they did not go to see a doctor because the doctor would think the applicant was a coup plotter. He remained home for two or three days before returning to work. When asked what he told her about the circumstance of his detention she stated that he was asked about his connection with Metuisela Mula.
The second named applicant explained that Metuisela Mua drove a taxi for them. He originally started when he was still a soldier and drove part-time. The Tribunal asked when they first obtained the taxi business, she responded that she did not know but that it may have been in 2012. Mr Mua has been driving the [taxis] since they first obtained the business.
[45] CB 127-128
The first Tribunal’s conclusions at [61][46] do not include any adverse credibility finding against the second applicant.
[46] CB 133
All four applicants were invited to attend the second Tribunal hearing and the first and second applicants both attended and were sworn to give evidence. However, it is clear from the transcript of the second Tribunal hearing that the Tribunal asked no questions of the second applicant. In a submission to the Tribunal dated 6 July 2017, the applicants’ migration agent specifically invited the Tribunal to test the credibility of the second applicant’s evidence.[47] The Tribunal did not do so.
[47] CB 169
In the second decision, the Tribunal expressed serious credibility concerns about the claims of the first applicant. In doing so, it had regard to the evidence given (presumably in writing and at the first Tribunal hearing) by the second applicant. At [93] the Tribunal stated:[48]
The Tribunal cumulatively considers these nine credibility concerns. In doing so, the Tribunal notes that the applicant and the second named applicant were broadly consistent in the first Tribunal hearing in providing details of their respective accounts as to the incidents on 20 November 2013 and 24 July 2014.
[48] CB 208
Nevertheless, the Tribunal at [94][49] made adverse credibility findings against both applicants in circumstances where the credibility of the second applicant’s evidence had not previously been questioned. As noted above, the Tribunal stated:
Notwithstanding this consistency in evidence, the Tribunal is not satisfied that the applicant has been truthful in relation to his substantive claims. The cumulative impact of the credibility concerns identified are seriously damaging, both in relation to specific claims, and as to the applicant’s overall credibility. The credibility concerns also cause the Tribunal not to be satisfied as to the account of the second named applicant as to events on 20 November 2013 and 24 July 2014. Notwithstanding consistency with the evidence of the applicant, evidence can be rehearsed.
(emphasis added)
[49] CB 208
In my view, it was procedurally unfair for the Tribunal to dismiss the second applicant’s evidence based solely on its assessment of the claims and evidence of the first applicant, in circumstances where the second applicant was present in the Tribunal hearing room for the entirety of the second Tribunal hearing and the Tribunal asked her no questions.
While the Minister contends that there were opportunities during the course of the second Tribunal hearing for the second applicant to provide evidence, I disagree. When read fairly and as a whole, it is clear that the second hearing was regarded by the Tribunal as a confined one. While the Tribunal had the second applicant sworn in the expectation that she might be called upon to give evidence, the call never came. Neither was there any point in the second Tribunal hearing where it would have been apparent either to the second applicant or her representative, than an opportunity for her to give evidence was being afforded. I conclude that the hearing opportunity afforded the second applicant was a mere formality.
It follows that jurisdictional error has been established in the form of a breach of s.425 of the Migration Act. The applicants should receive the relief they seek.
Grounds 4 and 7
I prefer the Minister’s submissions in relation to these grounds.
Ground 4
As to the ground as expressed in the application (being, whether or not the first applicant gave evidence that Mua was involved in a coup plot), I note that the Tribunal’s references to evidence concerning Mua and the “coup plot” appear at [21]-[22], [27]-[31], and [73]-[79]. Relevantly, the Tribunal was not purporting to determine whether or not Mua was, in fact, involved in a coup plot, or whether or not in fact the authorities believed Mua to be involved. Rather, the Tribunal was there considering the first applicant’s express claim that “my problems stem from my close connection to Metsela (sic) Mua who was one of the main conspirators in the aborted coup”.[50] It was in that context that the Tribunal, at [27]-[31], considered country information relating to coups in Fiji and, in particular, country information relating to Mua. It was furthermore in that context that the Tribunal, at [73]-[79], made adverse credibility findings in respect of the first applicant, on the basis that his claim (that Mua “was one of the main conspirators in the aborted coup”) was inconsistent with the available country information and with the applicant’s other evidence concerning Mua (in particular, the apparent lack of interest shown by the authorities in Mua at the relevant time).
[50] CB 93 (item 30)
As to the ground as addressed in the applicants’ submissions, I note again that the first applicant made an express claim to be perceived as being involved in a coup plot (with Mua and/or others). Such a claim was relevantly raised in the first applicant’s written evidence[51] (noted by the Tribunal at [21]-[22]) and in his representative’s submissions.[52] The first applicant furthermore gave oral evidence that he was suspected of being “one of those people that are plotting this coup because you've been seen with Metuisela Mua” and to have been harmed on that basis.[53] The first applicant also gave express evidence as to why the authorities had the “belief that [he was] involved in a coup with Mua”.[54] Likewise, the first applicant did not dispute the Tribunal’s summary of his claim as being that Mua “was involved in plotting a coup in 2013 and that [the first applicant] by mistake was implicated because [they] drove a taxi together”.[55] The applicants’ representative further averted to the authorities “viewing [the first applicant] as a conspirator, someone who was involved in the coup itself”.[56] It was, again, in that context that the Tribunal at [73]-[79] and [85]-[92] made adverse credibility findings in respect of the first applicant’s claims to fear harm and claims to have been targeted by the authorities because of his connections with Mua and his perception as having been involved in a coup plot. Indeed, the applicants’ representative appears to accept at [30] of their submissions that the first applicant had claimed to be of “adverse interest to the government” due to “his association with Mua…[and] based on his involvement in the coup plot”.
[51] CB 92 (items 18 and 19), 93 (items 26-27, 30), 193-194
[52] CB 89, 168
[53] transcript of second Tribunal hearing, page 9, lines 18-23; see also page 8, line 7 to page 9, line 30
[54] transcript of second Tribunal hearing, page 21, lines 22-31
[55] transcript of second Tribunal hearing, page 19, lines 6-16; see also page 20, lines 35 to page 21, line 20, page 21, lines 33 to page 22, lines 20, page 24, lines 16-18, 26-32
[56] transcript of second Tribunal hearing page 27, lines 6-10
Contrary to the applicants’ submissions, it is plain that the Tribunal correctly understood the first applicant’s evidence and claims, and provided a clear, evident, and logical basis for both its adverse credibility findings drawn in respect of that evidence and claims, and its ultimate rejection of them.
For completeness, I note the applicants’ reliance on ARG15 v Minister for Immigration,[57] and find that the present case is readily distinguishable. Notably, the applicants have here failed to demonstrate that the Tribunal’s decision was based on “‘extreme’ illogicality or irrationality”[58] and have furthermore failed to demonstrate that the Tribunal either misapprehended the applicants’ evidence[59] or that there was an absence of “probative” evidence before the Tribunal to support those findings.[60]
[57] (2016) 250 FCR 109
[58] ARG15 at [47]
[59] ARG15 at [83], [89]
[60] ARG15 at [96]
Ground 7
The applicants rely upon a Wikipedia extract annexed to Ms Silva’s affidavit made on 24 February 2019. Notably, the version of that Wikipedia page as annexed was “last edited on 27 January 2018”, whereas the version of the Wikipedia page as accessed by the first Tribunal (and later referenced by the second Tribunal) appears to have been “accessed 1 August 2016”.[61] Although that Wikipedia page plainly post-dates the Tribunal decision that is the subject of the present judicial review proceedings, given that the Tribunal’s decision was made on 2 August 2017, I accept that the information does not appear to be recent.
[61] CB 199, footnote 10 and CB 128, footnote 9
Contrary to the Minister’s submissions, it was contended by the applicants that Mua held the position of “former intelligence chief” and it did form part of the “applicant’s case”. Further, the first applicant’s claims were that he was at risk due to his “connection to Metsela (sic) Mua who was one of the main conspirators in the aborted coup”.[62] The Tribunal, in considering that claim, relevantly accepted that Mua had a high profile of adverse interest to the regime[63] but was not satisfied that there was “evidence that Mua himself was the subject of any allegation or charges…in the relevant period”.[64] The Tribunal gave evident and logical bases for those findings, and the applicants’ submissions fail to demonstrate any error.
[62] CB 194-195 [21]-[22]
[63] DR [74]; on the basis of country information at DR [31], [74]
[64] DR [73]
As to the other matters raised in the applicants’ submissions:
a)as to [27] of the applicants’ submissions, the applicants appear to do no more than seek to cavil with the Tribunal’s assessment of the country information before it. The Tribunal’s clear finding at [27]-[31], and later at [78], was that there were no “credible reports” regarding a 2012 or 2013 coup or, indeed, “any reports of a potential coup against the Prime Minister in Fiji”.[65] Whilst the Tribunal averted to other reports concerning a possible assassination attempt, it was ultimately not satisfied that there was a coup plot.[66] It is well established that the selection of country information, and assessment of the weight to be placed upon it, are matters for the Tribunal and it is not erroneous for the Tribunal to prefer one body of information over another.[67] The applicants have failed to demonstrate any error in the Tribunal’s assessment of country information;
b)as to [28] of the applicants’ submissions, the Tribunal plainly recognised the first applicant’s claim to have a close association with Mua[68] and, contrary to the applicants’ assertion, nowhere in its decision did it find that the association “was not a close one”. Indeed, the Tribunal implicitly accepted the claim to have an “association with Mua”.[69] It simply was not satisfied that any such association gave rise to a real risk of harm.[70] The applicants have again failed to demonstrate any error and appear merely to attempt to engage in impermissible merits review; and
c)as to [29]-[30] of the applicants’ submissions, as already noted above, the Tribunal clearly considered the first applicant’s claim to have an association with Mua and to, as a result of that association, have faced adverse attention from the authorities (including by reason of an “involvement in the coup plot”). The Tribunal did not ultimately accept those claims. No error is shown.
[65] the Tribunal reproduced analysis of country information from the first Tribunal decision
[66] DR [78]
[67] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]; QAAT v Minister for Immigration (2005) 149 FCR 299, 311; VQAB v Minister for Immigration [2004] FCAFC 104 at [26]
[68] DR [21]-[22]
[69] DR [73]-[79], [86]-[87], [89]-[90]
[70] DR [95], [103], [105]
Conclusion
The applicants have succeeded in establishing that the decision of the Tribunal is affected by jurisdictional error. I will order that they receive relief in the form of the constitutional writs of mandamus and certiorari.
I will hear the parties as to costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 9 May 2019
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