FEDERAL COURT OF AUSTRALIA
DZG17 v Minister for Immigration and Border Protection [2019] FCA 2106
Appeal from: DZG17 & Anor v Minister for Immigration & Anor [2018] FCCA 1829 File number(s): QUD 514 of 2018 Judge(s): GREENWOOD J Date of judgment: 13 December 2019 Catchwords: MIGRATION – consideration of whether the Administrative Appeals Tribunal engaged in jurisdictional error by failing to give real and genuine consideration to the appellants’ request to hear oral evidence from two witnesses as required by s 426(3) of the Migration Act 1958 (Cth) Legislation: Migration Act 1958 (Cth), ss 5J, 36, 426, 428 Cases cited: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 361 ALR 227
AYX17 v Minister for Immigration and Border Protection (2018) [2018] FCAFC 103; 262 FCR 317
DZG17 & Anor v Minister for Immigration & Anor [2018] FCCA 1829
DZG17 v Minister for Immigration and Border Protection [2019] FCA 8
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Maltsin [2005] FCAFC 118; (2005) 88 ALD 304
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277Date of hearing: 11 March 2019 Date of last submissions: 11 March 2019 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 124 Counsel for the Appellants: Appellants appeared in person Counsel for the First Respondent: Ms Susan Forder Solicitor for the First Respondent: Ms G Gehrke, Sparke Helmore Lawyers ORDERS
QUD 514 of 2018 BETWEEN: DZG17
First Appellant
DZH17
Second Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
13 DECEMBER 2019
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The orders made by the Federal Circuit Court of Australia on 12 July 2018 be set aside and in lieu thereof, it be ordered that:
(a)the matter be remitted to the Tribunal for the purpose of enabling the Tribunal to undertake the task of having regard to the wishes of the applicants as required by s 426(3) of the Migration Act 1958 (Cth) so as to enable the Tribunal to understand why the applicants want the Tribunal to take evidence from the nominated witnesses, Mr David Corneau and Ms Patricia McLaughlin, and how evidence from those witnesses is said to relate to the Tribunal’s review of the claims of the applicants and its impact upon the credibility of their evidence;
(b)the first respondent pay the costs of the applicants of and incidental to the proceedings before the Federal Circuit Court of Australia.
3.The first respondent pay the costs of the appellants of and incidental to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GREENWOOD J:
In this appeal filed on 30 July 2018, the appellants appeal from the whole of the judgment and all of the orders of the Federal Circuit Court delivered on 12 July 2018: see DZG17 & Anor v Minister for Immigration & Anor [2018] FCCA 1829. Judge Jarrett (“the primary judge”) made orders on 12 July 2018 that the amended application filed by the appellants on 24 January 2018 be dismissed and that the appellants pay the first respondents’ costs of and incidental to the application to the Federal Circuit Court.
The notice of appeal filed in this court seeks the following orders:
Orders sought
1.Squash the Original Immigration and Border Protections Decision to deny a valid visa.
2.Squash the Administrative Tribunal Appeal Decision.
3.Squash Judge Jarrett’s Decision made in Federal Circuit Court on July 12th, 2018.
4.Appellant seeks recommendation for leave or special leave to the [High Court] on grounds of discrimination.
5.Appellant seeks recommendation for leave or special leave to the [High Court] on grounds of the appellant was not afforded natural justice in this matter.
6.Appellant seeks all costs, to be paid by the Respondents.
In seeking those orders, the appellants rely on the following grounds of appeal:
Grounds of appeal
1.The reasoning for a reserve decision on March 16th 2018, Court was to assess the rules of law, whereas the onus to prove case during tribunal process was on the applicant, whereas the tribunal did not contact witnesses in the matter to affirm continued hardship of the applicant being returned to country of origin.
2.The Judgement made on July 12, 2018 did not mention the reason of witnesses in the reasons for dismissal.
3.The Federal Circuit Court Judge did not accept the applicant’s amendment made on January 28th 2018.
4.The Federal Circuit Court Judge did in fact have an obligation if any errors found in his rulings on this matter to address those errors.
5.The applicant has not been afforded natural justice or legal assistance in this matter due to the country of origin.
Background
I previously dismissed an interlocutory application, brought by the appellants to adduce particular documents and oral evidence not before the primary judge: see DZG17 v Minister for Immigration and Border Protection [2019] FCA 8. I will expound further on some background matters where relevant, but my reasons in the earlier judgment set out key contextual matters, see particularly paragraphs [6]‑[28].
On 14 April 2015, DZG17 applied for a protection visa for herself and for her de facto partner DZH17 (although they are now married). Also listed in the application was DZG17’s daughter, born on 24 December 1992.
At AB32, DZG17 provided the following answers:
90 Why did you leave that country(s)? Provide specific details
Initially I came to Australia with my De facto spouse, who applied to work and live in Australia.
I had never really been anywhere in the world due to the extreme duress I was enduring throughout my entire life, and [s]ince being here in Australia, I have had no nightmares, no anxiety attacks, no stress (except for thinking I may have to return to Canada) and I have loved every [minute] of being here, and have made friends, and created a low stress job for me to help save money for the future. I have a dog and a cat. I have built a life without fear, without being scared to walk out my front door, Australia gives me the opportunity to live without hindrance from family, from government, from fear.
I would not have applied under this act, if I had other choices, but I do not have other choices.
1) due to extended family members, maternal and paternal sides, caused great hardship, deformation of character, and cannot live a normal life. Which created anxiety, depression, and severe post traumatic stress disorder by continuing to live in Canada.
2) Due to the lack of protection I, and my children received by my own government of Canada, they had known of the issues, they admitted knowing in several reports including Freedom of Information, and did not do a thing to protect or assist me in any way even including my adult years.
91 What do you think will happen to you if you return to that country(s)?
I feel my life will still be harassed by my family as they have done up until my leaving, and the government will not protect me. I will have no assistance of any kind financial or otherwise, I will not be able to sleep at night. I will return to panic attacks, anxiety, nightmares and fear.
I fear my daughter being of same name will also be persecuted, harassed at some point in her life due to the nature of these claims.
When I lived in Canada I lived in fear every single day, for me and for my daughter. We moved a lot, so much I couldn’t even remember all the addresses over 30 years, trying to break free from the cycle of the abuse I was enduring, [P], who is now an adult herself.
To go back would be a great devastation on my healing progress and recovering of 40 years + abuse that I received in Canada. [P] is the only Daughter I have ever had the chance to be a part of her life, as I did raise her.
92 Did you experience harm in that country(s)?
No Go to Question 94
YesGive details (including the type of harm you experienced, the person/people responsible for the harm and why they harmed you)
Sexual, Physical, Emotional, Mental Abuse, Mother, Step Father, Biological Father. Child Protection Services [k]new since I was 2.5 years old, did nothing to protect me ever. Never [p]rotected my [c]hildren, and I am still harassed in various ways, both by the Government and by extended family members.
(See Letter of Reasons attached)
93 Did you seek help within the country(s) after the harm?
YesGive details (including the name of the person/organisation/authorities you asked for help, and if they helped you, what they did)
Wrote Letters to the Provincial Governments, Social Services and Housing, Police Department, Counsellors, Lawyers over 20 years of information that can be found in my freedom of information act files (see certified letter authorizing release of documents to Australia)
Patricia McLaughlin;
William Sheddy;
Lillian Kelly
94Did you move, or try to move, to another part of that country(s) to seek safety?
YesGive details (including where you tried to move, why you were unable to move or where you moved to and what happened)
I tried to [relocate] into a different province and they found me through my revenue Canada and through my [Driver’s] Licence, telephone calls had been made to my home and work, the work ones caused me to [lose] jobs.
It stopped for a while because I did not renew my [driver’s] license but 7 months before coming to Australia I was being harassed again, this time by Child Protection.
95Do you think you will be harmed or mistreated if you return to that country(s)?
YesGive details (including the type of harm or mistreatment you are likely to experience, the person/people who would be responsible for the harm or mistreatment, why they would harm or mistreat you).
I will not be able to live without fear of the possibilities of harm. If I needed any social help, it will be denied as it has been for so many years already. My [f]amily, and the Government of British Columbia. I have attached a recent letter from one of the parties that were involved on my [father’s] side of the family.
This letter was sent to me on Friday April 03rd 2015. I haven’t had contact in over 4 years and just received this letter.
I feel as long as I am trying to better myself, the fear of being harmed to silence me is very real.
…
97 Do you think you would be able to relocate within that country(s)?
NoGive details about why you are unable to relocate
They have always found me somehow. Via as my Social Insurance Number is attached to all government dealings.
By letter dated 10 April 2015, DZG17 wrote a lengthy letter in which she explained that prior to her departing Canada, “I always lived under an enormous feeling of fear, embarrassment, self loathing, low self esteem, discrimination … as a child, I was completely abused mentally, emotionally, physically and sexually by my biological mother, stepfather and biological father”. DZG17 went on to say that “when I disclosed to the local Police and The Ministry for Children and Families … I was completely ignored”. DZG17 explained aspects of her life which are relevant to these allegations. I note in particular that DZG17 explained that she first complained of sexual abuse committed against her to the Coquitlam Police and the City of Vancouver Police Department and to the Ministry for Children and Families. DZG17 says that these “cries for help were all ignored”.
DZG17 explains in the letter of 10 April 2015 that she was first sexually assaulted when she was one and a half years old by her stepfather. She goes on to say that her mother and stepfather physically and sexually abused her until she went to live with her biological father who she said also sexually abused her. DZG17 explains that she gave birth to two daughters by incest.
DZG17 explains that the Canadian authorities never protected her. In 1988, DZG17 says that her father was charged with incest and entered a plea of guilty, leading to a six month carceral sentence. DZG17 explains that her biological mother attempted to have the state remove DZG17’s daughters from her care, and on one occasion attempted to kidnap one of DZG17’s daughters. DZG17 says that no charges were laid by the Canadian police.
DZG17 explains that against her wishes and “inadequate home visits”, the relevant department placed her daughter in the care of her mother and stepfather. DZG17 explains again that she made a successful application to the Provincial Court and was granted “temporary custody” of her first daughter. DZG17 then explains that she returned to her father who raped her again, leaving her with her second daughter. DZG17 explains that, again, the relevant department took both daughters and left them in the care of DZG17’s mother and stepfather.
DZG17 explains that she was diagnosed with PTSD in 1989 (at the age of 21) and that she lived in “fear and was terrified of my abusers”.
DZG17 explains that she made an application to the Provincial Court and was granted visitation rights, on the basis that she attend parenting classes and counselling. DZG17 explains that for various reasons she was convinced that her daughters were being sexually abused in the home of DZG17’s mother. DZG17 explains that following an unsuccessful application for sole custody of her children, the relevant department refused to intervene with respect to the child abuse allegations by DZG17 and her mother and step‑father harassed her and engineered her dismissal from places of employment.
DZG17 comments that she successfully sued a company for wrongful dismissal.
DZG17 explains that she employed Patricia McLaughlin, a private investigator, in order to “assist me with facilitating me with supervision of the children”. DZG17 explains that whilst driving DZG17’s youngest daughter, Ms McLaughlin was told by DZG17’s daughter that “strange things were happening ... at night time”. This allegation was apparently reported to the police, with no resulting action.
It appears that DZG17’s application for sole custody went to trial in 1998. In the course of that trial, it seems that DZG17 became aware that the Ministry for Children and Families “not only knew of my sexual abuse by my stepfather since the age of 2, yet this still assisted my parents to achieve in getting custody of my children”.
DZG17 explains that she had a third daughter to her ex‑husband. This daughter was subjected to an examination by a child psychologist, who specialised in sexual abuse cases. The psychologist apparently formed an assessment that DZG17’s third daughter had never been sexually assaulted.
DZG17 also says that she requested a “freedom of information” file as early as October 2011. DZG17 says that she is yet to receive a file.
DZG17 then provided a further statement in which she said that she set out a number of details concerning her life in Australia.
There are a number of statements that were provided to the Department in support of DZG17’s application. The first was from David Corneau, a former partner of DZG17. In that undated letter, Mr Corneau explains that he has known DZG17 since 1999, when they started a relationship. He gives a number of reasons as to why he considers that DZG17 requires protection from the Canadian Government. The first is a description of an incident in which government social workers came to DZG17’s home, but promptly left when Mr Corneau spoke to them. His opinion of this situation is that as a “socially intellectual” person the social workers did not want to engage with him, but rather wished to prey on the “culturally disadvantaged”. The second instance is when Mr Corneau approached the Government for benefit payments upon losing his job. Mr Corneau says that when he mentioned DZG17’s name, the government employee said “the Ministry of Children & Families seem out to get this girl”.
The third incident involves an allegation that the Canadian Law Society rejected DZG17’s request for assistance in an abusive manner. Finally, there is an allegation that Revenue Canada intimidated DZG17 when she requested an investigation into government funds being paid to her.
The second is from Jessica Haratsis, a clinical psychology registrar with Bravehearts. In that letter dated 8 April 2015, Ms Haratsis explained that DZG17 presented in a “state of crisis and was highly distressed”. Ms Haratsis explained that DZG17 scored in the severe range for stress symptoms, in the extremely severe range for depression and anxiety. Ms Haratsis commented that DZG17’s symptoms are consistent with her alleged sexual assault and trauma history.
On 20 October 2015, the Department requested that DZG17 attend an interview. On 13 November 2015, DZG17 attended that interview.
On 15 January 2016, the Department notified DZG17 that her application for a protection (subclass 866) visa had been rejected. The Department was not satisfied that DZG17 was a person in respect of whom Australia had protection obligations as outlined in ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”).
The delegate made the following findings of fact (AB132):
•The applicant is a Canadian citizen.
•She has three daughters, who are Canadian citizens. The youngest is in her early twenties and they live in Canada.
•The applicant is married to a Canadian citizen and they have an ongoing relationship.
•The applicant and her husband lodged visa applications for a Work visa (subclass UC‑457) application and for an Employer Nomination Scheme (ENS) visa in Australia; however their applications were unsuccessful.
•The applicant’s narrative and evidence suggests that she was sexually abused and that she had two children with her biological father.
•At interview the applicant indicated that she fears her mother and stepfather and that she believes they have influential connections in Canada, which will prevent her from living a full life. At interview the applicant indicated that her mother blamed her for the sexual abuse, especially after she had two children with her biological father.
•The applicant claimed that the authorities have failed to protect her; however I note that the applicant has been able to work, get married and get medical assistance. Also she won an unfair work dismissal court case, and she gained the custody of her third daughter by a court ruling, which indicates that even if she has encountered corrupt or neglectful officials in the past, the Canadian government has a working separation of powers and functioning institutions. Evidence does not show that the authorities have discriminated against her in the past.
•She indicated for example that she had been denied welfare assistance and that she attempted to address this with the authorities, she was badly treated. At interview the applicant indicated that she had found out that her mother had presented false evidence to the government’s welfare agency that she was deceased, similarly her step‑father had fraudulently obtained numerous personal loans in the applicant’s name.
•I consider that given the level of criminality committed on the applicant’s behalf, it would be logical that an investigation be conducted and subsequently some services may be restricted to the applicant until the investigations are finalised. I do not consider that the Canadian authorities are biased or corrupt in delaying access to services to citizens, who may [be] suspected of committing fraud.
•In relation to the applicant’s story of incest being broadcasted in the media; despite numerous attempts, no evidence of this is available on the [worldwide] web. Also, I have considered that more than 20 years have passed since the events took place, and if there was any damage to her character, as she claims, she was still able to obtain employment, seek medical assistance, start legal proceedings, get married, get divorced, register her children, get custody of her children, travel, etc. Given the available country information about the legal system in Canada, which is comparable to that of Australia, I do not accept that the Canadian government will withhold support for the applicant for an event that happened more than 20 years ago or because she was a victim of sexual abuse.
The delegate considered, for the purposes of s 5J(1)(a) of the Act, that DZG17 was a member of a particular social group, being “women survivors of sexual abuse in Canada” and, for the purposes of s 5J(4)(a), the delegate was satisfied that the reason of membership of a particular social group is the essential and significant reason for the feared persecution. The delegate was also satisfied for the purposes of s 5J(4)(b) of the Act that DZG17’s feared persecution involves serious harm and that the feared persecution involves systematic and discriminatory conduct as per s 5J(4)(c) of the Act.
However, the delegate was not satisfied that there is a real chance of persecution, with reference to country information (particularly a US State Department Human Rights Report from 2014). Accordingly, DZG17 is not a refugee for the purposes of s 5H of the Act.
The delegate went on to conduct a complementary protection criterion assessment pursuant to s 36(2)(aa) of the Act and found that the claimed harm is significant harm within the meaning of s 36(2A) of the Act. However, the delegate found that there are not substantial grounds for believing that as a necessary and foreseeable consequence of being removed to Canada there is a risk DZG17 will suffer significant harm: see s 36(2)(aa) of the Act.
On 7 February 2016, DZG17 and DZH17 applied for review to the Administrative Appeals Tribunal (the “Tribunal” or the “AAT”) (see AB142‑143).
Annexed to the online application form lodged with the AAT, DZG17 provided a “response to the refusal of my 866 Visa Application”.
In that document, DZG17 says that she is unable to access the personal information she wished to retrieve from the Canadian Government. She puts her central proposition this way: “after extensively going through every avenue to prove my case, it comes down to mine and character witness’s word against theirs”.
DZG17 responds to particular propositions raised by the delegate. In particular, DZG17 says that the delegate referred to country information which indicated that corruption in Canada effects 1‑5% of Canadians. DZG17 says she is one of those 1‑5% of the population.
DZG17 said that the country information as to criminal punishment for sexual abuse is six months to two years imprisonment. DZG17 says the relevant offence is incest and that her biological father received only six months in prison. DZG17 goes on to say that the delegate incorrectly remarked that she had had unsupervised access to her children. DZG17 then recounts a number of relevant background facts concerning the trial referred to earlier in these reasons. As to the delegate’s finding that there is no evidence of media reporting of her case, DZG17 says that “all the media pertaining to me, my children and this case was gagged as of September 10th 1988 the day of the decision of the Supreme Court”.
DZG17 noted a number of small factual discrepancies in the delegate’s reasons. Relevantly, she noted that the delegate’s conclusion that she could get work needed to be understood in the context of her fear that she would be forced out of work by outside interference and that she feared her husband was at risk because of the kidnapping of her ex‑husband.
DZG17 responded to the delegate’s finding that many years had passed since she faced harm. DZG17 said that in 2013 the government made a “threatening phone call to my residence” because she wished to launch an investigation into her tax returns. She referred to the letters from Linda Parsons and Mr Corneau as supporting evidence.
DZG17 said that she had provided no evidence to support her claims of harassment by the Canadian Government because she could not access those files. DZG17 says that the delegate failed to mention that her biological mother and stepfather stole from her by producing a fake death certificate.
DZG17 then recites key elements of her claim, including emphasising that she received a threatening phone call from a government lawyer in 2012. She says that will “have up to 20 witnesses who will be testifying on my behalf” and that she will be relying on evidence of her character.
Following a request from the AAT, on 5 April 2017, the appellants returned a “response to hearing invitation form”. In Part 3 of the form, the appellants said this:
I/we request that the Member takes oral evidence from another person.
No
Yes (Please specify below)
Witness 1
Full name: Patricia McLaughlin
Relationship to you (e.g. spouse, partner, mother, father, brother, sister, employer, social worker etc):
Private Investigator
Address:
Burnaby, British Columbia, Canada
If this witness cannot attend the hearing in person, please provide his/her telephone number: [number omitted]
(We will contact the witness on this number during the hearing if necessary)
Describe this person’s evidence and how it is relevant to your case:
25 years of investigation, full report of the findings obtained, documentation to support claims for this hearing.
Witness 2
Full name: Donald Frank Corneau
Relationship to you (e.g. spouse, partner, mother, father, brother, sister, employer, social worker etc):
Ex‑partner
Address:
Alberta Canada
If this witness cannot attend the hearing in person, please provide his/her telephone number: [number omitted]
(We will contact the witness on this number during the hearing if necessary)
Describe this person’s evidence and how it is relevant to your case:
First heard witness of government’s persecution 10 yrs after the case was finished.
Witness to harassment & threats – letter (email …)
On 4 May 2017, DZG17 telephoned the Tribunal’s Registry and spoke to a Registry Officer. DZG17 enquired whether she will be able to get an extension of time and then followed up her oral indication by way of written correspondence. In that letter, DZG17 explained that there were four documents that a private investigator was collecting from Canada. DZG17 described the documents as “very pertinent” and were said to be “court files from June 1998, proving claims of judicial persecution; media files; professional report of the Private Investigators findings from 1996 …”. In order to provide these documents, DZG16 required “an extension of hearing for at least 30 days”.
It appears that a number of supporting documents were provided to the AAT on behalf of DZG17. The first is a letter from Lillian Kelly dated 28 January 2016. DZG17 says that she did not consider that this letter was genuine because of the difference in font from that used on another letter from Ms Kelly dated 30 January 2016. The letter dated 28 January 2016 says that Ms Kelly has received DZG17’s request for client files, however, Ms Kelly had disposed of or destroyed the file in January 2015. In the 30 January 2016 letter, Ms Kelly indicated that she was not willing to “participate in this process” because of the hardship Ms Kelly had endured during the trial and because DZG17 had not paid her $720 invoice.
Mr Corneau’s letter was substantially in the same form as at [19] of these reasons was also seemingly before the AAT.
There is a further letter from Bravehearts dated 6 March 2017 which was before the Tribunal. In that letter, a psychologist working for that organisation said that DZG17 had reported PTSD symptoms of clinical significance and presented in such a way that would indicate she is at high risk of adult onset of chronic disease. Bravehearts said that the “risk of [DZG17’s] overall wellbeing would be exacerbated should she return to Canada and is likely to lead to a decompensation of her mental health”.
On 8 May 2017, the AAT wrote to the appellants and indicated that the Member had decided not to postpone the hearing scheduled for 5 June 2017. On 29 May 2017, DZG17 again called the AAT Registry and advised that she had further submissions to provide. She was told by a registry officer to provide those submissions in advance of the hearing. It appears that DZG17 provided a series of media articles that appear to relate generally to compensation matters involving incest, although they do not appear to relate to DZG17. Also provided is some correspondence between Ms McLaughlin, DZG17 and British Columbia Archives and the Supreme Court of British Columbia’s Court Record Access Policy.
A supporting statement of Shirley‑Ann Rennie is also provided apparently dated 19 November 2016. In that statement, Ms Rennie explains that she has known DZG17 since DZG17 was nine or 10 years old. She explains that she recalled that DZG17 as a child was afraid to go home and when her third daughter was born, it was explained to her that her first two daughters had been sexually abused by her mother and stepfather. Ms Rennie says that the “court” failed to take DZG17’s children away from DZG17’s mother, and a social worker had tried to remove DZG17’s third daughter.
There is also a letter from Jade Biltoft dated 28 May 2017, a letter from a Jeremy Dwyer dated 29 May 2017, and a letter from Aiza‑Leigh Appleby dated 29 May 2017 which attest to the character of DZG17 and DZH17.
On an undated letter (starting at AB 246), DZG17 wrote her “final statement before the hearing on Monday”. In it, DZG17 addresses a number of matters. The first is that DZG17 says that she has made “every effort” to obtain documentation of Court proceedings and freedom of information files from Canada to corroborate her claims concerning government prejudice against her.
She says, effectively, that the Canadian Government has illegally destroyed her files. DZG17 refers to Ms McLaughlin’s investigations which have revealed that the files have in fact been destroyed. DZG17 then says this: “I have requested Patricia [McLauglin] to be a witness and she is aware that you will be contacting her via telephone”.
DZG17 then goes on to make a series of factual contentions about the abuse she says she suffered at the hands of a “[paedophile] ring” and the chronology of events from 1985‑1998 concerning the custody difficulties DZG17 has experienced and the conflict between her and her parents. DZG17 addresses the delegate’s contention that no media articles could be found by pointing to the articles referred to at [42] of these reasons as well as an explanation that there was press coverage concerning DZG17’s imprisonment for contempt following her refusal to tell departmental officers where her third child was living. DZG17 then goes on to repeat various aspects of the Court proceedings and particularly concerning the threat from the Canadian revenue authorities to her if she pursued an investigation into her tax returns. DZG17 then says she has requested “Don [Corneau] to be a witness and he is aware that you will be contacting him by telephone”.
DZG17 then addressed the delegate’s statement that, “[DZG17] was involved in a sexual abuse group”. DZG17 says that she was the victim of this group. She also rebuts the statement that she was “able to receive help” by commenting that any help she did receive was prior to the court decision in 1998. As to the delegate’s findings concerning corruption in Canada, DZG17 says that the Canadian Government refused assistance to DZG17 and her daughter; the government attempted to charge DZG17 with fraud; DZG17 was prevented from voting in 2008; DZG17 was prevented from having a driver’s licence; documents have been destroyed. DZG17 says that she experienced corruption from the Canadian Government.
DZG17 concluded her statement by asking the Tribunal to consider Ms Kelly’s statement concerning her ongoing fear of repercussions should she assist DZG17 and by saying that the Tribunal should consider Mr Corneau’s statement as to the continuous harassment from government bodies.
DZG17 says that she will never be able to live in Canada free from harassment.
Also provided to the Tribunal was a statement of DZH17.
In that statement, DZH17 speaks about meeting DZG17 and her reluctance to speak about her past. He says that she was eager to leave Canada and that upon learning that the couple would need to leave Australia, her depression and night terrors returned. DZH17 also offers corroboration of DZG17’s allegation that the Canadian Government threatened her should she persist with her wish to investigate her tax returns.
The appellants provided two letters from Ms Laughlin to the AAT.
The first letter is dated 17 May 2017 and it explains that Ms McLaughlin is a private investigator and a “supervised child access facilitator”. Ms McLaughlin says that she was hired by DZG17 in 1998 to assist her in her visitations to her young daughters. Ms McLaughlin explains that the children disclosed to her that “strange things” were happening at the hands of her maternal grandparents. It suffices to note at this stage that there are allegations of incest made by DZG17 against her parents. Ms McLaughlin goes on to explain that the Department of Children and Families did not investigate a report lodged by the Royal Canadian Mounted Police (the “RCMP”) with respect to the children. Ms McLaughlin also says that she believes the Court system was biased against DZG17. Ms McLaughlin also commented that DZG17’s family “blamed” DZG17 for the various misfortunes that befell her.
On 30 May 2017, Ms McLaughlin wrote another letter.
In that letter, said to be an “amendment” to her previous letter, she said that she had omitted some details from her earlier statement. Ms McLaughlin effectively adds various details to the report lodged on behalf of the RCMP; further details to the relationship between DZG17, her daughters and DZG17’s parents, and the allegedly unlawful incarceration of DZG17 by the Department of Children and Families.
DZG17 also had the benefit of a character reference from Jack Line dated 2 June 2017.
The hearing proceeded before the Tribunal on 5 June 2017 (AB282‑283). DZG17 and DZH17 gave evidence, but the record shows that Mr Corneau and Ms McLaughlin did not.
Following the hearing on 5 June 2017, DZG17 wrote a further submission (AB299‑301, seemingly repeated at AB302‑304). In this further submission, DZG17 seems to change the emphasis of her allegations and says that, “I am applying for this visa because I am in fear of a Religious organization involving [Hells Angels] and Robert Pickton (Serial Killer) and the followers that still exist within Canada”. DZG17 explains that the hearing was emotional and she did not impart all the information she wished to.
DZG17 then went on to say that “my fears are solely based on the people still existing from that religious organization”. DZG17 explained that she could not move provinces in Canada or to the USA because the Hells Angels and Pickton operate throughout Canada and the USA. Equally, DZG17 said that witness protection is not an option for her or for her daughter as they do not “qualify”.
On 26 June 2017, the AAT invited the appellants to attend a second hearing on 12 July 2017. In the response to the hearing invitation (AB309‑310), the appellants did not indicate that they wished to call any witnesses.
The second hearing occurred on 12 July 2017 and both appellants gave evidence. There were no other witnesses.
On 2 August 2017, the AAT notified the appellants that the decision under review had been affirmed. The Tribunal provided a 38 page statement of decision and reasons, dated 1 August 2017 (AB318‑355).
The Tribunal summarised the appellants’ claims “as set out in the delegate’s decision record which the [appellant] provided to the Tribunal”:
•The applicant is a 47 year old woman. She was born in Canada to Canadian parents.
•The applicant claims that she was sexually abused by her biological father since childhood. She has two children with her biological father.
•She claims that the Ministry of Children and Families, never protected her during this time and although they made a very feeble attempt to intervene, they informed her that they would have no other choice but to send her back to live with her mother and stepfather. She did not want to live with them because she feared her mother and step‑father.
•In 1988 her biological father was jailed for 6 months for committing incest. The entire ordeal [was] now out in the open and the media got wind of it. The applicant attempted to have her mother and stepfather charged with physical and sexual abuse, but the Police and the Ministry for Children and Families placed the blame on her.
•When the applicant was 19, her mother contacted the Ministry for Children and Families and informed them that the applicant was an unfit mother with a baby daughter conceived out of incest. The applicant made numerous applications with Provincial Court and was granted temporary custody of her daughter. Her mother continuously attempted to have her removed from her again by reporting false allegations against her.
•The applicant contacted her biological father again and he assisted her in hiding out from her family, but unfortunately he continued the sexual abuse. At age 20, her second daughter was born out of incest again. The Ministry for Children and Families apprehended both children and placed them in the care of the applicant’s mother and stepfather.
•In 1989, at age 21, the applicant was diagnosed with severe Post Traumatic Stress Disorder and suffered extreme anxiety with on‑going panic attacks. [T]he applicant no longer suffer[s] from severe PTSD, nightmares, anxiety and the applicant [has] gone and acquired professional help from a psychologist since the applicant [has] resided here and only due to the stress of having to resurface the abuse for the 866 protection visa.
•The applicant made an application to the Provincial Court and the applicant was granted visitation rights and it was ordered that the applicant attend parenting classes and counselling.
•In 1992, the applicant married [her former husband] and in December of that same year, the applicant gave birth to a 3rd daughter known as [P].
•The applicant suspected that her two daughters were being sexually abused and she made an application to the court for full custody of both children. When her [mother] found out about this she became extremely angry and demanded to have them because of the joint custody order previously given in 1989. The applicant contacted the Police but they informed her that the applicant could not refuse them from her.
•The applicant tried to gather information about the abuse and she gave all the evidence to the Police, yet nothing was ever done. When the applicant went back to the Police to pick up her evidence, some had been missing. The applicant also contacted the Ministry for Children and Families and was informed that they were not getting involved and that it was a family court matter.
•The applicant’s mother and stepfather continued to harass her, followed her everywhere the applicant went, if the applicant had a job, the applicant would get fired because of anonymous phone calls made informing them that the applicant was a child abuser. They could find her through driver’s license or her social security number. On one occasion she sued her employer for wrongful dismissal and she won the case.
•In 1998, a trial commenced to get full custody of daughters. The trial lasted 8 days with her lawyer [introducing] 6 professional [witnesses] including a physician, psychologist, psychiatrist, nurse, teacher, private investigator and 6 personal witnesses. After 55 days of waiting for the judge’s decision, he ruled against the applicant.
•During this 55 day waiting period, the Ministry of Children and [F]amilies came to her home and attempted to apprehend her third daughter. This happened on 2 different occasions and fortunately she had not been at home, so they never found her. Yet they threatened her and ransacked her home looking for her.
•In September 1998, the Ministry of Children and Families signed an agreement that [P] would not be apprehended if the applicant produced her and complied with them to have her seen by one of the top children’s child psychologists at Children’s Hospital in Vancouver. The applicant agreed and the doctor’s assessment was that there were no signs of [sexual] abuse, so her daughter was returned to the applicant.
•In October of 2011, the applicant had written and requested a copy of her personal [files] from the Freedom of Information back in Canada, and in January 2012 still no files, the applicant [believed] the applicant did not receive her files or other information because her family has a deep connection with influential people in all branches of the government in Canada.
•The applicant believes that no matter which province in Canada she resides in, her mother and stepfather will always find her, through her social insurance number or driver’s license and or if the applicant needed welfare assistance in Canada, the applicant was always denied as they are connected throughout the country.
•The applicant has been denied any Social help when the applicant has needed it. The applicant also believes her character was damaged because of the Media World Coverage in 1993 due to the incest and the children born from it.
As to why the Tribunal did not grant the appellants an adjournment of the initial hearing date the Tribunal said this at [23]:
The Tribunal notes that on 4 May 2017, the applicant requested a postponement of the hearing date for at least a period of 30 days so that she may obtain further documents from Canada. The Tribunal considered the request but decided not to grant the applicant a postponement of the hearing on the basis that it had been [more] than two years since the applicant lodged her protection visa application and more than one year since she lodged her application for review and the Tribunal provided the applicants with more than five weeks’ notice of the hearing. The Tribunal discussed with the applicant the documents she was seeking from Canada and their relevance to her claims as outlined below.
As to whether the appellants had provided all relevant information, the Tribunal said this at [24]:
The Tribunal notes that the applicant provided the Tribunal with authority to gain access to personal information held in Canada about her. The applicants asked the Tribunal about its access to this information during the first Tribunal hearing and they noted that there may be a cost associated with obtaining these files and they were concerned about Canada then knowing where the applicant is. While it is unclear to the Tribunal exactly what information it was being requested to seek, as the Tribunal explained to the applicants, if the applicant has sought to obtain all necessary personal information from Canada that she believes is relevant to her protection visa application and the Tribunal review, but has been unsuccessful, and she has had a private investigator attempt to obtain the same and she has also been unsuccessful, then the Tribunal cannot see how it would achieve a different outcome by attempting to seek this information with the applicant’s permission. In any case, the Tribunal also provided the applicant with additional time following the Tribunal hearing to provide further information.
The Tribunal accepted the following substantial number of matters as true (see [116] of the Tribunal’s reasons):
•The applicant has three children who are all Canadian citizens and the youngest child is in her early twenties living in Canada.
•The applicant is married to a Canadian citizen and they have an ongoing relationship.
•The applicant and her husband lodged applications for work visas in Australia but their applications were unsuccessful.
•The applicant was the victim of child sexual abuse and she has two children with her biological father.
•The applicant lost custody of her two eldest children in 1998 following a court decision.
•The applicant was not satisfied with the decision in her child custody case and believes she was treated unfairly by the judicial process both during the trial and subsequently.
•The applicant was jailed during her custody trial for contempt of court.
•The applicant made sexual assault allegations against her mother, step‑father and half‑brother.
•The applicant made sexual assault allegations against her mother and step‑father on behalf of her two eldest children and that the police lost some of the material that the applicant claimed was evidence of that abuse.
•The applicant has a subjective fear that a number of authorities and agencies of government are against her and deny her access to services.
•The applicant has a subjective fear of her mother and step‑father and she believes they have influential connections across Canada and through these connections, she believes her mother and step‑father have prevented and will continue to prevent the applicant from living a full life.
•The applicant has an acrimonious relationship with her family and they may have done some things to undermine her.
•The applicant has been the victim of identity fraud following a fake death certificate being used to obtain funds held in trust in her name.
•The applicant is unable to obtain files or documents associated with her child custody case other than the court orders.
•The applicant was involved in a ‘religious organisation’ with her mother and step‑father that included Canadian identities such as Robert Pickton and the Hells Angels until she left the organisation in the early 1980’s.
•The applicant has been able to obtain welfare, medical assistance, a passport, get married, get divorced, set up a business and travel in the past. The applicant was also successful in her child support case in 1992, in obtaining temporary custody of her eldest child, successful in an unfair dismissal case and gained visitation rights with her two eldest children and custody of her third child by a court ruling.
Crucially, however, the Tribunal said this at [117]:
However, the Tribunal does not accept that there is a government conspiracy (involving any government department or agency or the RCMP) against the applicant to harm her or prevent her from accessing information or services; that members of a ‘religious organisation’ involving the applicant’s mother and step‑father, the Hells Angels and Robert Pickton will harm or kill the applicants in the reasonably foreseeable future; that either of the applicants face a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future from the applicant’s mother and step‑father; if they address the applicant’s identity fraud or government debt issue; or pursue a claim of negligence against the state.
Ultimately, the Tribunal did not accept that there is a conspiracy against DZG17 (see [120]) because that conclusion was “not supported by independent country information or the applicant’s own evidence”. The Tribunal placed no weight on Ms Kelly’s evidence because of the difference in tone, content and font between two pieces of correspondence dated two days apart. As to the evidence of Mr Corneau, the Tribunal placed no weight on his claim that BC Benefits had said that the Ministry of Children and Families were “out to get this girl”. The Tribunal also said that given Mr Corneau said that it was the Ministry of Children and Families that had threatened DZG17 over the phone, whereas DZG17 said that it was BC Benefits. This was explained by DZG17 as an error on her part given that the person introduced themselves on the phone as a “Ministry lawyer”. The AAT found given the inconsistency and overall lack of reliability regarding the phone call” that there was no government conspiracy against DZG17.
The Tribunal also referred to the claim that the Canadian Law Society had abused DZG17. The Tribunal found at [122] that the Law Society is not an arm of government and therefore has no connection to the claim made.
The Tribunal also dismissed at [125] DZG17’s claim that she had been raped at gunpoint by a police officer given its inconsistency with a later claim that she had been raped at gunpoint in the USA in 1988.
The Tribunal also found DZG17’s claim that she was not able to access any services after her child custody case was “not borne out” given that she was able to “set up a business, obtain medical assistance … divorced her former husband she was able to travel to the USA”: see [126].
The Tribunal also found that DZG17 had not been denied access to services because there were oversight mechanisms available and that being unsuccessful in seeking services is different from being unable to: see [127]‑[128].
The Tribunal was also not satisfied that DZG17 would not be able to access personal information in relation to her affairs or be unable to appeal a decision with respect to access. This was based on the Tribunal’s finding that DZG17’s request for information was not denied in 2010 but rather required her to travel to Vancouver which she viewed as a “trap”: [129].
The Tribunal found as “implausible and far‑fetched” the claim that DZG17 was being targeted by government departments because she was a victim of child sexual assault. The Tribunal in this regard referred to country information which suggests that child abuse is taken seriously by authorities and there is an intolerance toward official corruption.
The Tribunal also said this at [132] about DZG17’s accusations about the police losing her material:
The Tribunal is prepared to accept the applicant’s claim that police lost material that she claimed was evidence of the sexual abuse claims she was making on behalf of her children. However, the Tribunal does not accept that this failure by police amounts to serious or significant harm. Similarly, the Tribunal is not satisfied that the applicant’s accusations against her mother and step‑father were not investigated in relation to herself or her children. The Tribunal is not satisfied that the applicant is able to be objective about whether or not an investigation took place given she was clearly not satisfied with the result. However, objectively, the Tribunal is of the view that it is possible that consideration of these accusations was taken into account because the applicant recalls that the judge in her child custody case made remarks about the applicant’s accusations albeit that the applicant believes that this is evidence of the bias of the judge in that case. It remains a possibility that an investigation took place but was found to have no basis and that is why no action was taken against the applicant’s mother and step‑father. In the context of a judicial process relating to the custody of children, the Tribunal has no reason to believe that the judiciary would not follow all necessary processes and procedures to ensure the children’s welfare. Even if there was no investigation and there was a miscarriage of justice, the Tribunal does not accept that such a miscarriage of justice would amount to serious or significant harm and as the applicant acknowledged, she could have appealed the judgement in her custody case but she did not have the means to do so.
The Tribunal also referred to Ms McLaughlin’s written evidence from [133]‑[134]. The Tribunal found Ms McLaughlin’s evidence in support of DZG17’s claim of bias in her child custody case is consistent with DZG17 stating that she was told by the Ministry that the relevant proceeding was a family court matter and that it was a matter for DZG17 to progress it. The Tribunal was prepared to accept Ms McLaughlin’s evidence that policies and procedures were breached in DZG17’s case, but this was thought to be attributable to incompetence rather than malfeasance.
The Tribunal acknowledged that DZG17 has had difficulty accessing the reasons for judgment in the child custody case, but considered that this was because of record keeping practices and would not be relevant in any event to her protection visa application: [134].
The Tribunal was willing to accept that DZG17 was a member of a “religious organisation” and that it involved Hells Angels, Robert Pickton and her mother and stepfather. However, the AAT did not accept that DZG17 will be harmed because of that association and considered that, given the association was more than three decades ago, the chance of harm is remote.
The Tribunal then turned to “the main issue requiring the applicant’s attention upon her return to Canada”, being identity fraud issues and potential debts. The Tribunal considered that the costs associated with addressing outstanding debts does not amount to serious or significant harm and the Tribunal was not satisfied, given the appellants’ employment histories and their general ability to support themselves that they will be unable to settle these issues. As the Tribunal did not accept that there is a government conspiracy, the Tribunal did not accept that any attempt to address the identity fraud or debt issues will result in harm or death: [138].
The Tribunal did not accept that the appellants face a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future from DZG17’s mother. The Tribunal went on to say this at [140]‑[141]:
140While the Tribunal has considerable doubts about any connections the applicant’s mother or step‑father have within provincial or federal Canadian governments, or their motivation to seek out the applicant, on the basis of country information relating to privacy and corruption and the effectiveness of Canadian authorities, including the RCMP, the Tribunal does not accept that the applicant’s mother or step‑father could track her down using her social insurance number or her driver’s licence (if she re‑applies for it) in Canada. Again, the Tribunal notes that it is more than ten years since the applicant spoke to her mother and step‑father and the applicant claimed that as far as she was aware, no one other than her daughter [P] is aware she is in Australia. While the Tribunal notes that the applicant later claimed that she assumes her parents know she left the country, the Tribunal is not satisfied that the applicant’s mother or step‑father are aware the applicant has left Canada or that they would know if she returns.
141Similarly, the Tribunal does not accept that even if the applicant’s mother and step‑father became aware that she had returned to Canada, that they would seek her out or that the applicant would face a real chance of serious harm or a real risk of significant harm. Again, it is some ten years since the applicant has spoken with her mother and despite the applicant’s repeated accusations against her mother and step‑father over a lengthy period of time, the applicant has not been subject to serious or significant harm as a result.
The Tribunal also found that the appellant has a subjective fear of her mother and stepfather but did not accept that the appellants could not live physically removed from them. At [143], the Tribunal said this:
The Tribunal does not accept the applicant’s reasons for why she cannot return to Canada given her reasons largely relate to her ability to access services and assistance. While provincial and federal government departments have a level of connectivity, given the Tribunal does not accept that there is a government conspiracy against the applicant, the Tribunal finds that subject to eligibility and addressing the identity fraud issue and/or settling an outstanding debt the applicant may have, there is no reason why the applicants would be denied access to services they are entitled to. The Tribunal also notes that the applicant’s evidence was that such a claim was not borne out in reality given the applicant stated that she was able to access health care and find housing and employment when she lived in Alberta. While the Tribunal notes that the applicant later claimed her health care was withdrawn and that it would cost to access these services, the Tribunal notes country information that states that even in states like BC and Alberta that require the payment of provincial health insurance, the Canada Health Act states that health services cannot be denied due to financial inability to pay premiums. The Tribunal also notes that in order for the applicant to continue her treatment, country information indicates a range of mental health services are accessible through primary health care and non‑government providers. Even if some of these services require private health insurance gap payments or full payment, the Tribunal does not accept the applicant will not be able to meet these costs given she told the Tribunal these are the same arrangements she has in Australia in order to meet the cost of her treatment.
The Tribunal also did not accept that DZG17 will not be able to secure employment upon her return ([144]) and was not satisfied that DZG17 would be harassed out of future employment ([145]). The Tribunal also noted that the appellants will have each other for support and was satisfied that Canada has a functioning democracy which operates according to the rule of law. The Tribunal did not accept that media reporting on DZG17 would have any impact and did not accept that DZH17 faces a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future due to his association with DZG17.
Accordingly, the Tribunal was not satisfied that either of the appellants is a person in respect of whom Australia has protection obligations. Therefore, the appellants do not satisfy the criterion set out in s 36(2)(a) or s 26(2)(aa) of the Act. The Tribunal found that it follows the appellants can also not satisfy s 36(2)(b) or s 36(2)(c).
On 5 September 2017, the appellants filed an application pursuant to s 476 of the Act in the Federal Circuit Court. On 24 January 2018, the appellants filed an amended application. The appellants stated the following grounds (drawn from DZG17’s affidavit in typed form):
1.The Second Respondent fell into jurisdictional error by failing to afford the Applicant procedural fairness, in that the Applicant was denied an adjournment, during which time she could obtain material, not in her possession, to support her claim.
I had asked respectfully for an extension of 30 days to obtain any more information I could obtain from Canada to further validate my case, and was denied by the Second Respondent. See Court Book Page: 163.
2.The Second respondent fell into jurisdictional error by failing to contact the witnesses provided for validation of claims on June 05 2017. See Court Book Page: 160.
I submitted witnesses to the Second Respondent of Donald Corneau and Patricia McLaughlin for the Second Respondent to contact by telephone, to validate my claim and answer any questions the Second Respondent may have for the witnesses, and the Second Respondent did not contact them. The Second Respondent stated she did not need to contact them. This is in the audio recording ATT June 05th 2017, Court Book Page: 160.
3.The Second Respondent fell into jurisdictional error by failing to accept [DZH17’s] Statement.
[DZH17] submitted his statement of facts of events in my situation in Canada and submitted current on‑goings of corruption pertaining to the Canada Police Force of corruption and the Second Respondent did not take the evidence into consideration as the Second Respondent clearly stated throughout the review to go back and fix my life, which is the identity theft and in other matters I would have to contact the Canadian Police force in order to do so. Also, I had clearly stated that because of my childhood forced involvement with Robert Pickton and the occult that files were in fact destroyed that pertained to Robert Pickton and my recollections of his involvement with the [o]ccult that I was [subjected] to since age 4 years old to 14 years old to which my family was a part of. And I explained that because the family are still occult members that I was still harassed until the time I left Canada by their friends in high places.
[DZH17] supplied links to the Second Respondent and on the day of hearing June 05th 2017 also brought in printed media copies of the current situation and tried to submit to the Second Respondent and the Second Respondent stated she had viewed the online links and would not accept the printed copies of the media.
See Court Book Page: 254 to 259
See Second Respondent Audio Recording June 5th 2017
4.The First and Second Respondent fell into jurisdictional error by failing to consider Compassionate circumstances regarding age and/or health and/or psychological state, that if not recognized would result in serious, ongoing and irreversible harm and continuing hardship that the applicant would be faced with in returning to country of origin.
5.The Second Respondent fell into jurisdictional error by failing to consider the extreme hardship of finances the applicant would be faced with in returning to country of origin.
6.The Second Respondent fell into jurisdictional error by failing to consider the psychological reports validating ongoing and irreversible harm and continuing hardship that the applicant would be faced with in returning to country of origin.
I consistently explained to the First Respondent and the Second Respondent, that I was barred from receiving any help form the Canadian Government due to the many issues that [have] arisen in 40 years, including up until the time I left Canada, including Social welfare help, legal help and this was partly due to the Statements [m]ade by [a] Supreme Court Justice stating “no one should ever help me pursue the claims made before her, this included ritual abuse, sexual abuse claims of myself”. I have since located that judgement”.
That the Canadian police force were given statements of the abuse I endured of my childhood and continuing into adulthood and the Police did nothing to investigate any claims of abuse by me or protect me since I was 4 years old. Last Statement I gave to the Police in 1999 and the statements were lost by the department.
I consistently explained that even after the 1998 Trial that was still being harassed by the Government, I was put in jail for not giving up my 3rd child, when that didn’t work they then tried to charge me with fraud of welfare, when that didn’t work they cut me off assistance after I left my first abusive husband, then 4 years later, I tried to have my [driver’s] licence renewed and was denied with no reason to the denial.
I consistently explained that I have nowhere to go, no one to help me in the possibility of returning to Canada and I would then be in a situation of destitute. No home, no assistance, and the identity theft making it more difficult.
I consistently explained that while in Canada no matter where I lived in Canada that the harassment followed me from city to city. Keeping me in fear, anxiety and paranoia and it was diminishing my mental and psychological health, I had no help, no money and no support of any kind.
I submitted to the First Respondent and Second Respondent the physiological assessments from Bravehearts Dated April 15 2015 and May 2017 that I should not return to Country of Origin due to the capacity of my psychological state.
7.The Second Respondent fell into jurisdictional error by failing to consider evidence provided of actual corruption in the RCMP directly to do with Robert Pickton and file destruction.
[DZH17] submitted his statement of facts of events in my situation in Canada and submitted current on‑goings of corruption pertaining to the Canada Police Force of corruption and the Second Respondent did not take the evidence into consideration as the Second Respondent clearly stated throughout the review to go back and fix my life, which in the identity theft and in other matters I would have to contact the Canadian Police force in order to do so. Also, I had clearly stated that because of my childhood forced involvement with Robert Pickton and the occult that files were in fact destroyed that pertained to Robert Pickton and my recollections of his involvement with the [o]ccult that I was subjected to since age 4 years old to 14 years old to which my family was a part of. And I explained that because the family are still occult members that I was still harassed until the time I left Canada by their friends in high places.
[DZH17] supplied links to the Second Respondent and on the day of hearing June 05th 2017 also brought in printed media copies of the current situation and tried to submit to the Second Respondent and the Second Respondent stated she had viewed the online links and would not accept the printed copies of the media and the Second Respondent does not even mention the links nor the police corruption in the review.
See Audio record of hearing June 5th 2017 and July 12th 2017
See these Links:
[links omitted]
8.The Second Respondent fell into jurisdictional error by failing to consider Lillian Kelly’s actual email of her fear to help applicant in this matter that the applicant provided.
A few weeks before going in front of the Second Respondent, due to not receiving the documentation I needed to validate this case, I contacted Lillian Kelly, my former Psychologist in Canada about getting my files that she had held onto since 1993 until 2015. I received [an] email from her. I submitted a copy of the email and offered to show the Second Respondent the true email while in hearing on June 5th 2017, to which the Second Respondent replied she did not need to see it.
The Second [R]espondent then in the review stated that Lillian Kelly’s Email had a different font on the actual one I submitted to her the first was emailed to me, the second was post mailed.
Second Respondent states she asked for original email: However, she declined to see the actual email while in session.
This email I received from Lillian Kelly stated in context, that she did not want to help me due to her own fears of me not being able to protect her, her family if she helped in this matter. 25 years later and Lillian claimed was still in fear of the situations of the occult and my family. See Court Book page 334 Line 77 of the Second Respondent.
See Audio Recording of Second Respondent on June 05th 2017 towards the end of hearing, Second Respondent denied to see the actual Email, however the applicant did in fact submit the actual email, received in hearing on June 5th 2017.
See Court Book – page 260.
9.The Second Respondent fell into jurisdictional error by failing to consider all the character references from Australians and Canadians submitted by the applicant.
I had submitted true copies of
Employee Jack Line
Bookkeeper – Balance Bookkeeping
Jeremy Dwyer – ATO Compliance Officer
Jade Biltoft – Friend
Shirley Anne Hawken
Donald Frank CorneauPatricia McLaughlin
I had also given to the First Respondent names, numbers and addresses of William Sheddy, Lillian Kelly and various other Canadian Government Authorities to speak with for the First and [t[he Second Respondent to confirm situations I was subjected to as I was unable to retrieve documentation from the agencies and or the files were no longer available and felt the information would be given to the First Respondent and the Second Respondent without any issues. The First Respondent nor the Second Respondent did not take the liberty to do so.
I had given to the First Respondent 10 more character references, and several other original pieces of evidence on August 14th 2017 and was received by First Respondent on August 17th 2017. I requested all files to be returned through the Freedom of Information [A]ct I had requested on September 05th 2017 and it has not yet been returned.
10.The Second Respondent fell into jurisdictional error by failing to record the anxiety attacks the applicant had on June 5th 2017 and on July 12 2017.
On June 05th 2017 about halfway through the hearing, I had an anxiety attack from trying to answer the ritual abuse question. I in my crippled emotional answer explained I had not yet dealt with some of my current and past issues in Counselling as of yet. The Second Respondent offered a break in the hearing, and when returning continued to ask of the reasons of my fear in returning to Canada. I again tried to answer the questions but was extremely difficult as I was still having the anxiety attack. The Second Respondent did not even mention the attack, rather stated I was very emotional. This can be heard on the Audio recording from the hearing June 05th 2017.
July 12th 2017, I was recalled into the Second Respondent for 2nd hearing to answer the very same question, why I felt I was in fear of returning and I answered because of the occult my family is involved with, because even though Robert Pickton was in Jail, that his followers were not. That my family had people in high places (government) watching me, so I don’t tell anyone I knew of things. Things I endured until the time I left. The Second Respondent asked me, of all this time they didn’t kill you, why do you think they would now? I told the Second Respondent that because I have since inquired to have of all my files again for the purpose of this case, that the government bodies and my family would now know I haven’t stopped the pursuit of justice and therefore because there is no statutes of limitation for abuse or civil proceedings that they wouldn’t want me to pursue because it meant: 1) Robert Pickton had been protected by agencies since 1982, that 2) because of the continuous harassments I endured it would certainly show government bodies swept my entire life under the carpet and my children’s life, making the government corrupt whereas my case is, and was concerned.
I [cannot] go back and just fix my life as the First Respondent and Second Respondent stated I can do.
In order for that to happen, I would have to be in contact with the very same governing bodies to which led me to flee the Country in 2013.
For the first 46 years of my life the Occult and [m]y family and various government bodies tried to deem me a crazy person, I clearly have current independent documentation that I am not, therefore the persons involved surrounding my life for over 46 years would have no choice but to seek me out and kill me in my return.
The Second Respondent[’s] comment to me of she had trouble believing me, then caused me a second and severe anxiety attack to which the Second Respondent only had us take a break for about 45 mins. None of this was in the Second Respondent[’s] Review.
11.The Second Respondent fell into jurisdictional error by bias opinions made to the Applicant from the Second Respondent.
Throughout the entire review on the Second Respondent made statements to me such as “farfetched” “trouble believing” “go back and fix your life” those statements are opinions of the Second Respondent and were not based on any facts of the case. The Second Respondent also made statement [that I] integrated so quickly into Australia, my understanding is I must integrate into the country I am seeking to stay in. However, the [t]one of the Second Respondent I felt was derogatory.
Court book pages: 348 Line: 135, 138,
Also see audio recordings June 5th 2017 and July 12th 2017
Later, Statements of the First Respondent made on September 4th 2017, why don’t you just pack up and move to New Zealand.
(a)The First and Second Respondent did not take the Human Rights and Migration Racial Act 1985; Appendix 111 Report number 7 of the [Act] (9 Section 1‑10) into consideration when relying on country information for the outcome. REPORT NO 7.13 Human Rights and the Migration Act 1958 updated April 1985.
Due to being from Canada I was not given fair opportunity in this matter.
Canada did not function in any area where I, or justice in my life was concerned.
The First and Second Respondent denied me on the fact that Canada is not considered a corrupt country, however in every incident that I was [faced] with and with every government body I had dealings with, the Country Laws did not function for me. Not in my human rights or the rights of my existence without constant harassments and threats from the bodies of government and public service.
(b)The First and Second Respondent failed under section 5 of the [Migration Act] to accept the applicant’s well‑founded fear in further persecution.
Nowhere in the [Migration Act] does it say that in order to qualify of fear, that I must be [in] fear of being killed and to then further name who would kill me, and I have provided statement after statement of my fears of returning to Canada because of the continuous persecution and difficulties I will face, and I have clearly stated all the reasons for my fears, and I feel none of it was taken seriously, and only because I am from Canada.
(c)The First Respondent initially accepted the well‑founded fear of the Applicant.
See court book page 134, 135, 140, yet, denied the Applicant and the Second Respondent also failed under 5J of the [Migration Act] to accept the applicant’s well‑founded fear in further persecution.
5J Meaning of well‑founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
Court Book Pages: 353, 5J 1 (a)(b)(c)
Court Book Pages: 353, 3 (a)(b)(c)
Court Book Pages: 354, 4(c) 5(a) (d) (e)5K of the [A]ct: Page 354
I believe I have proved to both the First and Second Respondent my extreme fears and extreme hardships that I would be faced with in returning to Canada and I have provided current [psychological] reports to affirm those claims.
(d)The Second Respondent relied on outdated Country Information of the Applicant[’s] country of origin.
The Second Respondent used Country Information [p]rovided from 2016 and earlier, and did not investigate any of the current or past corruption that is directly of the government bodies I have had dealings with over the past 40 plus years of my life. Corruption is clearly listed throughout Canada of those same Government Bodies, including the destruction of Freedom of Information files.
I provided the Second Respondent the Limitation Statutes on Canada’s Freedom of Information and the Supreme Courts of British Columbia.
The Second Respondent was provided evidence of current Police corruption.
The Second Respondent was provided an audio recording of Supreme Court destroying files before Canada’s Limitation Statute
The Second Respondent on the first page of their own file has the Applicant[’s] Birthdate incorrect.
I was not afforded natural justice by the First Respondent and the Second Respondent in this matter because of the Country I was born in.
[link omitted]
(a)[in] English law, natural justice is technical terminology for the rule against bias (nemo judex in causa sua) and the right to a fair hearing (audi alteram partem). While the term natural justice is often retained as a general concept, it has largely been replaced and extended by the general “duty to act fairly”.
(b)The basis for the rule against bias is the need to maintain public confidence in the legal system. Bias can take the form of actual bias, imputed bias or apparent bias. Actual bias is very difficult to prove in practice while imputed bias, once shown, will result in a decision being void without the need for any investigation into the likelihood or suspicion of bias. Cases from different jurisdictions currently apply two tests for apparent bias: the “reasonable suspicion of bias” test and the “real likelihood of bias” test. One view that has been taken is that the differences between these two tests are largely semantic and that they operate similarly.
(c)The right to a fair hearing requires that individuals should not be penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the case, a fair opportunity to answer it, and the opportunity to present their own case. The mere fact that a decision affects rights or interests is sufficient to subject the decision to the procedures required by natural justice. In Europe, the right to a fair hearing is guaranteed by Article 6(1) of the European Convention on Human Rights, which is said to complement the common law rather than replace it.
(d)A person is barred from deciding any case in which he or she may be, or may fairly be suspected to be, biased. This principle embodies the basic concept of impartiality, and applies to courts of law, tribunals, arbitrators and all those having the duty to act judicially. A public authority has a duty to act judicially whenever it makes decisions that affect people’s rights or interests, and not only when it applies some judicial‑type procedure in arriving at decisions.
(e)The basis on which impartiality operates is the need to maintain public confidence in the legal system. The erosion of public confidence undermines the nobility of the legal system, and leads to ensuing chaos. The essence of the need for impartiality was observed by Lord Denning, the Master of the Rolls, in Metropolitan Properties Co. (F.G.C.) Ltd v Lannon (1968): “Justice must be rooted in confidence and confidence is destroyed when right‑minded people go away thinking: ‘The judge was biased’”.
(f)Public confidence as the basis for the rule against bias is also embodied in the often‑quoted words of Lord ##hewart, the Lord Chief Justice of England and Wales, that “[i]t is not merely of some importance, but of fundamental importance that justice should not only be done, but should manifestly be seen to be done”.
(g) …
[footnotes omitted]
1. I was not afforded fundamental justice in Canada – [link omitted]
(a)In Canadian and New Zealand law, fundamental justice is the fairness underlying the administration of justice and its operation. The principles of fundamental justice are specific legal principles that command “significant societal consensus” as “fundamental to the way in which the legal system ought fairly to operate”, per R v Malmo‑Levine. [1] These principles may stipulate basic procedural rights afforded to anyone facing an adjudicative process or procedure that affects fundamental rights and freedoms, and certain substantive standards related to the rule of law that regulate the actions of the state (e.g., the rule against unclear or vague laws). The degree of protection dictated by these standards and procedural rights vary in accordance with the precise context, involving a contextual analysis of the affected person’s interests. In other words, the more a person’s rights or interests are adversely affected, the more procedural or substantive protections must be afforded to that person in order to respect the principles of fundamental justice. [2] A legislative or administrative framework that respects the principles of fundamental justice, as such, must be fundamentally fair to the person affected, but does not necessarily have to strike the “right balance” between individual and societal interests in general. [3]
The First Respondent has not provided the Freedom of [I]nformation documents requested by the Applicant on September 05th 2017 of all information that was submitted by the Applicant to the First Respondent directly to Hon. Minister Peter Dutton.
The request was made on September 05th 2017 in regards to [f]iles 1 sent to Canberra asking Hon. Peter Dutton to review my case and intervene on compassionate grounds. I have never received that file.
(e)That the First Respondent requested a medical assessment in August 2017 after the Second Respondent[’s] August 01 2017 decision in which the First Respondent did not extract any medical files from Applicant[’s] Doctor or any Medical Profession in Australia on the subject of the Applicant.
The First Respondent did not pursue the assessment and therefore the Applicant then took [it] upon herself to have an independent psychiatric assessment done September 19th 2017, and those files were never requested by the First Respondent for viewing.
[bold emphasis added]
On 12 July 2018, the primary judge delivered reasons explanatory of his orders dismissing the appellants’ amended application. The primary judge’s reasons are fairly lengthy and attempt to address what his Honour calls “multifarious and discursive” claims.
The primary judge set out the background of the matter from [6]-[36]. From [37]‑[40], his Honour addressed the grounds of review which are set out at [81] of these reasons. At [40], his Honour said this:
The applicants’ two applications and three affidavits represent a morass of complaint with the second respondent’s decision and reasons. Many of those matters amount to an impermissible attempt at merits review of the second respondent’s decision. There are some matters, however, which if made out, might suggest jurisdictional error. The written submissions delivered on behalf of the first respondent have grappled with the morass of material in an insightful and helpful way by considering similar grounds and complaints together. I have adopted those groupings in these reasons under the headings that follow.
[emphasis added]
His Honour treated grounds 3 and 6‑9 in the amended application as effectively asserting a failure to consider material provided to the Tribunal. The primary judge said that the Tribunal did refer to much of the material, but that the appellants’ true complaint was that the Tribunal did not use the material in the way they contended for. The primary judge found that these grounds were not made out: [44].
The primary judge construed grounds 4 and 5 in the amended application as going to a failure by the Tribunal to consider claims. At [46], his Honour said:
The first complaint appears to be that the Tribunal failed to consider that by reason of the first applicant’s age, health, psychological or financial state she would suffer serious and ongoing and irreversible harm and continued hardship if returned to Canada. However, as the first respondent points out, the applicants did not claim before the Tribunal that if returned to Canada the first applicant would suffer serious harm or significant harm as a result of her age.
Judge Jarrett considered that the Tribunal had considered DZG17’s health and psychological state at [109]; DZG17’s ability to find employment and access services from [142]‑[146]; DZG17’s allegations about the destruction of evidence from [92]‑[94] and [129] and [134]; DZG17’s allegations concerning Hells Angels and Mr Pickton from [71]‑[73], [87]‑[92], [110] and [135]; DZG17’s complaint that the Tribunal failed to consider the unlawful dismissal of DZH17 at [120] and [145].
The primary judge considered that grounds 4 and 5 of the amended application also raised a failure to consider hardship and compassionate circumstances. His Honour considered at [54] that:
54.As the first respondent submits, these matters do not appear to be complaints about a failure to consider claims for protection made by the applicants. Rather, they reflect an appeal to the Tribunal to consider the hardship they consider they would face if returned to Canada and their ‘compassionate circumstances’ which should have influenced the decision to grant them protection visas. These matters included that they had ‘migrated deeply into Australia’; that removing the first applicant from Australia would be a great hardship at her age; and they had spent time building a business or fixing their lives.
The primary judge considered that ground 1 of the amended application asserted a failure to postpone the first hearing to allow the applicants to obtain further material. Whilst his Honour considered that this ground is capable of demonstrating jurisdictional error (see, Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332), the primary judge considered that no jurisdictional error arose in this case because the appellants did not demonstrate what further documents they would have secured from Canada, particularly given the appellants’ argument that their documents had been destroyed. The primary judge considered that the appellants were given a reasonable opportunity to give evidence and present their arguments. The primary judge noted that the appellants provided further material following the refusal of the adjournment, and further material in advance of a second hearing.
Judge Jarrett considered that ground 2 of the amended application asserted a failure to contact witnesses as requested by the appellants. The primary judge noted that the Tribunal is not obliged to contact witnesses but is obliged to give proper consideration to the appellants’ request (his Honour quoted Minister for Immigration and Multicultural Affairs v Maltsin [2005] FCAFC 118; (2005) 88 ALD 304 (“Maltsin”) to that effect). The primary judge considered that the Tribunal had given proper consideration to the request by considering the evidence the appellants thought would be given by the witnesses compared with what was already before the Tribunal. The primary judge considered that the appellants do not suggest that either witness would have given evidence beyond that which was contained in their statements and letters and noted that the appellants did not repeat their wish to call witnesses before the second hearing.
Accordingly, his Honour found that the Tribunal had not fallen into jurisdictional error.
The primary judge also considered the appellants contention that the Tribunal failed to consider or make inquiries to obtain DZG17’s personal information and medical files held in Canada. His Honour considered that this was not a case where there is an obvious inquiry in relation to a critical fact, the existence of which could be easily ascertained, giving rise to an obligation on the part of the Tribunal to make an inquiry: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25]‑[26].
The primary judge considered that the Tribunal had no obligation to investigate the appellants’ claims (see WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277, [21], [25]‑[25]). The primary judge also noted that the Tribunal thought it was unclear what information the appellants were requesting and in circumstances were both the appellant and a private investigator were unsuccessful in obtaining the information it was unlikely the Tribunal should retrieve it.
The primary judge considered that ground 10 of the amended application asserts a failure to record DZG17’s anxiety attacks or mental health when giving evidence. His Honour considered that the Tribunal did record these matters at [31]‑[32] of its reasons. However, the primary judge considered that the appellants asserted psychological reports were relevant to the following:
a)a general assessment about the fairness of granting a protection visa to the applicant;
b)the proposition that the first applicant would suffer harm should she return to Canada by reason of the effect of the fact of her return on her mental health; and
c)perhaps, a suggestion that she was not capable to give a consistent account of her experiences, to present arguments in support of her claims and to understand and to respond to questions put to her. That is to say, the conduct of the review miscarried.
The primary judge considered that matter (a) was “not something of concern to the Tribunal”. As to the third matter, his Honour considered that the Tribunal took steps to confirm DZG17 was in a position to proceed and accordingly no error is revealed.
The primary judge considered that ground 11 of the amended application related to allegations of bias and discrimination stemming from a number of comments made by the Tribunal. These comments were that some of DZG17’s claims seemed “far‑fetched” and that the Tribunal may have “trouble believing” DZG17 and that DZG17 needed to “go back and fix your life”. The primary judge set out the relevant test for proving bias and noted at [80] that the use of the phrase “far‑fetched” was congruent with the terminology used in the cases and was a demonstration of the Tribunal’s role in turning its mind to whether there was a real chance of persecution. The primary judge also had regard to the fact finding role of the Tribunal and the need, in certain circumstances, to make credit findings. His Honour considered that the Tribunal put the appellants on notice about any concerns it had about their claims. Judge Jarrett specifically cited the Tribunal’s reasons at inter alia [51], [54], [60], [61], [68], [74], [77], [78] and [95].
The primary judge accepted that the Tribunal remarked that DZG17 should “go back and fix your life” but did not accept that the Tribunal’s tone was derogatory and considered that the decision record contains “no hint” of actual or apprehended bias. The primary judge also did not accept that the appellants were discriminated against.
The primary judge considered that grounds 12 and 13 in the amended application sought to impeach the Tribunal’s decision on the ground that it had failed to consider Appendix III of the Human Right’s Commission’s 1985 report titled Human Rights and the Migration Act 1958 and potentially to ss 9 and 10 of the Racial Discrimination Act 1975.
His Honour considered that the Tribunal’s reasons reflect that it gave the appellants’ claims appropriate and proper consideration and that no error was made out on these grounds.
As to ground 14 of the amended application, the primary judge considered that the appellants alleged a failure to apply the relevant test. The appellants apparently argued before the primary judge that the Tribunal had failed to consider the “real fear” held by DZG17. The primary judge considered, however, that the Tribunal correctly applied the law and considered carefully the appellants’ evidence and accordingly did not fall into error.
As to ground 15 in the amended application, his Honour considered that the appellants asserted a failure to follow the delegate’s findings with respect to s 5J of the Act. In particular, this ground seemed to assert that the delegate accepted many of the appellants’ factual claims and the Tribunal fell into error by failing to follow the delegate’s findings. The primary judge correctly dismissed this ground for the reasons given at [102] of his Honour’s reasons.
The primary judge considered that ground 16 of the amended application asserted that there were erroneous comments in the decision record. The primary judge held that these comments indicate no more than the appellants’ disagreement with the Tribunal’s decision.
The primary judge considered that the appellants contend that the Tribunal relied on “outdated” country information. The primary judge held that it is a matter for the Tribunal as to the weight it attaches to particular pieces of information and no error is reflected in its treatment of the country information.
As to other outstanding matters, the primary judge said this:
Miscellaneous matters
108.To the extent that the applicants complain about the failure to consider material provided on 14 August 2017, this material was not before the Tribunal when it made its decision on 1 August 2017 and cannot have been considered in this respect. No error arises.
109.To the extent that the grounds or complaints impugn the delegate’s decision or the failure to refer the matters for first respondent’s intervention, those decisions are not reviewable: sections 474(7) and 476(2) of the Act.
110.This is also not the appropriate forum to make a complaint regarding the Tribunal’s alleged failure to return original documents to the applicants under freedom of information legislation (particularly in circumstances where the current application for judicial review is on foot) or its failure to follow up on the first applicant’s medical assessment.
On 30 July 2018, the appellants filed a notice of appeal in this Court.
Grounds of appeal
Ground 1
The first ground of appeal asserts (although some extrapolation is needed given its lack of clarity) that the primary judge failed to find that the AAT fell into jurisdictional error by failing to “contact witnesses in the matter to affirm continued hardship of the applicant being returned to the [the] country of origin”.
Part 7 of the Act deals with “Review of Part 7 - reviewable decisions” which are decisions made by the Tribunal in its Migration and Refugee Division: see s 408 of the Act. Division 4 of Part 7 deals with the conduct of a review by the Tribunal in a Part 7 reviewable decision. Section 426 of the Act (found in in Division 4 of Part 7) is as follows:
426 Applicant may request Tribunal to call witnesses
(1) In the notice under section 425A, the Tribunal must notify the applicant:
(a)that he or she is invited to appear before the Tribunal to give evidence; and
(b) of the effect of subsection (2) of this section.
(2)The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(3)If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.
[emphasis added]
Section 428 (also in Division 4 of Part 7) then provides:
428 Tribunal’s power to take evidence
(1)The power (the evidence power) of the Tribunal under paragraph 427(1)(a) to take evidence on oath or affirmation in a particular review may be exercised on behalf of the Tribunal by:
(a) a member conducting the review; or
(b)another person (whether or not a member) authorised in writing by that member.
(2) The evidence power may be exercised:
(a) inside or outside Australia; and
(b) subject to any limitations or requirements specified by the Tribunal.
(3) If a person other than a member conducting the review has the evidence power:
(a)the person has, for the purpose of taking the evidence, the powers of the Tribunal under subsection 427(1) and paragraphs 427(3)(c) and (d); and
(b)this Part applies in relation to the person, for the purpose of taking the evidence in the exercise of those powers, as if the person were the Tribunal; and
(c)the person must cause a record of any evidence taken to be made and sent to the member who authorised the person to exercise the evidence power; and
(d)for the purposes of section 425, if that member receives the record of evidence, the Tribunal is taken to have given the applicant an opportunity to appear before it to give evidence.
Sections 426 and 428 establish that, when read in the context of the particular division in the Act, the Tribunal has a broad discretion to gather the evidence for the purposes of conducting a review and the manner in which the evidence will be taken: see Maltsin at [36].
The Minister helpfully refers the Court to the recent decision of AYX17 v Minister for Immigration and Border Protection (2018) [2018] FCAFC 103; 262 FCR 317 (“AYX17”), in which Tracey and Mortimer JJ (Charlesworth J agreeing on this point) said at [48]:
48The work to be done by the second aspect of s 426(3) (namely that the Tribunal is “not required” to obtain evidence from a person named in the notice) is, in our opinion, to make clear that the Tribunal has a discretion whether or not to take evidence from a nominated person. It emphasises the nature of the power in s 427(1)(a). The only express control or condition on that discretion is that the Tribunal must “have regard to” an applicant’s wishes. In our opinion this means the Tribunal must, through inquiries of the applicant, understand why the applicant wants the Tribunal to take evidence from the nominated person, and how that person’s evidence is said by an applicant to relate to the Tribunal’s review. It is to these matters the Tribunal must give real and genuine consideration, in the way explained by Kenny and Lander JJ in Maltsin at [38] (Spender J agreeing).
[emphasis added]
Of course, the decision to call (or not to call) the witnesses must be exercised reasonably and the Tribunal must give real and genuine consideration to the appellants’ request: see AYX17 at [57]. This means, in part that the Tribunal must, through enquiries of the appellants understand why they wish to call the witnesses” AYX17 at [48].
The relevant witnesses are Mr David Corneau and Ms Patricia McLaughlin. As set out at [34], [47] and [49] of these reasons, DZG17 relied on the statement of Mr Corneau concerning the allegations of a government body threatening her and conspiring against her. As is clear from the Tribunal’s reasons from [122]‑[124], the Tribunal did not consider that Mr Corneau provided an accurate or reliable account because of inconsistencies between his evidence and the evidence of DZG17. The Tribunal was also concerned that Mr Corneau’s evidence was significantly based on what DZG17 had apparently told him. This inconsistency is said to be different accounts of which agency was alleged to have called DZG17 and made threats to her. DZG17 explained the inconsistency by saying that the person had identified themselves as a “Ministry lawyer” and that Corneau’s evidence should be preferred over her own.
The Tribunal was faced, at the first hearing, with a request to call a witness that could provide evidence concerning a particular phone call which was the subject of conflicting evidence. The Tribunal’s treatment of the appellants’ reliance on oral evidence is different from that in AYX17. In that case, the Full Court was confronted with a case where the appellant put forward the names of two witnesses who were not called. The Tribunal made adverse credibility findings that were such that they could not be redeemed by the proposed witness evidence. The Tribunal in AYX17 provided written reasons as to why it had decided not to call the two witnesses and it was explained in the hearing as to why it had chosen not to: see [32] of AYX17. In particular, the Tribunal in that case could not verify the details of the proposed witnesses.
Ms Forder, for the Minister, submits that this Court should not accept that the evidence put on by DZG17 in the Federal Circuit Court (AB387), that the Tribunal had observed that “if it’s in the letters, I don’t need to call them”, was the entirety of the Tribunal’s discussion of that topic (absent a transcript, although their Honours in AYX17 held that the only matters activating the Tribunal’s decisional freedom are those provided in the statement of reasons) see [61] and [103]).
In my view, the Tribunal did not give “real and genuine consideration” to calling Mr Corneau and Ms McLaughlin. This is because the Tribunal made serious findings about the credibility of DZG17’s evidence yet the statement of Mr Corneau was put forward by DZG17 as corroborating her evidence and, on the face of the Tribunal’s reasons, there is no engagement with the reasons put forward by the appellants as to why they wished to call Mr Corneau and Ms McLaughlin.
As the Full Court explained in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 361 ALR 227 (“AVQ15”) at [41], there are a number of principles relevant to an adverse credibility finding borne out of inconsistent evidence. They were said to be:
(a)The question of whether an administrative decision suffers from jurisdictional error requires a careful examination of the statutory framework with particular emphasis on provisions which determine the decision‑maker’s powers, procedures, functions and obligations.
(b)While findings as to credit are generally matters for the administrative decision‑maker, they may be amenable to judicial review on several grounds including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review, and failure to take into account material critical to the formation of the requisite state of satisfaction.
(c)Whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae. Merely because a decision‑maker has ignored “relevant material” does not always give rise to jurisdictional error in the present context. The importance or cogency of the material, its place in an assessment of the appellant’s claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case. Those matters inform an assessment of the seriousness or gravity of the error.
(d)Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was not material, or not critical to, the ultimate conclusion or end result (such as, for example, where it is but one of several findings that independently may have led to the ultimate decision).
(e)Merely because there is no reference in the decision‑maker’s reasons for decision to particular material does not necessarily give rise to an inference that the material was not considered. Nonetheless, in the case of the Tribunal, which is required by s 430 of the Act to make a written statement setting out its reason for decision and its findings on material questions of fact, and to refer to the evidence on which such findings were based, a failure to refer to evidence that, on its face, bears on a finding may indicate that that evidence has not, in fact, been considered and, in some cases at least, disclose jurisdictional error in the decision‑making (see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [10] per Gleeson CJ).
(f)Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review.
In determining whether the appellants were lawfully entitled to a protection visa, the credibility of their claims of a well‑founded fear of persecution was determinative. The Tribunal in assessing those claims was required, in conducting a review, to consider the appellants’ claims. By making credibility findings on key integers of the appellants’ claims without considering or explaining, in its decisional record, engagement with why the appellants sought to call the witnesses, the Tribunal failed to give real and genuine consideration to the appellants’ request.
The High Court has explained in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 (“Hossain”) that the threshold of materiality of error will ordinarily not be met where the failure to comply with the condition would make no difference to the decision that was made in the circumstances in which it was made: see [30]‑[31].
Unlike the circumstances in Hossain, this is a case where it is quite possible (without descending in any way into counterfactuals or hypotheticals) that the evidence given by Mr Corneau or Ms McLaughlin may have had an impact upon the Tribunal’s assessment of the appellants’ credit and the veracity of their underlying claims for protection.
Since ground 1 of the appeal is made out, the decision of the primary judge is to be set aside and the matter remitted to the Tribunal for the purpose of enabling the Tribunal to have regard to the wishes of the appellants as required by s 426(3) of the Act so as to understand why the appellants want the Tribunal to take evidence from the nominated witnesses, Mr David Corneau and Ms Patricia McLaughlin, and how the evidence is said to relate to the Tribunal’s review of the claims of the appellants and the credibility of their evidence.
The appellants are to have their costs of the appeal.
I certify that the preceding one hundred and twenty four (124) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate:
Dated: 13 December 2019
- AGLC
- DZG17 v Minister for Immigration and Border Protection [2019] FCA 2106
- Case
- [2019] FCA 2106
- Decision Date
CaseChat Overview and Summary
The court found that the AAT had not properly exercised its discretion under s 426(3) by failing to give real and genuine consideration to the appellants' request to call the witnesses. The court noted that the AAT must understand why the applicant wants the Tribunal to take evidence from the nominated person, and how that person's evidence is said by an applicant to relate to the Tribunal’s review. In this case, the AAT did not provide sufficient reasons for its decision not to call the witnesses, and therefore had not properly exercised its discretion. The court remitted the matter to the AAT to enable it to undertake the task of having regard to the wishes of the applicants as required by s 426(3) of the Migration Act.
The court allowed the appeal and set aside the orders made by the Federal Circuit Court of Australia. The matter was remitted to the AAT for reconsideration in accordance with the court's reasons. The first respondent was ordered to pay the costs of the appellants of and incidental to the appeal.
Orders
Orders of the court
1. The appeal is allowed.
2. The orders made by the Federal Circuit Court of Australia on 12 July 2018 be set aside and in lieu thereof, it be ordered that:
(a) the matter be remitted to the Tribunal for the purpose of enabling the Tribunal to undertake the task of having regard to the wishes of the applicants as required by s 426(3) of the Migration Act 1958 (Cth) so as to enable the Tribunal to understand why the applicants want the Tribunal to take evidence from the nominated witnesses, Mr David Corneau and Ms Patricia McLaughlin, and how evidence from those witnesses is said to relate to the Tribunal’s review of the claims of the applicants and its impact upon the credibility of their evidence;
(b) the first respondent pay the costs of the applicants of and incidental to the proceedings before the Federal Circuit Court of Australia.
3. The first respondent pay the costs of the appellants of and incidental to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The Minister helpfully refers the Court to the recent decision of AYX17 v Minister for Immigration and Border Protection (2018) [2018] FCAFC 103; 262 FCR 317 (“AYX17”), in which Tracey and Mortimer JJ (Charlesworth J agreeing on this point) said at [48]: 48The work to be done by the second aspect of s 426(3) (namely that the Tribunal is “not required” to obtain evidence from a person named in the notice) is, in our opinion, to make clear that the Tribunal has a discretion whether or not to take evidence from a nominated person. It emphasises the nature of the power in s 427(1)(a). The only express control or condition on that discretion is that the Tribunal must “have regard to” an applicant’s wishes. In our opinion this means the Tribunal must, through inquiries of the applicant, understand why the applicant wants the Tribunal to take evidence from the nominated person, and how that person’s evidence is said by an applicant to relate to the Tribunal’s review. It is to these matters the Tribunal must give real and genuine consideration, in the way explained by Kenny and Lander JJ in Maltsin at [38] (Spender J agreeing). [emphasis added] Of course, the decision to call (or not to call) the witnesses must be exercised reasonably and the Tribunal must give real and genuine consideration to the appellants’ request: see AYX17 at [57]. This means, in part that the Tribunal must, through enquiries of the appellants understand why they wish to call the witnesses” AYX17 at [48]. The relevant witnesses are Mr David Corneau and Ms Patricia McLaughlin. As set out at [34], [47] and [49] of these reasons, DZG17 relied on the statement of Mr Corneau concerning the allegations of a government body threatening her and conspiring against her. As is clear from the Tribunal’s reasons from [122]‑[124], the Tribunal did not consider that Mr Corneau provided an accurate or reliable account because of inconsistencies between his evidence and the evidence of DZG17. The Tribunal was also concerned that Mr Corneau’s evidence was significantly based on what DZG17 had apparently told him. This inconsistency is said to be different accounts of which agency was alleged to have called DZG17 and made threats to her. DZG17 explained the inconsistency by saying that the person had identified themselves as a “Ministry lawyer” and that Corneau’s evidence should be preferred over her own. The Tribunal was faced, at the first hearing, with a request to call a witness that could provide evidence concerning a particular phone call which was the subject of conflicting evidence. The Tribunal’s treatment of the appellants’ reliance on oral evidence is different from that in AYX17. In that case, the Full Court was confronted with a case where the appellant put forward the names of two witnesses who were not called. The Tribunal made adverse credibility findings that were such that they could not be redeemed by the proposed witness evidence. The Tribunal in AYX17 provided written reasons as to why it had decided not to call the two witnesses and it was explained in the hearing as to why it had chosen not to: see [32] of AYX17. In particular, the Tribunal in that case could not verify the details of the proposed witnesses.