EHC21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 202
Federal Circuit and Family Court of Australia
(DIVISION 2)
EHC21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 202
File number(s): MLG 3060 of 2021 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 16 March 2023 Catchwords: MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – Protection (subclass 866) visa – claims that the Tribunal did not give due regard to ss 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) – where applicant claims to fear persecution by South African police and authorities – adverse credibility findings – where the Tribunal’s findings were reasonably open on the evidence before it – where applicant seeks to adduce evidence not before the Tribunal – model litigant obligations – where Minister raised possible ground of review in relation to Tribunal’s lack of reference to corroborative evidence in its dispositive reasons – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 5J, 36, 65, 109 Cases cited: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164
Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Division: Division 2 General Federal Law Number of paragraphs: 81 Date of last submission/s: 13 February 2023 Date of hearing: 13 February 2023 Place: Melbourne Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr J Barrington Solicitor for the First Respondent: MinterEllison
Table of Corrections 20 March 2023 In paragraph [22], references to the applicant’s name have been redacted. ORDERS
MLG 3060 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EHC21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
16 March 2023
THE COURT ORDERS THAT:
1.The applicant’s application filed on 24 November 2021 be dismissed.
2.The applicant pay the first respondent’s costs in sum to be fixed if not agreed.
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
DEPUTY CHIEF JUDGE MERCURI:
Before the court is an application filed by the applicant on 24 November 2021, seeking judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 22 October 2021. By that decision, the Tribunal affirmed a decision of a delegate of the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) not to grant the applicant a Protection (Class XA) (Subclass 866) visa (‘protection visa’) under section 65 of the Migration Act 1958 (Cth) (‘the Act’).
Background
The applicant is a South African citizen born on 11 April 1958 in Cullinan, Gauteng, South Africa.[1] The applicant’s migration history is set out in the delegate’s decision at page 219 of the court book. Relevantly, the applicant travelled to and from Australia on various occasions in 2015.[2]
[1] Tribunal decision record dated 22 October 2021 at paragraph [21].
[2] Court book at page 219.
Application for temporary work visa on 28 October 2015
On 28 October 2015, the applicant applied for a UC-457 (Temporary Work [Skilled]) visa (‘temporary work visa’) which was granted on 16 June 2016.[3] This visa was valid until 16 June 2020. On 6 September 2019, the temporary work visa was cancelled pursuant to section 109 of the Act.[4]
[3] Court book at page 219.
[4] Court book at page 219.
On 16 September 2019, the applicant initiated a review application of that cancellation decision in the Tribunal and on 26 September 2019, the applicant was placed in immigration detention.[5] On 4 February 2020 the temporary work visa cancellation decision was affirmed by the Tribunal.[6]
[5] Court book at page 219.
[6] Court book at page 219.
Application for combined partner visas on 17 December 2018
On 17 December 2018, the applicant applied for UK-820 and BS-100 (Combined Partner) visas (‘combined partner visas’).[7] On 20 October 2019, the applicant’s applications for combined partner visas were refused and the applicant sought a review of that refusal in the Tribunal on 29 October 2019.[8]
[7] Court book at page 219.
[8] Court book at page 219.
Application for protection visa on 27 April 2020
On 17 April 2020, the applicant was refused a bridging visa,[9] and it was against this background that on 27 April 2020 the applicant lodged an application for a protection visa.[10] The applicant also sought a review of the rejection to grant a bridging visa in the Tribunal, which was ultimately withdrawn.[11]
[9] Court book at page 219.
[10] Court book at page 219.
[11] Court book at page 219.
Attached to the applicant’s protection visa application is a statement in which the applicant outlines his claims for protection, including his fears of serious harm and imminent deprivation of life if he were forced to return to South Africa.[12] The applicant claims that he is being persecuted by corrupt members of the South African police, as well as by other influential people in South Africa.[13]
[12] Court book at page 58 and following.
[13] Court book at page 58.
The applicant also seeks protection under Australia’s complementary protection obligations on the basis that he says he faces a risk of significant harm and a risk that he will suffer inhumane treatment and almost certain death if he were to be returned to his home country.[14] He states that by cancelling his visa, the Australian Government risks refoulement if he is returned to South Africa. The applicant also claims that he is being persecuted because of his political beliefs.
[14] Court book at page 51.
The applicant claims that the convictions recorded against his name in South Africa were recorded at a time when he was seconded with the then South African Police, Special Fraud Branch to uncover ‘deep corruption’. He states that he was able to ‘uncover a deep and wide network of fraud, theft, corruption running to the highest levels of the police, the judiciary and government officials of that time’.[15] The applicant concedes that convictions were recorded against his name in relation to various cases of corruption and fraud.[16] However, he says that although he was purportedly convicted and ordered to be incarcerated for periods of time, he in fact spent no time in prison.[17] He further states that he was assured in each of these cases that the convictions:
… were recorded for the purpose of authenticity against the ones who had actually committed the crimes. I was told that these convictions were only laid in order to keep me safe against these criminals as they were known even at that time to be violent and ruthless against any enemies. I was told clearly that these convictions would not be recorded in any way and that they would be struck from the records as they were not really convictions as I had not committed any of these crimes.[18]
[15] Court book at page 58.
[16] Court book at pages 58 to 59.
[17] Court book at page 59.
[18] Court book at page 59.
The applicant further claims that as a result of the truth and reconciliation process introduced by President Mandela following the fall of apartheid in South Africa, the individuals who were found guilty of fraud and corruption were released from prison and have since obtained and currently hold positions of authority within South Africa.[19] The applicant states that as a result, he no longer feels safe in South Africa as these individuals are aware of his identity and his role in their imprisonment.
[19] Court book at page 59.
He therefore feels that he would not be safe if he were to return to South Africa.[20]
[20] Court book at page 60.
The applicant further states that to the extent that he has been accused of sexual offences in South Africa, these are ‘drummed up by (his) ex-wife’.[21] He says that this matter was dropped and never went to trial once the ‘accuser admitted to lying’.[22]
[21] Court book at page 49.
[22] Court book at page 58.
The applicant also says that he cannot relocate to a different area within South Africa as he would be at a risk of harm anywhere within that country.[23] Given the nature of the applicant’s claims, not surprisingly, he also maintains that the police and the government would not provide him with any protection in South Africa.
[23] Court book at page 51.
In his material before this court, the applicant also refers to various business dealings that he had with various companies in Australia. The applicant asserts, amongst other things, that his former wife in South Africa is colluding with his former business associates in Australia to undermine his visa application process.[24]
[24] Court book at page 65.
The applicant attended a protection visa interview with a delegate of the first respondent on 20 May 2020 by telephone.[25] The applicant’s migration agent sought and obtained further time within which to provide information in support of the applicant’s application.[26] The basis for the request for more time was that the applicant was attempting to obtain supporting documentation from South Africa.[27]
[25] Court book at page 159 and following.
[26] Court book at pages 160 to 166.
[27] Court book at page 161.
By letter dated 11 August 2020, the delegate of the Minister notified the applicant of their decision to refuse the applicant’s application for a protection visa.[28] The delegate’s reasons for decision are set out at pages 219 to 237 of the court book.
[28] Court book at page 215.
Application for review at Tribunal on 12 August 2020
On 12 August 2020, the applicant applied to the Tribunal for a review of the delegate’s decision.[29]
[29] Court book at pages 238 to 239.
On 13 August 2020, the applicant’s migration agent emailed the Tribunal and indicated that the applicant had engaged lawyers in South Africa who would require some six to twelve months to gather evidence to support the applicant’s application for review.[30] The applicant therefore asked that any hearing date allow for that to occur.[31]
[30] Court book at page 268.
[31] Court book at page 268.
By letter dated 21 May 2021, the Tribunal invited the applicant to attend a hearing on 30 June 2021. The Tribunal also invited the applicant’s representative to make any written submissions in support of the applicant’s claim by 23 June 2021.[32]
[32] Court book at pages 271 to 276.
By letter dated 22 June 2021, the applicant provided the Tribunal with a written submission and further supporting documentation in support of his claim for protection.[33] The Tribunal hearing was postponed to 5 August 2021.[34] At the applicant’s request, this hearing, which was initially to occur by videoconference, occurred in person.[35]
[33] Court book at pages 285 to 294.
[34] Court book at page 296.
[35] Court book at page 306.
The applicant provided further written submissions and supporting documentation prior to the Tribunal hearing.[36]
[36] Court book at pages 314 to 315; 319 to 331.
By email dated 30 July 2021, the Tribunal contacted the applicant’s legal representative in the following terms:
Referring to your email sent on 29/7/2021, I note that the attachment ‘[The applicant] warrant of arrest’ is of low quality and the details are not able to be read. I also noted that the attachment ‘[The applicant] 4 Susan letter of support’ is blank. Please submit the two supporting documents again.[37]
[37] Court book at page 332
Later that same day, the applicant’s representative sent an email in the following terms:
Dear sirs,
As requested, we now enclosed letter of support of Susan Partridge for your attention.
We are not able to provide you with a clearer copy of the arrest warrant as the original copy was a blur one (sic).[38]
[38] Court book at page 333.
On 16 August 2021, the applicant’s representative provided a post-hearing submission.[39]
[39] Court book at pages 414 to 423.
On 22 October 2021, the Tribunal affirmed the decision not to grant the applicant a protection visa.[40]
[40] Court book at pages 430 to 460.
Tribunal decision
The Tribunal’s decision of 22 October 2021 is set out at pages 430 to 456 of the court book.
The Tribunal set out the background to the application for review and the criteria by which that application was to be determined at paragraphs [1] to [17] of its decision record.
At paragraphs [21] to [24] of the Tribunal’s decision record, the Tribunal sets out the applicant’s claims for protection and his migration history.
At paragraph [25], the Tribunal then summarises the applicant’s claims as follows:
25. In summary the applicant’s claims are:
a)The applicant was recruited by the now disbanded South African Police, Special Fraud Branch to act as a private citizen, as he was a well-respected member of his Old Apostolic Church.
b)The applicant was told to stand trial with a number of other people and he was sentenced to a suspended sentence while they received significant sentences. The applicant was told that these convictions would not be officially recorded.
c)The persons who the applicant helped were subsequently released from prison and their records were cleaned due to anti-apartheid legislation. They now occupy high positions in the South African Government and the South African Police Service (SAPS) is attempting to discredit the applicant as a criminal due to what he knew about them.
d)People that the applicant worked with in the case have died in suspicious circumstances and the applicant fears that he will suffer the same fate.
e)After the ANC led government took power, the applicant kept a low [profile] and moved around South Africa. However since the SAPS is a national organisation he cannot escape it.
f)There is a particular General level official who ‘has it in’ for the applicant, after the applicant was involved in prosecuting him for corruption.
g)The ANC is looking for him and he will be picked up at the airport and taken away as soon as he lands in South Africa.
At paragraphs [26] to [28], the Tribunal then set out the supporting material, including further submissions provided by the applicant’s representative in support of the applicant’s claims.
The Tribunal then summarised the oral evidence given by the applicant at the hearing before it at paragraphs [29] to [33]. The Tribunal also summarised the evidence given by two witnesses called by the applicant, Mr Timothy Dean, at paragraph [34], and Ms Christine Kotze, at paragraph [35].
At paragraphs [36] to [37], the Tribunal sets out in some detail relevant country information. At paragraph [38], the Tribunal notes that it is well-established that the Tribunal is not required to uncritically accept all or any of the claims made by an applicant or ‘have rebutting evidence available to it before it can find that a particular fact asserted by an applicant has not been made out’.
At paragraph [39], the Tribunal accepted that the applicant is a South African citizen and that South Africa is the receiving country for the purposes of the relevant legislation. Critically, however, the Tribunal then set out the following assessment of the evidence given by the applicant at paragraph [40] of its decision record:
40.The applicant portrayed himself through his oral evidence as the victim of quite magnificent circumstances, having experienced an extraordinary run of supposedly unfortunate and unusual life events, including personal and business dealings that had turned bad, but in which he maintains he shares no fault. The Tribunal found the applicant’s oral evidence demonstrated a capacity by him to retell a consistent assertion of the most incredible and unlikely events based on an elaborate story he believes will lead to the grant of a visa. Specifically, the Tribunal found the applicant’s oral evidence including his recollections and assertions rehearsed and lacking detail. Their retelling appeared to be largely disconnected from reality, ultimately so much so that the Tribunal found his protection claims to be disingenuous. Additionally, the Tribunal found the applicant’s responses to questions during the hearing scripted, albeit confidently delivered, and lacking such spontaneity that the Tribunal had no alternative but to conclude that the applicant’s claims were not credible. Put simply, the Tribunal concluded the applicant was not a witness of truth. The Tribunal has come to this assessment because of the above reasoning, and because while it could be said the applicant provided a succinct account of his protection claims, when closely considered, the entirety of those claims are made by rote and importantly, almost entirely, provided in the absence of persuasive corroborating or contemporaneous evidence.
Having made this adverse credibility finding, the Tribunal ultimately concluded that the applicant did not have a well-founded fear of persecution for any of the reasons identified in the Act.[41] As such, it concluded that he did not satisfy the criteria for the granting of a protection visa.[42]
[41] Tribunal decision record dated 22 October 2021 at paragraph [44].
[42] Tribunal decision record dated 22 October 2021 at paragraph [45].
The Tribunal then went on to consider whether, notwithstanding this finding, the applicant met the complementary protection criteria.[43] That is, it considered whether there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to South Africa, there was a real risk that he would suffer significant harm. Having concluded that the applicant’s claims were not credible, the Tribunal went on to conclude that there were not substantial grounds for believing that he faced a real risk of significant harm if he were to return to South Africa.
[43] Tribunal decision record dated 22 October 2021 at paragraph [44] and following.
For each of these reasons, the Tribunal therefore concluded that the applicant did not engage the complementary protection provisions in the Act.[44] As such, the Tribunal affirmed the decision not to grant the applicant a protection visa.[45]
[44] Tribunal decision record dated 22 October 2021 at paragraph [51].
[45] Tribunal decision record dated 22 October 2021 at paragraph [54].
Proceedings in this court
Before turning to the grounds of review raised in the applicant’s application and the submissions made before me, it is appropriate to note the procedural history of this matter in this court.
Notwithstanding orders made on 10 January 2022 permitting the applicant to file an amended initiating application with proper particulars of the grounds of the application, written submissions and any additional evidence upon which he sought to rely, the applicant has not filed any further material in support of his application.
Applicant’s requests for adjournment
On 12 April 2022, the applicant filed an interlocutory application seeking an adjournment of the hearing, which at that stage was listed for 28 April 2022. The applicant sought an adjournment to October 2022 or later.
The reasons given for the adjournment, as outlined in the applicant’s application in a proceeding, were as follows:
1.Exculpatory legal proceedings in South Africa are ongoing, though I anticipate a conclusion well before October. I believe these proceedings will fully exonerate me, Ergo, nullifying any + all allegations re: the above case.
2.Only last Friday, 11/02/2022, I received a further submission/brief of evidence from MINTER ELLISTOR (sic) solicitors of some 460 pages, which will obviously take a great deal of time appropriately addressing. Which leads directly to my third and final reason for my humble request.
3.I have been without legal counsel sins (sic) the beginning of February 2022. In order for me to find and fully brief new counsel, especially considering the nuance of the 460-page brief of evidence against me, which I only received two days ago. I believe I will require at a very minimum, the humbly and respectfully requested adjournment.
When the matter came before me on 28 April 2022, I granted the applicant’s request for an adjournment and adjourned the matter to 5 September 2022 for final hearing. I once again gave the applicant a further opportunity to file any amended application with proper particulars, written submissions and any further evidence upon which he sought to rely prior to that final hearing. The matter was again adjourned on 5 September 2022 for a further number of weeks and the applicant was again given an opportunity to file any amended application, written submissions and further evidence upon which he sought to rely.
Hearing on 13 February 2023
It is against this background that the matter came before me for final hearing on 13 February 2023. At that time, the applicant remained self-represented. As stated, the applicant had not filed any amended application nor had he filed any written submissions or any further evidence upon which he sought to rely.
At the commencement of the hearing, I explained the role of the court in a judicial review application and the scope of the inquiry before me. In particular, I explained that the court in a judicial review application does not have the ability to consider the merits of the applicant’s visa application and does not have the power to grant a visa.
Grounds of review
In his application to this court filed on 24 November 2021, the applicant raises three grounds of review. I will now turn to the express grounds raised in this application.
Ground 1
By ground 1, the applicant asserts that the Tribunal did not fully consider the real chance that the applicant would face treatment amounting to persecution involving serious harm for one or more of the five reasons identified in section 5J(1)(a) of the Act should he be returned to South Africa. For the following reasons, this ground is not made out. Rather it does little more than invite the court to engage in impermissible merits review.
In order to discharge its obligation to ‘consider’ the applicant’s claims to have a well-founded fear of persecution, the Tribunal is required to actively engage with the issues raised by the applicant in his application.
In this case, the Tribunal clearly set out in some detail the statutory criteria underpinning the applicant’s application at paragraphs [4] to [17] of its decision record. The Tribunal correctly set out its understanding of the issue before it at paragraph [19].
The Tribunal then set out its understanding of the applicant’s claims and the evidence put forward by the applicant in support of those claims, again in some detail at paragraphs [21] to [35]. There is no suggestion by the applicant that the Tribunal misunderstood either his claims or the evidence led in support of those claims, rather, the applicant’s claim is that the Tribunal did not accept the veracity of those claims.
It is clear from the Tribunal’s reasons at paragraph [38] that the Tribunal was aware that it was not obliged to uncritically accept all of the applicant’s claims nor that it was necessary for the Tribunal to have direct evidence contradicting the applicant’s claims before it could reject them. As the Tribunal noted at the end of paragraph [38], ‘[i]t remains entirely for the applicant to satisfy the Tribunal that all of the statutory elements are made out’.
At paragraph [40], the Tribunal comprehensively rejects the applicant’s evidence and critically finds that the applicant’s claims were not credible. Indeed, the Tribunal went further and said, ‘Put simply, the Tribunal concluded the applicant was not a witness of truth’.
I understand the applicant’s submissions before this court are that he strongly disagrees with this conclusion. That, however, is not sufficient to disclose jurisdictional error. Having regard to the evidence before it, the conclusion reached by the Tribunal was one that was reasonably open to it. To engage with the applicant’s ground in this respect would require the court to engage in impermissible merits review.
For each of these reasons, ground 1 is not made out.
Ground 2
By ground 2, the applicant similarly says that the Tribunal did not give due regard to the provisions of section 36(2)(aa) of the Act, namely, that the applicant was a person in respect of whom Australia has protection obligations. Again, by this ground, and for the same reasons as expressed in relation to ground 1, the applicant does little more than invite the court to engage in impermissible merits review.
The Tribunal clearly set out the criteria by which it needed to assess the applicant’s claims for complementary protection. The Tribunal set out the applicant’s evidence and claims in detail. Ultimately, for the reasons given at paragraph [40] of the Tribunal’s reasons, the Tribunal rejected the applicant’s evidence and found that he was not a witness of truth.
For the same reasons previously articulated, that finding was reasonably open on the evidence before the Tribunal.
In relation to both grounds 1 and 2, the relative brevity of the Tribunal’s reasons concluding that the applicant did not satisfy the criteria under either section 36(2)(a) or 36(2)(aa) of the Act was consistent with the total rejection of the factual basis underpinning the applicant’s claims. For these reasons, ground 2 is also not made out.
Ground 3
In ground 3, the applicant states that he is waiting for key information regarding a persecutory campaign waged by the South African government headed by police minister, Beki Celi, aimed at destroying him. The applicant further claimed that that information, which a South African senior barrister was compiling, would in due course be presented to the court.
No such evidence has been put before the court, notwithstanding two adjournments to allow the applicant time to prepare his case and numerous opportunities for him to amend his application and put relevant material before the court.
But in any event, any evidence that the applicant was able to obtain, had he done so, would not have assisted him in this application. As stated, the question before this court is whether the Tribunal made a jurisdictional error by reference to material that was before it at the time of its decision. The Tribunal’s decision cannot be impugned by the production of evidence after the hearing and decision that was not before it at the time.
In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164 at paragraphs [27] to [28], the Full Court of the Federal Court, in considering a review of the decision made by the Immigration Assessment Authority, said:
27.The task on judicial review may be simply stated. It is to determine, on the grounds of judicial review advanced, whether the judicial review applicant has discharged the onus of showing that the decision under review was not made in accordance with the authority conferred by the relevant statute. In MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441; 390 ALR 590 at [29] and [30], Kiefel CJ, Gageler, Keane and Gleeson JJ explained:
“[29]The constitutionally entrenched jurisdiction of a court to engage in judicial review of the decision, where that jurisdiction is regularly invoked, is no more and no less than to ensure that the decision-maker stays within the limits of the decision-making authority conferred by the statute through declaration and enforcement of the law that sets those limits. To say that the decision is affected by jurisdictional error is to say no more and no less than that the decision-maker exceeded the limits of the decision-making authority conferred by the statute in making the decision. The decision for that reason lacks statutory force. Because the decision lacks statutory force, the decision is invalid without need for any court to have determined that the decision is invalid.
[30]The statutory limits of the decision-making authority conferred by a statute are determined as an exercise in statutory interpretation informed by evolving common law principles of statutory interpretation. Non-compliance with an express or implied statutory condition of a conferral of statutory decision-making authority can, but need not, result in a decision that exceeds the limits of the decision-making authority conferred by statute. Whether, and if so in what circumstances, non-compliance results in a decision that exceeds the limits of the decision-making authority conferred by the statute is itself a question of statutory interpretation.”
28.The question whether the IAA’s decision was made in accordance with the authority conferred by the statute … or whether it failed to comply with an express or implied condition of conferral of statutory decision-making authority, is answered by reference to the circumstances as they existed at the time the decision-making authority was exercised. The question is not answered by reference to circumstances which did not exist at the time of the decision. This point was made by Steward J in Plaintiff B65/2020 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs …:
“In judicial review proceedings, the issue before the Court concerns the legality of an exercise of power or the performance of a duty. The question to be posed is whether the decision-maker has stayed within the limits of the decision-making authority conferred by an Act of Parliament. Events which take place after an exercise of power can play no part in assessing whether that decision contained an error (or errors) when it was made. …”
Applying these principles to the present case, any evidence which the applicant may have sought to adduce before this court about matters which were the subject of factual determination by the Tribunal, but which were not put before the Tribunal, could not give rise to a finding that the Tribunal had engaged in jurisdictional error in not considering those matters. In any event, as I noted above, the applicant did not produce any such evidence to this court.
For these reasons, ground 3 is also not made out.
Other relevant matters
Applicant’s oral submissions
At the hearing before me, I invited the applicant to make submissions in relation to the grounds of review contained in his application. When asked about his grounds of review, the applicant stated that he had a migration agent who was assisting him at the time who had prepared the application for judicial review. He further stated that he had not read the grounds of review and therefore made no specific submissions in relation to them.
Ultimately, it is for an applicant to establish an error on the part of a decision maker in a judicial review application. Moreover, the applicant clearly had a copy of the application as he received a copy of the court book in February 2022 as this was the basis, in part, of his application filed on 12 April 2022 for an adjournment of the initial hearing scheduled for 28 April 2022.
When invited to make submissions in support of his application, the applicant made a number of statements which did not appear to be relevant to the present proceedings. Firstly, he made reference to comments by a person by the name of ‘Mrs Graycar’ that he says represented the Minister in proceedings before the Tribunal. When it was put to him that the Tribunal member who considered his application for a protection visa was a P. Wood, that there was no reference in the Tribunal decision to anyone by the name of Mrs Graycar, and in response to the submission for the Minister that the Minister is in fact not represented in Tribunal hearings, the applicant corrected himself and stated that he was referring to is application for ministerial intervention. I therefore do not propose to go into any great detail about the allegations that he made in his submissions to this court about Mrs Graycar on the basis that they are not relevant to this present proceeding.
The applicant also then made various assertions about other leading figures in South African politics and suggested that the corruption in South Africa to which he referred in his application has continued, and indeed, worsened since he left. Again, these matters are not relevant to the present application in circumstances where the question before the court is whether the Tribunal made an error on the basis of the material before it. As stated, any evidence of circumstances in South Africa after the applicant’s application for a protection visa cannot be evidence that was before the Tribunal and therefore cannot be relevant to a question as to whether the Tribunal has engaged in jurisdictional error.
Ultimately the applicant’s key submissions can be distilled into the following points:
(a)everything he told the Tribunal was true;
(b)when he initially applied for and was granted various visas to come to Australia there were no ‘red flags’ associated with his applications, and indeed, he was granted those visas;
(c)he fears for his life if he were to return to South Africa; and
(d)he has nothing in South Africa to return to but he has made a life here in Australia.
Putting his oral submissions at their highest, they rise no higher than an application for merits review. As indicated to the applicant, this court does not have jurisdiction to conduct a review on the merits of his visa application. The applicant’s oral submissions therefore also do not disclose any jurisdictional error in the Tribunal’s reasons.
Model litigant obligations
In the Minister’s written submissions, the Minister as a model litigant raises a potential further issue for the court’s consideration, although the Minister ultimately submits that this issue does not reveal jurisdictional error in any event.
Relevantly, the Minister concedes that the Tribunal’s reasoning in relation to the issues before it are almost entirely contained in paragraph [40] of its reasons set out in full above. Relevantly the Minister points to the fact that in concluding that the applicant’s claims were at best improbable, the Tribunal noted that the applicant’s claims were ‘almost entirely, provided in the absence of persuasive corroborating or contemporaneous evidence’.[46]
[46] Minister’s Outline of Submissions filed on 14 April 2022 at paragraph [38].
In expressing this view, the Minister concedes that the Tribunal does not expressly refer in paragraph [40] to material which could be said to be corroborative of the applicant’s claims. It is therefore submitted for the Minister that a possible ground of review could have been raised asserting that the absence of a reference to these matters in the Tribunal’s dispositive reasons is evidence that the Tribunal ignored or failed to consider that evidence.[47] As stated, the Minister raised this issue in fulfilling his obligations as a model litigant.
[47] Minister’s Outline of Submissions filed on 14 April 2022 at paragraph [40].
In response, however, it is submitted by the Minister that any such ground would not be made out when regard is had to the Tribunal’s reasons read fairly and as a whole. The Minister accepts that there were a number of documents put before the Tribunal by the applicant which could be described as corroborative of the applicant’s claims.[48] These documents are:
(a)an affidavit of a Christine Kotze, confirming that there was ‘nothing on the system’ when she searched the applicant’s criminal records in April 2020 and that there was ‘tampering putting documents on the system’ when she searched the records again in June 2021;[49]
(b)references in the material to an arrest warrant having been issued for the applicant’s arrest in South Africa in 2016;[50] and
(c)a South African Police Service Clearance Certificate stating that the applicant had been convicted of two counts of fraud in 1984, 15 counts of fraud in 1987, and two counts of fraud in 1991.[51]
[48] Minister’s Outline of Submissions filed on 14 April 2022 at paragraph [39].
[49] Court book at page 327.
[50] Court book at page 329.
[51] Court book at pages 417 to 419.
The Minister concedes that the Tribunal cannot ignore allegedly corroborative material, even in circumstances where the Tribunal has made adverse credibility findings against the applicant.[52] In Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 at paragraphs [36] to [39], North and Lander JJ said:
36.When a decision-maker has conducted a hearing … and has heard the applicant, and has reached the tentative conclusion that the applicant’s claims have been fabricated, the decision-maker is entitled in our opinion to reject evidence which would, if accepted, have corroborated the applicant’s account. That does not mean that any evidence of corroboration could be rejected. It would depend upon the nature, content and quality of the corroborative evidence before a decision-maker could determine to reject it out of hand. In this case, as we have said, the document which is said to be the corroborative evidence is a document written in the Chinese language which has been interpreted, no doubt faithfully, into the English language and purports to be a statement of Lu. The applicant, whom the RRT believed was not a credible witness, proffered it as Lu’s statement, but there was no other evidence other than the applicant’s say so that it was. There is nothing irrational about the RRT in those circumstances rejecting the document by giving it no weight. In circumstances where the provenance of the document is unproved, but it is proffered by a witness whose credibility has been destroyed, the document has no more credit than the person proffering it. …
37.Several further observations should be made concerning the type of situation addressed in Applicant S20/2002 … The case does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence.
38.The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. Applicant S20/2002 … does not sanction a practice of disregarding corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence.
39.… The RRT should normally assess all the evidence together. Otherwise, it might be thought that the corroborative evidence is treated as a lesser category of evidence and that the RRT has not paid sufficient regard to it.
[52] Minister’s Outline of Submissions filed on 4 April 2022 at paragraph [42].
It is submitted for the Minister that the court can have confidence that the Tribunal did consider the corroborative evidence proffered by the applicant identified above and therefore did not fall into jurisdictional error.[53] The Minister submitted that the court can reach this conclusion notwithstanding the lack of reference to that corroborative evidence in paragraph [40] of the Tribunal’s decision record or indeed in any of the subsequent paragraphs in which the Tribunal assessed whether the applicant met the criteria under section 36(2)(a) or section 36(2)(aa) of the Act. There is much force to this submission.
[53] Minister’s Outline of Submissions filed on 14 April 2022 at paragraph [43].
The Tribunal clearly identified the corroborative evidence in its reasons. In particular, it identified the evidence provided to the Tribunal at paragraph [26] where it expressly refers to the statement provided by Ms Christine Kotze at sub-paragraph (h), and the claimed arrest warrant at sub-paragraph (k). The Tribunal also refers to the police certificate at paragraph [27].
Importantly, at paragraph [27], the Tribunal expressly states that it ‘has read and had regard to this documentation’. In relation to the affidavit from Ms Kotze, it is also relevant that the Tribunal heard directly from her and deals with her evidence at paragraph [35] of its decision record.
Moreover, a fair reading of the Tribunal’s reasons make it clear that the Tribunal did not suggest that there was no corroborative evidence supporting the applicant’s claims, but rather, that the quality of that evidence was not sufficiently high to overcome the concerns that the Tribunal had about the applicant’s credit.[54]
[54] Minister’s Outline of Submissions filed on 14 April 2022 at paragraphs [44] and [45].
It is clear from the Tribunal’s final words in paragraph [40] that it weighed the applicant’s own evidence with the corroborative evidence and concluded that the applicant’s claims were ‘almost entirely, provided in the absence of persuasive corroborating or contemporaneous evidence’. The use of the word ‘almost’ leaves open the conclusion that the Tribunal accepted that there was some corroborating evidence. The use of ‘persuasive’ to describe that evidence suggests that the Tribunal considered the corroborative evidence and concluded that it was not persuasive. Recognising that a court on review ought read a Tribunal’s reasons fairly and not with an eye keenly attuned to error,[55] the manner in which the Tribunal dealt with the corroborating evidence submitted by the applicant does not disclose any jurisdictional error. The conclusions reached in relation to the corroborating evidence were reasonably open on the facts in this matter.
[55] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
Conclusion
For each of these reasons, no jurisdictional error arises in this matter.
I therefore order that the applicant’s application ought be dismissed.
The Minister seeks costs and in circumstances where the court has dismissed the applicant’s application, the applicant should be ordered to pay the first respondent’s costs in a sum to be fixed if not agreed.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 16 March 2023
0
5
0