CUS15 v Minister for Immigration and Anor (No.2)
[2020] FCCA 220
•6 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CUS15 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2020] FCCA 220 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Applicant was administered an oath during Ministerial interviews – Applicant found not to have been under oath – adverse findings made by the Tribunal on the basis of this incorrect factual premise – jurisdictional error established – decision remitted to the Tribunal – costs ordered. |
| Legislation: Federal Circuit Court Rules 2001, Item 3 of Part 1 of Schedule 1 Migration Act 1958, ss.65, 91V, 234, 438 Migration Legislation Amendment Act (No.6) 2001 |
| Cases cited: AIC15 v Minister for Immigration and Border Protection [2018] FCA 774 SZNJV v Minister for Immigration and Anor [2009] FMCA 937 |
| Applicant: | CUS15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 2868 of 2015 |
| Judgment of: | Judge Blake |
| Hearing date: | 2 December 2019 |
| Date of last submission: | 2 December 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 6 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Solomon-Bridge and Mr Healer |
| Solicitors for the Applicant: | King & Wood Mallesons |
| Counsel for the Respondents: | Ms Lucas |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The decision of the Administrative Appeals Tribunal made on
1 December 2015 in matter number CLF2012/211355 be set aside.
The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
The First Respondent pay the Applicant’s costs of the proceeding fixed in the sum of $4,480.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2868 of 2015
| CUS15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 1 December 2015. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) Visa (‘visa’) under section 65 of the Migration Act 1958 (‘Act’).
For the reasons which follow, I have determined to allow the Applicant’s fourth ground of review.
Background
The Applicant is a citizen of Iran who applied for the visa on 31 October 2012. On 23 June 2014, a delegate of the Minister (‘delegate’) refused to grant the Applicant the visa.
The Applicant sought review of the delegate’s decision at the Tribunal. The Tribunal affirmed the delegate’s decision on 1 December 2015.
The Applicant applied to this Court for judicial review of the Tribunal’s decision on 24 December 2015. The Application was amended on 8 June 2017 and further amended on 4 November 2019 (‘Application’).
On 1 November 2019, an affidavit of Ms Estelle Petrie, a legal representative of the firm with conduct of the Applicant’s matter, was filed on behalf of the Applicant. Annexed to this affidavit are transcripts of interviews that took place in relation to the Applicant’s application for the visa.
Grounds of Review
The Application sets out four grounds of review. I have determined to uphold the fourth ground of review. I therefore have not considered the remaining grounds of review. My reasons for upholding the fourth ground of review are set out below.
Ground 4
The fourth ground of review in the Application is:
‘The decision of the Second Respondent was affected by jurisdictional error as the Second Respondent made a fundamental error in its finding as to the credibility of the Applicant.
Particulars
a) There was no logical or probative basis for the Second Respondent to find at [96] that the Applicant provided 'false information which is critical to [his] claims ... at two interviews with the Department of Immigration, while under oath', and/or the credibility finding was unreasonable, and/or the credibility finding proceeded on a false factual premise.’
This ground of review takes issue with the findings made by the Tribunal about the Applicant’s credibility. The Applicant alleges that findings about his credibility flowed from a false factual premise that was relied on by the Tribunal and is set out in paragraph [96] of the Tribunal’s decision (‘Decision’). Paragraph [96] of the Decision is in the following terms:
‘The provision of false information which is critical to the applicant’s claims on the application form and at two interviews with the Department of Immigration, while under oath, is sufficient to lead the Tribunal to conclude that the Applicant is not a witness of truth.’
The Applicant submits that the false factual premise contained in the paragraph above is as follows. First, the Applicant was not administered an oath at the first interview. Second, the oath administered at the second interview was defective. Accordingly, the factual premise contained in paragraph [96] above that false information was provided by the Applicant at two interviews under oath is incorrect.
The Minister accepted that the Applicant had not been administered the oath during the first interview. The Minister nevertheless contended that the Tribunal had not committed jurisdictional error for the following reasons. First, even though the oath was not administered at the first interview, the Applicant was placed on notice about the importance of telling the truth at the first interview. Second, the oath administered at the second interview was not improperly administered and therefore not defective. Third, it was submitted that any error of fact on the part of the Tribunal could not have had a material effect on the Tribunal’s conclusion that the Applicant was not a witness of truth. Finally, even if the Tribunal committed an error of fact by mistakenly finding that the Applicant had been given the oath at both interviews, this would not be sufficient to impugn other adverse credit findings made by the Tribunal. This is because there were multiple reasons for those findings.
In AIC15 v Minister for Immigration and Border Protection [2018] FCA 774 at [13] the Federal Court of Australia noted that credibility findings are capable of being reviewed in particular where findings about an applicant’s credibility are critical to the rejection of various claims. In assessing the approach to take on a judicial review application where credibility grounds are in issue, I have had regard to the judgments of the Full Court of the Federal Court of Australia in ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 (‘ARG15’) and CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[44]. At [83] of ARG15, the Full Court stated:
‘Many of the relevant legal principles which guide the review or a judicial review of findings concerning credibility were recently discussed by the Full Court in CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146 (CQG15) at [36]–[44] per McKerracher, Griffiths and Rangiah JJ. They may be summarised as follows:
(a) McHugh J’s oft quoted comments in Ex parte Dumairajasingham (which were cited by the primary judge in the proceedings here) to the effect that a finding on credibility is the function of the primary decision-maker (or Tribunal) par excellence, does not mean that such findings are not susceptible to review for jurisdictional error on several potential grounds;
(b) the issue whether or not a credibility finding is tainted by jurisdictional error is “a case specific inquiry” and it is not one which should be analysed by reference to fixed categories or formulas (SZRKT at [77] per Robertson J);
(c) in each case, what the decision-maker has decided must be analysed in detail in order to determine whether or not a jurisdictional error has occurred (SZRKT at [77] per Robertson J); and
(d) without derogating from what is said above regarding the danger of relying too heavily on “fixed categories or formulas” (which includes the danger of blindly repeating McHugh J’s comments in Ex parte Dumairajasingham), adverse credibility findings might involve jurisdictional error on recognised grounds such as:
(i) failure to afford procedural fairness;
(ii) reaching a finding without a logical or probative basis;
(iii) unreasonableness; and/or
(iv) other grounds as discussed by Flick J in SZVAP v Minister for Immigration & Border Protection [2015] FCA 1089; 233 FCR 451 at [20]–[21] and in SZSHV v Minister for Immigration & Border Protection [2014] FCA 253 at [31], as referred to approvingly by the Full Court in CQG15 at [40]–[42].’
The Minister concedes that an oath was not administered at the first interview. In light of that, the first issue that arises in respect of the first interview is the significance of the statement that both interviews were conducted under oath, to the Tribunal’s reasons.
Consideration of this issue begins with a review of the Decision, which discloses the following:
a)The relevant law and Ministerial Directions are set out by the Tribunal in paragraphs [5] to [19] of the Decision.
b)At paragraphs [20] to [26], the Tribunal considers issues relating to proof and the acceptance or non-acceptance of allegations. At paragraph [26], the Tribunal records its view that the Applicant is not a credible witness.
c)From paragraph [27] onward, the Tribunal considers the claims and evidence of the Applicant.
d)From paragraph [90] to [96], the Tribunal returns to the question of the Applicant’s overall credibility in the present matter. At paragraph [93], the Tribunal finds that the Applicant ‘persistently and deliberately hid the truth’ about his time in the United States. At paragraph [94], the Tribunal observes that the ‘applicant’s willingness to lie about this matter reflects poorly on his overall credibility’.
e)At paragraph [95] the Tribunal observes that the Applicant’s denials in respect of criminal charges that he was faced with ‘undermines further [his] credibility’.
f)At paragraph [96] the Tribunal, having made the observations noted above, finds that the Applicant’s claims have been advanced ‘while under oath’ and that the applicant ‘is not a witness of truth’.
g)From paragraph [97] onward, the Tribunal makes a series of findings in relation to the Applicant’s claims. The Tribunal relevantly finds that many of the Applicant’s claims are ‘implausible’ or that he has ‘fabricated’ claims: see for example paragraphs [103] and [106] of the Decision.
When paragraph [96] is looked at in the context of the entire Decision, it can be seen that it is a critical paragraph. The paragraphs before paragraph [96] are a series of observations about the Applicant hiding the truth (at [93]), his ‘willingness to lie’ (at [94]) or the undermining of the Applicant’s credibility (at [95]). Paragraph [96], however, contains the key finding that the Applicant is not a ‘witness of truth’. It crystallises the observations made in the preceding paragraph into a finding.
I turn to the text of paragraph [96] itself. First, the Tribunal acknowledges that the provision of false information is ‘critical’ to the Applicant’s claims. It is difficult to think of another word to convey just how important the Tribunal regarded the provision of false information to the Applicant’s chances of success. Second, it is apparent that the Tribunal formed the view that the information is false because it arose from the forms and also two interviews ‘under oath’. It is plain that the Tribunal attached importance to the fact that the interviews were given ‘under oath’. It expressly referred to the ‘oath’. It gave emphasis to the phrase ‘while under oath’ through the use of commas before and after the phrase. It did not refer to the fact that the witness had been warned to tell the truth. The importance of the oath was therefore very much of significance to the Tribunal. Third, having concluded that the information was false when given ‘under oath’, the Tribunal stated that it was ‘sufficient’ to lead to the conclusion that the applicant ‘is not a witness of truth’. In other words, the findings relating to the provision of false information at two interviews ‘under oath’ was sufficient (or led directly) to the conclusion that the Applicant was not a witness of truth. That finding then formed the basis of the conclusions that followed in the subsequent paragraphs of the Decision.
Given the above, I am satisfied of the following. The Tribunal regarded both interviews (incorrectly) as having been conducted under oath. That fact was critical to the Tribunal’s conclusion that the Applicant was not a witness of truth. These matters in turn led to a series of findings that were adverse to the Applicant.
The significance of making an adverse finding about credibility on the basis of a false factual premise has been the subject of forthright comment in the Courts. As Logan J observed in SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470 at [37]:
‘the adjectives “ignorant”, “arbitrary” and “perverse” aptly apply to a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document’ (at [37])’
The Minister seeks to erode the significance of the error made by the Tribunal by submitting that whether the interviews were conducted under oath is not of importance because the Applicant was warned that he was required to tell the truth, and because he was warned of the consequences under the Act of not doing so. I reject this proposition for the following reasons.
First, it is plain that the common law attaches special significance to the importance of evidence given under oath. Courts operate every day on that basis.
Second, and perhaps more importantly in the present context, the Act itself attaches a special significance to evidence given under oath. So much may be demonstrated by what follows.
Section 234 of the Act deals, generally speaking, with the provision of false documents or false or misleading information by persons in connection with the entry of a non-citizen into Australia. Breach of that provision renders a person liable to fines or imprisonment. Section 234 is a provision that has been part of the Act for many years in one form or another.
In 2001, Parliament passed the Migration Legislation Amendment Act (No.6) 2001 (‘Amendment Act’). It was the Amendment Act that introduced section 91V into the Act. Section 91V relevantly permitted the Minister or an officer to request an applicant for a protection visa to give an oral statement under oath.
The reason for the inclusion of section 91V into the Act becomes clear when one looks to the Explanatory Memorandum that accompanied the bill that ultimately became the Amendment Act. Items 43 and 44 of the Explanatory Memorandum provide as follows:
‘Section 91V Verification of information
43. This item inserts new section 91V into the Act
44. This new provision addresses increasing concerns that some applicants are engaging in sophisticated identity, nationality and claims fraud in order to bolster their chances of gaining protection in Australia. In some circumstances, individuals have recanted otherwise robust accounts of their background, and have provided truthful accounts, when presented with the prospect of affirming by way of oath or affirmation the truthfulness of the information they had originally given.’
It can be readily seen from the above that section 91V was introduced because prior to its enactment, a number of protection visa applicants had recanted previously truthful accounts when presented with the prospect of having to give evidence by way of oath or affirmation. An oath or affirmation was therefore regarded as an important, independent and significant means of securing truthful information from applicants.
In addition to the above, I observe that a number of decisions drawn to my attention by the Applicant highlight the importance and significance of evidence obtained under oath. The decisions arise in a variety of contexts. The important point, however, is that the common thread running through those decisions is the significance of evidence that is given under oath. See, for example, SZNJV v Minister for Immigration and Anor [2009] FMCA 937 at [79]; R v GW [2016] 258 CLR 108 at [29] citing GW v R [2015] ACTCA 15.
Part of the Minister’s submissions were to the effect that the delegate had the discretion to administer the oath at the first interview and the Applicant was warned of the importance of telling the truth. So much might be true. The issue in this case, however, is that the Tribunal expressly found that both interviews were conducted under oath (with all the significance that that fact carries) and then proceeded to make findings adverse to the Applicant on the basis of that asserted fact.
Finally, the Minister contends that even if the Tribunal committed an error of fact by mistakenly finding that the Applicant had administered an oath in both interviews, this would not be sufficient to impugn other adverse credit findings made by the Tribunal. I do not accept this for all of the reasons I have set out earlier, including the criticality of the finding at paragraph [96] of the Decision and the way it was then subsequently used to make other findings adverse to the Applicant (some of which the Minister seeks to rely on, notwithstanding those adverse findings flow from the finding at paragraph [96]).
For all of the above reasons, I find that the Tribunal committed a jurisdictional error. The error was the finding that the oath was administered at two interviews, when in fact, it was not administered at the first interview. This was a critical error which then led to the rejection of the Applicant’s claims.
In light of this finding, it is unnecessary for me to consider the other arguments advanced by the Applicant. The matter must be remitted to the Tribunal for reconsideration.
Costs
There are two matters to be considered in relation to costs. Both issues arise from an interlocutory dispute that arose during the conduct of the matter. The interlocutory dispute concerned an application filed by the Minister that claimed public interest immunity over documents subject to a certificate issued under section 438 of the Act. The Applicant had sought copies of the relevant documents. The Minister’s claim for public interest immunity over the documents was upheld.
The two issues that arise are as follows. First, whether the Minister should receive his costs in respect of the public interest immunity hearing, or whether they should be costs in the cause. Second, how the costs of the public interest immunity hearing are to be fixed. I have considered the position of both parties in relation to these issues, which were received by email following the conclusion of the hearing.
I am satisfied that the Minister should receive his costs in respect of the public interest immunity hearing. The application dealt with discrete issues. The Minister was wholly successful. The Minister’s success led to the disposal of one of the grounds of review.
In respect of the second issue, I am of the view that Item 3 of Part 1 of Schedule 1 to the Federal Circuit Court Rules 2001 is the appropriate scale to apply in relation to costs incurred in the public interest immunity claim. This is a matter which was heard in this Court and it is therefore preferable to apply the Rules of this Court where it is appropriate to do so. I regard Item 3 of Part 1 of Schedule 1 as being appropriate because it specifically deals with interim or summary hearings as discrete events. I regard it as more appropriate than applying the Federal Court scale dealing with interlocutory applications for leave to appeal, as was contended for by the Applicant.
Applying the above, the Minister is entitled to costs of the interlocutory hearing in the sum of $2,987. The Applicant is entitled to costs of the final hearing in the sum of $7,467. Accordingly, the amount that is payable to the Applicant for costs should be fixed at an amount of $4,480.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 6 February 2020
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