DGS18 & Ors v Minister for Immigration & Anor
[2020] FCCA 1973
•24 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DGS18 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1973 |
| Catchwords: MIGRATION – Protection (Class XA) Visa – decision of the Administrative Appeals Tribunal – whether Tribunal should have called witnesses when asked to do so by the applicants – whether lengthy delay in handing down decision vitiated Tribunal’s decision – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 438 |
| Cases cited: AYX17 v Minister for Immigration & Border Protection [2018] FCAFC 103 Von Schoeler v Allen Taylor and Company Ltd Trading as Boral Timber (No 2) [2020] FCAFC 13 W360/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 211 |
| First Applicant: | DGS18 |
| Second Applicant: | DGT18 |
| Third Applicant: | DGU18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 340 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 5 June 2020 |
| Date of Last Submission: | 5 June 2020 |
| Delivered at: | Perth |
| Delivered on: | 24 July 2020 |
REPRESENTATION
| Counsel for the Applicants: | Mr M G S Crowley |
| Solicitor for the Applicants: | William Gerard Legal |
| Counsel for the First Respondent: | Ms S J Oliver |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 340 of 2018
| DGS18 |
First Applicant
| DGT18 |
Second Applicant
| DGU18 |
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of Turkey (Court Book (“CB”) 112). The first applicant and the second applicant are wife and husband respectively. The third applicant is their son.
The applicants arrived in Australia on 10 October 2013 (CB 69). The first applicant held a student visa. The second applicant and the third applicant were dependants to that visa (CB 112). That visa expired on 5 August 2014 (CB 114).
On 4 March 2014, the applicants applied for a Protection (Class XA) Visa (the “visa”) (CB 1-85). The first applicant made claims for protection. The second applicant and the third applicant were included in the protection application as members of the family unit.
The first applicant’s claims can be summarised as follows (CB 69-72):
a)the primary objective in the applicants coming to Australia was to seek protection as the first applicant and the second applicant decided that their lives and wellbeing were in danger because of the discrimination and oppression directed at them due to their religious and ethnic identities;
b)the first applicant is an Alevi Kurd and has experienced oppression and discrimination;
c)the first applicant has been active in pro-Kurdish parties since high school and took part in a range of political and cultural activities aimed at keeping Kurdish culture and traditions and Kurdish identity alive. These activities included taking part in protest marches. The first applicant was detained and interrogated on a number of occasions and was threatened that she must sever ties with the political parties. However, as the first applicant was not doing anything illegal she could not be charged; and
d)in mid-2013, Turkish Police tried to recruit the first applicant as an informant on the local pro-Kurdish party. The first applicant refused to comply with the request and in the weeks that followed she was further harassed. This ultimately led to the applicants fleeing Turkey.
The applicants attended an interview with a delegate of the first respondent (the “Minister”) on 12 February 2015 (CB 97-99). At the interview, the applicants provided a number of additional documents. These documents included photographs, letters from the Kurdish Cultural Association of Western Australia, letters from the Association for Services to Torture and Trauma Survivors (“ASETTS”) and medical records. The medical records indicated the first applicant was suffering from anxiety and depression (CB 100-107).
On 11 May 2015, the delegate refused to grant the applicants the protection visa (CB 112-136).
On 2 June 2015, the applicants lodged an application for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 138-140). The applicants were assisted by a community legal centre before the Tribunal.
On 2 March 2017, the applicants’ representatives provided the Tribunal with submissions and further supporting materials (CB 156-171).
On 10 March 2017, the applicants appeared before the Tribunal to give evidence and present arguments (CB 172-175). The hearing was adjourned part heard. The applicants provided a letter from the ASETTS which indicated that the first applicant had ongoing symptoms of “significant trauma” and required counselling and psychiatric care (CB 177-180).
On 30 March 2017, the applicants’ representative forwarded further documents to the Tribunal (CB 191-207).
On 31 March 2017, the applicants again appeared before the Tribunal to provide further arguments and evidence (CB 208-210). It appears that, during the hearing, the second applicant claimed that his Sunni extremist relatives had “beaten him up because they oppose his marriage to an Alevi Kurd” (CB 356 at [9]).
On 7 April 2017, the applicants’ representative provided further written submissions to the Tribunal (CB 217-222). The representative also provided a number of medical documents and records (CB 223-326). On 3 May 2017, a further medical document was provided to the Tribunal (CB 327-333).
On 8 March 2018, the applicants’ representative provided further written submissions to the Tribunal (CB 348-351).
On 1 June 2018, the Tribunal affirmed the decision not to grant the applicants the protection visa.
Tribunal’s Decision
The Tribunal’s decision is 32 pages long and spans 129 paragraphs.
Part III of the Minister’s written submissions accurately summarises the Tribunal’s decision. The Court adopts that summary, with some amendments, as follows.
At [1]-[20], the Tribunal summarised the applicants’ claims and background information about the applicants’ travel history.
In relation to the evidence that was before it, the Tribunal:
a)itemised the documentary material that had been provided (including the large volume of materials relating to the first applicant’s mental and physical health) (at [21]-[22]);
b)noted that the first applicant and the second applicant both gave evidence at the hearings on 10 March 2017 and 31 March 2017. It was noted that the applicants had asked the Tribunal to take evidence from the first applicant’s parents but that the Tribunal refused to do so (at [23]-[24]); and
c)noted that a certificate had been issued pursuant to s.438(1)(b) of the Migration Act 1958 (Cth) (the “Act”). However, after alerting the applicant’s to the existence of the certificate, the Tribunal further advised them that it would not have regard to the information as it was unable to test the information (at [25]-[26]).
The Tribunal considered medical evidence that the applicants had put before it in relation to the first applicant’s mental health – particularly, material from Dr L (a psychiatrist) and Ms L (a counsellor) ([31]-[32]). Based on this material, the Tribunal accepted that the first applicant suffers from Post Traumatic Stress Disorder with generalised anxiety disorder. The Tribunal observed that the diagnosis provided by Dr L and Ms L was based on their having accepted the first applicant’s protections claims implicit acceptance of the first applicant’s protection claims (at [33]).
While the Tribunal accepted that the first applicant had mental health problems (such as Post Traumatic Stress Disorder, anxiety and had expressed suicidal ideations), it remained unclear to the Tribunal whether these mental health issues were attributable to the first applicant’s experiences in Turkey. As a result, the Tribunal placed little weight on the reports as evidence going to the veracity of the first applicant’s claims for protection (at [34]).
The Tribunal was also satisfied that, during the course of the hearing and as a result of subsequent correspondence, the first applicant was able to present her claims and evidence effectively. Further, no issue as to her capacity to do so was ever raised (at [35]).
The Tribunal accepted that the first applicant was an Alevi Kurd. However, the Tribunal expressed a number of reservations when assessing the first applicant’s claim that she was an unassimilated Alevi Kurd. Having considered the evidence before it (including country information and a statement from the first applicant’s parents), the Tribunal found that the first applicant was a nominal Alevi Kurd who had a high degree of assimilation into mainstream Turkish society and culture (at [37]-[41]).
Having considered the evidence and country information, the Tribunal considered the first applicant had presented very broad claims about past harm she had suffered on racial grounds (at [43]). The Tribunal noted that the first applicant’s family members, who were also presumably Alevi Kurds, had continued to live in the same area as the first applicant and did not appear to suffer persecution or significant harm (at [44]). The Tribunal found that, overall, the first applicant’s claims in relation to her experiences as an Alevi Kurd in Turkey were exaggerated and unreliable (at [45]). In particular, the Tribunal formed the view that the first applicant had exaggerated the extent to which she identified as, and is identified as, an Alevi Kurd and the extent of any adverse consequences arising from this (at [45]-[46]).
After referring to the country information (at [47]), the Tribunal found the first applicant’s claims to be generalised, unsubstantiated and unreliable (at [48]). It noted that the first applicant could not give specific examples of harm she had experienced and determined that her account of events was vague (at [49]-[50]).
Whilst the Tribunal considered that the first applicant may have experienced some official or social discrimination, or at least have been aware of attitudes towards Alevi Kurds, the Tribunal was not prepared to accept at face value that the first applicant experienced discrimination that cumulatively amounted to serious or significant harm in Turkey. The Tribunal was also not satisfied that the first applicant would have presented as an Alevi Kurd in Turkey but refrained from doing so in order to avoid the risk of serious or significant harm (at [51]).
The Tribunal then considered whether the second applicant was Sunni or Alevi Kurd. They further considered whether the second applicant’s family, who were strict Sunni Muslims, threatened the applicants because of their opposition to the marriage (at [52]-[56]).
At [57], the Tribunal stated:
The Tribunal has significant concerns about the claims that the applicant husband’s family, in particular uncles who are ‘like ISIS’, have threatened to kill the applicant and the applicant child or that they have beaten up the applicant husband. First, the Tribunal is troubled by the husband’s identification as an Alevi Kurd on the application form, and the specific information in the written claims that the applicant was in a relationship with a Sunni Kurd, and was forced to end it. The applicants claimed that the translator who prepared the form was ill, with cancer, and made other errors. However, the applicant said at the outset of the hearing that she did not wish to change or correct anything in her original statement, and she has not alerted the Tribunal to any other mistakes by the person who prepared the text. It seems odd that the translator’s health affected just one aspect of the written claims. Second, the applicant parents married in October 2008; the applicant child was born in February 2011; and the applicants arrived in Australia in October 2013. The applicants lived in Gaziantep throughout this period, and during 2013, the applicant herself worked in an optician’s. The Tribunal considers that there would have been ample chance for hostile relatives to harm the applicants if they had intended to.
The Tribunal accepted that the second applicant may be Sunni but concluded that neither the first or second applicants were devout or from strictly religious families. In light of a number of concerns noted by the Tribunal, it found that the applicants were not subjected to credible threats of persecution or significant harm from the second applicant’s relatives for any reason, including religion (at [58]).
At [59]-[68], the Tribunal discussed and assessed the evidence that the first applicant had provided in support of her claimed political activities with pro-Kurdish parties.
At [69], the Tribunal stated:
The Tribunal has significant doubts about the applicant’s claimed profile as a political/cultural activist. Her evidence was very vague, and often unsupported by the kind of observational detail or anecdote that would indicate she was recalling personal lived experience (even if imperfectly). She provided little context or explanation for her claimed profile, such as what propelled her into political activism when other family members and the applicant husband had no such profile. The Tribunal found her explanations as to how she promoted Kurdish cultural identity and political interests, without having learned the language, unpersuasive. And the Tribunal found the applicant’s recent account of her activities during the protest in Diyarbakir, particularly her claim to have organised a peace protest and made a speech there, to be vague and also at odds with the tenor of her previously claimed activities Finally, the Tribunal finds it surprising that the applicant has no contemporaneous material from this period, particularly if, as claimed, she focused on these activities from 2005 to 2008. It found her explanations for this lack of material to be unpersuasive.
The Tribunal accepted that the first applicant was broadly sympathetic to the Kurdish cause and the treatment of Alevi Kurds in particular. Further, the Tribunal accepted that she had joined the BDP (a pro-Kurdish Peace and Democracy Party) as a nominal member in 2008 and may have participated in some BDP activities during this period. The Tribunal found that, after marrying and leaving college in 2009, the first applicant’s political links had “petered out” (at [70]-[71]).
The Tribunal did not accept that (at [70]-[71]).
a)the first applicant had an adverse profile;
b)she had regularly visited the political office;
c)she had called on Kurdish residents to promote BDP’s cultural or social agenda;
d)she had engaged in any political activities in other parts of Turkey, such as Diyarbakir; or
e)she had refrained from political activities due to pressures at college or any other restrictions or risks associated with such activities.
At [72]-[79], the Tribunal outlined in detail the first applicant’s evidence in relation to her claims of mistreatment on political grounds.
Overall, the Tribunal:
a)determined that the first applicant’s evidence about ongoing harassment from the security forces was vague. The Tribunal did not accept that this evidence reflected her personal experiences in the period up to 2009 (and, more importantly, not after that time) (at [80]-[82]); and
b)found that the first applicant’s account of being abducted twice, subjected to forced recruitment and then ongoing threats and harassments was lacking in credibility. The Tribunal found that the first applicant had fabricated these claims to establish that she had left Turkey because she faced an imminent risk of serious or significant harm on political grounds. Overall, the Tribunal found these claims to be untruthful (at [80]-[82]).
In relation to the first applicant’s claim that she had been charged with an offence and convicted “in absentia” to five years imprisonment, the Tribunal outlined a number of concerns it had with the documents and evidence provided in support of this claim (at [83]-[86]).
The Tribunal then outlined the first applicant’s responses to the Tribunal’s questions in relation to this claim (at [87]-[88]).
Having previously noted that the applicants’ representative made a submission that, in light of the Tribunal refusing to take evidence from the first applicant’s parents it must accept the claim about the criminal charges, the Tribunal stated (at [89]):
The applicant’s parents gave a statement describing the occasion in late 2015 when police officers came to their home searching for the applicant, and handed to them the ‘court documents’. The Tribunal notes that they (the parents) were willing to give oral evidence to confirm their statement.
The Tribunal signalled its reluctance to take oral evidence from the parents.
- First, it must consider the potential risks to applicants and their families or friends, of speaking with witnesses in the country of persecution, particularly in cases involving claimed State persecution and allegations of serious criminal offences.
- Second, the Tribunal accepts that the parents might have been able to give further details about the claimed police raid, if asked; and that their evidence might well have been consistent with each other. It gives their willingness to give oral evidence appropriate weight.
- In the present case, the Tribunal considers that their oral evidence would have been of little additional probative value, taking into account: (a) that it appears that they would have been giving evidence in each other’s presence, and with the ability to refer to the written statement that they had prepared; and (b) given the lack of any additional information by which the Tribunal could have tested their accounts (for instance, the applicant relied solely on their account of what they witnessed).
In the submission of 8 March 2018, the applicant’s representative submitted that the Tribunal should take oral evidence from the applicant’s parents, unless it accepts the ‘court documents’ as genuine.
- In the Tribunal’s view, the parents addressed a number of issues that are relevant to this case, such as the occasion when the police allegedly handed over the ‘court documents’, and when they seized the applicant’s laptop and photo album (which potentially goes to her lack of documentary evidence to support her claimed political activism in Turkey).
- The parents’ account, if accepted in full, would tend to support the applicant’s claims about the conviction and arrest warrant, but – even at face value – would not be conclusive proof as to the genuineness of the ‘court documents’.
The applicant’s parents are obviously keen to support this application and, in the Tribunal’s view, their evidence (written and/or oral) carries little weight as independent corroboration for her claims. Their letter of support and their willingness to confirm its contents orally do not overcome the Tribunal’s significant concerns about these claims.
The Tribunal rejected the first applicant’s claims of any involvement in a political event in Diyarbakir in 2010 and rejected the applicants’ claims in relation to the events said to have caused them to leave Turkey. It also noted errors in the purported Court documents. The Tribunal then found that the Court documents were manufactured to assist the applicants’ case and, accordingly, gave them no weight (at [90]-[91]).
The Tribunal accepted that the first applicant had fears relating to Turkey but found that it was difficult to ascertain whether these related to specific instances of past harm and/or specific sources of future harm or whether they related to the general security, economic and social conditions. Whilst the Tribunal found that the first applicant’s fears (as assessed by Dr L and Ms L) were very real, it did not accept that these fears related to past persecution or significant harm in Turkey as an Alevi, a Kurd, a political/cultural activist, the partner of a Sunni Kurd or any other specific protection claim (at [95]).
At [96]-[99], the Tribunal summarised its findings as follows:
96. The Tribunal accepts that the applicants are Kurdish; that the first-named applicant is a nominal Alevi; and that the applicant husband is a Sunni Kurd. The Tribunal finds that both applicants are well-integrated into mainstream Turkish society. It accepts that they regret their loss of Kurdish identity; that they sympathise with efforts to promote Kurdish culture; and that they favour pro-Kurdish parties. The Tribunal accepts that the applicant joined the BDP briefly while at university, and may have attended some cultural and political events, as a low level participant, for a limited period. It does not accept that she was an activist of any kind – including visiting political events in Diyarbakir or other places – or that the Turkish authorities ever perceived her as such.
97. The Tribunal accepts that the applicant may have faced some low-level discrimination, but it does not accept that she faced repeated or ongoing harassment from the Turkish authorities or the community at large; that she was often detained, interrogated or mistreated; that Turkish security agents tried to recruit her as an informant on the BDP; that they threatened her and her family (including the applicant husband and son) if she refused to comply; or that the applicants departed Turkey in response to such threats. The Tribunal finds that the applicants left Turkey for other reasons (although it accepts that the general security environment, economic outlook and communal tensions may have played, and continue to play, an important part in the parents’ minds).
98. The Tribunal accepts that the applicant and her husband may be Kurds who are Alevi and Sunni respectively. It accepts that the families may have initially been troubled by such a match, but for the reasons set out above, it rejects the claims that the applicant husband’s extremist relatives have threatened to harm either applicant, or that they have beaten him up.
99. The Tribunal accepts that the applicant has mental health problems in Australia. It does not accept that these are the result of any past persecution or significant harm in Turkey. The available evidence points to several factors that may have contributed to or caused this. In relation to past events, these could include her knowledge of Turkey’s security, economic and social problems (particularly in the south-east of the country), and, as she commented at hearing, her concern for her sons’ futures. The Tribunal also notes that the family’s unresolved migration status in Australia has taken a toll on her; and that she has had difficulties settling into Australia, including in terms of cultural adaption, work and finances. However, the Tribunal has neither the expertise nor required information to reach any conclusions regarding the exact causes of the applicant’s mental health issues, and in its opinion it is unnecessary to do so for the purpose of this decision. For the reasons stated above, it does not accept that they are attributable to any past experiences of persecution or significant harm; any imminent fear of such; or the cumulative effect of having had to modify her conduct in order to avoid such harm.
The Tribunal did not accept that there was a real chance that she would face serious harm for reason of her Kurdish origins/ethnicity, her nominal Alevi faith, her leftist political leanings, her marriage to a Sunni Kurd, any mental health issues or any other Convention reasons, now or in the foreseeable future (at [100]-[109]). Having regard to the first applicant’s circumstances as a whole, the Tribunal found that there was no real chance of the Turkish authorities or anyone targeting her (at [110]).
At [111], the Tribunal found:
The Tribunal formed the impression that Turkey’s overall political, security, social and economic problems weigh heavily on the applicant’s mind, and strongly motivate her to stay in Australia. However, these general conditions affect all Turkish citizens to at least some degree. The Tribunal acknowledges that the security situation in Turkey, and more specifically in Gaziantep, has deteriorated in recent years, and the number of security incidents has risen. However, in the Tribunal’s view, the country information does not indicate that the general security situation in Gaziantep (or more generally in Turkey) gives rise to a real chance of serious harm to the applicant (as per s.91R(1)(b) of the Act); or involves systematic and discriminatory conduct (s.91R(1)(c)); or is for one or more of the Convention reasons (s.91R(1)(a)).
At [112], the Tribunal referred to the first applicant’s mental health issues.
At [113], the Tribunal stated:
The Tribunal has carefully considered whether the applicant’s recorded fears about returning to Turkey, such as the extreme panic and tearfulness that [Ms L] noted, if they were to recur on her return, would give rise to a well-founded fear of persecution (for instance, as a person with mental health issues who is also an Alevi Kurd). [Dr L], for instance, expressed concern about the impact on the applicant of her being returned to ‘the origins of her trauma’), which would put her at high risk.
After noting certain matters regarding the onset of the first applicant’s mental health issues, the Tribunal referred to its finding that the first applicant did not suffer persecution in Turkey. As such, returning to Turkey would not exacerbate her mental health issues (at [114]). It was noted that there was nothing to suggest that the first applicant would be deprived of appropriate health care services on return and that the factors which appeared to contribute to her mental health issues would not likely persist when she returned to Turkey (at [115]).
The Tribunal found that there was not a real chance that the first applicant would require and be unable to obtain appropriate medical treatment or social support for any mental health problems that might arise on her return to Turkey (at [116]).
The Tribunal, having considered the claims individually and cumulatively, found that the first applicant did not meet the requirements of s.36(2)(a) of the Act (at [117]-[118]).
At [119]-[122], the Tribunal considered any chance of harm occurring in relation to the second applicant and the third applicant. The Tribunal considered that, to the extent that there was an implied claim that the second applicant faced a chance of harm (noting that the second applicant confirmed to the Tribunal that he did not wish to make his own claims), it was not satisfied that the second applicant met s.36(2)(a) of the Act. The Tribunal reasoned similarly in relation to the third applicant.
For similar reasons as those expressed in relation to the refugee assessment, the Tribunal was not satisfied that the applicants met the requirements of s.36(2)(aa) of the Act (at [123]-[125] and [127]-[128]). The Tribunal recognised the applicants’ claims about Turkey’s current political and economic climate and security concerns in the southern part of the country near the Syrian border. However, the Tribunal found that any risk the applicants faced was the same as that of the population generally. Hence, there was no real risk of harm for those reasons (at [126]).
The Tribunal affirmed the decision not to grant the applicants the visa.
Proceedings in this Court
The amended application dated 6 May 2020 contains two grounds of review as follows:
A The decision of the second respondent was vitiated by a constructive failure to exercise jurisdiction in refusing to hear corroborative evidence from the first applicant’s parents.
B The decision of the second respondent was vitiated by a denial of procedural fairness in that the 427 days between the hearing and the publication of reasons impaired Tribunal’s capacity to assess the applicants’ evidence and evaluate their claims, and permitted unconscious bias.
The hearing of this matter took place by videoconference. The applicants were represented by Mr Crowley of Counsel. The Minister was represented by Ms Oliver of Counsel. The Court thanks both advocates for their considerable assistance.
The Court has relied on the following materials in writing this judgment: an amended judicial review application dated 6 May 2020, an affidavit of Hamish William Glenister affirmed 24 April 2020, a Court Book numbering 389 pages (marked as Exhibit 1), two summaries of reports concerning the workload of the Tribunal in 2016 and 2017 (marked as Exhibit 2), outlines of written submissions from the applicants dated 26 May 2020 and 3 June 2020 and outlines of written submission from the Minister dated 20 February 2020 and 2 June 2020. Mr Glenister’s Affidavit annexed copies of the transcript of the Tribunal hearings that took place on 10 March 2017 and 31 March 2017.
Consideration
Ground A
Ground A provides:
The decision of the second respondent was vitiated by a constructive failure to exercise jurisdiction in refusing to hear corroborative evidence from the first applicant’s parents.
The applicants argue that the Tribunal erred by failing to hear evidence from the first applicant’s parents. It is first necessary to provide some context. The claim to which the evidence of the parents was relevant was that the first applicant had participated in a demonstration, an arrest warrant had been issued against her as a result of that participation and she was convicted in absentia to five years imprisonment.
It is clear that the applicants did indicate to the Tribunal that they wished for evidence to be taken from the parents. The applicants had emailed the Tribunal as follows (CB 166):
We also wish the tribunal to take evidence by telephone from her mother [G] (omitted) and her father [T] (omitted). They will be able to confirm the service on them of the Court Decision and the Apprehension Order and verify [the first applicant’s] account of events before she fled to Australia.
During the first hearing, the following exchange occurred:
TRIBUNAL …before we wind up on the question of witnesses, and I’m happy to receive that advice on that before. It is not usual practice in this tribunal, to call witnesses overseas. We always consider very carefully, any requests for us to do that.
There are some really important reasons why we don’t very often do that, and one of them... two of them. That we must not... We must preserve the confidentiality and privacy of this hearing; and there is always a risk that if you’re telephoning into a country, for instance, Ms [first applicant], if it is true, if you are wanted on terrorist charges, I must not do any action that might put you in danger. Or, your family in danger by telephoning in, and having a conversation with them about you.
And then there were another... A couple of other small considerations. That’s the most important one. There’s a number of other small considerations. If I ring my mobile telephone, I don’t know who I’m speaking to really.
And so, we bumped them just into a few. These are less important. But, there’s a couple of other practical things, such as what weight can we place on that type of evidence? Because we’re telephoning in, and unable to verify who we’re talking to.
So, normally what happens is that we say to someone “Well, is there some other way that you can give me the... get me the information you want these people to tell me?” Certainly a statement, or it might be something else. So, this is what [the first applicant’s] parents have to tell me. And this is perhaps a better way of me receiving that information. But, I just leave that thought with you, because we can still leave open the possibility of taking telephone evidence. I want to alert you too, that it can be also a bit of a problem.
Okay. We don’t have to decide that point right now though.
…
REPRESENTATIVE: Sorry. I mean, I can think of many occasions when we’ve had witnesses overseas.
…
REPRESENTATIVE: But look, we can get [inaudible 01:31:18] about it, or something of that nature.
TRIBUNAL: Yeah. No, no. That’s for you to consider…
During the second hearing before the Tribunal, the following exchange occurred:
FIRST APPLICANT: Yes. I have some new documents from Turkey. I would like you to have a look at them.
TRIBUNAL: I think I’ve received copies of those.
FIRST APPLICANT: Yeah, originals are in the mail from Turkey. We’re still waiting for the originals.
TRIBUNAL: All right.
FIRST APPLICANT: And there’s a letter from my family.
TRIBUNAL: Yeah. We’ll talk about both of those things. Let’s talk first of all about the letter from the family. Thank you for forwarding this. When did you receive this letter and how?
FIRST APPLICANT: By email.
TRIBUNAL: Now, you have again listed your parents, I think ... Oh, no. You hadn’t listed them as ... You had earlier on mentioned that you’d like me to talk to your parents. Do I understand that your parents want to confirm the things that they’ve now put in writing?
FIRST APPLICANT: Before, I provided telephone numbers of my family in Turkey, but when you indicated that you cannot call them, I asked them to send a letter.
TRIBUNAL: Yeah. No, that’s perfect, and that’s ... What I had said to you was in many cases the tribunal is reluctant to telephone people, particularly if it involves a criminal matter or a matter in which the government might be monitoring telephone calls or putting people in danger. So thank you, I’ve got that letter now.
TRIBUNAL: I will also note that they have been prepared to speak to me and to give oral evidence, although I may not ... I will at least note that they have been willing to confirm on the telephone what they’ve written.
TRIBUNAL: It remains my job, of course, to weigh this evidence up as I do all evidence and to decide whether it is independent corroboration of your claims, and what weight I can give the letter or your parents’ oral evidence.
…
REPRESENTATIVE: [inaudible 00:16:19] regards to the letter or the statement in support of the application from the parents and taking evidence from them by telephone, if there is a dispute over the genuineness of the Turkish court documents, as the people who could corroborate the fact that they were served by the police, it would be the preference that evidence is taken by telephone.
TRIBUNAL: All right. We’ll deal with the last point first. First of all, I beg to differ on the relevance of taking evidence from the parents in Turkey, where this would simply confirm the contents of their letter.
FIRST APPLICANT: Yes.
TRIBUNAL: I can examine the content of the letter, and I can accept that if I were to telephone the parents, they would confirm that they were handed documents, or that the police raid took place, I should say.
FIRST APPLICANT: [inaudible 00:18:08]. I’m lost. [crosstalk 00:18:11].
TRIBUNAL: All right. Let me repeat it.
APPLICANT: I don’t know the background. [inaudible 00:18:13].
TRIBUNAL: All right. I can accept that the parents have written a letter, and that they would confirm the contents of that letter, which are that they were handed some papers and that a raid on their house took place. But it remains for me to assess the ... And I can take all those factors into account when I assess the genuineness of the documents. But I’m not sure how hearing from them once again the contents of that letter would give me any additional information about how to assess the genuineness of those documents.
…
The contents of the letter from the parents reads as follows:
My name is [T]. My wife [G] and myself hereby would like to submit this statement in support of our daughter [the first applicant’s] application.
One and a half years ago, one night while we were asleep, police officers knocked on our door. Seven or eight policemen raided on our home. One of the officers asked the whereabouts of our daughter [the first applicant] while the other officers searching our premises room by room. They have scattered every single item around and eventually it was a big mess in our property. Our response to these officers was that [the first applicant] wasn’t here but overseas. They accused us of lying to them, and added that they knew where she was, they could find her hiding place, that we should save them the trouble of finding her, that she should go and give herself up. They seized the photo albums and the laptop that belonged to [the first applicant] and they handed us some papers. We thought these personal items would be returned to us later however we were informed that they wouldn’t return them unless our daughter gave herself up, then these items would be returned to her.
We strongly believe that our daughter’s life will be in danger in case she returns to Turkey. An arrest warrant has already been issued against her.
We request from the Australian Government that our daughter be granted a Protection Visa. If she is sent back to Turkey, she will definitely be arrested.
In written submissions dated 8 March 2018, the applicants’ representative submitted as follows:
In our submission of 2 March 2017 we asked the AAT to take evidence by telephone to proof the documents that were served on [the first applicant] in absentia at their home. The Member did not accede to that request because doing so could put the parents at risk and it is not normal practice to take evidence by phone in protection matters, but noted that they were prepared to give evidence. The parents have made an assessment of the risk and are prepared to give evidence, and it is not our experience that the tribunals do not take evidence by phone in protection matters.
It is submitted that unless it is not necessary to take evidence from [the first applicant’s] parents because the documents are accepted as genuine the AAT should take evidence by phone to proof them. If they are accepted as genuine it necessarily follows that she faces serious harm for a Convention reason if she is returned to Turkey.
At [24], the Tribunal stated as follows:
The applicants also asked the Tribunal to telephone the applicant’s parents in Gaziantep, to take oral evidence from them confirming the service on them of a court decision and apprehension order (arrest warrant). The Tribunal explained its caution in telephone witnesses in the country of persecution, particularly in cases where State persecution and serious criminal offences form part of the application, and where direct communications might put an applicant or the witnesses at risk. The applicants confirmed that the proposed witnesses intended to speak to the written statement that was already before the Tribunal. The Tribunal undertook to note, and give appropriate weight, to the parents’ willingness to confirm their letter of support and answer the Tribunal’s questions. In the submission of 8 March 2018, the representative raised concerns about the Tribunal’s failure to take oral evidence from the parents, and stated that, unless it did so, the Tribunal should accept the court documents as genuine. (The Tribunal considers this in further detail below.)
At [86], the Tribunal indicated that the “provenance” of the “court papers” was problematic. The Tribunal referred to the letter from the parents as follows:
• In an undated statement, the applicant’s father stated that about 18 months earlier (so, possibly in late 2015), seven or eight police officers knocked on the door, asked about the applicant’s whereabouts, and raided their home. The parents explained that she was overseas. The officers accused them of lying, warning that they would find her. They handed the parents the documents, and seized the applicant’s photographs and laptop. The police indicated that they would return these items only to the applicant in person (presumably an indication that she was a wanted person in their eyes). The parents conclude that they fear for the applicant’s safety, as there is already an arrest warrant out for her. (The letter ends with the request that the Australian Government grant her a protection visa.)
- The Tribunal accepts that the applicant’s parents would have confirmed the contents of this letter if the Tribunal had telephoned them and taken oral evidence. However, given the parents’ obvious direct interest in this success of applicant’s protection visa application, the Tribunal gives the contents of the letter and the parents’ willingness to confirm this orally relatively little weight as independent corroboration of what actually occurred.
At [89], the Tribunal specifically addressed the decision not to contact the parents, as follows:
The applicant’s parents gave a statement describing the occasion in late 2015 when police officers came to their home searching for the applicant, and handed to them the ‘court documents’. The Tribunal notes that they (the parents) were willing to give oral evidence to confirm their statement.
•The Tribunal signalled its reluctance to take oral evidence from the parents.
- First, it must consider the potential risks to applicants and their families or friends, of speaking with witnesses in the country of persecution, particularly in cases involving claimed State persecution and allegations of serious criminal offences.
- Second, the Tribunal accepts that the parents might have been able to give further details about the claimed police raid, if asked; and that their evidence might well have been consistent with each other. It gives their willingness to give oral evidence appropriate weight.
- In the present case, the Tribunal considers that their oral evidence would have been of little additional probative value, taking into account: (a) that it appears that they would have been giving evidence in each other’s presence, and with the ability to refer to the written statement that they had prepared; and (b) given the lack of any additional information by which the Tribunal could have tested their accounts (for instance, the applicant relied solely on their account of what they witnessed).
• In the submission of 8 March 2018, the applicant’s representative submitted that the Tribunal should take oral evidence from the applicant’s parents, unless it accepts the ‘court documents’ as genuine.
- In the Tribunal’s view, the parents addressed a number of issues that are relevant to this case, such as the occasion when the police allegedly handed over the ‘court documents’, and when they seized the applicant’s laptop and photo album (which potentially goes to her lack of documentary evidence to support her claimed political activism in Turkey).
- The parents’ account, if accepted in full, would tend to support the applicant’s claims about the conviction and arrest warrant, but – even at face value – would not be conclusive proof as to the genuineness of the ‘court documents’.
• The applicant’s parents are obviously keen to support this application and, in the Tribunal’s view, their evidence (written and/or oral) carries little weight as independent corroboration for her claims. Their letter of support and their willingness to confirm its contents orally do not overcome the Tribunal’s significant concerns about these claims.
Ultimately, the Tribunal concluded as follows (at [90]):
The Tribunal has already rejected the applicant’s claim to have attended a meeting in Diyarbakir in 2010, or any similar event. It has also concluded that the applicant has made other untruthful claims, including the now-rejected incidents in July 2013 that allegedly prompted her and the applicant husband to leave Turkey. The Tribunal’s doubts are reinforced by the errors contained in the purported ‘court documents’ that the applicant presented. The Tribunal finds that these documents were manufactured to assist her case, and accordingly it gives them no weight.
Having outlined in detail the evolution of the request for the parents to give evidence and the Tribunal’s consideration of whether to take that evidence, it is now necessary to turn to whether the Tribunal erred in not taking that evidence.
The applicants have framed this ground as a “refusal” to hear corroborative evidence. On one view (which the Minister takes), the Tribunal did not “refuse” to hear corroborative evidence. In fact, the Tribunal did hear the corroborative evidence from the parents in the form of their written statement. The Tribunal simply declined to call the parents.
In any event, this ground turns upon whether it was logical and reasonable for the Tribunal not to call the first applicant’s parents as requested.
The applicants submit that the Tribunal did not exercise the discretion to call the first applicant’s parents because:
a)the Tribunal would give their evidence little weight because of their alleged ‘direct interest in this [sic] success of applicant’s protection visa application’;
b)giving evidence by telephone carries with it a risk of collusion between the parents and an alleged inability to falsify the evidence and therefore little weight could be given to the evidence;
c)contacting the parents by telephone involves a loss of privacy and exposes the parents and the applicants to ‘risk’ and could affect their safety;
d)the Tribunal had ‘already’ concluded that the event to which the documents spoke did not occur;
e)there were ‘errors’ on the face of the ‘court documents’ which the parents were going to attest to the genuineness of; and
f)the first applicant’s evidence was considered untruthful in relation to other claims.
The applicants submit that the Tribunal’s reasons for not calling the parents were “unreasonable” as:
a)when the Tribunal refers to the first applicant’s parents as having a “direct interest” this is an implicit finding that their evidence will be untruthful and was made without the Tribunal actually having heard their evidence. The Court in W360/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 211 (“W360/01A”) found a similar statement to be “erroneous”;
b)the Tribunal’s reference to being unable to verify who the Tribunal was talking to was, in AYX17 v Minister for Immigration & Border Protection [2018] FCAFC 103 (“AYX17”), said not to be a reasonable basis not to call evidence. Further, saying that the first applicant’s parents could “collude” (as they would likely be in the same room or have their statement in front of them) is an implicit finding of dishonesty;
c)in BTF15 v Minister for Immigration [2015] FCCA 3293, the risk to the safety of the witnesses was found not to be a reasonable basis not to call the witnesses in circumstances where the evidence is potentially corroborative of the appellant’s claim, there was no evidentiary basis that the call would be monitored or intercepted and the Tribunal had already, purportedly, rejected the basis on which the parents were going to give evidence;
d)it was not open to the Tribunal to decline to receive the parents’ evidence which could be capable of corroborating an event on the basis that the Tribunal had ‘already’ concluded it had not occurred. It is apparent that the Tribunal had not taken into account the corroborative evidence in making that factual finding; and
e)referring to CZBH v Minister for Immigration and Border Protection [2014] FCA 1023, the applicants submit that the Tribunal’s apparent acceptance that the parents ‘would have’ corroborated the statement ignores the underlying force of oral evidence (whether by telephone or video or some other means). The Tribunal may, in fact, have found the parents evidence more persuasive.
The Minister submits that the applicants have misread the Tribunal’s decision and that the Tribunal’s reasons for not calling the parents are restricted to those at [24] (which are consistent with what the Tribunal stated during the hearing as recorded in the transcript). The Minister says that the “reasons” the applicants refer to are no more than the Tribunal’s reasons for not attaching significant weight to the parents’ evidence and they do not relate to the reasons why the parents were not called.
Overall, the Minister submits that it was reasonable for the Tribunal not to call the parents as:
a)the present case does not involve any “reconstruction” of what the corroborative evidence was likely to be: W360/01A. In the present case, the Tribunal had the corroborative evidence in written form, considered that evidence and made findings that were open to it on the evidence before it;
b)the Tribunal did not “decline…capriciously” to take account of evidence that could be given by the parents. Rather, the Tribunal did have regard to and assessed the corroborative evidence from the parents;
c)the present case is not one where the Tribunal rejected corroborative evidence before receiving it. Hence, the Tribunal did not “deprive itself of the opportunity to consider relevant evidence having the capacity to corroborate … claims in a material respect”. The Tribunal did not say that it would be unassisted by the evidence of the parents. Hence, it did not fail to appreciate its task; and
d)the present case does not involve a decision to decline to call a corroborating witness on the basis of a prospective disbelief of the evidence to be given by the witness. Hence, it does not involve the kind of jurisdictional error discussed in AYX17.
In Minister for Immigration & Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118 at [38], the Full Court confirmed that the “sufficiency of any written evidence from the witness” was a matter that could inform whether to exercise the discretion to obtain the evidence. Here, the “written evidence” from the parents was confirmed as being the substance of the evidence that the parents were going to provide the Tribunal. There was, thus, a written statement and the applicants did not suggest that the parents could provide anything beyond what was in this statement. This, to the Court, supports the Minister’s argument that it was entirely reasonable for the Tribunal not to exercise the discretion to call the parents. While it might have been “easy” for the Tribunal to do so and while others might have done so, that is not the relevant test on judicial review. The test is whether the refusal to do so amounts to jurisdictional error on the basis of unreasonableness. There is no error of that sort in the specific circumstances of this case.
More recently, in BOX16 v Minister for Immigration & Border Protection [2020] FCA 801 (“BOX16”) it was stated:
76The appellant contended that the witness statements of the seven persons were brief and that, if the Tribunal had taken oral evidence from them over the telephone, their evidence may have been elaborated on or expanded in some relevant and material way. That submission has no merit. The appellant’s lawyer did not suggest to the Tribunal that the oral evidence of the proposed witnesses would or even might add anything to what they had included in their statements. Nor is there any basis for suggesting that that might be the case. That is a matter of pure speculation.
77 There is, in any event, no proper basis for concluding that the Tribunal was obliged to call oral evidence from the witnesses so they could expand or elaborate on what they had included in their witness statements: see BTF15 v Minister for Immigration and Border Protection (2016) 69 AAR 376; [2016] FCA 647 at [55]. Nor was the Tribunal obliged to call oral evidence from the witnesses so that their accounts could be challenged or tested. Proceedings in the Tribunal are inquisitorial, not adversarial, and the rule in Browne v Dunn does not apply: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437; [2003] HCA 60 at [57].
This reinforces the Court’s view that, in circumstances where the written statement was presented as being the first applicant’s parents’ evidence (and this would simply be confirmed if the Tribunal phones the parents), it was open for the Tribunal not to call the parents. Here, the Tribunal had confirmation of what the first applicant’s parents’ oral evidence would provide. The Tribunal was not required to “speculate” as to what the evidence would be. In effect, the parties agreed that it was what it was. Nothing more; nothing less.
The Tribunal in W360/1A did not have materials of this sort. It had an oral statement from the applicant about what evidence the witness could provide. Here, the Tribunal had the parents’ evidence in written form. The Tribunal accepted that any evidence given by telephone would corroborate what was in the statement. Both the first applicant and her representative confirmed that the evidence from the parents would confirm service of the “court documents” by the police. This did not provide anything further than what was in the statement (as the Tribunal identified at the hearing and which the representative and first applicant did not disagree with).
While the applicants refer to CZBH, and the fact that oral evidence can be “more persuasive”, here the Tribunal accounted for this when it stated that, even accepting the parents’ account at face value, it would not be conclusive proof as to the genuineness of the documents.
In this regard, the Court also references BOX16 at [71], as follows:
While the Tribunal could perhaps have expressed itself more clearly, that was the effect of its reasons for refusing to telephone any of the seven proposed witnesses so they could give oral evidence along the lines of the evidence in their statements. It is readily apparent that the Tribunal, having already heard and considered the appellant’s own evidence concerning his claims, determined that there was no point in telephoning any of the seven prospective witnesses to have them repeat the evidence contained in their statements. That was because, to the extent that the evidence corroborated the appellant’s evidence, it would nevertheless not overcome the Tribunal’s “concerns” that the appellant was not a credible witness who had fabricated his claims. In those circumstances, it was not irrational, illogical or unreasonable for the Tribunal to, in effect, determine that the corroborating evidence, even if repeated orally on oath or affirmation by the witnesses over the telephone, was deserving of no weight, or should be rejected as being unreliable or not credible.
While the Court is conscious that the appellant in BOX16 did not raise calling witnesses until late, it is nevertheless reflected in the Tribunal’s reasons here that there were “significant concerns about these claims”. Those concerns were detailed in the Tribunal’s decision and, in light of the fact that the Tribunal had the evidence that the parents would provide and given the extent of the Tribunal’s concerns overall (many of which the transcripts show were put to the first applicant) it was not irrational, illogical or unreasonable for the Tribunal to determine that any corroborating evidence from the parents (even if repeated orally on oath or affirmation by the witnesses over the telephone) would only be afforded limited weight.
The Tribunal was not deprived of the opportunity to consider the corroborative evidence. The Tribunal had the evidence and accepted that it would corroborate the first applicant’s claim and that the parents would confirm their statement. The Tribunal considered this accordingly when determining whether it was satisfied that the first applicant’s claims to have been convicted in absentia were made out. No error arises in this regard.
When read as a whole, it cannot be said that the Tribunal’s refusal to exercise the discretion to call the parents was “arbitrary” or “capricious”. The Tribunal accepted the parents’ evidence and took into account what was clearly identified to be the parents’ substantive evidence -- albeit in a written form. This is not a case where the Tribunal refused to take evidence. Rather, the Tribunal was provided evidence which, on the applicants’ own submissions to the Tribunal, would be the same whether provided on the telephone or via the statement provided.
The Court is satisfied that in the particular circumstances of this case, it was entirely reasonable for the Tribunal not to exercise the discretion to contact the parents by telephone. It cannot be said that no reasonable person could not have concluded that this was an appropriate course of action. Ultimately, the Tribunal’s decision fell within its area of decisional freedom and in no way disabled it from properly assessing the applicants’ claims and evidence.
No jurisdictional error arises in relation to Ground A. Ground A is, accordingly, dismissed.
Ground B
Ground B provides:
The decision of the second respondent was vitiated by a denial of procedural fairness in that the 427 days between the hearing and the publication of reasons impaired Tribunal’s capacity to assess the applicants’ evidence and evaluate their claims, and permitted unconscious bias.
Ground B argues that the delay between the Tribunal hearings and the decision was substantive and that this caused the Tribunal’s decision to be unsafe. The applicants submit that the Tribunal relied on “impression” when making its findings as to the applicants’ evidence and made various incorrect references to the applicants’ evidence at the hearing.
In NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 288 CLR 470 (“NAIS”), the High Court considered a case in which the Tribunal had held two hearings. The first was in mid-1998. The second was in late December 2001. A decision was made in January 2003. In total, the delay between the first hearing and the decision was four and a half years. It was found that this “inordinate delay” had deprived the Tribunal of the capacity to properly assess and evaluate the applicants’ claims and evidence. At [5], Chief Justice Gleeson relevantly stated:
Undue delay in decision-making, whether by courts or administrative bodies, is always to be deplored. However, that comfortable generalisation does little to advance the task of legal analysis when it becomes necessary to examine the consequences of delay. The circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare. Of course, statutes of limitation impose a legislative direction that certain delays will bar proceedings; and analogous consequences may flow from the application of equitable principles. There is, however, nothing in the Act that prescribes a time limit for decisions of the Tribunal, and this Court has no power to determine some such limit. A court may have power to relieve against oppressive conduct of a complainant, or a prosecutor, and delay may be a factor in the oppression. In such circumstances, the ground for relief is the oppression, not the delay. A court of appeal, reviewing a decision of a primary judge, may conclude that delay in giving judgment has contributed to error, or made a decision unsafe. Again, the ground of appellate intervention is the error, or the infirmity of the decision, not the delay itself...
NAIS is authority for the principle that a lengthy delay which goes unacknowledged by the Tribunal in its reasons for decision can give rise to jurisdictional error in the form of, for example, a failure to take into account a relevant consideration or a denial of procedural fairness: SZIIF v Minister for Immigration & Citizenship [2008] FCA 913 at [83].
In order to demonstrate jurisdictional error, it is necessary to identify a flaw in the process of the Tribunal’s reasons that can reasonably be attributed to the passage of time: Minister for Immigration & Citizenship v MZYNN [2012] FCA 1177 at [32].
The delay here is approximately 14 months. Clearly, this is not as substantial as the delay addressed in NAIS. It is also not as substantial as the delay seen in Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189 (“Expectation”) which the applicants cite in their submissions.
The applicants point out that the Tribunal does not acknowledge the length of the delay here. It does not, for example, reference having listened to the audio of the hearing or accessing the transcript and gives no explanation for the delay.
Contrary to the applicants’ submissions, the Tribunal does reference the hearing dates at [23]. Further, while the Tribunal does not acknowledge the delay in its reasons, a letter was sent to the applicants by the Tribunal on 16 February 2018 which expresses the Tribunal’s “regret” for the amount of time taken to finalise the matter. That letter also makes it clear that the applicants can make any further submissions they wish to make (CB 336). In the Court’s view, this supports the Minister’s contention that the Tribunal was conscious of the delay and took steps to ensure that the applicants had a further opportunity to present their case.
The Tribunal does not refer to any “aids” in its decision (such as a transcript or an audio tape). However, the Tribunal’s statement of the evidence is comprehensive. In Expectation (at [71]) it was stated:
In the normal course, statements made by a trial judge of a general assertive character can be accepted as encompassing a detailed consideration of the evidence. However, where there is significant delay, such statements should be treated with some reserve. After a significant delay, a more comprehensive statement of the relevant evidence than would normally be required should be provided by the trial judge in order to make manifest, to the parties and the public, that the delay has not affected the decision.
Here, the Tribunal set out in significant and forensic detail the documentary evidence that the applicants had provided and makes numerous references to what was discussed at the hearing (see, for example [11], [19], [26], [47], [50], [53], [55], [57], [61], [62], [64], [65], [66], [75], [85], [99], [108] and [119]). It is apparent from the Tribunal’s decision that it was able to recollect in significant detail (whether by reference to an aid or not) what transpired in the hearing. The Court draws no adverse inference in that regard.
At [28]-[30], the Tribunal detailed its approach to the assessment of credibility. At [29], the Tribunal noted that it had taken into account the fact that the hearing took place by video-link. The Tribunal also noted that the first applicant was “upset” at various times during the hearing.
The Tribunal does not state that it takes into account the delay in determining the credibility of the applicants. At [30], the Tribunal states:
The Tribunal found much of the applicant’s claims and evidence problematic. They were often vague, unsubstantiated and lacking in context, leading to the strong impression that the applicant (and the applicant husband) was sometimes not recalling personal experiences at all. The Tribunal appreciates the need for caution, however, given the submissions before it relating to the applicant’s mental health. The Tribunal’s consideration of this medical and social welfare evidence follows, as does its full assessment of her protection claims.
The applicants argue that the Tribunal’s reliance on “impression” is a matter upon which delay has been recognised as self-disabling the Tribunal from properly considering the case before it. In particular, the applicants drew attention to the following comments or findings made by the Tribunal which the applicants submit are matters of impression that were made vulnerable with the passage of time:
a)that the “applicant’s claims about her own experience of racial or religious discrimination (are) generalised, unsubstantiated and unreliable” (at [48]);
b)that the first applicant “struggled to give any specific examples of harm that she has suffered as an Alevi Kurd” (at [49]);
c)that the first applicant’s account of various mattes was “vague” (at [50], [66], [69], [76] and [80]) and “unpersuasive” (at [69])
d)that the first applicant’s evidence was “unfocused and repetitive” and that “the Tribunal formed the strong impression that the applicant was not genuinely exploring whether such materials exist, and that in fact, there are none” (at [61]); and
e)the “evidence was very vague and often unsupported by the kind of observational detail or anecdote that would indicate she was recalling personal lived experience even if imperfectly)… vague and also at odds with the tenor of her previous claims” (at [69]).
The Tribunal’s observations in this regard are not matters that turned upon as assessment of the first applicant’s presentation or demeanour. Rather, they reference objective matters that were distinct from the way in which the first applicant gave her evidence. The applicants are reading the Tribunal’s decision minutely and attach too much weight to the Tribunal’s language and without context. For example, the use of “impression” by the Tribunal (at [30] and [61]) amounts to no more than the Tribunal expressing its own opinion. It is not a reflection of the Tribunal’s assessment of the first applicant’s presentation of the evidence. The fact that the evidence was vague, unsubstantiated and lacking in context (i.e., deficient in detail) led to the impression – not the way in which the first applicant presented her evidence
As the Minister submits, the concerns the Tribunal had with the first applicant’s credibility and her claims arose from inconsistencies between the evidence and the information that was before the Tribunal. These concerns and any credibility findings in relation to the claim did not, to any significant extent, rely on the demeanour, sincerity or reliability of the first applicant before the Tribunal. Rather, what was of concern were inconsistencies, the lack of detail and the unpersuasive explanations given for certain matters (such as why there was no contemporaneous material) – all of which were matters that could be assessed without issue and despite any delay.
The Court is satisfied that the Tribunal’s delay in producing reasons here did not impair the Tribunal’s ability to assess the applicants’ evidence and evaluate their claims. No flaws in the Tribunal’s reasoning process can be attributed to the delay, however significant. Overall, there is nothing to suggest that the Tribunal’s judgment is “unsafe”. The Tribunal engaged in a detailed, analytical and focussed assessment of the evidence and the claims without impairment.
The applicants also draw attention to “incorrect” statements on the part of the Tribunal in relation to the first applicant’s evidence. In effect, they contend that this indicates that the Tribunal “incorrectly recalled things”.
The applicants refer specifically to the Tribunal’s decision at [65], wherein the Tribunal states:
… The Tribunal discussed with the applicant the reported mob attack on the BDP office in Gaziantep in 2012. Asked if she knew about the events that led to it, the applicant was not sure, but commented that the Turkish state is always trying to provoke the Kurds. The Tribunal put to the applicant that a bomb explosion had killed nine people (Turkish civilians) the previous day and this had prompted protestors to attack the BDP office. It signalled its surprise that she was not familiar with that incident even though, at the time, she was mainly preoccupied with her young child.
The transcript of the hearing records as follows:
TRIBUNAL: In Gaziantep, in the town or the city, there was a significant event in 2012 with the BDP in the office. What happened?
FIRST APPLICANT: Yeah, the BDP building was ...
Yeah, there was a bombing of the office and also there was an attack at the office, to the office, but don’t know who are responsible for that attack.
TRIBUNAL: And why? The attack followed on from something that happened. Do you know why the BDP office was bombed?
FIRST APPLICANT: The state ran ... there is such an organization and such activities. State provokes people with some things and when the people are provoked or organized by state, they attack the organizations.
TRIBUNAL: And there was a bombing of the ... Do you know when the bombing of the office took place?
FIRST APPLICANT: Sorry when?
TRIBUNAL: Do you know when the bombing of the office took place?
FIRST APPLICANT: It could be 2012 but I don’t know. I don’t remember exactly.
TRIBUNAL: Okay. There was an attack on the BDP office in May of 2012. It was triggered by a particular event and I’m just wondering if you ... you’d probably heard from your BDP colleagues what that incident was.
FIRST APPLICANT: I didn’t understand. Can you repeat?
TRIBUNAL: There was an attack. People attacked the BDP office in May, 2012 and there was a very specific reason why people attacked the BDP office. Do you know what that was?
FIRST APPLICANT: I’m thinking. I’m trying to remember.
TRIBUNAL: That’s fine. The truth of it was, there had been a bombing in Gaziantep. Does that ring a bell?
No? That’s fine. I just wanted to say the reports that I’ve seen, and it was very widely reported, was that the BDP office was attacked because they’d been a bombing in Gaziantep where nine people had been killed and after that bombing, a lot of people then turned on both the PKK and the BDP blaming or somehow retaliating against their office. But that was a very specific incident, right.
FIRST APPLICANT: Now I remember there was this public transport bus called [inaudible 01:44:48] it’s a private public bus. That’s why.
But there were not only one incident of attacking the office. There had been previous attacks all the time. They were throwing stones.
TRIBUNAL: Yeah, no, no, I’m aware of that, but this one was much more serious and that’s why I was asking you if you as a BDP member knew about it. That’s why I was asking
The applicants say that [65] (specifically, where the Tribunal states that the applicant was “not sure” of particular events) is incompatible with what occurred during the hearing (as transcribed above).
The Court disagrees. The Tribunal’s statement at [65] is not incompatible with what the first applicant stated at the hearing. The Tribunal (at [65]) is referring to the fact that the first applicant was not able to identify a “specific incident” which was “widely reported” as being the reason for the mob attack and the bombing at the BDP office (i.e., it occurred because of a bombing in Gaziantep that killed 9 Turkish civilians). The first applicant’s responses to the Tribunal’s questions were generic and refer only to a bomb at the BDP office and an attack generally (i.e., she does not refer to the reason behind the attack on the BDP office which was what the Tribunal’s questions directly asked for). It is only when the Tribunal discloses the reason for the attack (i.e., puts to the first applicant the information about the bombing that killed 9 Turkish civilians) that she remembers. In these circumstances, it was open to the Tribunal to state that the first applicant was “not sure”.
Finally, in NAIS at [87] Justice Kirby states:
In addition to these considerations, there is another factor that is repeatedly mentioned in authority concerned with judicial delay. It is equally applicable to decision-making by members of quasi-judicial tribunals, such as the Tribunal. Extensive delay may sometimes tempt (or appear to tempt) the decision-maker to take the path of easy resolution. In Expectation Pty Ltd v PRD Realty Pty Ltd[91], the Full Court of the Federal Court, in an appeal against delayed judicial reasons, explained the problem in terms of the increasing pressure which prolonged delay occasions to publish a decision. That pressure will bear upon the decision-maker as time passes, leading to the possibility that[92]:
“[t]hat pressure could well unconsciously affect the process of decision-making and the process of giving reasons for decision. The decision that is easiest to make and express will have great psychological attraction.”
These comments are addressed to a human propensity. They are not confined by the legal character of the body in which the propensity may be manifested.
At hearing, although not entirely clear, the applicants seemed to indicate that Exhibit 2 demonstrates that the workload of the Tribunal during the relevant time was “extreme” and supports the view that the Tribunal may have taken the “easier option” when considering the evidence before it. Exhibit 2 references the workload of the Tribunal as an entity. There is nothing before the Court relevant to the Tribunal member who decided this review and nothing that indicates that that person’s “workload” affected this particular decision.
While the Court agrees that the workload of Tribunal members is often unacceptable and that Tribunal members work in difficult and often stressful circumstances, the Court does not agree that these issues had any effect of the Tribunal’s decision here. The Tribunal’s reasons do not demonstrate that the Tribunal here took the “easier option”. The reasons are of an extraordinarily high quality. Indeed, others would do well to emulate the approach taken by the Tribunal in this regard. The reasons provided are extensive, detailed and forensic. There is nothing in the Tribunal’s decision which can be seen as evidence of it “skirting more difficult issues and driving toward simple conclusions” or which demonstrates a “lack of clarity”: Von Schoeler v Allen Taylor and Company Ltd Trading as Boral Timber (No 2) [2020] FCAFC 13 at [113].
Ground B is, accordingly, dismissed.
Conclusion
The applicants’ application for judicial review has failed to identify any jurisdictional error in a decision of the Administrative Appeals Tribunal dated 1 June 2018. The Court is otherwise unable to identify any error.
The application for judicial review is, accordingly, dismissed.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 23 July 2020
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