CYZ16 v Minister for Immigration
[2020] FCCA 78
•20 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CYZ16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 78 |
| Catchwords: MIGRATION – Application seeking review of decision of the Administrative Appeals Tribunal – whether the Tribunal failed to comply with s.425 of the Migration Act 1958 (Cth) – whether the Tribunal denied the applicant a meaningful opportunity to give his evidence and make his arguments in relation to the issue or issues in the review – no jurisdictional error revealed – ground not made out – application is dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.425, 476 |
| Cases cited: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 |
| Applicant: | CYZ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2776 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 5 December 2019 |
| Date of Last Submission: | 5 December 2019 |
| Delivered at: | Sydney |
| Delivered on: | 20 January 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Young |
| Solicitors for the Applicant: | Shiba Legal |
| Representative for the Respondents: | Mr T. Hillyard |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application made on 11 October 2016 and as amended is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2776 of 2016
| CYZ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 11 October 2016 and amended on 23 March 2017 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 9 September 2016 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.
The evidence before the Court:
1 The Court Book (“CB” – “RE1”).
2 The affidavit of Samir Shiba, solicitor, made on 22 March 2017, annexing a transcript of the hearing before the Tribunal (“T”).
Background
In a statement lodged with his protection visa application, the applicant claimed to be a citizen of Iraq (CB 65; also see item 20 at CB 27). He applied for a protection visa on 30 November 2012 (CB 14–CB 64). The applicant claimed to fear harm, essentially, on the basis of political opinion. His claims were set out in a Statutory Declaration attached to his protection visa application (CB 65–CB 70).
He feared harm because he had been accused of working for the Americans in Iraq, because he worked as a driver for an interpreter who assisted the Americans.
He claimed to have received threatening text messages. He found a “punishment order” on the door of his home. It stated that he “should be killed”. A few days later two men beat him and shot him in the leg ([29]–[32] at CB 67).
Although the applicant left his home area, he continued to receive threatening text messages. The applicant hid on a farm near Basra after a friend was threatened for harbouring the applicant. ([34]–[44] at CB 67–CB 68).
In April 2012 a car with tinted windows came to the farm entrance. It was at that time that the applicant thought it would not be safe for him anywhere in Iraq. He decided to leave. (See [45]–[52] at CB 68).
In submissions to the delegate on 31 May 2013 (CB 98–CB 106), the applicant raised a new claim that he feared harm as a returnee from a Western country, a failed asylum seeker, and as a Shia Muslim (CB 105).
The Tribunal did not accept many of the applicant’s factual claims to fear harm. There was no dispute between the parties before the Court that, certainly in relation to his political claims, the Tribunal had credibility concerns. Essentially, that the claims were implausible and that the applicant’s evidence contained inconsistencies. The sole ground pressed before the Court focuses on what is said to be one such credibility concern.
The Amended Application
Although there are three grounds of the amended application, only ground one was pressed. It is in the following terms:
“1. The Second Respondent made jurisdictional error by failing to comply with section 425 of Migration Act 1958, or alternatively by denying the Applicant procedural fairness, in that the second respondent made findings of inconsistencies as being determinative after having informed the Applicant at the hearing that it was not concerned with inconsistencies as his claims had been generally consistent.”
Before the Court
The applicant’s argument before the Court focused on one part of the transcript of the hearing before the Tribunal:
“Q313 O.K. The first thing I would say is that your story has, or your claims have been generally consistent I think since, with some perhaps not too significant inconsistencies, however in terms of what you've said to me today, I've indicated to you where I see inconsistencies within the story itself. O.K. So I'm just indicating to you that I have concerns that the story, your claims have been fabricated for the purpose of seeking protection in Australia. Would you like to comment on that?”
The applicant sought to draw a distinction between inconsistencies as between a prior, and a later, statement made by the applicant, and inconsistencies or implausibilities in an applicant’s evidence given at the hearing.
The applicant’s ground focuses on a matter addressed by the Tribunal at the hearing and which, on the evidence in the transcript at least, was of concern to the Tribunal. As set out above, the applicant claimed to fear harm because of a threatening note (the punishment order left on his door). However, he told the Tribunal that, in context at the same time, he had gone out at night to a convenience shop to buy cigarettes.
The gravamen of the applicant’s complaint is that at the hearing, with reference to Q313, the Tribunal told the applicant that it was not concerned with inconsistencies (that is, with prior statements), but the implausibility of his “story” (his account at the hearing) of what occurred on the night he said he went to buy cigarettes when two men confronted him and attacked him ([30]–[32] at CB 67) (see further at [16] below).
The applicant’s argument was that notwithstanding this, the Tribunal, in its decision record, did rely on the inconsistencies arising from prior statements to make an adverse finding against the applicant, which was part of its reasoning leading to the rejection of the factual basis of many of his claims.
At [44] (CB 239) the Tribunal stated:
“44. When the Tribunal asked the applicant about what happened when the message was put on the door, the applicant recounted how he had gone to Ali’s house but he was not home and Ali’s father answered the door and said Ali was not living there anymore. The applicant said that he stayed in his house and he cannot remember whether it was weeks or months after he received the letter, when he went to the market to buy cigarettes and was confronted at 9 or 10 pm by two men who tried to kill him. That account is inconsistent with the claim in the statutory declaration that he had gone to Ali’s house after receiving a threatening text message and before the punishment order was put on his door.”
[Emphasis Added].
In short, the applicant’s argument now is that at the Tribunal hearing the applicant was denied the opportunity to address prior inconsistencies which subsequently formed a part of the Tribunal’s reasoning, leading to findings adverse to the applicant.
The Minister did not agree with the applicant’s view of what the Tribunal said at Q313. The Minister’s position was that there was nothing in the language used by the Tribunal to indicate that it was saying that there were no inconsistencies in his claims, as put, up to the Tribunal hearing. Rather, at Q313 the Tribunal was saying that these inconsistencies were “not too significant”.
The Minister’s argument was that what was said at Q313 did not convey the meaning that the Tribunal would not subsequently consider these inconsistencies in its final analysis of the applicant’s claims.
Consideration
There is no doubt that the Tribunal’s statutory obligation was to invite the applicant to a hearing pursuant to s.425 of the Act to give his evidence and make his arguments in relation to the issues in the review (SZBELv Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (“SZBEL”)). Nor is there any doubt that such an opportunity must be meaningful (SZBEL, Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759).
The difference between the applicant and the Minister is that on the applicant’s reading of Q313, he says he was denied a meaningful opportunity to address the prior inconsistencies. The Minister says that what the Tribunal said at Q313 was not such as to indicate to the applicant that the Tribunal would not rely on the prior inconsistencies.
It must be remembered that the applicant’s ground asserts jurisdictional error because of a claimed failure by the Tribunal to comply with s.425 of the Act. For current purposes, therefore, the relevant question is whether the Tribunal, by its statement at Q313, when also read properly, and fairly, denied the applicant a meaningful opportunity to give his evidence and make his arguments in relation to the issue or issues in the review.
In SZBEL the High Court said (at [33] and [34]):
“33. The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited "to give evidence and present arguments relating to the issues arising in relation to the decision under review"20. The reference to "the issues arising in relation to the decision under review" is important.
34. Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise21 all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.”
[Footnotes Omitted.]
It must be said that neither party, before the Court, satisfactorily addressed (from their respective perspectives) the central question arising from the statute as to what exact issue, or issues, the applicant was denied the opportunity provided for by s.425 of the Act.
The applicant’s argument was, at best, that he was denied the opportunity of addressing, at the hearing, prior (that is, up to the time of the hearing) inconsistent statements. That can only assist the applicant, in the relevant statutory context, if the prior inconsistent statements, that is, what was in the statements, were an issue, or issues, in the review.
It is with reference to [44] (at CB 239) of the Tribunal’s decision record (see above at [16]) that the applicant’s argument took shape. That is, at [44] the Tribunal found inconsistency between what the applicant had put in his statutory declaration and what he told the Tribunal at the hearing about what happened when the notice of the punishment order message was put on the door of his family’s home.
In short, the applicant’s argument was that what the Tribunal told him at Q313, at the hearing, could reasonably be understood as being that prior inconsistent statements would not be held against him. That what the Tribunal told him at Q313 is to be reasonably understood as being that it was only concerned about the “story” the applicant gave at the hearing.
The applicant’s claims to fear harm were initially set out in a statutory declaration that accompanied his application for the visa (CB 65– CB 70).
The factual basis for the applicant’s claim to fear harm was that he said that from 2007 he had worked for a person (Ali), who was an interpreter with the US forces, as his driver ([11]–[13] at CB 65–CB 66).
About a month after he commenced work, he received a threatening phone call from someone who called him a traitor ([20] at CB 66). He was not at that time concerned with this ([21] at CB 66). He continued to work for Ali for about four years and “all went well” ([22] at CB 66).
In October 2011 Ali’s contract with the Americans ended, as did the applicant’s employment ([23] at CB 66). He then received a disturbing text message on his phone, which he found threatening ([24]–[25] at CB 66).
The statutory declaration then states at [27]–[34] (CB 67):
“27. I went to his house and asked for him. Ali’s father told me that Ali no longer lived there. When I asked where he was his father simply said he didn’t know. Clearly Ali left his place not wanting anyone to know where he went.
28. I was quite uneasy about the situation and I remain at home as much as I could just to be cautious.
29. On about the third day after the text message I received that identified me, my father picked up a note (attached) from our main door which was a punishment order made by Asaeb Al Haq against me personally that I should be killed.
30. A couple of days later I went out in the evening to fetch some cigarettes at a corner shop. Closer to the shop I noticed two guys on the other side of the street who were staring at me. I then went into the shop and got my cigarettes.
31. As I walked out these two men confronted me calling me infidel and one man tried to wrapped my hands behind me and the other started to punch me. I struggled and soon I saw the man in front of me took out a gun so I tried everything I could to get rid of the other man and stop the man with the gun.
32. As we were wrangling avoiding him to hurt me with his gun, the man fired a shot while my mand [sic] was on his gun and that shot injured my leg but the bullet did not go through my bone.
33. The shop owner came out to see what happened. In the moment of commotion I managed to run but these two men had a car waiting for them and they took off with the car to pursue me.
34. As some of the walkways in my area would not accommodate carsize, I managed to lost them and I went to an area called Alhmaahad Alfanni where my friend Hussain Awda lived.”
[Errors in the Original.]
The statutory declaration continues with the applicant’s account of how he went into hiding. While the statutory declaration recounts other events of claimed past harm, for current purposes, given the applicant’s focus on [44] (at CB 239) of the Tribunal’s decision record, the events around the text message and the punishment order are relevant and central to the disposition of the applicant’s ground.
The delegate understood the applicant’s claims in this regard to be (at CB 128):
“…
· The applicant tried to contact Ali hoping that he would be able to find a way to protect the applicant. However the applicant was unable to contact Ali as his mobile phone was disconnected. The applicant went to Ali’s house and Ali’s father told the applicant that Ali had left and he did not know where he was now.
· About three days after the applicant received the text message identifying him, the applicant’s father found a punishment order which mentioned the applicant by name and said he should be killed.
· A few days later the applicant was returning home from the shops when he was confronted by two men who called him an infidel. One man attempted to restrain the applicant while the other started punching him. The applicant saw that one of the men had a gun. The applicant struggled to get away. One of the men fired the gun while the applicant’s hand was on his gun and the applicant was shot in the leg.
· The shop owner came outside due to the commotion and the applicant managed to run away. The two men then pursued the applicant in their car. The applicant managed to escape by running down some alley ways which were too narrow to accommodate cars. The applicant ran to his friend Hussain’s house.
· Hussain treated the applicant’s would [sic] as it was not too serious and the applicant stayed at Hussain’s house for about 3 days. During this period the applicant continued to receive threatening text messages.
…”
The delegate understood the applicant to be claiming that he feared harm from the Asaib Ahl al-Haq (“AAH”), a militant group.
The delegate did not accept as plausible the applicant’s claims that he was, and continued to be, of interest to the AAH (CB 129.5). The delegate gave reasons for this (CB 129.6–CB 136).
In all, the delegate concluded (at CB 131.6):
“…Accordingly, for all of the reasons outlined above, I do not accept that the applicant was targeted by AAH (or any other militant group) in the manner and for the reasons claimed. Specifically, I do not accept that AAH attached a punishment order to the applicant’s front door, nor that they pursued the applicant to Karbala and subsequently threatened the applicant’s brother-in-law. Similarly, I do not accept that AAH tracked the applicant through his SIM card and pursued him to Basra. Further, whilst I accept that the applicant may have received some unwanted text messages during this period I do not accept that they were from the AAH as claimed.”
What is clear as a result of the delegate’s decision is that other than the fact that he worked as a driver for Ali while he was an interpreter with the Americans, the applicant’s entire factual claims of subsequent events was rejected. That is, it was, for current purposes, at issue.
As set out above, central to the applicant’s argument before the Court was what the applicant’s counsel described (with reference to Q313) as the two separate concepts within the notion of inconsistency.
While the applicant acknowledged the danger of doing so, the example given to demonstrate the “two separate concepts” was with reference to the criminal law.
That is, that when both the prosecution and defence cross-examine witnesses in criminal proceedings, what “they” are “looking for”, what are “two central lines of cross examination”, are on the one hand “prior inconsistent statements”, and on the other “implausibilities or incongruities within the story itself”.
That may well be the case. But the proceedings before the Tribunal are not criminal. The Tribunal is not seeking to prove, or for that matter disprove, guilt to the requisite standard and with reference to the Crimes Act 1914 (Cth). Rather, the Tribunal’s review, and the conduct of the hearing before the Tribunal, is inquisitorial. It is not even adversarial as before a civil court. The Tribunal is not bound by the rules of evidence.
The applicant’s counsel made reference to the distinction between prior inconsistent statements on the one hand, and implausibilities of an account on the other, in the criminal context, as an example to demonstrate the difference as between these two concepts and on which he sought to rely. However, such an example can only serve to divert attention from the critical and relevant element in relation to hearings before the Tribunal.
That is, as is made clear in the Act, the focus of the hearing to which invitation has been given pursuant to s.425 of the Act, is to give the applicant a meaningful opportunity to give his evidence and make his arguments in relation to the issue, or issues, in the review.
The issue in the review to which Q313 related was, when Q313 is read in context of the entire hearing, and what had occurred before the delegate, that the applicant’s entire factual account of his claims was at issue.
I do not agree with the applicant that a reasonable reading of Q313, and remembering that such a reading must be contextual, is that the Tribunal was saying that while the applicant’s claims had been presented in a “generally consistent” way up to the hearing (the inconsistencies were “not too significant”), what the applicant gave in evidence to the Tribunal at the hearing revealed inconsistencies in the story itself, as given at the hearing, such that it gave rise to the concern that the claims were a fabrication.
Q313 must be read in context of the entirety of the Tribunal hearing. As revealed by the transcript of the hearing, up to that point at the hearing, the Tribunal had asked numerous questions to elicit the applicant’s “story” (account) as to past events and why he feared harm in the future.
At Q87, following the applicant’s account of past events, the Tribunal asked him to explain why are: “…these terrorists organisations seeking to kill you?”.
The applicant’s answer was to identify a particular group (AAH) (at Q89). The reason why this group sought to do so was explained by the applicant as being:
“Because I was working with an interpreter who, with the American ships.” (at A(I) to Q90).
The applicant then gave some evidence as to his work for the interpreter (Ali) and set out claimed instances of past harm arising from his having worked for the US linked interpreter (Q92 and following).
As was set out in his Statutory Declaration, the applicant had claimed, within the context of having worked for Ali, that in 2011, in the midst of receiving threatening text messages, he received a note, a punishment order, attached to the main door of his parent’s house ([29] at CB 67). He then set out his subsequent actions (going out to buy cigarettes and the like, see [30]–[37] at CB 67).
At the hearing the Tribunal asked the applicant, specifically, about the punishment order matter (Q166–Q172), and subsequent events (Q198– Q237 and the answer).
Amongst this, for current purposes, the following from the Tribunal and the applicant, is of direct relevance in understanding what was subsequently said at Q313:
“Q207 O.K. And where were you that these, where were these two men that approached you?
A(I) Yeah, I went to a market to buy cigarettes when they confronted me, these two men.
Q208 And what time of day was it?
A(I) At night.
Q209 What time?
A(I) Between 9:00 and 10:00 in the evening.
Q210 Are markets open at 9:00 and 10:00 in the evening in Iraq, are they?
A(I) Yeah, they stay till around midnight.
Q211 And when you say a market, I don’t know what the Arabic word you’re saying is, but do you mean an open area where you have people displaying goods or do you mean shops like I would know a shop in Australia?
A(I) It’s like a shop usually, a shop, a convenience shop that sells everything.
Q212 O.K. It seems inconsistent with being fearful of being killed that you would go out to buy some cigarettes.
A(I) Well, I had to buy some cigarettes and I thought it’s at night and no one is watching me, I’m not afraid of that.
Q213 So they’re only going to watch you during the day?
A(I) It’s not during the day but I didn’t know that I was someone like observing me or checking on me or watching me during this period.
Q214 Well, you told me before that you were so afraid as a result of this letter threatening to kill you that you were staying at home and now you’re telling me you wander off at 9:00 or 10 o’clock at night to go and buy some cigarettes, which isn’t exactly the most necessary item to buy.
A(I) Yes, of course I was afraid but the shop it was very close to my house, I never thought that such a thing would happen during this short period, short distance from my house to the shop.”
Further, at Q229–Q232:
“Q229 No, I know that, but see you’re talking about going out after you were aware of Ali having gone and after receiving this letter and you’re going out to buy a packet of cigarettes. That’s what I have difficulty with.
A(I) I never thought that the threatening would be so serious at that time, I never thought it would be a real threat level of get serious and killing.
Q230 But you’d already received the letter on the door.
A(I) Yeah, but before they sent me messages for a long time, nothing happened.
Q231 But they know where you live, they have put a letter threatening to kill you on the door of your family home.
A(I) O.K. These groups, they have, that idea is you don’t go raid the house, try to kill that person because the family in that house, they’re all Muslims, there’s only one person who’s infidel, so if we want to we can go inside ….. So they never, I never thought they ever would come to my house and kill me.
Q232 Well, in that case it’s a more obvious reason, if you were safe in your house you would have stayed there, you wouldn’t have gone out at 10 o’clock at night to buy a packet of cigarettes.
A(I) Well, yeah, I never thought that I was at that time someone is watching me and I said, like, the shop is very close to my house, I’ll just buy some cigarettes and come quickly.”
[Errors in the Original.]
The applicant’s account of past events, which he had outlined in his statutory declaration, was the subject of further questioning by the Tribunal up to Q312, when the Tribunal asked if anything had happened to him since he left Iraq.
By Q313, the applicant had completed his account (“the story”), at the hearing, of claimed past events and past harm. What appears at Q313 is the Tribunal’s immediate, initial (“the first thing I would say”) reaction to what the applicant had said.
At issue in the review was the applicant’s factual account (“his story”) as to past events of past harm arising from his having worked for Ali. The punishment order, and going out for cigarettes, was a part of that account.
As set out above, the applicant was given the opportunity to give his evidence and make his arguments in relation to his “story”. He was put squarely on notice that the Tribunal was concerned that the “story” was a fabrication.
The applicant now attempts to recast what was said in Q313 as an acceptance by the Tribunal of what the applicant had said in relation to his story up to the hearing, but that the Tribunal indicated its rejection of his story as that account was given during and after the hearing. This, on the evidence before the Court, is not to be accepted.
The applicant’s argument now does not address, let alone satisfactorily address, that with some exceptions, the story as set out in the applicant’s statutory declaration and the story he gave in evidence at the Tribunal hearing was, as the Tribunal described it, “generally consistent”.
In this light, the Tribunal’s reference at Q313 to “the story” being generally consistent does not, as both parties submitted before the Court, seek to impose a separation between the claims as enunciated prior to the hearing and the claims at the hearing. Any plain reading of all of the evidence before the Court reveals the applicant’s account in his statutory declaration was “generally consistent” with his evidence at the hearing. Except for, as the Tribunal put to him, those parts where it had indicated its concerns.
Before the Court the applicant’s use of labels, and the characterising of evidence as being inconsistent, or consistent, have sought to obscure what can be seen, in light of the evidence before it, and in light of how the Tribunal hearing unfolded, as being a reasonable reading of what the Tribunal said at Q313.
By seeking to view what the Tribunal said at Q313 as being focused on consistency or inconsistency, the applicant (and it must be said, with the Minister’s apparent agreement on this point) has failed to see that when the Tribunal made reference to “the story”, it was a reference to the applicant’s account of past harm, and the reasons for his fear, as had been generally consistently set out in his statutory declaration and at the hearing, but for the relevant inconsistencies which the Tribunal had pointed out to him at the hearing.
As set out above, the Tribunal found that the applicant’s factual account of past events was not credible and it rejected that these had occurred ([51] at CB 240).
The reasons for this are set out at [43]–[50] (CB 239–CB 240) of its decision record. Specifically, the impugned part of the Tribunal’s reasoning at [44] (CB 239) contains the finding of inconsistency between the evidence given at the Tribunal hearing, and what was put in the statutory declaration as to what he did after receiving the threatening text message and the punishment order on his door. This, again, was reasonably open to the Tribunal on what was before it. The Tribunal’s finding of inconsistency arises from the two sets of assertions.
Whether the immediate events of receiving those threats were of themselves an issue in the review, or were a part of the factual matrix of the broader issue of the reasons forming the basis of the applicant’s claimed fear, does not matter for current purposes.
The applicant was given a fair and meaningful opportunity to give his evidence about these events, and was put on notice by the Tribunal of its concerns about central parts of what he had told as “his story”. Attempts now by the applicant to seek to present the Tribunal’s statement at Q313, removed from the totality of the hearing, and the totality of the evidence before it, does not succeed in revealing jurisdictional error.
The Tribunal fulfilled its statutory obligation pursuant to s.425 of the Act. Nor was the applicant misled by the Tribunal. He would have been squarely on notice that his entire “story” was at issue. This, after all, was exactly what the Tribunal told him at Q313. The applicant was given an opportunity to address the Tribunal’s concerns (see Q313 and Applicant VBAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 804 at [54]).
Conclusion
The sole ground pressed of the application is not made out. The application is to be dismissed. I will make that order.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 20 January 2020
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