CXI22 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 3

Federal Circuit and Family Court of Australia

(DIVISION 2)

CXI22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 3

File number(s):

SYG 1229 of 2022

Judgment of:

JUDGE LAING

Date of judgment:

12 January 2023

Catchwords:

MIGRATION – application for review of a decision by the Administrative Appeals Tribunal affirming a decision not to grant the applicant a Protection (Class XA) (Subclass 866) visa – whether the Tribunal made a jurisdictional error in relation to the applicant’s claimed membership of a particular group, by failing to consider that the applicant’s evidence may have been affected by the privilege against self-incrimination – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss 189, 501

Cases cited:

Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; (2021) 288 FCR 565

AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503

Azar v Minister for Immigration [2018] FCA 1175; (2018) 261 FCR 1

ETA067 v The Republic of Nauru [2018] HCA 46; (2018) 92 ALJR 1003

KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111

LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209

Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1

Ngata v Minister for Immigration [2022] FCAFC 139

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497

Premalal v Minister for Immigration [1993] FCA 122; (1993) 41 FCR 117

Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480

R v Ministry of Defence; Ex parte Smith [1996] QB 517

SZTFQ v Minister for Immigration [2017] FCA 562

Division:

Division 2 General Federal Law

Number of paragraphs:

31

Date of hearing:

2 November 2022

Counsel for the Applicant:

Mr O Jones

Solicitor for the Applicant:

Firmstone & Associates

Counsel for the Respondent:

Mr D McDonald-Norman

Solicitor for the Respondent:

Clayton Utz

ORDERS

SYG 1229 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CXI22

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE LAING
DATE OF ORDER:	12 January 2023

THE COURT ORDERS THAT:

1.The application be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LAING:

1. Before the Court is an application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).

   background

2. The applicant is a citizen of New Zealand.

3. On 3 February 2017, his Special Category (Temporary) (Class TY) (Subclass 444) visa was cancelled under s 501 of the Migration Act 1958 (Cth) (Act). That decision was subsequently affirmed by the Tribunal, following which an application for judicial review was unsuccessfully made.

4. On 20 February 2021, the applicant was released from criminal detention but was detained in immigration detention pursuant to s 189 of the Act.

5. On 10 February 2022, the applicant lodged an application for a protection visa.

6. On 17 March 2022, the application was refused by the Delegate. The applicant sought review of the Delegate’s decision by the Tribunal.

7. On 18 May 2022, 13 July 2022 and 26 July 2022, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the applicant's brother.

8. On 2 August 2022, the Tribunal affirmed the Delegate’s decision.

   the tribunal’s decision

9. The Tribunal summarised the evidence and submissions that had been provided on behalf of the applicant in some detail. This included the applicant’s written claims to be in danger due to his previous involvement with a particular criminal organisation (the Group). Of particular relevance to the current proceedings are the following paragraphs of the Tribunal’s decision, in which the Tribunal summarised certain evidence that had been given by the applicant at his hearing before the Tribunal on 18 May 2022:

   20.The Tribunal asked the applicant about his claim that he has lived a “colourful life” and that he has had a chequered past. In relation to being involved in organisations in the underworld, he stated that he was part of a group but is no longer associating with that group. He stated that “once you’re in you’re in” and that the group has not taken it well. He stated that he wanted to take a different course in his life. The Tribunal asked the applicant to give specific details about his activities with the underworld organisations. He stated that in Australia he was involved in activities of the group such as “extortion...just that’s it…” The Tribunal asked him about the group. He initially stated that he was not “sure” but later said it was “It seems to be [the Group]”. The Tribunal asked the applicant if [the Group] operated in Australia and he stated that he was not sure of their current movements as he has been out of the group for many years. He stated that he encountered other individuals who wanted to be associated with “these people”. He stated that in prison he had multiple altercations and was placed in isolation for his safety as well as the safety of other inmates. The Tribunal noted that the applicant’s responses lacked detail. The applicant said that his brother is the “only piece of evidence” that would corroborate his claims. The Tribunal referred to the brother’s statement and explained that it would consider further the weight to be placed on that document.

   21. The Tribunal asked the applicant for further details about his involvement with the group in Australia. He stated that he started getting involved in the group when he was about 19 years old in Australia. The Tribunal asked him how he started his involvement with the group and he stated that he met people through football, parties and functions. He stated that he was involved in a “mix of things… collected money from certain individuals… essentially a bagman for the organisation… doing odds and ends that’s how I got in the mix”. The Tribunal noted the vagueness of his responses and asked him for further details. He explained that he collected money from people. He sold drugs (not large amounts) and was involved in security to make sure that “things went along smoothly… was security at the club house…started at the bottom…picked up money”. The Tribunal asked him if he was ever charged with any of those offences and he stated that he was not. The Tribunal gave the applicant a warning in relation to self-incrimination. The representative sought a short adjournment which was granted to enable the representative to give the applicant legal advice in relation to the privilege against self-incrimination. On return, the applicant did not raise any issues.

   22.The Tribunal asked the applicant when he discontinued his involvement with the group and he stated that there was an incident that he did not want to talk about with the Tribunal…

   24. The Tribunal asked the applicant if anything had happened to his parents and he stated apart from the door knocks, nothing physical happened. The Tribunal asked him why the group would be after him now given that they did not cause him or his family any harm. He replied, “I don’t feel comfortable answering the question…because I will incriminate myself”. The Tribunal indicated to the applicant that it would appear that nothing happened since he disconnected himself from the group.

10. The Tribunal subsequently discussed the privilege against self-incrimination and the applicant’s evidence at [59]-[61], relevantly stating:

    59.During the hearing, the Tribunal asked the applicant about his claims of being involved in criminal activities as those claims are directly relevant to the Tribunal’s determination of this review. The Tribunal is satisfied that the questions were potentially related to criminal activities and as such could have given rise to a legitimate claim of privilege.… Although the applicant is not currently subject to charges, there would appear to be an appreciable risk that disclosing the information may tend to prove the commission of an offence or add to the likelihood of steps to prosecute him. The Tribunal is satisfied that in assessing the applicant’s claims, the Tribunal cannot draw an adverse inference from the applicant’s invoking the privilege. The Tribunal is also satisfied that in relation to his brother, and given that there are pending charges, there is an appreciable risk that disclosing the information may tend to prove the commission of an offence.

    60.Within that context, and being mindful of the applicant’s choice to refuse to answer a number of questions invoking the privilege against self-incrimination, for the following reasons, the Tribunal is not satisfied that the applicant’s claims are credible.

    61.Prior to advising the applicant of the privilege against self-incrimination, the Tribunal asked the applicant a number of questions concerning his claim of involvement with [the Group]. The Tribunal asked the applicant about his claim that he has lived a “colourful life” and has a “chequered past”. He stated that “once you’re in you’re in” and that [the Group] has not taken it well. He stated that he wanted to take a different course in his life. The Tribunal asked the applicant to give specific details about his activities with the underworld organisations. He stated that in Australia he was involved in activities of the group such as “extortion...just that’s it…”. The Tribunal asked him about the group. He initially stated that he was not “sure” but later said “it seems to be [the Group]”. The Tribunal asked the applicant if [the Group] operated in Australia and he stated that he was not sure of their current movements as he has been out for many years. He stated that he encountered other individuals who wanted to be associated with “these people”. He stated that in prison he had multiple altercations and he was placed in isolation for his safety as well as the safety of other inmates. The Tribunal is mindful that the applicant has claimed that he was involved with [the Group], however the Tribunal finds it odd that when questioned by the Tribunal, he was not sure about which group to which he was referring. The applicant is claiming that he and his brother were targeted by [the Group], yet his answers above reflected a level of uncertainty, raising doubts about his claims.

11. The Tribunal considered that the applicant’s vagueness regarding when he discontinued involvement with the Group raised doubts regarding his claims. The Tribunal also found it difficult to understand why he would have been of interest to the Group some years later (at [62]).

12. The Tribunal observed that the applicant had not provided a report he had claimed existed regarding threats intercepted by prison authorities. The Tribunal drew adverse conclusions from the applicant’s non-provision of such significant corroborative evidence (at [63]-[65]).

13. The Tribunal found it “far-fetched” that despite the claimed physical assault of the applicant’s brother in prison, and threats towards the applicant, no harm had come to his parents apart from receiving door knocks. This was considered to raise further doubts regarding the applicant’s claims (at [66]). The Tribunal also gave significant weight to the applicant’s delay in lodging a protection visa application, the timing of which was considered to support the Tribunal’s view that the applicant had fabricated protection claims (at [67]-[69]).

14. Whilst the Tribunal accepted that the applicant’s brother’s evidence “somewhat” corroborated his claims, limited weight was given to this evidence considering the witness’s extensive criminal record and direct family relationship. The Tribunal accepted that the applicant’s brother had been assaulted whilst in prison, but was not satisfied that the incident related to the applicant’s claimed involvement with the Group (at [70]-[71]).

15. The Tribunal considered country information regarding the potential consequences of leaving gangs in New Zealand. It found this information to be inconsistent, concluding that it on balance neither supported nor contradicted the applicant’s claims (at [72]).

16. Considering the evidence as a whole, the Tribunal did not accept that the applicant had ever been involved in any activities relating to the Group, or that he had been threatened, that his brother had been assaulted, or that his family had otherwise been approached, on this account (at [73]).

17. The Tribunal accepted that the applicant was of the Christian faith. However, it observed that he had confirmed that he was not claiming to fear harm on this basis and that there was no evidence before the Tribunal suggesting that Christians in New Zealand had been harmed on the basis of their faith (at [74]-[75]).

18. Ultimately, the Tribunal was not satisfied that the applicant was a person to whom protection obligations were owed. Accordingly, the Tribunal affirmed the Delegate’s decision (at [76]-[80]).

    proceedings before this court

19. The applicant relies upon the following sole ground contained in his application for judicial review filed on 17 August 2022:

    1.The Second Respondent (Tribunal) made a jurisdictional error in relation to the Applicant’s claimed membership of a particular group.

    a.The Tribunal observed at paragraph 61 of its decision that it had advised the Applicant of the privilege against self-incrimination;

    b.The Tribunal observed at paragraph 61 of its decision that, prior to it advising the Applicant of the privilege, the Applicant had given evidence regarding his membership of an organised crime gang;

    c.After describing the Applicant’s evidence, the Tribunal observed at paragraph 61 of its decision:

    “The Tribunal is mindful that the applicant has claimed that he was involved with the [organised crime gang], however the Tribunal finds it odd that when questioned by the Tribunal, he was not sure about which group to which he was referring. The applicant is claiming that he and his brother were targeted by the [gang], yet his answers above reflected a level of uncertainty, raising doubts about his claims”

    d.The Tribunal’s finding at paragraph 61 of its decision went to credibility and impacted on its assessment of the Applicant’s claims generally: SZTFQ v Minister for Immigration [2017] FCA 562 at [44];

    e.The Tribunal was required to give proper, genuine and realistic consideration to, in the sense of active intellectual engagement with, the Applicant’s case, including his oral evidence as to membership of the gang: KXXH v Minister for Immigration [2022] FCAFC 111 at [45]-[54];

    f.The Tribunal may be required by the law of procedural fairness to advise an unrepresented applicant of the privilege against self-incrimination where not doing so would occasion practical injustice or deny meaningful opportunity to be heard: Promsopa v Minister for Immigration [2020] FCA 1480 at [37];

    g.The Applicant, who was fully represented, was not denied procedural fairness in the present case. Indeed, the Tribunal could have inferred that the Applicant had been made aware by his legal advisors of the privilege and could have dispensed with itself alerting him to the privilege; and

    h.With this context in mind, the Tribunal failed to give proper consideration to the Applicant’s oral evidence, since the Applicant’s reticence as to the details regarding the gang could have been referable to the Applicant’s awareness of the privilege, instead of indicating as the Tribunal found “a level of uncertainty, raising doubts about his claims”.

20. The ground relied upon by the applicant raised two issues. The first was whether the Tribunal was obliged to consider that the issues it had identified with the applicant’s evidence could have been affected by his awareness of the privilege against self-incrimination. The second was whether an inference should be drawn that the Tribunal failed to do so.

21. In support of the application, the applicant submitted that a ground of “proper consideration” remained an appropriate basis for alleging jurisdictional error, relying upon LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209 at [123]-[126]. This was in response to the Minister’s reference to Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497, in which the use of labels such as “proper, genuine and realistic consideration” outside of their proper context was discouraged, lest they be taken as “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision‑maker's] decision can be scrutinised” (at [26]-[35] per Kiefel CJ, Keane, Gordon and Steward JJ).

22. The applicant submitted that the privilege against self-incrimination was a fundamental common law right that was capable of triggering obligations on the part of the Tribunal. It was submitted that the privilege had potential relevance to grounds such as irrationality, legal unreasonableness and other grounds of judicial review (including that which was relied upon by the applicant). In this regard, the applicant relied upon Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480 at [36]-[37] per Allsop CJ; Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209 at [13]-[14] per Kirk JA; R v Ministry of Defence; Ex parte Smith [1996] QB 517 at 554 per Bingham MR, 563 per Henry LJ, 564-565 per Thorpe LJ; Premalal v Minister for Immigration [1993] FCA 122; (1993) 41 FCR 117 at 138, 140 and 146 per Einfeld J; Azar v Minister for Immigration [2018] FCA 1175; (2018) 261 FCR 1 at [55] per Perry J; and Ngata v Minister for Immigration [2022] FCAFC 139 at [63] per Charlesworth, Anderson and Rofe JJ.

23. The applicant submitted that the Tribunal’s duty to give “proper consideration” extended to matters arising from its own findings of fact: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 (AYY17) at [26] per Collier, McKerracher and Banks-Smith JJ. The applicant submitted that the Tribunal’s finding that the privilege against self-incrimination applied influenced the extent of its duty to give proper consideration to the applicant’s case. The applicant, it was submitted, was mindful of the privilege against self-incrimination at his hearing before the Tribunal. The application of the privilege had been identified and raised by the Tribunal. It was submitted that this, therefore, raised a possible explanation for the applicant’s reticence to give evidence regarding his membership of a particular criminal gang. The Tribunal was contended to have fallen into error by not engaging with this possibility.

1. I accept that this was a possible explanation for difficulties in the applicant’s evidence. However, it was not a particularly obvious, clear or likely one. This was considering:

   (a)The applicant had already, previously given evidence that he had been a member of the Group. This included in a letter he had submitted in support of his protection visa application. The fact that the applicant had already named the Group in question tended against him being reluctant to name the Group due to the privilege against self-incrimination.

   (b)Whilst there is no transcript in evidence, it appears from the Tribunal’s reasons at [61] that the applicant’s evidence that he was not “sure” about the Group occurred prior to the Tribunal raising the privilege against self-incrimination, but shortly after the applicant had been willing to admit to the criminal activities he had been involved in with the Group (namely, extortion). Had the applicant been concerned about self-incrimination, it is not apparent why this would have prevented him from identifying the Group (he had previously identified), but not the criminal activities he claimed to have undertaken with the Group.

   (c)It is also not apparent why the applicant would not have informed the Tribunal that he was reluctant to give evidence such as the name of the Group due to the privilege against self-incrimination had this been the case, rather than saying initially that he was not “sure” about the organisation. The Tribunal’s reasons (at [24]) indicate that when the applicant’s evidence on at least one other occasion had been affected by the privilege, the applicant had identified this expressly.

   (d)The applicant was represented before the Tribunal. Neither he nor his representative appears to have claimed that the applicant’s evidence regarding the Group had been otherwise affected by his consciousness of the privilege, either during or after the Tribunal hearing. This was despite the fact that the Tribunal appears to have expressly raised its concern that the applicant’s responses were lacking in detail (at [20]).

2. As was submitted for the Minister, a finding that an unexpressed claim or issue clearly arose, such that the Tribunal was obliged to consider it, is “not lightly to be made”: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE) at [68] per Black CJ, French and Selway JJ; AYY17 at [18]. The mere fact that a possible claim “might be said to arise from materials is not enough”: AYY17 at [18].

3. Having regard to the above, I accept the Minister’s submission that the applicant has not established that the Tribunal was obliged to speculate that the issues it identified with the applicant’s evidence regarding the Group were affected by his consciousness of the privilege against self-incrimination. I am not persuaded that the Tribunal was obliged to identify, raise and dismiss this possibility on its own motion. The authorities are against the Tribunal being required to engage in “constructive or creative” activity of this nature: see NABE at [58]. I do not accept that a claim to this effect clearly arose, either from the materials or from the reasoning of the Tribunal.

4. I also accept the Minister’s submission that the applicant has not established that the Tribunal failed to consider the possibility that he says was not considered. In this regard, the applicant relied upon [60] of the Tribunal’s decision, in which the Tribunal stated that it was “mindful of the applicant’s choice to refuse to answer a number of questions invoking the privilege” but did not expressly consider whether his answers may otherwise have been affected. The applicant relied upon what was said in Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; (2021) 288 FCR 565 at [130] per Besanko J, regarding it ordinarily not being appropriate to infer that findings were made by a decision maker that were not expressed in their reasons for decision.

5. However, the relevant inference to be drawn must depend upon the circumstances of the particular case. It is to be recalled that the Tribunal’s obligation to give reasons extended to findings of fact which were found by the Tribunal to be material. There is ample authority that non-reference to a particular matter does not necessitate a conclusion that it was not considered. An inference may otherwise be drawn that that the matter was not mentioned by the Tribunal because it was not considered by the Tribunal to be material to its decision: see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69] (per McHugh, Gummow and Hayne JJ); KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111 at [54] (per Bromberg, Jackson and Feutrill JJ) and ETA067 v The Republic of Nauru [2018] HCA 46; (2018) 92 ALJR 1003 at [14] and [24] (per Bell, Keane and Gordon JJ). I accept the Minister’s submission that this is the more likely inference to be drawn in the present case, having regard to the above identified matters that tended against the possibility the applicant says was not considered. The applicant has not established that the Tribunal did not, instead, dismiss the possibility as being so unlikely or remote that it was incapable of materially bearing upon its decision.

6. I am accordingly not persuaded that the sole ground relied upon by the applicant is able to succeed.

   conclusion

7. For the above reasons, the application must be dismissed.

8. I will hear from the parties in relation to costs.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Associate:

Dated: 10 January 2023