EQU19 v MICMSMA
[2022] FedCFamC2G 609
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EQU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 609
File number(s): SYG 1879 of 2021 Judgment of: JUDGE GIVEN Date of judgment: 5 August 2022 Catchwords: MIGRATION – no evidence ground – whether findings about applicant’s religiosity irrational or illogical – scope of s 423A – weight given to reference letter
WORDS AND PHRASES – Skerrick
Legislation: Acts Interpretation Act 1901 (Cth) s 13
Migration Act 1958 (Cth) ss 5J, 36, 65, 423A, 424AA
Migration Amendment (Protection and Other Measures) Act 2015 (Cth)
Cases cited: Abebe v The Commonwealth of Australia (1999) 197 CLR 510
BMW16 v Minister for Immigration and Border Protection [2017] FCA 1036
EFP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1508
EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536
Linfox Australia Pty Ltd v Fair Work Commission (2013) 240 IR 178
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v SBAA [2002] FCAFC 195
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395 ALR 403
Minister for Immigration, Local Government and Ethnic Affairs v Che Guang Xiang [1994] FCA 1259
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
SZDTZ v Minister for Minister for Immigration and Citizenship [2007] FCA 1824
SZMUF v Minister for Immigration and Citizenship [2009] FCA 182
SZRRD v Minister for Immigration and Border Protection (2015) 232 FCR 407
SZTEX v Minister for Immigration and Border Protection [2014] FCA 1269
Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446
WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2
Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548
XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 535
Division: Division 2 General Federal Law Number of paragraphs: 119 Date of hearing: 18 February 2022 Place: Sydney Counsel for the Applicant: Mr J Murphy Solicitor for the Applicant: Hearn Legal Counsel for the Respondents: Mr J Kay Hoyle Solicitor for the Respondents: Mills Oakley ORDERS
SYG 1879 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EQU19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
5 AUGUST 2022
THE COURT ORDERS THAT:
1.The application, as amended on 27 January 2022, is 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 GIVEN:
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 20 September 2021 in which it affirmed a decision of a delegate of the first respondent (delegate) dated 18 July 2019 refusing the grant of a protection visa pursuant to s 65 of the Migration Act 1958 (Cth) (Act).
Background
The applicant first arrived in Australia from Jordan on 17 July 1997, travelling on a Temporary Partner (UF309) visa. He was subsequently granted a Permanent Partner visa in November 1999. Thereafter, having left Australia to return briefly to Jordan in 2001, he was issued a Resident Return (B155) visa.
On 24 May 2008, an application for Australian citizenship made by the applicant was refused due to the existence of ongoing criminal proceedings (Court Book (CB) 144). In December 2014 the applicant’s visa was cancelled because of criminal convictions, however that cancellation was subsequently revoked. In January 2017, the applicant’s visa was again cancelled (CB 332 at [3]). On 9 April 2017, a delegate of the Minister refused to revoke that cancellation decision (CB 332 at [3]) and on 2 July 2018, that decision was affirmed by the Tribunal (CB 330). Since that time the applicant has been in immigration detention.
On or about 7 June 2019, the applicant applied for a protection visa (CB 89).
On 20 June 2019, the applicant participated in an interview with the delegate (CB 94, 175.4).
On 18 July 2019, the delegate refused the applicant’s visa (CB 170-196). On 19 July 2019, the applicant applied to the Tribunal for review (CB 199-209).
On 17 October 2019, the Tribunal heard evidence and arguments but ultimately affirmed the decision under review (first Tribunal decision) (CB 521-534).
Shortly thereafter, the applicant sought judicial review of the first Tribunal decision in the (then) Federal Circuit Court. The Federal Circuit Court dismissed the application for review, holding that the first Tribunal decision was not vitiated by jurisdictional error.
The applicant appealed to the Federal Court in which proceedings the Minister conceded that the first Tribunal decision was affected by jurisdictional error and the matter was remitted, by consent, to the Tribunal (differently constituted) to be heard and determined according to law (CB 538-540).
On 9 July 2021, the applicant provided a statement and annexures to the Tribunal (CB 581-722, 815 at [17]).
On each of 19 and 21 July 2021, the Tribunal heard evidence and arguments (CB 734-736, 743-745) at which hearings the applicant was represented by Counsel and assisted by an interpreter of the Arabic language.
On 26 July 2021, the applicant provided a post-hearing statement with an annexure to the Tribunal (CB 746-807, 815 at [17]).
On 20 September 2021, the Tribunal affirmed the decision under review (CB 812-842). It is in respect of that decision that the applicant now seeks judicial review.
Tribunal’s decision
Given the applicant’s varied and extensive immigration history and that there have been several iterations of the determination and review of his protection visa, the Tribunal’s decision is unsurprisingly lengthy and covers a considerable amount of material. That is further so given that the applicant attended a two day hearing before the Tribunal at which he was represented by Counsel. The evidence before the Tribunal, which it described as being “voluminous”, is outlined at [14] of the reasons for decision (CB 814-815).
The applicant’s claims are briefly summarised by the Tribunal at [6] (CB 813). In essence the applicant claimed to fear harm from the Jordanian authorities and also the Muslim community because of his Orthodox Christian faith which he claimed he had been unable to practice in Jordan. The applicant said that he would be harmed by Muslims, the military, local authorities and his former fiancée’s family and he would be imputed with sympathy for the West. In this regard the applicant had family in Jordan and the United States. He gave evidence about his practice of Christianity both in Jordan and in Australia. The applicant claimed to fear harm from the family of a former partner who would “exact revenge on him on honour grounds” and additionally claimed to fear being targeted as a result of a tribal feud. The applicant also claimed that he would be unable to subsist in Jordan “due to mental and other health reasons, lack of family support and his prolonged absence from the country”. The applicant submitted substantial material concerning his health.
The Tribunal considered at [28]-[44] (CB 817-820) and [98]-[105] (CB 831-832) the applicant’s claim to fear harm relating to his Christian faith and accepted that the applicant is a Christian as claimed (CB 817 at [28]).
The Tribunal (at [28]-[44]) outlined the applicant’s claim to fear harm on the basis of his Christian practice. It recounted the applicant’s evidence at hearing concerning his past religious practice in Jordan and the practices of his family members (CB 818 at [30]-[31]). The Tribunal considered the applicant’s evidence in this regard, “particularly [about] the strength of his religious conviction, lacking in detail and consistency”. It noted that there was “no context or supporting evidence for his claim that he was more devout than all his family members, or the local Orthodox community” and considered these claims to be “exaggerated and unreliable” (CB 818 at [32]). It then noted the applicant’s evidence relating to his Christian practice in Australia, including letters confirming the applicant’s attendance at churches and completion of a Bible study course (CB 818-819 at [33]-[34]).
The Tribunal referred to the applicant’s statement of 9 July 2021 where he claimed that he would proselytise if returned to Jordan (CB 819 at [36]). The Tribunal had “significant concerns about [the applicant’s] claims to have always been devout, and to have a strong commitment to spreading the Gospel” and found the applicant’s evidence to be “vague, changeable and unsubstantiated” (CB 819 at [37]). It found that the applicant practices as a “nominal Orthodox Christian” in Jordan and “(when the opportunity arises) in Australia” but did not accept that he had adopted the beliefs or practices of Protestant groups he had met in recent years or that he had a genuine commitment to proselytise in the future in Australia or Jordan (CB 318 at [38]).
The Tribunal proceeded to consider the applicant’s claims of adverse experiences as a Christian in Jordan and found that these claims were “general in nature, and it is not clear that they were based on specific past experiences” (CB 819 at [40]). It put country information to the applicant indicating that relations between Christians and Muslims in Jordan are “generally considered to be good” (CB 820 at [41]). The Tribunal did not accept that “the applicant’s religious experiences, or the treatment he received as a Christian, differed markedly from those of other members of his family or community” (CB 820 at [42]). Noting that the applicant “struggled to provide any details or supporting evidence relating to this claim” (CB 820 at [43]), the Tribunal concluded that his claims were exaggerated and although he may have faced some discrimination on account of his religion, this did not involve serious or significant harm (CB 820 at [44]).
Based on its anterior findings the Tribunal did not accept that the applicant was “more devout or outspoken than other members of his family” (CB 831 at [98]). It found that he would be free to practice as an Orthodox Christian in Jordan and although he may face some degree of discrimination, this would not rise to the level of serious harm (CB 832 at [105]).
The Tribunal considered the applicant’s claims to fear harm arising from an asserted dispute with the family of an ex-partner, a named Jordanian woman (S) (CB 821-826 at [45]-[70] and CB 832 -833 at [106]-[107]). The applicant claimed that an arrangement had existed for S to come to Australia and marry him and that he had transferred funds or the ownership of a business to her family as “part of an unwritten contract for her to marry him”. Although the Tribunal noted that the “background to the arrangement… emerged at hearing, again in a piecemeal and confusing manner” (CB 821 at [48]), it accepted that the applicant considered that there had been an arrangement between himself, S and her family that she would come to Australia and eventually marry him (CB 821 at [49]).
The Tribunal recounted the applicant’s evidence concerning the breakdown of his relationship with S when she was in Australia, which included several pages of English translations of purported telephone conversations between the applicant and S (CB 822-823 at [51]-[54]). It noted the applicant’s evidence that he had initiated legal proceedings against S’s family in Jordan but has since abandoned the litigation (CB 823 at [55]). The Tribunal recorded the applicant’s evidence that in the wake of the dispute, S’ family, including a named brother, have targeted him and present an ongoing threat, including by recording a telephone conversation in which the applicant swore at Muslims and then threatening the applicant with handing the recording to the authorities (CB 824 at [60]).
The Tribunal did not accept that this recording or threat occurred (CB 824 at [61]) and found that the applicant’s continued contacts with S’ family undermined his claim to fear persecution or significant harm from them (CB 824-825 at [63]). It was also not satisfied that S’ conduct in Australia, including by allegedly taking and misusing the applicant’s bank cards and other documents or allegedly harassing him by telephone or on Facebook, amounted to credible threats to the applicant’s safety in Australia or Jordan (CB 825-826 at [66]-[67]). The Tribunal did not accept that S had a material role as claimed in organising an assault on the applicant which occurred in immigration detention (CB 826 at [68]). It concluded in relation to these claims that it did not accept that S or her family have made credible threats to persecute or significantly harm the applicant or that the applicant genuinely feared harm from them (CB 827 at [70]).
The Tribunal considered the applicant’s claim to fear harm as a result of a blood feud between his family and the family of a sheik at [71]-[76] (CB 826-827) and [108] (CB 833). The applicant claimed that in 1990 his grandfather and father had argued with a member of the sheik’s family, the applicant’s father then shot and killed that person and the sheik’s family intends to avenge the killing. The applicant had provided a statement from a Mukhtar (a village official) dated 22 February 2018 in Arabic with an English translation (Mukhtar letter) about the existence of the blood feud and saying that the applicant would be killed by the other family. The Tribunal noted that the applicant had “minimal information about the feud” and that there was no evidence of the sheikh’s family taking action against the applicant’s family or the latter taking protective measures against the former. It considered the Mukhtar letter to be of “minimal value as independent corroboration of the tribal feud” (CB 827 at [75]). The Tribunal did not accept that there was any ongoing blood feud or that the applicant genuinely feared that members of the sheikh’s family would kill or harm him if he returned to Jordan and thus did not accept that the applicant faced a real chance of serious harm in relation to this claim (CB 827 at [76] and CB 833 at [108]).
The Tribunal considered the applicant’s claims relating to his health issues, particularly his mental health, and his ability to subsist in Jordan (CB 827-829 at [77]-[85]) and CB 833-836 at [109]-[129]). It noted that there was a “large volume of material” to indicate the applicant has suffered anxiety and depression since around 2006 (CB 827 at [77]). The Tribunal accepted on the basis of the applicant’s submissions and medical evidence that he suffers from long-term mental health issues and stated that these “appear to be effectively treated” with medications and counselling (CB 828 at [80]). It further accepted that the applicant had several other health issues including damage to an eye and a blocked nasal passage, which would require ongoing monitoring and possible further treatment.
However, the Tribunal was not satisfied that the applicant had any physical or mental health problems which would “individually or cumulatively limit him from being able to engage in day-to-day activities, including paid work” (CB 828-829 at [85]). The Tribunal noted the applicant’s evidence that he had “little contact with family in Jordan, and minimal support from family in Australia or the USA” (CB 834 at [115]). However, it did not consider that family support would be “critical” to the applicant’s prospects in Jordan and while the applicant may require “short-term help with accommodation, and re-establishing himself in the community”, the Tribunal found that he would not rely on family support “in any sense of longer term dependency, as implied in his submissions” (CB 834 at [116]). It accepted that he had drifted apart from some family members, who may be disinclined to support him, but noted an earlier letter from a brother in California which the applicant had provided to the previous Tribunal which offered to “support [the applicant] morally as well as financially” (while also acknowledging the applicant’s statement at hearing that this brother had not in fact assisted him at all (CB 834 at [117]). The Tribunal found that the applicant may experience some hardship and some “reliance on family, friends or the broader community, at least in the short-term”, there was no real chance that this would amount individually or cumulatively to serious harm (CB 834 at [118]). In relation to the applicant’s health, it did not accept that this would be such that the applicant could not undertake any paid work commensurate to his skills and experience, or that he would be unable to access appropriate medical services, such that he would face a real chance of being unable to subsist (CB 835 at [126] and CB 836 at [129]).
The Tribunal considered a new claim before the Tribunal (newly constituted) by the applicant to fear harm on account of his political opinion (CB 829-830 at [86]-[90] and CB 836-837 at [130]-[131]). The applicant claimed that S’s brother would exploit political comments posted by the applicant online and subsequently the applicant submitted over 55 pages of Facebook screenshots to support this claim. The Tribunal noted its concerns regarding the applicant’s oral and post-hearing evidence that the applicant’s “comments on Facebook appear to be only recent, and for the most part only ‘likes’ or ‘shares’ of others’ postings” and that prior to the second hearing the applicant had made no claim of fearing harm on account of his political opinion. The Tribunal noted that it was “difficult to believe that the applicant continues to post such material without at least ‘blocking’ the individual who appears intent on using it against him” (CB 829 at [88]). It found that the applicant’s failure to mention the claim earlier undermined its credibility. The Tribunal referred to the applicant’s post-hearing submission of 26 July 2021 having noted that his political views had only been mentioned in response to the Tribunal’s questions about how S’s brother might pursue him and thus “invite[d] the Tribunal to place weight on it as a spontaneous and genuine statement”. However, the Tribunal found that the applicant’s claim was “opportunistic” and did not reflect any genuine fear (CB 829 at [89]). It accepted as plausible that the applicant had “some concerns” about Jordanian politics and that he “may have followed some political dissidents online, and indicated his support”, but that this activity was “relatively recent and limited in scope”. There was no evidence to indicate that the applicant had generated a social media profile or attracted scrutiny or adverse comment and the Tribunal did not accept that the Jordanian authorities had any adverse interest in him or that there was any material that S’s brother or anyone could use against the applicant in the future (CB 829-830 at [90]).
The Tribunal noted the applicant’s oral evidence that he had “no idea what he would do” in Jordan and could not support himself. It accepted that he “faces a period of some adjustment and perhaps challenges” if he returns to Jordan (CB 830 at [94]).
The Tribunal concluded that the applicant did not have a well-founded fear of persecution within the meaning of s 5J(1) of the Act and therefore did not meet the requirements of the refugee criterion in s 36(2)(a) (CB 838-839 at [136]). In relation to complementary protection, the Tribunal relied upon its previous factual findings and did not accept that the applicant faced a real risk of significant harm if returned to Jordan (CB 838 at [137]-[140]). It accordingly affirmed the delegate’s decision not to grant the applicant a protection visa (CB 838 at [144]).
Application to this Court
The instant proceedings were commenced on 8 October 2021 by an application to show cause. At the time he commenced the proceedings, the applicant was unrepresented. On 27 October 2021 the applicant’s current solicitors filed their Notice of Address for Service in the proceedings. On 4 November 2021 orders were made by consent, inter alia, granting the applicant leave to file and serve any amended application on or before 27 January 2022, which he did on that date.
Accordingly, the four grounds of review upon which the applicant relies are those in the Amended Application filed on 27 January 2022 which are as follows (emphasis in original; anonymisation added and particulars omitted):
1.The Administrative Appeals Tribunal (Tribunal) erred jurisdictionally in its assessment of the criteria for a protection visa in s 36(2)(a) (refugee criterion) and s 36(2)(aa) (complementary protection criterion) of the Migration Act 1958 (Cth) (Act) by making findings that were based on no evidence or were not open on the evidence, namely:
a. that the Applicant would have family support if he returned to Jordan; and/or
b. that the Applicant’s mental and physical health issues would not limit him from being able to engage in day-to-day activities, including paid work.
2.The Tribunal erred jurisdictionally in its assessment of the refugee and complementary protection criteria by making a finding that was illogical, irrational, based on no evidence or not open on the evidence, namely, that at the time of decision the Applicant was no more devout or outspoken than other members of his family (impugned finding).
3.The Tribunal erred jurisdictionally in its assessment of the refugee and complementary protection criteria by failing to apply, or failing to correctly apply, s 423A of the Act in relation to the Applicant’s claim to fear harm based on his political opinion, in particular his criticism of King Abdullah II (political opinion claim), and the evidence in respect of that claim.
4.The Tribunal erred jurisdictionally in its assessment of the refugee and complementary protection criteria by misunderstanding evidence of significance, namely, a letter, dated 22 February 2018, of [NAME], Mukhtar of [PLACE] (Mukhtar’s letter).
At hearing I received the two volume Court Book totalling 848 pages filed for the first respondent and a supplementary Court Book which is comprised of two transcripts from the respective hearing days before the Tribunal, filed for the applicant. The Court Book and a supplementary Court Book (SCB) were each tendered by the first respondent and marked Exhibits “1R” and “2R” respectively.
At the commencement of the hearing Counsel for the applicant indicated that to the extent that grounds 1 and 2 were each framed as the Tribunal making findings based on no evidence or which were “not open on the evidence”, the alternate framing was no longer pressed having the benefit of the decision of EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536 per Perry J at [192]-[194] which elucidated a point of principle said to arise from an earlier decision of her Honour in BMW16 v Minister for Immigration and Border Protection [2017] FCA 1036. In EPU19 Perry J said:
[193] Contrary to the suggestion in the applicant’s submissions, the decision in BMW16 does not stand for the proposition that on judicial review, the court may embark upon a wider consideration of the sufficiency of evidence before an administrative decision-maker as a free-standing ground of judicial review. Rather, the observations relied upon by the appellant from BMW16 were made in the context of considering whether the primary judge had applied the correct test in determining whether the Tribunal’s decision to refuse the appellant a protection visa was legally unreasonable. It was in that context that in BMW16 I accepted that “a finding may taint a decision with jurisdictional error in cases where a particular finding is not open on the evidence, even though it cannot be said that there is no evidence on the point”, citing with approval a passage by Greenwood J in SZDTZ v Minister for Immigration & Citizenship [2007] FCA 1824 (SZDTZ) at [32]. Similarly, Greenwood J’s observations in SZDTZ at [32] were to the effect that an insufficiency of evidence to sustain a finding of fact may be indicative of a jurisdictional error such as legal unreasonableness. As his Honour said:
32.A determination of the Tribunal as to a state of satisfaction or otherwise, of the relevant criteria or criterion in question, that is based upon a finding of fact or inferences drawn from facts, not based on logical or rational grounds, will give rise to an error of jurisdiction if there is no evidence to support the finding or no proper basis for drawing the inference; or, if there be some evidence, although inadequate, reliance by the Tribunal upon that inadequate evidence gives rise to an inference that the Tribunal has misconceived the test or is not, in reality, satisfied of the requisite matters, as a result of which there has been only a purported, rather than a real, exercise of the power conferred upon the Tribunal.
[194] To the extent therefore that the submission is put on behalf of Mr EPU that this Court may engage in a consideration of the sufficiency of the evidence to sustain the Minister’s finding at [53] per se, it is, with respect, incorrect.
Ground 1 was advanced for consideration only on the basis that there was no evidence before the Tribunal to ground the findings sought to be impugned and ground 2 was advanced as an illogicality/irrationality ground.
Ground 1
Applicant’s contentions
By this ground the applicant alleges the Tribunal made findings based on no evidence in relation to two particular matters. Ground 1(a) is directed to a finding that the applicant would have family support on return to Jordan and ground 1(b) relates to the finding that the applicant’s issues (both physical and mental) would not preclude him from engaging in day-to-day activities, including work.
In relation to ground 1(a), the applicant says there was no evidence before the Tribunal to ground a finding that he would have family support on return to Jordan. There are three parts of the reasons from which this finding is said to emanate, namely:
(a)CB 834 at [118] in the final paragraph under a sub-heading “Extent of family support”; and
(b)CB 836 at each of [126] (third bullet point) and [128] under a sub-heading “Health (especially mental health)”.
The applicant has framed the Tribunal’s reasoning as a finding that he would receive some family support on his return to Jordan. In response to the first respondent’s written submissions which took issue with this construction, the applicant’s Counsel at hearing refined the allegation to be that the applicant would have “short term” family support upon his return.
The applicant contends that the Tribunal’s finding was not open to it because, by his statement dated 9 July 2021 (made in response to the delegate’s finding that the applicant would have family support), he asserted that:
(a)his sister was the sole (and intermittent) breadwinner for her husband and three children;
(b)he had no relationship whatsoever with his brother in Jordan and had not spoken to him for 15 years;
(c)his father who was in the United States of America (USA) was elderly and had dementia; and
(d)the applicant had a very poor relationship with his other siblings who reside in the USA (CB 590-592 at [38]).
The applicant says that the only “skerrick of evidence” for the Tribunal’s finding about short term family support in Jordan could be in the letter from the applicant’s brother in the USA. The Tribunal referred to that letter at [117] of its decision (CB 834). In that same paragraph the Tribunal had previously noted that the applicant “may have drifted apart from some family members” and that “some family members may be either disinclined or not in a financial position to assist him, if he returns to Jordan”. In oral submissions the applicant’s Counsel developed the proposition that the context provided by this paragraph is such that the Tribunal’s finding must be understood as a finding that “the brother in America would be able to offer some short-term support” (Transcript (T) 5.21-22). There is said to lack a “logical connection”, in the language of Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 per Crennan and Bell JJ, between the evidence and the inference that the brother would offer support.
Accordingly the applicant says that letter was said not to be capable of supporting such an inference because:
(a)the letter, which had been provided in 2017 in the context of an earlier return resident visa cancellation, must be read “as an offer of support to the applicant getting back on his feet in Australia… and not concerning his potential return to Jordan” (T 6.5-9); and
(b)there was more recent evidence from the applicant that his brother had not in fact assisted him at all.
Ground 1(b) takes issue with the Tribunal’s finding at [85] (CB 828-829) that the applicant had any health problems that would “limit him from being able to engage in day-to-day activities, including paid work”. The applicant contends that this finding should be construed as “a positive finding that the applicant would, without limits, be able to engage in day-to-day activities, including paid work” (applicant’s written submissions (AS) at [36], applicant’s emphasis retained).
The applicant lists a “large volume” of evidence which he provided relating to his mental and physical health issues (AS, [32]-[33]). The “severity, variety and enduring nature” of the applicant’s health conditions apparently accepted by the Tribunal is said to not allow such a finding, which is described as “based on no evidence, or was not open on the evidence” (AS, [36]). At hearing, the applicant’s Counsel again expressed this as a finding which could not logically be supported by the evidence, in the language employed by Crennan and Bell JJ in SZMDS.
The asserted jurisdictional errors are said to be material because the Tribunal may otherwise have found that the applicant, due to a lack of family support or because of his health conditions, would face a greater risk of harm than other Christians or would be unable to subsist.
First respondent’s contentions
In relation to ground 1(a), the first respondent contends that there was relatively little evidence before the Tribunal about the applicant’s family and employment and that the Tribunal was aware of this limitation which is apparent from [10]-[12] of the decision (CB 813-814). The first respondent says that this limited evidence was also somewhat conflicting in nature because there appeared to be an extensive range of relatives which whom the applicant had some contact but also his own evidence that such contact was sporadic and/or fraught or, in the case of others, that there was no meaningful contact at all.
The first respondent then says that when the Tribunal came to assess the question of the applicant’s ability to subsist on return to Jordan (CB 834 at [115]-[118]) the question of family support was not given particular probative significance (in contrast to many other factors which were also considered). In this context, the first respondent says that the finding was understandably narrow and limited to a finding that the applicant may require some assistance obtaining short term accommodation, but that it did not consider that the applicant would rely on the family for support in the sense of any long-term dependency.
The first respondent says that bearing in mind the standard required to succeed on a no‑evidence ground, there was material before the Tribunal which supported the interpretation upon which the Tribunal fixed, namely that there was some support available to the applicant. The first respondent says that even acknowledging that the letter provided by the applicant’s brother (CB 277) was written at a different time and in a different context than the applicant seeking a protection visa, it still provides a sufficient basis for the Tribunal to have found as it did, even in light of the applicant’s qualifying evidence at the Tribunal hearing (SCB 67 at lines 16-43) to constitute evidence to ground the findings the Tribunal ultimately made.
Resolution
This first part of this ground, as it ultimately was cast, is one which alleges that the Tribunal made findings having no evidence upon which to do so. The threshold for establishing it is that there is not a “skerrick” of such evidence (see Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at 587 [575] per Weinberg J, quoting Aronson, Dyer and Groves, Judicial Review of Administrative Action, 3rd ed (2004) at 239, which was most recently cited by the plurality of the High Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395 ALR 403). The Oxford English Dictionary defines a skerrick as “a small amount; a small fragment; the slightest bit”. It is a high bar.
The applicant takes issue with the Tribunal’s having referred in its findings to the letter of the applicant’s brother which had been provided in the context of earlier review proceedings, pertaining to an entirely different issue that the current visa application. This is said to be in error because the letter:
(a)was expressed as “a statement of present intention”. The letter is undated (which the Tribunal acknowledged at [117]), which for the purpose of assessing what constituted the “present”, makes it difficult although it is open to infer it was written sometime around October or November 2017 and the applicant told the Tribunal it was 2017 or 2018 (SCB 67 at line 24). So, it can be accepted that the statement was one of support some three to four years before the Tribunal decision; and
(b)advanced an offer primarily of moral support, with financial support being a secondary part of the offer.
The applicant also points to his express evidence given to the Tribunal at hearing that whatever may have been promised by the applicant’s brother, the brother had never followed through with any offer of support.
In relation to the issue described in [48(a)], it can be accepted that the letter reflects a moment in time and, being a time in the applicant’s life when we was seeking to remain in Australia in a different context. The expression of support for the applicant is not finite and the letter is expressed in a future-looking tense by saying that the family’s plan is to continue to support him until the happening of a certain event. That event is the applicant getting “back on his feet” which is a colloquial phase which may mean many things to different people including the applicant and his brother alike, as well as to the Tribunal. But whatever the potential interpretations, it can be accepted as a statement of general support for the applicant until such time as he can establish himself as being independent. There is no reason to believe that the offer had concluded or, even if it had, that it would not be similarly renewed or considered extant if the applicant faced a similar need on return to Jordan.
Next, I do not accept that simply because the letter expressed the offer as being to “support him morally as well as financially”, this should necessarily be taken as being in a deliberate order of priority. While that is certainly one interpretation, there are other possible explanations.
It is also true that the Tribunal asked the applicant at hearing why, in contrast to the general offer of moral and financial support in the brother’s letter, the applicant would think the offer was not still open by saying (SCB 67 at lines 31-35):
But your brother was prepared, then, to do the best for you to help you settle in Australia. Why do you expect that your brother would not be willing to assist you in the same way if you had to return to Jordan and if the need arose for him, or someone else, to provide you with some assistance?
The applicant responded to the Tribunal (SCB 67 at lines 37-40):
I ask him to send me some money to assist me financially for this (indistinct) and he did not. So it’s all talk, talk, but there is no actual assistance. He did not help me with one thing. Not one dollar. Not one dollar. It’s all talk. It’s all just talk. Not one dollar.
While it is unfortunate that the Transcript which forms the SCB is missing a word in this important sentence, I infer from the context of the sentence and the word “this” immediately preceding the inaudible word that the applicant had asked his brother for assistance with his current proceedings, or more broadly his current visa application and he was saying his brother had been unwilling to assist.
However, it is clear from the Tribunal’s question that it was asking why the same assistance which was offered in the brother’s letter – namely moral and financial to help him “get back on his feet” – would not continue. The response was in some ways a non-sequitur because the applicant appears to be saying that he asked for financial support in a different context and nothing materialised. There may be many reasons for why that happened and it is not for the Court to speculate as to what they are. However, it was open to the Tribunal to give less weight to the evidence that when asking for alternate financial assistance it was not provided, than to what appeared to be an open-ended offer to assist the applicant in getting back on his feet. The Tribunal was not required to refer to every piece of information. The Tribunal was entitled to treat the offer in the brother’s letters as potentially being extant.
Even if it were not an ongoing offer, it is long-accepted (in the context of assessing the protection claims of visa applicants and past claimed harm) that past events can be a guide to future conduct. In Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 575 the High Court stated:
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
This is never a perfect exercise because, as with all subjective and qualitative assessments, there is a degree of speculation and supposition involved. However, there is a logic derived from general human experience to the fact that previous behaviours are a decent indicator of future ones. Accordingly, it was also open to the Tribunal to assume that if the applicant’s brother had been prepared to help him re-establish himself in Australia, he would also be open to assist if the applicant were to return to Jordan.
Whether the offer was ongoing or could be inferred to be renewable, in my view the finding of the Tribunal that there would be some short term, family support available to the applicant to the applicant on return to Jordan was open to it. The finding was not made absence a skerrick of evidence and (adopting the language of Greenwood J in SZDTZ v Minister for Minister for Immigration and Citizenship [2007] FCA 1824 referred to by Perry J in EQU19 (supra) extracted above) it cannot be said that there was “no proper basis for drawing the inference” in question.
The second part to ground 1 alleges that the Tribunal erred by in its finding that the applicant did not have health problems which would “limit him from being able to engage in day-to-day activities, including paid work”.
The finding sought to be impugned is in paragraph [85] of the Tribunal’s reasons, being the final paragraph of a section of the decision which commences at paragraph [77] under the heading “Health issues” from which point the Tribunal deals with both the mental and physical aspects of the applicant’s claims pertaining to his health. Paragraph [85] of the Tribunal’s decision is a conclusion in relation to all aspects of the applicant’s health. By that paragraph the Tribunal found as follows:
The Tribunal accepts that the applicant has presented with several medical issues in recent years. It accepts that he requires ongoing access to anti-depressants, and that some physical injuries such as his damaged eye and blocked nasal passage require ongoing monitoring and possible further treatment. However, it is not satisfied on the available evidence that he currently has any health problems, including mental or physical, that individually or cumulatively limit him from being able to engage in day-to-day activities, including paid work.
The applicant contends that this finding is absolute and meant that there was no possible circumstance which limited the applicant’s ability to work or engage in day-to-day activities. By contrast, the first respondent contends that the Tribunal was saying no more than that the evidence before the Tribunal did not support a conclusion that the applicant would be unable to work.
It is well established that in construing the reasons of the decision-maker, the Court should adopt a beneficial construction: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and more recently XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 535 per Perry, Banks-Smith and Anderson JJ at [27]:
In this regard, it is well established that the reasons of an administrative decision-maker “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271 –272 (Brennan CJ, Toohey, McHugh and Gummow JJ (quoting with approval Collector of Customs v Pozzolanic [1993] FCA 456; 43 FCR 280 at 287)). As such, when it is said that such reasons should be read beneficially, ultimately this means that “a commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying”: Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14] –[15] (Allsop J (as his Honour then was)).
There is a difference between the concept of “not limited” and “unlimited”. The effect of [85] is, in my view, the former.
Contextually and fairly read, paragraph [85] of the Tribunal’s reasons is not the categorical finding for which the applicant contends. Rather than being a positive and absolute finding that the applicant can work without limitation, in truth it is a finding is that the extent of his health issues do not individually or cumulatively prevent him from engaging in day-to-day activities, which is said to include paid work. That is not a positive finding that the applicant can engage in paid work without limitation.
In so finding, the Tribunal did not err in the manner alleged. Taken together with the findings regarding the first limb of this ground, this has the effect that ground 1 it is not made out.
Ground 2
Applicant’s contentions
The applicant contends that the Tribunal erred in making the following finding at [98] of its reasons for decision:
The Tribunal accepts that the applicant is an Orthodox Christian and would wish to continue practising his faith if he returns to Jordan. However, for the reasons stated above, it does not accept that he is more devout or outspoken than other members of his family and community. It also does not accept that he always had a keen interest in church activities; that he has an outgoing, assertive personality that drives him to discuss his faith with others; or that his more recent contacts with Protestant or evangelical churches motivate him to preach actively.
The applicant says that the finding that he was no more devout or outspoken than other members of his family and community was irrational or illogical.
In essence the applicant contends that the Tribunal made “an assumption of continuity” in the applicant’s religiosity vis-à-vis his family between 1997 and 2021 without any basis in the evidence, which is said to support a finding that the applicant’s religiosity had increased over time. The applicant’s written submissions refer to eight aspects of the evidence relating to his religious activities in Australia, including participation in Bible studies courses and regular attendance at Christian services. In contrast, the evidence was said to suggest that the applicant’s brother and sister in Jordan were not particularly religious.
In oral submissions the applicant’s Counsel contended that the asserted error in ground 2 was material because the Tribunal’s finding that the applicant has essentially exaggerated his claims about devotedness and outspokenness had fed into the Tribunal’s ultimate rejection (at [44]) of the applicant’s claims to have a well-founded fear of serious or significant harm in relation to his religious faith and practice.
First respondent’s contentions
The first respondent’s written submissions contended that the Tribunal finding at [98] which is impugned by ground 2 was taken out of context by the applicant, thereby distorting the nature of the error said to have been made. The Tribunal’s assessment of the applicant’s religious beliefs was said to have been based on “two distinct strands”, namely the applicant’s practices in Jordan and his practices in Australia. The finding at [98] was said to relate to the Tribunal’s reasoning at [29]-[32] in relation to the former strand rather than the applicant’s religiosity in the present.
In relation to the measure of devotion in contrast to the applicant’s family, the first respondent says the critical factor was that the Tribunal undertook an analysis of the evidence relating to the applicant’s religious beliefs and practices both in Jordan and Australia and in relation to the latter, it expressed significant doubts at [33]-[38]. The Tribunal is therefore said not to have failed to address “an alleged arc of religious development”. Furthermore the Tribunal’s reasoning at [39]-[44] that in any event the applicant would not be at risk of harm as a Christian in Jordan is said to be an independent finding about the applicant’s risk of harm. This was not put as a materiality point but rather to illustrate that the Tribunal addressed the claims on the material before it and rejected the suggestion that the applicant was, in some way, more devout, more outspoken, in a position where he was going to exhibit characteristics that would put him at greater risk. The first respondent contended that the Tribunal’s reasoning did not reach the threshold necessary to sustain a finding of irrationality.
Resolution
Again, the Tribunal’s findings need to be read in context and with a beneficial construction.
Firstly, it is relevant to note that the question of how devout the applicant was, specifically by reference/contrast to his family, was a claim which the applicant expressly raised. It was not an arbitrary measure set by the Tribunal itself. Earlier in the reasons for decision than the finding now sought to be impugned, the Tribunal recorded the applicant’s evidence in this regard (CB 818 at [31]-[32]). At [31] the Tribunal recorded the applicant not being able to give a particularly detailed account of the religious practice of his family due to their having lost touch. At [32] the Tribunal said (emphasis added):
Overall, the Tribunal found the applicant’s evidence about his religious practice in Jordan, particularly the strength of his religious conviction, lacking in detail and consistency. There is no context or supporting evidence for his claim that he was more devout than all his family members, or the local Orthodox community. The Tribunal considers these claims to be exaggerated and unreliable.
In essence the applicant was seeking to establish a profile for himself which:
(a)had a longevity to it; and was said to be a fortiori to his family (and the local Orthodox community) in Jordan; and
(b)yet without giving any particular detail as to the practices or levels of devotion of those persons.
The applicant drew the Court’s attention to the decision in EFP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1508 per Judge Driver at [76]-[77]. While that decision, and those paragraphs in particular, provide an excellent summary of the principles pertaining to how a decision-maker might legitimately go about the task of assessing a person’s religious beliefs, in my view it is not relevant to resolving the controversy raised by ground 2, which does not in fact allege that the Tribunal was arbitrarily ascertaining whether the applicant was a Christian by reference to a standard it set for itself. Nor could it.
Rather, the Tribunal was making an assessment of a claim the applicant made, namely that he was himself more devout but also more religiously outspoken than his family, a claim in respect of which the Tribunal was not satisfied, in part because the applicant was unable to explain how devoted his family in fact were.
It will also be observed that [32] of the Tribunal’s reasons is expressed in the past tense because it deals with the applicant’s claims regarding the time he was in Jordan. From [33] onwards the Tribunal addressed the applicant’s religious activities in Australia.
When the Tribunal came to commence its assessment of the applicant’s refugee claims, more specifically his religion, it did so commencing with [98] under a heading “Christian faith”. By that paragraph the Tribunal made reference to its earlier recitation of the evidence (at [32]) when it said (emphasis added):
However, for the reasons stated above, it does not accept that he is more devout or outspoken than other members of his family and community.
The use of the present tense (in contradistinction to [32]) indicates that the Tribunal understood that it was making its assessment (as required) at the time of decision and was therefore not proceeding on any misunderstanding of the evidence given about the practices of the applicant or his family in Jordan in the 1990s.
The Tribunal was concerned with an assessment of what the applicant may do on return to Jordan in terms of his religious practices and what impact this would have in terms of the refugee and complimentary protection criteria. The reference in [98] to the anterior factual finding regarding past activity in Jordan does not alter that position. Contrary to the applicant’s claim that the Tribunal merely assumed the applicant was more devoted than other family members, this was not accepted based on his own, scant evidence. That rejection was not, in and of itself, illogical given that the applicant could not provide further detail in that regard when questioned at the hearing.
It also does not begin to impinge on any issues which can sometimes be considered in cases where a claimed basis for seeking protection is religion, namely whether the Tribunal is impermissibly acting as an arbiter of doctrine: see WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 at [28]-[30] per Mansfield, Jacobson and Siopis JJ, citing Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548 at [16] per Gray J.
In this regard I find that there was nothing illogical, nor irrational in the Tribunal’s findings relating to the applicant’s Christian faith.
Ground 3
Applicant’s contentions
Ground 3 alleges an error in relation to the Tribunal’s application of s 423A of the Act, specifically that in drawing an adverse inference from the lateness of the applicant’s new claim to fear harm on account of his political opinion (CB 829 at [89]), the Tribunal failed to reach the state of satisfaction required by s 423A(2) that the applicant had not provided a reasonable explanation why the claim had not been raised earlier.
Section 423A(2) is in the following terms:
423A How Tribunal is to deal with new claims or evidence
(1)This section applies if, in relation to an application for review of a Part 7‑reviewable decision (the primary decision), the applicant:
(a)raises a claim that was not raised before the primary decision was made; or
(b)presents evidence in the application that was not presented before the primary decision was made.
(2) In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
The applicant raised a new claim at the Tribunal hearing that he feared harm based on his criticism of the King of Jordan on Facebook, and after the hearing provided evidence in support of this claim. The applicant says that before drawing an unfavourable credibility finding about that new claim, the Tribunal was required to be satisfied pursuant to s 423A(2) that the applicant had not provided a “reasonable explanation” for why the claim or evidence was not raised or presented before the primary decision was made. By reference to [89] (CB 829) of the reasons for decision, the Tribunal is said to have drawn the inference without reaching the requisite state of satisfaction.
The applicant further submits that although the Tribunal made “an oblique reference” to s 423A at the hearing, it did not acknowledge the reasonable explanation (said to be have been given at SCB 76, T 36) and says that it is a matter of moment that the Tribunal’s reasons make no reference to s 423A or the language of “reasonableness” or “explanation”. This is said to support the conclusion that the Tribunal did not apply s 423A at all, or failed to apply it correctly.
The error is said to be material because had the Tribunal considered the reasonableness of the applicant’s explanation, it was not bound to find against him, particularly in circumstances where:
(a)the claim was raised in response to questions from the Tribunal; and
(b)where the evidence in support did not suggest that the claim was raised opportunistically.
The applicant contends that s 423A is a codification of the manner in which the Tribunal is to treat new claims and the preconditions in which an adverse credibility inference may be drawn in relation to those claims and advances a number of bases for this construction, which include:
(a)the heading of the section, which the Court may take into account for the purpose of statutory interpretation in accordance with s 13(1) of the Acts Interpretation Act 1901 (Cth):
(i)firstly the mandatory rather than permissive expression “[h]ow the Tribunal is to deal with new claims and evidence” (emphasis added), rather than how it “may” deal with new claims and evidence precludes the suggestion that it is merely facilitative; and
(ii)if focus is turned to the words in the heading “deal with” this is suggestive of a more comprehensive, codifying and exhaustive reading of the way in which the provision is intended to operate. Namely, it is said to provide a comprehensive scheme of how the Tribunal is to deal with unfavourable credibility inferences potentially arising from the lateness of claims;
(b)the applicant’s contended construction of s 423A does not detract from the purpose of the provision as expressed in the first respondent’s submissions by reference to the Explanatory Memorandum (see [89] below) because it still gives powerful operation to the provision by requiring that an adverse credibility inference be drawn if no reasonable explanation is provided for the delay; and
(c)the Addendum to the Explanatory Memorandum stated that the proposed s 423A “…clarifies the manner in which the [Tribunal] is to consider any new claims and evidence presented to it”. Although conceded not to be an extremely strong matter of context in support, this extrinsic material was said to support the proposition that the provision effects a codification of the process by which the Tribunal should draw or can draw and must draw unfavourable inferences arising from the delay.
First respondent’s contentions
The first respondent resists the applicant’s characterisation of s 423A as a broad “codification” of the manner in which the Tribunal is to deal with new claims and evidence. Rather, the provision is said to have the more narrow operation of simply mandating a negative credibility inference where a reasonable explanation for the lateness of the claim or evidence is not provided. The first respondent says that s 423A does not prevent the Tribunal from making a whole range of other inferences based on the totality of the material as before about the claim.
This construction is said to be supported by the Explanatory Memorandum to the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) (at [73]-[74]) as follows:
The effect of this amendment is that the [Tribunal] is to draw an unfavourable inference in respect of the credibility of an applicant’s claims or evidence, if the claims or evidence were not raised in the application before the primary decision was made and the applicant does not have a reasonable explanation for the delay. It is required that all relevant information is provided by the applicant to the Minister in their application, including any additional information that may be submitted to the Minister, prior to the primary decision being made. A claim may be raised, or evidence may be presented in the application by way of, but not limited to, details in the application form, at an interview, in a response to a request, or information volunteered by the applicant at any stage prior to the primary decision.
This amendment supports new section 5AAA (Non-citizen’s responsibility in relation to protection claims) inserted by item 1 of Schedule 1 to the Bill. The purpose is to ensure that protection visa applicants are forthcoming with all of their claims and evidence as soon as possible.
The first respondent contends that although the Tribunal did not expressly refer to s 423A, the Tribunal’s questioning of the applicant reveals that in substance it did seek an explanation from the applicant as to why the claim had not been raised earlier, and the applicant’s responses indicate his understanding of this point. The Tribunal’s reasons at [89] are said to indicate that it was not satisfied with the applicant’s explanation and therefore although no reference in that paragraph was made to s 423A, the “pre-condition to the obligation to make such a finding was addressed”.
The first respondent further contends that in any event, the Tribunal considered the entirety of the applicant’s new claim to fear harm on the basis of his political opinion and did not accept it (CB 829-830 at [88] and [90]). The Tribunal did not accept that the applicant had a political opinion which would motivate him to engage in political debate and activities or that the Facebook evidence supported a conclusion that the Jordanian authorities viewed him as a person of influence. The Tribunal’s reasoning is said to “constitute a complete assessment” and independent rejection of the applicant’s claims such as to support a conclusion that the Tribunal did not fall into error as asserted by ground 3 and that at any rate, any such error would not be material to the outcome.
Resolution
In order to understand the construction contended for by the parties it is first useful to set out how the new claim arose and also the Tribunal’s findings in regard to it. As noted above at [11], the Tribunal hearing took place over two days. The transcripts of each of those hearings are in the SCB which forms Exhibit “2R”.
On the second day of hearing, the applicant was giving evidence about the feud with S’s family. The conversation strayed into discussing Facebook posts in the context of that claim and then segued into the following exchange (SCB 52.27-52.37) (anonymisation added):
INTERPRETER: [S’s brother] is a friend of mine on the Facebook and he saw all the posts I put, I post, I put there. And he knows that I’m a Christian person and I believe strongly in the Christianity, and he knows that I’m against Islam and I’m against the policy of King Abdullah, how we treat the Christians in Jordan. And the Christians in Jordan have no right to advocate for the Christianity in Jordan.
MEMBER: Okay. I’m going to stop you there, Mr [EQU19]. You’re introducing new claims in evidence. I’m asking the question now about what you fear from the family and you’re introducing elements that I have not heard so far.
While stopping the applicant in relation to the new claim at that juncture, the member did revisit the point towards the end of the hearing. In this regard (and by reference to a review of the transcripts in the SCB), the Tribunal’s reasons for decision accurately summarise the evolution of the claim to place in its proper context the Tribunal’s adverse credibility finding. It is useful to reproduce its reasoning at [86] and [88]-[90] (omitting its description at [87] of the applicant’s post-hearing evidence consisting of Facebook screenshots):
[86] At the most recent hearing, the applicant stated that one of his fears is that [S’s brother] will use the political material that he has posted online against him. He said that he has posted comments opposed to King Abdullah II and his administration. In response to questions, he said that he has a political opinion opposed to the government, mainly based on its treatment of the Christian minority. He said that he had not raised it previously because he felt he did not have the opportunity to do so at the hearing before the first Tribunal. He did not explain why he had also not raised it with the Department, or in the detailed pre-hearing submission to the current Tribunal.
…
[88] The Tribunal has significant concerns about the applicant’s oral evidence and the material received post-hearing. His comments on Facebook appear to be only recent, and for the most part only ‘likes’ or ‘shares’ of others’ postings. Before the resumed hearing, the applicant had presented no claims or evidence of having a political opinion opposed to the government. The applicant claims that the most immediate threat from this material is that [S’s brother] could use it against him on his return, due to their conflict. However, it is difficult to believe that the applicant continues to post such material without at least ‘blocking’ the individual who appears intent on using it against him.
[89] Finally, the applicant’s failure to mention this claim earlier undermines its credibility. The post-hearing submission of 26 July 2021 notes that he only mentioned his political views in the context of describing the way his ex-partner’s brother could pursue him, expanding on them in response to the Tribunal’s questions. In effect, it invites the Tribunal to place weight on it as a spontaneous and genuine statement, rather than view it as a recent, contrived claim. The Tribunal takes into account that the applicant mentioned politics during an unfocussed narrative, but considers his subsequent efforts to elevate this to a political opinion and to present it as a new protection claim to be opportunistic, and not a reflection of any genuine fear.
[90] The Tribunal accepts as plausible that the applicant has some concerns about Jordan’s politics, including the monarchy and the administration, and the economic situation there. However, he has spent over two decades in Australia, and has demonstrated no real interest or engagement in Jordanian political issues during that period. The Tribunal does not accept that he has a political opinion that motivates him engage in political debate or activities. To the extent that he may have followed some political dissidents online, and indicated his support, this activity appears to be relatively recent and limited in scope. There is nothing to suggest that the applicant has any social media profile, or that his comments on Facebook have attracted any scrutiny or adverse comment. The Tribunal does not accept that the Jordanian authorities view him as a person of any political influence; or that they have any adverse interest in him; or that there is anything that his ex-partner’s brother or anyone could use against him as leverage in the future.
In relation to the nature and circumstances in which the new claim was raised, I reject the characterisation that it came about in response to questions from the Tribunal. While it is the case that the Tribunal revisited the issue and allowed the applicant to raise it (having curtailed the applicant’s first attempt to raise it because it had while the Tribunal was exploring another aspect of the applicant’s longstanding protection claims) it can hardly be construed as having emanated from the Tribunal itself.
Next, what is summarised at [86] of the Tribunal’s reasons reflects the fact the applicant was given the opportunity to explain why the new claim had not been raised previously, at SCB 74.17-74.21 (anonymisation and emphasis added):
MEMBER: Okay. Mr [EQU19], you’ve been before to the Department over some time ago and you’ve had a lengthy hearing – you had a detailed hearing with the previous tribunal. You haven’t raised any concerns about [S’s brother] drawing on those political statements so far. In fact, you’ve not mentioned it, I don’t think, until now. What’s the reason for that?
INTERPRETER: The Member did not want to listen to me. Did not want to listen what I was saying.
MEMBER: I’m sorry, which member are you referring to?
INTERPRETER: The old one, the one before.
The Tribunal then explored, at length, with the applicant the many opportunities he had from the time of his visa application onwards to raise the claim, including through his Counsel who was representing him at the two day hearing.
It is not in dispute that the Tribunal does not make express reference to s 423A of the Act. However, it is tolerably clear that paragraphs [86] and [89] read in combination constituted a consideration of the applicant’s reason for not having raised the claim prior ([86]) and an implicit finding the explanation was not reasonable ([89]). The first sentence of [89] (emphasis added):
Finally, the applicant’s failure to mention this claim earlier undermines its credibility.
reflects the language of the statute which requires that if the Tribunal is not satisfied the explanation for the late claim is reasonable it must draw an inference which is unfavourable “to the credibility of the claim” (emphasis added).
Unlike sections such as s 424AA, s 423A does not impose on the Tribunal a method by which it is to obtain the explanation, nor prescribe any preconditions to its operation (see for example s 424AA(1)(b)). Accordingly, while brief, nothing about the manner in which the Tribunal discussed the new claim or adduced the explanation about its late provision from the applicant at the hearing gives rise to a jurisdictional error. The explanation having been proffered, it was found to undermine the credibility of the claim. It is open to infer, and I do, that having reflected the language of s 423A(2) the Tribunal was implicitly finding that the explanation was not reasonable.
However, the Tribunal did not dismiss the claim out of hand by virtue of the credibility finding. Rather, it went on to consider the claim to fear harm because of his political opinions which had caused him to engage in online political activity. The Tribunal was not satisfied that the evidence later proffered by the applicant supported the claim that Jordanian authorities saw the applicant as being a person of political influence.
These findings were made by the Tribunal separate to the issue about the claims being a recent addition. Accordingly, even if I am wrong and the Tribunal failed to apply (or properly apply) s 423A the result of this is, firstly, that all that would result is a neutral position in that the claim would arise for consideration absent a mandatory adverse credibility finding attaching to the claim itself. The claim would then fall for consideration afresh. However in a case such as this, where the Tribunal had also rejected the claim on a separate and independent basis, even if there was an unravelling of the s 423A finding it could not have resulted in a different decision being reached (on a substantive basis in relation to the claim).
Accordingly, the allegation that the Tribunal failed to apply or properly apply s 423A of the Act is not made out and it is therefore unnecessary to proceed the (admittedly interesting) statutory interpretation question contended for.
Ground 4
Applicant’s contentions
By the final ground the applicant says that the manner in which the Tribunal treated the Mukhtar letter constituted a constructive failure to exercise jurisdiction, by misunderstanding evidence of significance to the review.
The applicant relies on Minister for Immigration & Multicultural Affairs v SBAA [2002] FCAFC 195 at [44] per Wilcox and Marshall JJ and Linfox Australia Pty Ltd v Fair Work Commission (2013) 240 IR 178 at 191 [47] for the proposition that where evidence of “significance” is not evaluated, this can amount to a constructive failure to exercise jurisdiction. Misunderstanding such evidence of significance can result in jurisdictional error: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63]; SZRRD v Minister for Immigration and Border Protection (2015) 232 FCR 407 at [14]-[17] per Flick J; Minister for Immigration, Local Government and Ethnic Affairs v Che Guang Xiang [1994] FCA 1259 at [30].
The Mukhtar letter relevantly stated (CB 38, applicant’s emphasis retained):
I listened to [the Applicant] and said he would return to Jordan because the Australian government wants to expel him, he is now in the Australian Immigration Service, noting that has been resident in Australia for more than 21 years.
There is a vengeance between him and another family of the sheikh in Jordan, and the revenge is still between the two families until this time, if he returns to Jordan, he will be killed by the other family because of the old revenge between the two families.
I hope you will not send him to Jordan because he will be killed. If you need any proof or information, do not hesitate to contact me.
The Tribunal referred to the Mukhtar letter at paragraphs [72] (CB 826) and [75] (CB 827) and is said to have misunderstood the letter as “based on what the applicant told [the author]”. The applicant contends that the only reasonable reading of the Mukhtar letter is that the first paragraph is based on what the applicant had told the Mukhtar but the second and third paragraphs are independently based. This is said to be confirmed by the opening “I” of the first paragraph and the Mukhtar’s offer to provide any “proof or information”. The Mukhtar letter is said to be “only capable of one reading”, namely, that it “offered independent corroboration that was not based entirely on what the applicant had said” (T 16.35-41).
The error in ground 4 was said to be material because if the Tribunal had correctly understood the Mukhtar letter as providing independent corroboration of the blood feud’s existence, it may have reached a different conclusion in relation to this claim to fear harm.
First respondent’s contentions
The first respondent contends that it was plainly open to the Tribunal to treat the Mukhtar letter as not constituting independent corroboration of the blood feud. A plain reading of the letter is said to make clear that its premise is that the writer had “listened” to the applicant and that the subsequent paragraph, which is a neutral statement that there exists a “vengeance” between two families and the applicant would be killed if he returned to Jordan, is a reiteration of the applicant’s statements to the writer. If the documents were to proffer independent evidence of a blood feud, it is said that the material would not have been presented in this way.
The first respondent says that the offer contained within the Mukhtar letter to provide “proof or information” is not determinative, because no contact details are provided and that proof or information could simply be confirmation that the mukhtar had spoken to the applicant. The first respondent submits whether the Tribunal correctly understood the Mukhtar letter is not salient. Rather, the first respondent contends that the manner in which the Tribunal dealt with the letter was plainly open to it and, as such, this ground constitutes an impermissible attempt to intervene in the Tribunal’s assessment of the evidence.
At hearing, Counsel for the first respondent accepted that the error in ground 4, were it to be established, would be material.
Resolution
The Mukhtar letter was first considered by the delegate who said (CB 178, footnotes omitted and anonymisation added):
The applicant has provided a translation of a hand-written document stating:
there is a vengeance between him and another family of the sheikh in Jordan and the revenge is still between the two families, if he returns to Jordan, he will be killed by the other family because of the old revenge between the two families.
The document is dated 22 February 2018 and signed by [NAME], “Mukhtar”. However, it also states that the letter is written on the basis of the applicant’s word, rather than any prior knowledge held by the Mukhtar of [PLACE]. Based on this, I give the document little weight in my assessment.
Accordingly, the manner in which the Tribunal dealt with the letter was consistent with the manner in which the delegate had done so. No attempts were made at either of the Tribunal review phases to address the delegate’s concern, if the applicant had wanted to ensure the letter was understood in the context for which he now contends.
Next, while the interpretation of the letter is one which is technically open, it is not the most natural reading of it.
As even the applicant concedes, the first paragraph is written based on what the applicant told the author. The second paragraph is not written in the first person and all and is more naturally read as being a continuation of the first paragraph. It speaks only in terms of the applicant’s assertions about what he claims will occur on return to Jordan.
I am not persuaded that the last paragraph, while commencing in the first person, can as the applicant contends “only be understood” as being an expression of the mukhtar’s belief as to an actual state of affairs facing the applicant and to the extent the letter ends with an “offer”, it is not one which is capable of readily being taken up. The applicant did not contend, concerning the manner in which the Tribunal is said to have erred in relation to the Mukhtar letter, that this “offer” gave rise to any duty to inquire. Rather, the contention was that the letter ought to have been given greater weight.
It is well established that the weight to be given to evidence is uniquely within the purview of the Tribunal: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [197]; SZMUF v Minister for Immigration and Citizenship [2009] FCA 182 at [14]; SZTEX v Minister for Immigration and Border Protection [2014] FCA 1269 at [19]. Given that the interpretation of the Mukhtar letter was one which was open, and the more contextually plain reading, the finding in relation to weight was a matter for the Tribunal as the trier of fact. No error arises in this regard.
CONCLUSION
None of the grounds of review have been made out. The decision of the Tribunal is not affected by jurisdictional error and, as such, is a privative clause decision pursuant to s 476 of the Act and must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 5 August 2022
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