EEC17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 987
Federal Circuit and Family Court of Australia
(DIVISION 2)
EEC17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 987
File number(s): SYG 2894 of 2017 Judgment of: JUDGE LAING Date of judgment: 24 November 2022 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming decision not to grant a protection visa – whether the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) – application dismissed Legislation: Migration Act 1958 (Cth) ss 36, 424A Cases cited: BYN16 v Minister for Immigration and Border Protection [2020] FCA 834
Luo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1045
Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190
SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 229 FCR 90
Division: Division 2 General Federal Law Number of paragraphs: 35 Date of hearing: 5 October 2022 Solicitor for the Applicant: Mr R Turner, Ronayne Owens Lawyers Solicitor for the First Respondent: Mr E Taylor, Mills Oakley Solicitor for the Second Respondent: Submitting appearance, save as to costs. ORDERS
SYG 2894 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EEC17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
24 November 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING
introduction
Before the Court is an application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
background
The applicant is a citizen of Sudan. He arrived in Australia in 2013 as the holder of a Skilled – Recognised Graduate (Class VF) (Subclass 476) visa.
On 6 March 2015, the applicant applied for a protection visa.
On 7 January 2016, the Delegate refused to grant the applicant a protection visa. The applicant sought review of the Delegate’s decision by the Tribunal.
The applicant attended a hearing before the Tribunal on 4 August 2017.
On 18 August 2017, the Tribunal affirmed the Delegate’s decision refusing to grant the applicant a protection visa.
the tribunal’s decision
The Tribunal considered as a preliminary issue the credibility of the applicant. It raised various credibility concerns in relation to the applicant’s claims and evidence at [28]-[59], before concluding at [60] that the applicant was not a witness of the truth. These included:
(a)concerns regarding the applicant’s return to Sudan in 2013, despite his claimed risk of harm (at [29]-[37] and [45]);
(b)the lack of further inquiries the applicant claimed had been made of his family, after he claimed that his cousin had been arrested and made to give adverse information against him (at [38]-[40]);
(c)inconsistent evidence regarding discrimination the applicant claimed to have faced relating to his employment before October 2013, contrasted also with his apparent achievements and ability to travel (at [41]-[48]);
(d)what the Tribunal found to be unsatisfactory evidence regarding the applicant’s claimed encounter with the authorities in 2013 (at [49]-[54]);
(e)the applicant’s delay in leaving Sudan after he claimed he had been arrested and tortured in 2013 (at [55]-[58]); and
(f)the applicant’s delay in lodging his protection visa application (at [59]).
The Tribunal was not prepared to place weight on an article submitted by the applicant which he claimed was about his cousin’s arrest in 2015. The Tribunal had no corroboration that the person named in the article was his cousin, and noted country information regarding the prevalence of fraudulent documentation in Sudan (at [62]). The Tribunal was also not prepared to accept the applicant’s claim that he had relatives who had sought protection in America, in the absence of corroborative evidence (at [63]).
The Tribunal accepted that s 36(3) of the Migration Act 1958 (Cth) (Act) did not apply to the applicant’s situation (at [64]-[70]). However, it concluded at [71] that the applicant was not a witness of the truth and had fabricated his claims to protection.
The Tribunal then proceeded to set out in further detail its findings in relation to the applicant’s claims. Addressing the applicant’s claim to fear harm on the basis of having an adverse profile with the Sudanese authorities, the Tribunal stated:
73.On the basis of the adverse credibility finding, the Tribunal does not accept that he or his family were ever members or leaders of the NUP nor that he or his family were ever imputed with an anti-government opinion or arrested or tortured or lost employment or otherwise suffered harm or discrimination as claimed. The Tribunal does not accept that the applicant has or has had an anti-government opinion. The Tribunal finds that the applicant received university level education, and most recently held a job with [an organisation] (partially owned by the government). The Tribunal finds that he is an engineer and he was employed as an engineer. The Tribunal finds that he was provided with opportunities to improve his education and training while working in his jobs, including whilst at [the organisation], and that he travelled in and out of the country freely because he had no fear of harm, because he was not of adverse interest to the authorities at any stage, and because he is not from a known or suspected family as claimed. The Tribunal does not accept that he has suffered from discrimination in his work or at any other time.
The Tribunal considered that the applicant’s delay in travelling to Australia was because he had no fear of harm and was not of adverse interest to the authorities (at [74] and [76]).
The Tribunal further did not accept:
(a)that the applicant had undertaken any activities in Australia which would lead him to face a real chance of relevant harm. In particular, the Tribunal did not accept that he faced a real chance or real risk of being imputed with an anti-government political opinion as a result of meeting up with Sudanese people in Australia (at [75] and [77]);
(b)that Australia was considered anti-regime, such that the applicant would face a real chance of relevant harm on account of his time there (at [78]);
(c)that the applicant had a cousin in Sudan who had been detained, arrested, harmed or asked questions about the applicant (at [79]);
(d)that the applicant left Sudan by obtaining an exit visa only giving him permission to travel to a country other than Australia (I have not named the other country in case it may provide a means of identifying the applicant). The Tribunal found instead that the applicant obtained an exit visa to travel to Australia, and that when he left Sudan he declared that he was going to Australia. The Tribunal did not accept that the applicant needed any assistance to leave the country and found that as he had an exit visa, he would not be questioned by the National Intelligence and Security Service (NISS) (at [81]);
(e)that the applicant had previously experienced any adverse attention at the airport when leaving or entering Sudan. The Tribunal was not satisfied that the applicant would face a real chance of serious harm or a real risk of significant harm upon return to Sudan. The Tribunal considered that the applicant would not tell the Sudanese authorities that he had applied for protection in Australia, would not show the authorities documents indicating such, and would tell authorities that he had been working Australia (at [82]); or
(f)that the applicant faced a real chance of relevant harm due to generalised violence or insecurity, or as a result of cholera in Sudan (at [84]-[86] and [91]).
The Tribunal further summarised its findings as follows:
84.The Tribunal does not accept that the applicant is a vocal opponent of the government, nor does it accept that he or his family members are or have been or face a chance or risk of being so imputed. The Tribunal is not satisfied that the applicant faces a real chance of serious harm or real risk of significant harm as a returnee, either at the airport, or after he leaves the airport. The Tribunal does not accept that the applicant faces a real chance or real risk of not being able to obtain a job in Sudan, given his education, his qualification as an engineer, and his work experience in both Sudan and Australia. The Tribunal considers that the applicant will return to [the area] where he was living prior to coming to Australia, and that he will find accommodation and work as he has previously done. The Tribunal is not satisfied on the evidence before it that the prices in Sudan mean that the applicant faces a real chance of serious harm or a real risk of significant harm. The Tribunal does not accept that the applicant faces a real chance or a real risk of losing his freedom or a lack of freedom, or of torture or of hardship or of discrimination…
87.The Tribunal is not satisfied that the applicant faces a real chance of serious harm on the basis of political opinion, political affiliation, family membership, or any activities in Sudan or overseas (imputed or otherwise) or conditions in the country. The Tribunal considers there is no basis to find that the applicant would face a real chance of serious harm in Sudan. The Tribunal is not satisfied that there is a real chance or real risk that the applicant (or any of his family) may be of adverse interest to the authorities, or anyone, in the future…
91.The Tribunal is not satisfied that this applicant faces a real risk of experiencing significant harm for any reason in Sudan, including as a returnee, having spent significant time in Australia, having previously visited Australia, because of his family, for any political or imputed political reasons, for employment or general conditions in Sudan.
The Tribunal concluded that it was not satisfied that the applicant was a person to whom protection obligations were owed. Accordingly, it affirmed the Delegate’s decision.
relevant legislation
Section 424A of the Act relevantly provides:
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non-disclosable information.
(4)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
proceedings before this court
The applicant commenced the current proceedings by application filed on 18 September 2017. An amended application was filed on 21 September 2022, relying upon the following sole ground of review:
1. The Tribunal failed to comply with its statutory duty.
Particulars
a) The Tribunal failed to comply with the Migration Act 1958, s. 424A.
a. The Tribunal relied upon:
i.The interview between the delegate and the Applicant at CB 157 (footnote 1)
ii. Paragraph [6] at CB 158
iii. Paragraph [8] at CB 159
b.This material formed part of the reasons for the Tribunal’s finding of a lack of credibility (Paragraph [33] at CB 164)
In the applicant’s written submissions, reliance was placed upon s 424A(3)(ba) of the Act. That provision excluded from its exception to s 424A information provided orally by the applicant to the Department. Notwithstanding this, the applicant submitted that the Tribunal referred to and relied upon information given by the applicant at interview (being the material set out at footnote 1, [6] and [8] of the Tribunal’s decision).
Footnote 1 noted the Delegate’s acceptance of the applicant’s explanation for his use of a different term for the political party he claimed to support than that which appeared in the country information reports (the explanation being that it was a matter of different translations in Arabic). Paragraph 6 summarised various oral evidence given by the applicant during his interview with the Delegate, which had been recorded in the Delegate’s decision. Paragraph 8 summarised the Delegate’s decision that was under review. Paragraph 33 stated:
33.The Tribunal’s concerns in this regard are heightened, because when he told the delegate that he returned from Australia to Sudan because he had agreed to continue working for his employer, he told the delegate that he was required to continue working for one year (until April 2014) so as not to default on the agreement and face a fine of the equivalent of AU$15,000, which he did do5; this is inconsistent with the two year period he told the Tribunal.
Footnote 5 stated: “see delegate's decision record provided to the Tribunal by the applicant”.
I accept the submissions for the Minister as to why this ground is unable to succeed.
The material referred to in footnote 1, [6], [8] and [33] of the Tribunal’s decision was expressed to be, and clearly was, sourced from the Delegate’s decision record. The applicant provided a copy of the Delegate’s decision record to the Tribunal. This was indicated in his application form (at CB 67) and was also expressly confirmed in the Tribunal’s decision (at footnote 2 and [12]). All of the material relied upon by the applicant in relation to the ground, therefore, fell within the exception in s 424A(3)(b) of the Act: Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 (Chamnam You) at [16] and [22].
After receiving the Minister’s submissions drawing attention to this difficulty, the applicant filed an affidavit (on the day before the hearing). That affidavit annexed a recently accessed page from the Tribunal’s online portal which requests that applicants “[p]lease” upload documents including “the decision record received from the department”. On this basis, Mr Turner submitted that the applicant’s provision of the decision record to the Tribunal was not “freely given”. Mr Turner submitted that as the decision record was not provided voluntarily, it did not fall within the exception contemplated in s 424A(3)(b) of the Act.
Mr Turner did not develop in detail the textual basis for his contention that s 424A(3)(b) should be interpreted as imposing a condition that documents be “freely given”, or provided “voluntarily”.
In any event, I do not accept that the applicant’s provision of the Delegate’s decision record ought to be characterised as involuntary (or given “under coercion or colour of law”, as appeared to be suggested in Mr Turner’s post hearing submissions). As both parties accepted at hearing, if the applicant had chosen not to upload the decision record, his review application before the Tribunal would still have proceeded. There was no statutory requirement preconditioning the validity of the review application, or the Tribunal’s obligation to determine it, upon the applicant’s provision of the decision record. The page requesting that the decision record and other documents be uploaded noted that “[i]t is not essential to provide all documents at this point”.
The question, then, is whether the Tribunal’s request for the document caused the applicant’s provision of it to fall outside the exception contained within s 424A(3)(b).
The authorities are to the contrary. In SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 229 FCR 90 it was stated at [24]:
It is apparent from the various approaches taken to s 424A(3)(b) that the question is ultimately one of fact. Consistent with the reasoning of Heerey J in VWBF and SZCJD, there is nothing in the text of s 424A(3)(b) which supports any distinction between information proffered by an applicant to the Tribunal of the applicant’s own volition or elicited from an applicant by the answering of the Tribunal’s questions. In either case, the applicant may have given information to the Tribunal. Despite this, not every answer by an applicant to a question from the Tribunal will involve the applicant giving information to the Tribunal. The nature of the information, of the question asked by the Tribunal and the applicant’s answer will all be relevant to determining whether s 424A(3)(b) is engaged.
In the present case, the applicant “gave” to the Tribunal a copy of the Delegate’s decision record. This was, clearly enough, provided “for the purpose of the application for review”. This was so even if it was provided in response to a request for the document by the Tribunal. It follows that any information contained within the Delegate’s decision record fell within the exception contained within s 424A(3)(b) of the Act, for the reasons explained in Chamnam You.
In any event, there is also clear authority to the effect that “information”, for the purposes of s 424A of the Act, concerns evidentiary material or documentation and not the Tribunal’s “subjective appraisals” such as those regarding “the existence of doubts, inconsistencies or the absence of evidence” (emphasis added): SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 (SZBYR) at [18]; see also Luo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1045 at [29]. In order to enliven s 424A, “information” must contain in its “terms a rejection, denial or undermining of the [applicant’s] claims” to be owed protection obligations: SZBYR at [18].
None of the material relied upon in [33] did so. Paragraph 33, which is set out above, referred to the applicant’s evidence at interview that he had been required to work for one year, rather than the two years that he told the Tribunal. It is clear enough, from the authorities referred to above, that this inconsistent evidence was not “information” for the purposes of s 424A.
In post-hearing submissions, Mr Turner submitted that it was the underlying material relied upon by the Tribunal that he contended formed the relevant information for the purposes of s 424A of the Act. However, he did not demonstrate how that underlying material, on its terms, could be said to have constituted a “rejection, denial or undermining” of the applicant’s claims.
The notation in footnote 1 simply recorded the Delegate’s acceptance of the applicant’s explanation for different terminology that he had used. This did not undermine the applicant’s claims. Nor is it apparent how the evidence referred to at [6] and [8] that was given at interview could be said - on its terms - to have undermined the applicant’s claims to protection. Whilst some of that evidence was found to be inconsistent with other evidence that the applicant had given, it was the inconsistency, and not the underlying oral evidence given by the applicant at interview, that undermined the applicant’s claims to protection: see BYN16 v Minister for Immigration and Border Protection [2020] FCA 834 at [58] and [64]. Mr Turner confirmed at the hearing of this matter that he did not suggest that the Delegate’s findings or subjective assessments were information for the purposes of s 424A of the Act.
Having regard to the above, the Tribunal was not required to put the material relied upon to the applicant pursuant to the procedure in s 424A of the Act.
It follows that the sole ground relied upon by the applicant is unable to succeed.
CONCLUSION
For the reasons given above, the application before this Court must be dismissed.
I will hear the parties in relation to costs.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 24 November 2022
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