ESV17 v Minister for Immigration
[2018] FCCA 2415
•31 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ESV17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2415 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – Administrative Appeals Tribunal failed to consider close circuit television footage – whether failure to consider close circuit television footage ignoring relevant material – jurisdictional error – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 422B, 476 |
| Cases cited: AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193; (2015) 238 FCR 341 |
| Applicant: | ESV17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 566 of 2017 |
| Judgment of: | Judge Kendall |
| Hearing date: | 16 August 2018 |
| Date of Last Submission: | 16 August 2018 |
| Delivered at: | Perth |
| Delivered on: | 31 August 2018 |
REPRESENTATION
| Applicant: | In person with the assistance of an interpreter |
| Counsel for the First Respondent: | Mr P Corbould |
| Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue quashing the decision of the second respondent dated 4 October 2017.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application for review of the decision of a delegate of the first respondent dated 6 July 2016 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 566 of 2017
| ESV17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 23 October 2017, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 4 October 2017.
The Tribunal affirmed a decision made by a Delegate of the Minister for Immigration and Border Protection (the “Minister”) on 6 July 2016 not to grant the applicant a Protection (Class XA) visa (the “Protection visa”).
The applicant seeks judicial review in this Court pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”).
The applicant seeks an order that the decision of the Tribunal be quashed and a writ of mandamus issue requiring the Tribunal to determine the applicant’s application according to law. The applicant also seeks the following orders:
1.Prohibition directed to the First Respondent prohibiting from acting upon or giving effect to or proceeding further upon the decision of the Tribunal.
2. Costs.
3. Such further order or other relief as the Court deems fit.
In his application to this Court the applicant relies on three grounds of review as follows:
1. The Tribunal failed to afford procedural fairness.
2. The Tribunal made a finding without supporting evidence.
3. The Tribunal failed to consider the applicant’s claim but rather take into account of irrelevant consideration.
On 6 December 2017, this Court made orders programming the matter to a final hearing. Those orders required the applicant to file and serve any amended application giving complete particulars of each ground of review as well as any affidavit containing any additional evidence by
7 February 2018. Written submissions and a list of authorities were to be filed 42 days prior to the scheduled hearing date.
The applicant did not particularise the grounds in his application for judicial review dated 23 October 2017. Nor did he file and serve any amended application, any further affidavits or any written submissions.
This matter was heard over two days – 13 June 2018 and 16 August 2018 – for reasons discussed below.
The applicant was self-represented before this Court but appeared with the assistance of an interpreter.
Synopsis
For the reasons set out below, the Court finds that the Tribunal did fall into jurisdictional error by failing to address relevant evidence before it. It is arguable on the evidence before the Court that the Tribunal failed to review closed circuit television (“CCTV”) footage put to it by the applicant in circumstances where that footage might have assisted the applicant in proving his case.
Consequently, the Tribunal’s decision should be set aside and the matter remitted to the Tribunal for determination according to law.
Background Facts
The Court had before it a Court Book (“CB”) numbering 171 pages. The Court also had extensive written submissions from the Minister dated 22 May 2018.
The Court adopts the factual and procedural overview provided in the Minister’s written submissions at paragraphs 3 – 8. This overview was not in dispute and provides, relevantly, as follows.
The applicant is a citizen of Malaysia (CB 15 and 134).
The applicant arrived in Australia on 9 February 2016 and applied for the Protection Visa on 25 April 2016 (CB 1-38, 51 and 79).
On 6 July 2016 the applicant was refused a protection visa by a delegate of the Minister (CB 79-93).
On 21 July 2016 the applicant applied to the Tribunal for review of the delegate’s decision (CB 101-102).
The applicant attended hearings before the Tribunal on 31 August 2017 and 4 October 2017 to give evidence and present arguments. Although the applicant was represented by a registered migration agent, his agent did not attend either of the hearings. The applicant was, however, assisted by an interpreter fluent in both Mandarin and English (CB 131-133, 143-145 and 164[8]).
At the second Tribunal hearing on 4 October 2017 the Tribunal made an oral decision affirming the delegate’s decision not to grant the applicant a protection visa and gave oral reasons for the decision (CB 146-152).
On 20 October 2017 the Tribunal gave written reasons for its decision (CB 163-168).
The Tribunal’s Decision
The Tribunal’s decision appears at pages 163 to 168 in the Court Book. The Court has reviewed the Tribunal’s decision in detail and notes as follows.
The Tribunal summarised the applicant’s claims for protection at paragraph 9–10 of its decision, as follows (CB at 164-165):
9. … The Tribunal went through the applicant’s summary of claims, that he had contracted a number of business loans with loan sharks, known locally in Malaysia as Ah Longs, that he had been harassed to repay these loans, that according to his written claims he was falsely imprisoned with his wife and beaten, including torture involving water boarding, the applicant fled Malaysia and left his wife there, and that she was repaying the debt, that he feared returning to Malaysia because he would be recaptured, tortured, and harmed, and that his wife would also.
10. The applicant’s written claims also stated that he feared reporting the matter to police because of police corruption, and that the agents of corruption were the Ah Longs. The applicant confirmed that he would be unable to relocate anywhere in Malaysia because of Ah Long networks of influence throughout that country.
The Tribunal did not accept that the applicant’s claims were true, stating at paragraphs 32 to 40 of its decision (CB at 167-168):
32. The tribunal has carefully considered the claims made by the applicant. The tribunal has considerable doubts with much of the applicant’s evidence, which the tribunal finds vague, lacking in detail, and illogical… The Tribunal finds that, because of this vague, undetailed, and illogical evidence, the tribunal does not accept that the applicant’s claims are true.
33. The applicant’s written claims are brief. The applicant, at hearing, has denied that a number of key aspects of his written claims are actually his claims, ascribing them to his lawyer, and at the haring (sic) he has been unable to explain key inconsistencies and illogicalities in his evidence.
34. The applicant has been unable to explain why, contrary to country information, despite threatening him on a number of occasions, allegedly assaulting him with their fists on one occasion, he did not make early and repeated reports to police; that they did not harm his family; that they accepted the claims that he had run away and that the applicant and his spouse were separated; and that the applicant's claims not to have reported any of these matters to the police were because of Ah Longs corrupting the Malaysian Royal Police; that this evidence appears at odds with the country information referred to above, as well as being at odds with country information referred to in the delegate's decision.
35. The tribunal has explained its various concerns to the applicant. He has been unable to give an adequate explanation about the inconsistencies, illogicalities in, and vagueness of his claims. The tribunal does not accept that he went into hiding before departing for Australia. The applicant was unable to explain the inconsistency between his evidence that his family was not harassed by loan sharks and their criminal associates after late 2015, when he claims he went into hiding, and the police report provided by the applicant relating to a red paint incident at his family home to police on 24 February 2016, which the applicant claims to be supported by associated CCTV pictures offered to the tribunal at the hearing.
36. The applicant has provided insufficient explanation about the lack of harm to any of his family, contrary to country information, beyond stating that his wife's younger brother negotiated with them. The tribunal finds that the applicant's vague, undetailed, and illogical evidence all lacks credibility. On the basis of the concerns raised above, the tribunal does not accept that the applicant has taken loans from Ah Longs in Malaysia. The tribunal does not accept the applicant was unable to repay any such loans. The tribunal does not accept he was threatened at his home by Ah Longs or anyone working for them.
37. While the tribunal accepts that the applicant made a single report to police about threats from a single loan shark on 23 January 2016, the inconsistency of this report with the applicant's evidence in the hearing; the fact that it was made after apparently struggling to repay Ah Long debts from 2011; the fact that it was made almost two weeks after the applicant received his Malaysian passport; and, the fact that it was made approximately 10 days before he departed for Australia, all suggest to the tribunal that this was a report of convenience and not one of necessity. The tribunal does not accept that loan sharks have come to his family home at any time. Therefore, the tribunal does not accept that if he returns he would face any chance of being seriously harmed for reasons of Ah Long debts, or for any other reason by Ah Longs, their criminal associates, or anyone else.
38. On the evidence, including country information and the delegate's decision, the tribunal finds that if the applicant returns there is only a remote or far−fetched chance that he would be harmed by Ah Longs, their criminal associates, or anyone else, by reason of being a debtor to Ah Longs or for anything related to this. The tribunal finds there is no real chance the applicant will be seriously harmed because of claimed debts to Ah Longs, or for any other reason on return to Malaysia, now or in the reasonably foreseeable future.
39. The real risk test imposes the same standard as the real chance test. For the reasons and findings already given above, I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, that there is a real risk the applicant will suffer significant harm.
40. Taking the applicant's claims at their highest, they are vague, undetailed, inconsistent, and illogical, and are not sufficient to establish his claims.
Overall, the Tribunal affirmed the delegate’s decision, concluding (at paragraphs 41-43) as follows (CB 168):
41. … the tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations, at section 36(2)(a) of the Act.
42. Having concluded that the applicant does not meet the refugee criterion, the tribunal has considered the alternative criteria. The tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act. There is no suggestion the applicant is a member of the same family unit as a person who meets either of these criteria. Accordingly, the applicant does not satisfy the criterion in section 36(2).
Decision: Did the Tribunal fall into Jurisdictional Error?
The applicant seeks orders in this Court for the issue of constitutional writs. In order for these writs to be issued the applicant needs to demonstrate that the Tribunal fell into jurisdictional error.
The possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions, they most commonly include the following categories:
a)Where the decision maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 39 ALD 193 (Craig) at [198].
b)Where the decision maker ignores relevant material: Craig at [198].
c)Where the decision maker relies on irrelevant material: Craig at [198].
d)Where the decision maker fails to follow mandatory procedures: SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 83 ALD 545 at [207]-[208].
e)Where the decision maker fails to consider the entirely of an applicant’s claims (or “integers” of the claims) as made: Minister for Immigration and Citizenship v SZRKT and Another (2013) 136 ALD 41 at [111]; Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141 at [22].
f)Where the decision maker shows actual or apprehended bias: see SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [16]-[17].
g)Where the decision is illogical, irrational or unreasonable: see Minister for Immigration v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration and Citizenship v Li [2013] HCA 18 (“Li”) at [26] – [28]; Minister for Immigration v Singh (2014) 231 FCR 437 (“Singh”) at [44].
Both counsel for the Minister and the Court explained to the applicant what the Court can and cannot do. It was explained to him that this Court cannot undertake what is referred to as a merits review. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error.
It was held in WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] as per Gilmour J and in WZATH v Minister for Immigration and Border Protection [2014] FCA 969 that a court is entitled to dismiss a case seeking judicial review by reason of generalised and un-particularised grounds of review.
Here, the grounds articulated are indeed vague. A general, vague and insufficiently clear application of the sort seen here provides judicial justification for the dismissal of the proceeding.
The Court acknowledges the Minister’s submissions in relation to dismissing the applicant’s grounds for want of particularisation (at paragraph 20). This is an option but one that seems harsh in circumstances where an applicant is unrepresented and does not speak English.
In the circumstances, the applicant was asked to explain what, in his opinion, he thinks the Tribunal “did wrong” and elaborate on his three grounds of review to the extent that he is able to do so.
The Court deals with the applicant’s claims as follows.
Ground 1
The Tribunal failed to afford procedural fairness.
Ground 1 of the applicant’s application alleges that the Tribunal failed to afford the applicant procedural fairness. As stated above, this ground of review was not particularised by the applicant and it was unclear exactly how the applicant believes the tribunal failed to afford him procedural fairness. The applicant sought to clarify his claims verbally to the Court. This is discussed below.
In relation to the concept of procedural fairness the Court is mindful of the comments made by the Gaudron J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 that:
The basic principle with respect to procedural fairness is that a person should have an opportunity to put his or her case and to meet that case that is put against him or her.
Further, the Court notes the comments made by Mason J in Kioa v West (1985) 159 CLR 550 that:
It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.
The Court has also considered the Tribunal’s statutory obligations under Part 7 of the Act and, in particular, Division 4 of Part 7 of the Act, which is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters the Tribunal deals with: s.422B of the Act.
The Court has considered the Tribunal’s decision in detail and notes that while the applicant’s matter was before the Tribunal:
a)The applicant was invited to and attended two hearings before the Tribunal on 31 August 2017 and 4 October 2017 (CB 131 and 143).
b)The applicant was assisted by a Mandarin interpreter at both hearings (CB 131 and 143).
c)The Tribunal noted that, despite the applicant being represented by a registered migration agent, the registered migration agent did not attend either of the hearings with the Tribunal (CB 147).
d)At the first hearing on 31 August 2017, the Tribunal discussed the applicant’s written claims with the applicant and the applicant was asked if he had anything to add to his claims for protection. The applicant was also asked if he wished to change anything in his application documents. The applicant responded in the negative to both of these questions. The applicant was asked if the Tribunal could proceed on the basis of these documents and the applicant responded in the affirmative (CB 164).
At the hearing of this matter, the Court asked the applicant why he felt he had been treated unfairly. In effect, through his interpreter, he explained that he had asked the Tribunal to review CCTV footage that he says proved that he risked being harmed and that the Tribunal did not do so.
The Court determined that to the extent this was true, it raised the possibility that the Tribunal failed to examine relevant evidence. This, potentially, could constitute jurisdictional error.
In the circumstances, counsel for the Minister agreed that the best way forward was to review the audio of the Tribunal hearing and provide a typed transcript of any areas of concern arising from the hearing. The Minister also sought, and was granted, leave to file further written submissions once the audio had been reviewed.
The Court reviewed the audio of the Tribunal hearing and the transcribed portions of the hearing. The Court notes the following portions of the transcript in relation to the applicant’s claim that he asked the Tribunal to review CCTV footage:
[About 1.37pm]
Member:Is there anything else you'd like to tell me about your application?
Interpreter: I definitely hope that you can allow me to stay in Australia. And there's some stuff that probably I can't really explain very clearly at all. But the things that did happen in Malaysia, you can be confident of one thing that is definitely true. Whatever I said happened, happened. I've actually got photos of them painting my house. I can show you if you'd like?
Member: Have you got them there? [Time elapses]
Member: How do I know that's your house?
Interpreter: I can show you the CCTV footage if you like?
Member: When was that taken?
[Time elapses]
Interpreter: February 2016. That's when this stuff happened.
[About 1.40]
Member:Okay, thank you. And since you left Malaysia they've left your family alone?
Interpreter: I was hiding away from these Ah Longs.
Member: Yes, since you've left, has your family been OK?
[About 1.41]
Interpreter: They're fine.
On day two of the hearing before this Court, the applicant stressed again that he had asked the Tribunal to review the CCTV footage but that the Tribunal did not do so:
HIS HONOUR: So I need to ask him is there anything he wishes to say today before I write my judgment.
THE INTERPRETER: Yes, I do have something to say, and all the evidence is true and I believe you are honest judgment, and my story is true and what happened happened in Malaysia and I can’t go back to Malaysia.
HIS HONOUR: Okay. And I just want him to clarify for me again why did he want the tribunal to look at the CCTV footage.
THE INTERPRETER: Because all what happened in the CCTV happened in my house. It’s really scary and I’m so scared. Every single time when I think about that, I feel very scared at what they did to my house, and so that’s why I want the tribunal to review the CCTV footage.
HIS HONOUR: And can he confirm – if I understand his evidence correctly from the last time we spoke, can he confirm to the court that he asked the tribunal to look at the CCTV footage and the tribunal did not look at it?
THE INTERPRETER: Sure. Yes, correct.
In written submissions, counsel for the Minister contended:
3. At the Tribunal hearing on 4 October 2017, the applicant gave evidence that in late 2015 Ah Longs came to his house and threatened him and his family and spread red paint on the house.
4. A police report relating to the red paint incident was made on 24 February 2016 after the applicant had been in Australia for about a month.
5. The applicant claimed that the red paint incident was supported by associated CCTV pictures which were offered to the Tribunal at the hearing.
6. It is not clear from the recording of the Tribunal hearing on 4 October 2017 but it appears from the long pauses during the relevant part of the recording that the Tribunal received and reviewed the evidence tendered by the applicant and queried whether it was the applicant's house.
7. The Tribunal found the applicant's evidence to lack credibility and rejected his claims. It did not accept, amongst other things, that he was threatened at his home by Ah Longs or anyone working for them.
8. The Tribunal appears to have considered the CCTV pictures offered by the applicant at the hearing and there was no jurisdictional error, as alleged in the applicant's grounds of application, or otherwise. There was no denial of procedural fairness, as alleged in ground 1, by reason of any refusal by the Tribunal to consider the applicant's evidence….
At hearing of this matter, the Court raised concerns that the evidence before it was vague and it could not be said unequivocally that the Tribunal did in fact look at the CCTV evidence put to it by the applicant. Counsel for the Minister agreed that this appeared to be the case:
HIS HONOUR: Thank you for the written submissions and forgetting the information the court needs. I should say initially I have some real concerns having reviewed the transcript. There is about a three-minute break.
MR CORBOULD: Yes.
HIS HONOUR: If you just turn to the transcript it’s pretty clear that the – there is a conversation about photographs, etcetera, on the bottom of the first page of the transcript.
MR CORBOULD: Yes, Your Honour.
HIS HONOUR: And then the member says: “Have you got them there?”
He’s then referring to photos. The member says then: “In relation to the photos, how do I know that’s your house?”
Arguably, in order to support that question in response this person then says: “I can show you the CCTV footage if you like.”
The only thing the member says is: “When was that taken?”Then it says: Time elapses.
The interpreter then says, interpreting what the applicant says: “That’s when this stuff happened.”
So I’ve got about a three-minute break which would have included pauses, translations, etcetera, and somewhat unusually the member hasn’t done what one might expect in a context of that sort which is to say, “I’m now going to look at the CCTV footage. I’ve looked at the CCTV footage. “There’s no reference at all to the CCT footage. Arguably, in that context, he hasn’t looked at it.
MR CORBOULD: It’s by no means clear, Your Honour. There seem to be two significant pauses when I reviewed the tapes of the hearing, firstly after the question was asked, “Have you got them there?” I must admit, my impression – I apologise, Your Honour. My impression was that the Tribunal member had received something from the applicant and reviewed it at that case.
HIS HONOUR: Well, those are photographs.
MR CORBOULD: Again
HIS HONOUR: Because it says: “I’ve actually got photos of them painting my house. I can show if you like. Have you got them there?”
Clearly, that’s the photographs.
MR CORBOULD: One would …
HIS HONOUR: That’s not the CCTV footage.
MR CORBOULD: No, I wouldn’t – it’s difficult to know whether, in fact, CCTV footage is something different or may actually be the same bit of evidence and it could have been just because of the translation of what the applicant said. But assuming, in any event, that there is something difficult – different
HIS HONOUR: Well, his evidence to me in June was that he asked for specific CCTV footage to be looked at and that’s why we’re here today. I have evidence that the member looked at a photograph, but it’s completely unclear to me and, in fact, my assessment of what I have in front of me as evidence from the transcript is that there is no reference to the CCTV footage at all from the member and that strikes me as quite odd.
MR CORBOULD: It is, your Honour. It is.
HIS HONOUR: Yes.
MR CORBOULD: And we’re in a position, really, where there’s some considerable uncertainty about exactly what the Tribunal member did in a particular occasion.
On the evidence, the Court is not satisfied that the Tribunal reviewed the CCTV footage the applicant asked it to review. Arguably, that evidence was relevant – particularly if it stood to verify the applicant’s version of events.
On this issue, counsel for the Minister contended that even if it were the case that the Tribunal did not review the CCTV footage, this does not amount to jurisdictional error:
10. In the alternative, if the Court is satisfied that the Tribunal did not consider the CCTV pictures offered by the applicant at the hearing, jurisdictional error is not made out. The Tribunal's question 'How do I know that's your house?' indicates that the Tribunal could not be satisfied that the proffered evidence supported the applicant's claims. In other words, consideration of the CCTV pictures could not have assisted the applicant's case and affected the Tribunal's assessment of his credibility and claims.
11. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 (S20/2002) at [49], McHugh and Gummow JJ observed:
In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party.
12. Although not expressly articulated by the Tribunal, this was a case where the applicant's credibility had been so weakened that the Tribunal could treat what was proffered as corroborative evidence as being of no weight because the well had been poisoned beyond redemption.
13. It was open to the Tribunal, for the reasons that it gave, not to accept the applicant's claims because his other evidence was 'vague, lacking in detail, and illogical' and because of his inability to explain key inconsistencies in his evidence. This included:
13.1 the different claims in his written application and his oral evidence to the Tribunal;
13.2 the different dates and description of events when his friend and business partner ran off with the money from the business;
13.3 how much he owed to Ah Longs;
13.4 when he first experienced trouble repaying the loans;
13.5 his failure to take any steps to find out why his protection visa was refused by the delegate and his evidence that his claims were fabricated by his lawyer;
13.6 his evidence about being harassed for repayment when he also claimed to be in hiding;
13.7 the timing of his police reports and his failure to make early and repeated reports to the police; and
13.8 the absence of harm to the applicant over the long period that he had been struggling to repay his debts and the absence of harm and threats to his family, contrary to the country information.
14. In the circumstances, it was open to the Tribunal not to rely upon the CCTV photographs offered by the applicant in support of his claim.
15. The Tribunal's consideration of the red paint incident and the CCTV photographs does not involve jurisdictional error on the grounds raised by the applicant, or any other grounds.
On the facts of this case, the Court does not agree that it was open to the Tribunal to simply ignore the CCTV footage because it had formed a view that the applicant was not credible. It may well have been the case that the CCTV footage was the one piece of evidence that did support the applicant. We simply don’t know because it appears the Tribunal refused to look at it. We cannot, as a consequence, determine whether that one piece of evidence might have assisted the applicant’s case and, importantly, lead to the Tribunal to reassess its credibility finding. To the extent that procedural fairness means anything to an applicant who is not legally represented and who does speak English, that course of action is unacceptable and represents jurisdictional error of the sort this Court is charged with addressing.
Potentially relevant evidence of this sort, in this factual context, cannot be ignored. It must be assessed.
For the reasons outlined above, Ground 1, as verbally clarified by the applicant before this Court as a reference to the Tribunal’s failure to review all relevant evidence, has merit. There is sufficient evidence before the Court to suggest that relevant evidence was not assessed by the Tribunal in circumstances where it should have been.
Ground 2
The Tribunal made a finding without supporting evidence.
As with his other two grounds of review, the applicant failed to particularise this ground of review. During the proceedings, the applicant was unable to clarify what he meant by this this ground of review and he did not provide the Court with any submissions particularising or further explaining this ground of review.
Other than the bare assertion that the Tribunal made a finding without supporting evidence, this ground of review does not identify the finding allegedly made by the Tribunal without supporting evidence.
As noted above, a failure to provide proper particulars of a ground for review may be a basis for dismissing an appeal: see SZNXA v Minister for Immigration and Citizenship [2010] FCA 775, at [21] as per Reeves J.
It is certainly arguable that when an applicant does not articulate a ground of review in a way that a Court could conclude that it gives rise to jurisdictional error then it would be open to that Court to dismiss that ground for want of particulars.
Despite this, the Court has reviewed the Tribunal’s decision in detail and is unable to identify any error of the kind alleged by the applicant in this ground.
The Tribunal’s findings were open to it on the evidence. The Tribunal’s reasons for decision make clear references to the materials it utilised to as the basis for its findings. These findings demonstrate an evident, transparent and intelligible justification for the Tribunal's decision: Li at [76], [105]; Singh at [44]-[45].
Accordingly, ground 2 is not made out.
Ground 3
The Tribunal failed to consider the applicant’s claims but rather take into account of irrelevant considerations.
This ground does not identify the claims the Tribunal allegedly failed to take into account or the irrelevant considerations that the Tribunal took into account.
The applicant was asked to comment. Again, he was unable to clarify his concerns.
Arguably it appears that when the applicant says “failed to consider” what he really means is “did not accept”. In effect, the applicant would like the court to undertake a merits review of the Tribunal’s findings. He would, it seems, like this court to review the material that was before the Tribunal and come to a different conclusion. This Court cannot do that. It cannot review the merits of the Tribunal decision or determine the applicant’s claim for protection. As outlined in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 136 ALR 481 at 491:
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
Further, the Court notes paragraphs 32 – 35 of the Minister’s submissions, as follows:
32. The Tribunal clearly did consider the applicant’s claims that he would be harmed because of his debts to Ah Longs but did not accept the applicant’s claims. The Tribunal is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170.
33. The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]. That is part of its fact-finding function: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282.
34. The Tribunal did not take any irrelevant considerations into account and made findings that were open to it on the available evidence. There is an ‘evident, transparent and intelligible’ justification for its decision: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28], [66], [76] and [105]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44]-[45].
35. Ground 3 should be dismissed.
The Court agrees with the Minister’s submissions. The Tribunal’s findings were open to it on the evidence that it did examine. It did not examine all of the evidence it should have examined (as outlined above in relation to the CCTV footage) but that is not relevant to Ground 3.
Ground 3 fails.
Conclusion
Having assessed all of the applicant’s grounds of review, the Court finds that Ground 1 in the applicant’s application for judicial review dated 23 October 2017 has substance. The Tribunal fell into jurisdictional error by failing to address relevant evidence before it. It is arguable on the evidence before the Court that the Tribunal failed to review CCTV footage put to it by the applicant in circumstances where that footage might have assisted the applicant in proving his case.
Accordingly, the decision of the Tribunal should be set aside and the matter remitted to the Tribunal for determination according to law.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 31 August 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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