FSR17 v Minister for Immigration
[2018] FCCA 2931
•18 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FSR17 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2931 |
| Catchwords: MIGRATION – Protection (Class XA) Visa – where the Applicants applied for protection visas on the ground of fear of persecution in Papua New Guinea – s.424A – legal unreasonableness. |
| Legislation: Migration Act 1958 (Cth), ss.36, 63, 65, 424A. 424AA, 474 |
| Cases cited: Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294. NATL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 112 SZMCD v Minister of Immigration and Citizenship (2009) 174 FCR 415 SZAGF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 82 ALD 364 SZBYR v Minister of Immigration and Citizenship (2007) 96 ALD 1 DAO16 v Minister of Immigration and Border Protection [2018] FCAFC 2 Minister for Immigration and Border Protection v SZUXN [2016] FCA 216 CQG15 v Minister for Immigration Border Protection (2016) 253 FCR 496 CWR16 v Minister for Immigration and Border Protection [2018] FCA 859 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 |
| First Applicant: | FSR17 |
| Second Applicant: | FSS17 |
| Third Applicant: | FST17 |
| Fourth Applicant | FSU17 |
| Fifth Applicant: | FSV17 |
| Sixth Applicant: | FSW17 |
| Seventh Applicant: | FSX17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 1278 of 2017 |
| Judgment of: | Judge Howard |
| Hearing date: | 29 June 2018 |
| Date of Last Submission: | 29 June 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 18 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Byrne |
| Solicitors for the Applicant: | Nandan Vaityte |
| Counsel for the Respondents: | Ms Hoiberg |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
That by no later than 4:00pm on 19 October 2018, the parties shall jointly consult with each other and forward to the Court by way of email to [email protected] a draft final order which appropriately reflects the Reasons for Judgment including in respect of costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1278 of 2017
| FSR17 |
First Applicant
| FSS17 |
Second Applicant
| FST17 |
Third Applicant
| FSU17 |
Fourth Applicant
| FSV17 |
Fifth Applicant
| FSW17 |
Sixth Applicant
| FSX17 |
Seventh Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
There are seven Applicants in this application before the Federal Circuit Court of Australia. The Applicants are all members of the same family. Each of the Applicants is a citizen of Papua New Guinea (“PNG”). On 4 November 2014 the Applicants applied for Protection (Class XA) Visas in Australia. The First Applicant had arrived in Australia on 26 January 2013 to commence as a student at the James Cook University in Townsville, Queensland. The Second Applicant is the wife of the First Applicant. The remaining five Applicants are the adult children of the First and Second Applicants. At the time that the applications for the Protection Visas were filed all of the Applicants held Student Visas. The applications for Protection Visas made claims on the basis of only the First Applicant fearing harm – and the other Applicants applied as members of the same family unit. Further evidence provided to the Tribunal indicated that all of the family members claimed that they will face harm if they returned to PNG.
On 17 November 2015 a delegate of the Minister refused the Applicant’s claim for Protection Visas. On 11 December 2015 the Applicants applied to the Tribunal for a review of the delegate’s decision. The Applicants attended a hearing before the Tribunal in person on 22 August 2017.
On 27 November 2017 the Tribunal affirmed the decision of the delegate.
On the 22 December 2017 the Applicants filed an application for a Judicial Review of the Tribunal’s decision seeking the issue of constitutional writs.
On 29 March 2018 the Applicants filed an amended application.
At the Hearing of the matter in the Federal Circuit Court of Australia in Brisbane on Friday 29 June 2018 the Applicants were represented by Mr Byrne of Counsel. The application proceeded in relation to two grounds only. Those two grounds are grounds 4 and 6 of the amended application filed 29 March 2018. Grounds 4 and 6 states as follows:-
“4.…The Second Respondent fell into jurisdictional error, in making the decision, by contravening ss 424A and/or 424AA of the Migration Act 1958 (Cth) (Act).
Particulars:
(i) At the hearing on 22 August 2017, the only information identified by the Second Respondent for the purposes of ss 424A or 424AA was information given by the Third and Seventh Applicants during the hearing indicating that they never specifically faced threats or harm and the Second Respondent’s concern that this was inconsistent with a statement provided by Detective Matthew Damaru of the Royal Papua New Guinea Constabulary in 2015;
(ii) After the hearing on 22 August 2017:
A. the Second Respondent sent a letter dated 5 September 2017 (Request Letter) to Detective Matthew Damaru of the Royal Papua New Guinea Constabulary requesting further information in relation to matters the subject of the Applicants' application for Protection visas;
B. Detective Damaru sent a letter dated 9 October 2017 (Response Letter) to the Second Respondent providing information in response to the requests in the Second Respondent’s letter dated 5 September 2017;
(iii) In making its decision dated 27 November 2017 to affirm the decision under review, the Second Respondent relied upon information other than the information referred to in (i) above, including, without limitation, information in the Request Letter and/or Response Letter:
(iv) The information referred to in (iii) above was the reason or part of the reason, for the Second Respondent' s decision to affirm the decision under review;
(v) In contravention of ss 424A and/or 424AA of the Act, the Second Respondent failed to:
A. give the Applicants clear particulars of that information;
B. ensure that, as far as reasonably practicable, the Applicants understood why that information was relevant to the review, and the consequences of the information being relied upon in affirming the decision under review; and
C. invite the Applicants to comment on or respond to that information;
…
6. The decision of the Second Respondent was legally unreasonable and infected by jurisdictional error because the Second Respondent's credibility findings against the First Applicant, and the reasoning leading to those findings, were irrational and illogical.
Particulars:
(i) The Second Respondent found that there were inconsistencies in evidence, where there were no such inconsistencies;
(ii) Alternatively, if there were any inconsistences, they were objectively minor and provided no proper basis to reject evidence and claims of the Applicants….”
The First Applicant was employed in PNG by the Department of Justice and Attorney General’s Department between 2006 and 2014. From September 2009 until February 2013 the First Applicant was the Solicitor-General of Papua New Guinea.
In summary, the First Applicant’s claims (as confirmed at the Tribunal Hearing) – are that he fears reprisals or “payback” – for him and his family because:
a)The First Applicant made a complaint in 2012 to the National Fraud and Anticorruption Squad in PNG in relation to improper payments made to a lawyer in PNG named Mr Paul Paraka; and
b)The First Applicant will be required to be involved as a witness in the upcoming prosecutions related to the alleged corruption.
In paragraph 5 of the Tribunal decision dated 27 November 2017 the Tribunal noted; in relation to s.36 of the Migration Act 1958.
“5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the 'refugee' criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class…”
I note what was stated by Gummow ACJ and Kiefel J in Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 concerning Sections 36 and 65 of the Act - where their Honours stated:-
“1. GUMMOW A-CJ AND KIEFEL J. A criterion for the issue of a protection visa under the Migration Act 1958 (Cth) (the Act) is that the applicant be a non-citizen of Australia to whom the Minister ‘is satisfied’ that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Section 36(2)(a) of the Act so provides (14). If the Minister ‘is satisfied’ that this and other criteria ‘have been satisfied’ then the Minister ‘is to grant the visa’; if ‘not satisfied’, then the visa must be refused (s 65(1)).
2. The term ‘satisfy’ has various shades of meaning. Two of them are involved in the collocation presented by ss 36 and 65 of the Act. One is that the applicant for a protection visa answers or meets the requirement or condition that Australia has protection obligations to the applicant. The second is that the decision maker accepts or is content that the applicant answers or meets that requirement or condition.
3. Upon review by the Refugee Review Tribunal (the RRT) of a refusal by the Minister (or the delegate of the Minister), the RRT exercises all the powers and discretions conferred by the Act upon the Minister (s 415(1)).”
Section 65(1) of the Act states:-
“(1) Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.”
Section 36 of the Act relevantly provides:-
“(1A) An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia's security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant.
(2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
Ineligibility for grant of a protection visa”
In addition to the protection obligations which Australia may owe to an Applicant for a protection visa under the Refugees Convention (section 36(2)(a)) – there is also the so-called “complementary” provisions contained in section 36(2)(aa) of the Act.
The Tribunal concluded that it was not satisfied that any of the Applicants is a person in respect of whom Australia has protection obligations. The Tribunal concluded that the Applicants do not satisfy the criterion set out in section 36(2)(a) or (aa) for a Protection Visa. Because the First Applicant was not able to satisfy the Tribunal that he satisfied the criteria for a Protection Visa – it follows that the other Applicants (as members of the same family unit) were not entitled to a Protection Visa.
Ground 4
As part of the Application before the Tribunal the First Applicant tendered a letter from the Royal Papua New Guinea Constabulary – National Fraud and Anticorruption Directorate. That letter is contained at page 227 of the Court Book. The letter is dated 27 February 2015 and is addressed, “To Whom It May Concern”. It is signed by Mr Matthew Damaru, MBE, DPS (“Damaru”). The letter states that Mr Damaru is a Detective Chief Superintendent and the Director of the National Fraud and Anticorruption Directorate. That letter makes it clear that the First Applicant was the initial complainant in the case against a prominent PNG lawyer, Paul Paraka of Paul Paraka Lawyers. It is alleged that Mr Paraka unlawfully received a total of K71.8 million from the Government of PNG through the Department of Finance. 71.8 million Kina is equivalent to approximately AUD $30 million. In that letter Mr Damaru makes it clear that the First Applicant, in his official capacity as Solicitor-General of PNG, reported the case to the National Fraud and Anticorruption Directorate on 14 March 2012.
Following the initial complaint made by the First Applicant investigations commenced and Mr Paraka was arrested in 2013 and charged in July 2014 with numerous counts involving the alleged corruption. The letter makes it clear that the First Applicant would also be giving evidence against numerous other Members of the Executive Branch of the PNG Government. The letter also states:-
“I also confirm that (the First Applicant) will also be needed in the immediate future to directly provide further evidence against the Prime Minister of Papua New Guinea, Peter O’Neill for his direct involvement in signing and unlawfully authorising the payment of K71.8 million to Paul Paraka Lawyers. This will be put into effect once the warrant of arrest against PNG’s Prime Minister is deliberated upon by the Supreme Court. Two other senior Members of Parliament are also heavily implicated in this case and investigations are continuing. (The First Applicant) is the key prosecution witness here since he served as the Solicitor-General at the time when these offences were committed.
My office is also fully aware that (the First Applicant) has real security concerns lately due to recent threats that have been issued by unknown people to himself and his immediate family as a result of his personal involvement in these cases. I am aware that he is currently on studies in Australia but is still required to give evidence in these cases in PNG as his evidence is vital to the success of the Prosecution’s case and discharge of our duties on behalf of the State and the people of Papua New Guinea.
I would state that we are not able to guarantee (the First Applicant’s) personal safety and security in PNG including that of his family due to the complex nature of this case, which so far is Papua New Guinea’s biggest fraud case. Investigations are still continuing and there is no certainty when these cases will be concluded both administratively and through the courts…”
That letter from Detective Chief Superintendent Damaru was before the Tribunal at the time of its deliberations – having been provided to the Tribunal by the First Applicant.
On 29 March 2018 an affidavit sworn by Ms. Kate Briscoe of Macquarie Street, Sydney NSW 2000 (an employee of the Applicant’s lawyers) annexed a copy of the transcript which is a transcript of the Tribunal Hearing that took place on 22 August 2017.
Detective Chief Superintendent Damaru provided a further letter on behalf of the First Applicant dated 10 August 2017. That letter commences at page 87 of the Court Book. That letter confirms the earlier information provided by the Detective Chief Superintendent and provided an update on the progress of the prosecutions in PNG.
In the transcript of the proceedings that occurred on 22 August 2017, I note particularly pages 36 and 37. The relevant part of the transcript states as follows:
“Mem: --and the fact of, you know, Detective Superintendent Damaru saying there's a risk to you based on these threats, and there appears to have been no threats, is -you know, that's of concern to me, particularly in relation to his more recent reference as well, that there is a potential risk to you. And I indicated at the beginning of the hearing that I'm likely to have another hearing, because I think I want to - in light of that recent letter from Detective Damaru, it's not very detailed, and it's actually not - it's a bit ambiguous as to whether he's saying that you are at risk, or saying that you think you're at risk. So I'm going to be seeking more information from relevant authorities in PNG.
First Applicant: Yes
Mem: And then depending on the response, I - which I'll provide to you, we may have another hearing.
First Applicant: Okay…”
After the conclusion of the Tribunal Hearing on 22 August 2017 the Tribunal independently contacted Detective Chief Superintendent Matthew Damaru. The Chief Superintendent sent a letter dated 9 October 2017 to the Registrar of the Administrative Appeals Tribunal (AAT) in Sydney. That letter is contained on pages 61 and 62 of the Court Book. I will include the contents of the letter here in full – including typographical errors. The letter states:-
“Re: INVITATION TO PROVIDE INFORMATION – (THE FIRST APPLICANT) AND FAMILY
I acknowledge receipt of your letter dated 5 September 2017 in relation to (the First Applicant) and his family in respect of decision to refuse to grant Protection visas.
I confirm providing two letters dated 27 February 2015 and 10 August 2017 regarding (the First Applicant), former Solicitor-General of Papua New Guinea.
I confirm the information provided in those two letters on the status of (the First Applicant).
FSR17 left PNG for Australia prior to Paul Paraka being arrested and charged and warrant of arrest obtained for arrest of the Prime Minister Peter O'Neil. Although there were reports of threat by (the First Applicant) against himself and his family, these were not formally reported to Police, hence outcome of these investigations is not known.
The Paul Paraka investigation led to the Prime Minister, Peter O'Neil investigation in which most threats, assaults and intimation occurred mainly against Police Fraud Investigators due to the fact that all witnesses involved have not been exposed. However, when the trials are conducted and witnesses appear to give evidence, they will be exposed and are most likely to be subjected to threats and intimidation and physical harm. The practice of retaliation is inevitable in PNG which results in loss of many high profiles cases when witnesses succumb to such threat and intimidation, and refused to give evidence in fear of retaliation by accused's family members or kinsmen or tribesmen.
If the police fraud investigators can be threaten and intimidated, and assaulted using the other Policemen, the security of all the witnesses including (the First Applicant) and his family in Paul Paraka and including Prime Minister Peter O'Neil's case is not guaranteed.
(The First Applicant’s) evidence will be mainly producing the public records held in the office of the State Solicitor. The current Solicitor can testify in his absence, however, that is secondary, (the First Applicant) will be targeted because he was the one who exposed the matter which eventuated with the Police investigation and arrest made and the warrant of arrest issued for the arrest of the Prime Minister, Mr Peter O'Neil.
If you have any questions on the matter please do not hesitate to contact me on my email: (contact details admitted).
Yours faithfully.
Matthew DAMARU, MBE, DPS, MPAdmin. Detective Chief Superintendent
Director - National Fraud & Anti-Corruption Directorate”
The letter from Detective Chief Superintendent Damaru dated 9 October 2017 was not provided to the Applicants prior to the decision of the Tribunal – which was handed down on 27 November 2017. Indeed a copy of the letter from Damaru dated 9 October 2017 was provided to the Applicants with a copy of the decision of the Tribunal.
None of the Applicants had an opportunity to comment upon the letter from Detective Chief Superintendent Damaru dated 9 October 2017.
The letter from Detective Chief Superintendent Damaru dated 9 October 2017 was in response to a letter written by the AAT to the Detective. The letter from the AAT is dated 5 September 2017 and commences at page 56 of the Court book.
Of particular note are the words contained in the 9 October 2017 letter from Detective Chief Superintendent Damaru where he stated:-
“When the trials are conducted and witnesses appear to give evidence, they will be exposed and will most likely be subjected to threats and intimidation and physical harm. The practise of retaliation is inevitable in PNG which results in loss of many high profiles cases when witnesses succumb to such threat and intimidation, and refused to give evidence in fear of retaliation by accused’s family members or Kinsmen or Tribesman…”
The letter goes on to specifically state:-
“(The First Applicant) will be targeted because he was the one who exposed the matter which eventuated with the police investigation and arrest made and the warrant of arrest issued for the arrest of the Prime Minister, Peter O’Neill…”
(Emphasis added)
Sections 424AA and 424A of the Act provide:-
“Section 424AA:
(1) If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
Section 424A:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).”
The Applicants maintained that the Tribunal breached section 424A of the Migration Act 1958 (Cth) (“Act”) when it failed to provide the Applicants with a copy of the letter of Detective Chief Superintendent Damaru dated 9 October 2017. A breach of section 424A(1) does constitute jurisdictional error and will invalidate a Tribunal’s decision. In this regard I note the decision of the High Court of Australia in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 228 CLR 294.
The First Respondent submits that Section 424A does not require the provision of evidence, but rather that the Applicant must be fairly informed of the information considered to be adverse. I note the decision of NATL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 112 at paragraph 14. In that decision the Full Court of the Federal Court (Ryan, Finkelstein and Downes JJ) stated, inter alia:-
“14. The obligation imposed by s424A of the Migration Act 1958 is to ‘give ... particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review...’. The significant phrase is ‘particulars of any information’. The section does not require the provision of evidence. The test is whether an applicant is fairly informed of the information considered to be adverse: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396. We think that identifying an informant by describing the person as the proprietor of a specified establishment is an adequate provision of particulars relating to that person.”
On the authority of NATL (supra) the Tribunal is not required to provide evidence to the Applicants. All that is required is, “clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.” However, I do note what the High Court had to say about the word “information” in section 424A of the Act. In the joint decision of Gleeson CJ, Gummow, Kirby, Callinan, Heydon, and Crennan JJ in SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1 at paragraph 18 the High Court stated, inter-alia:-
“18…However broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence…."
The High Court was focusing on a particular issue – however, the reference to “information” is a reference to the use of that word in the context of section 424A. Of particular note is the fact that the High Court made specific reference to “evidentiary material” and “documentation”.
The member of the Tribunal in this case told the Applicants at the Hearing on 22 August 2017 that he would provide to the Applicants the information – or the response – from the relevant authorities in PNG to the Tribunal’s request for further information in the light of the August 2017 letter from Detective Damaru. Notwithstanding the verbal indication from the Tribunal Member that the information would be provided to the Applicants – the Tribunal did not provide the information to the Applicants. Certainly not before the decision was made. In SZMCD v Minister of Immigration and Citizenship (2009) 174 FCR 415 at paragraph 71 the Full Court of the Federal Court of Australia (Moore, Tracey and Foster JJ) stated:-
“71. The policy and purpose reflected in s 424A is that the Tribunal should be compelled:
(a) To put the visa applicant on fair notice in writing of critical matters of concern to the Tribunal;
(b) To ensure that the visa applicant understands the significance of those matters to the decision under review; and
(c) To give the applicant a reasonable opportunity to comment on or to respond to those matters of concern.”
I note paragraph 14 of the First Respondent’s written submission. Paragraph 14 of the written submission states:-
“14. When regard is had to the content of the October Damaru Letter, it did not contain information that was required to be put to the Applicants under s 424A:
(a) in relation to Damaru's advice that the threats against the First Applicant and his family were not formally reported to police, the Tribunal had raised with the First Applicant at the hearing its concern that Detective Chief Superintendent Damaru's risk assessment was based upon specific threats, which appeared not to have been the case, and that Damaru was only speculating that the threats were related to the Paraka issue;
(b) Damaru's statement that when the trials are conducted and witnesses appear to give evidence, they will be exposed and most likely be subjected to threats, intimidation and physical harm, was information in the Applicants' favour and not information adverse to them (that is, it could not have been part of the reason for affirming the decision under review);
(c) Damaru's statement that the security of all witnesses, including the First Applicant and his family, could not be guaranteed was also information in the Applicants' favour, and repeated his earlier advice of 27 February 2015, which the Applicants had provided to the Minister's delegate (CB 227-228);
(d) the First Applicant had given evidence during the Tribunal hearing that the current Solicitor-General could testify in the First Applicant's absence. That information was not required under s 424A(3)(b) to be put to the Applicants; and
(e) Damaru's advice that the First Applicant would be targeted because he was the one who exposed the matter, was information in the Applicants' favour and could not have been part of the reason for affirming the decision under review.
As to the submissions contained in paragraph 14(b), (c) and (e) of the First Respondent (those submissions having been filed by the First Respondent on 22 June 2018) – the submission in each case is that the information was in the Applicants’ favour and not information that was adverse to the Applicants. The First Respondent goes on to submit –“that is, it could not have been part of the reason for affirming the decision under review.”
In NATL (supra) at paragraph 14 the Full Court of the Federal Court stated that, “the test is whether the Applicant is fairly informed of the information considered to be adverse.”
The Full Court in NATL (supra) were not, however, specifically called upon to consider whether it was possible that information which was not adverse to the Applicant – could nonetheless be information that falls within the obligation created by section 424A(1). The First Respondent specifically cited the decision of SZAGF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 82 ALD 364. In that case Hill J stated at paragraph 33:-
“33. Quite clearly, information concerning charges that the applicant may or may not be facing is specific to the applicant, and does not come within the exception provided in s 424A(3). This means that the Tribunal would have had an obligation to give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. If the Tribunal had utilised the information adversely to the applicant, for example, to bolster a finding as to the applicant’s lack of credibility, then it might be said that the information was at the very least a part of the reason for affirming the delegate’s decision. However, the Tribunal utilised the information in an almost positive fashion from the point of view of the applicant, because it only referred to it briefly to consider whether the charges themselves would found a well-founded fear of persecution. That is, the information was not used as part of the reason for affirming the decision. Rather, it was used to test an argument not advanced by the Applicant but favourable to him. The Tribunal rejected the argument by relying on country information which suggested that the rule of law now applied in Yugoslavia (see p 25 of the Tribunal's reasons), meaning thereby that the Applicant would likely receive a fair trial there. Accordingly, there was no breach of s 424A by the Tribunal in failing to give the applicant particulars of the charges allegedly brought against him.”
(Underlining added).
In the October 2017 Damaru letter there is information concerning the threat posed to the First Applicant. This appears in three specific instances in the letter being in the fifth, sixth and seventh paragraphs of the letter.
In the fifth paragraph I note the following words:-
“However, when the trials are conducted and witnesses appear to give evidence, they will be exposed and are most likely to be subjected to threats and intimidation and physical harm. The practise of retaliation is inevitable in PNG which results in loss of many high profiles cases when witnesses succumb to such threat and intimidation, and refused to give evidence in fear of retaliation by accused’s family members or kinsmen or tribesmen.”
That information is limited to (a relatively) small group of people (the witnesses at the upcoming criminal proceedings). The First Applicant is or is highly likely to be one of those witnesses. Accordingly, that information is specific to the First Applicant and does not come within the exception provided in section 424A(3).
The second instance appears in the sixth paragraph where Detective Chief Superintendent Damaru provides information that the “…security of all the witnesses including (the First Applicant) and his family in Paul Paraka’s and including Prime Minister, Peter O’Neill’s case is not guaranteed.”
In the seventh paragraph of the October 2017 Damaru letter the following words appear:-
“(The First Applicant) will be targeted because he was the one who exposed the matter which eventuated with the Police investigation and arrest made and the warrant of arrest issued for the arrest of the Prime Minister, Mr Peter O'Neil).”
In relation to each of those pieces of information (contained in the fifth, sixth and seventh paragraphs of the October 2017 Damaru letter) – each of those paragraphs is information concerning the risk of danger and serious harm to the First Applicant and his family. The information is specific to the First Applicant and his family members. That is, it is specific to all of the Applicants. Those pieces of information do not come within the exception provided in section 424A(3). The information is not just the words in each paragraph. A proper description of the information is that they are the “words of warning of Detective Chief Superintendent Damaru”.
What is required by the Court in this instance is a consideration of how the Tribunal utilised the information. It is apparent from the decision of Hill J in SZAGF (supra) that the mere fact that a piece of information is not “adverse” to an Applicant – is not the end of the matter. A piece of information which appears to be “favourable” to an Applicant may yet amount to information which must be provided to the Applicant under section 424A(1) if it is information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review. For instance, as Hill J pointed out in SZAGF (supra) – the information may be utilised adversely to an applicant – for example to bolster a finding as to an Applicant’s lack of credibility. In the particular circumstances in SZAGF (supra) Hill J came to the conclusion that the Tribunal had utilised the information, “in an almost positive fashion from the point of view of the Applicant”. Hill J concluded that the information was not (in that case) used as part of the reason for affirming the decision. The facts in this case are not similar to SZAGF (supra). In that case Hill J made it clear that the Tribunal had utilised the information contained in an “almost positive fashion from the point of view of the Applicant”. That is not the case here. The Tribunal in the current case did not utilise the information from Damaru in a positive or an almost positive fashion.
I have come to the conclusion that the First Respondent’s submissions contained in paragraph 14(b), (c) and (e) must be rejected. A close reading of paragraphs 164 and 169 of the Tribunal’s decision makes it apparent that the Tribunal used information contained in the letter dated 9 October 2017 as a part of the reason for affirming the decision which was then under review. Those two paragraphs in the Tribunal’s decision state: -
“164. The letters of 10 August 2017 and 5 September 2017 of Detective Chief Superintendent Damaru refer to a risk to the applicant based on reprisals. The latter letter indicates that witnesses will be exposed when prosecutions occur. It is indicated that there is a culture of intimidation of witnesses in PNG. Recognising that the applicant is not the only witness who could testify to relevant matters, it is implicitly claimed that there is an additional risk to the applicant because he was the person who initially made the complaint. The Tribunal has difficulty, for the reasons indicated, that there is a risk of 'payback' to the applicant given no harm or threats to date.
…
169.…Although the Tribunal has taken into account the assessments of Detective Chief Superintendent Damaru, the concerns raised in relation to his assessments, together with an assessment of the cumulative impact of the credibility concerns identified, result in the Tribunal not being satisfied that the applicant or is family face a real chance of serious or significant harm for the reasons claimed, notwithstanding the assessments of Detective Chief Superintendent Damaru.”
(Underling added)
It must be noted that the parties specifically acknowledged that the reference in paragraph 164 of the Tribunal’s decision to a letter of Detective Chief Superintendent Damaru dated 5 September 2017 – was in fact an error and it should have stated 9 October 2017. The date of 5 September 2017 was the date of the Tribunal’s letter to the Detective Chief Superintendent. It is contained in the Court Book and commences at page 56.
In paragraph 164 the Tribunal specifically refers to the Damaru letter dated 9 October 2017 (albeit by the wrong date). In that paragraph the Tribunal (essentially) states that it does not accept the assessments of risk provided by Damaru – including in his letter of 9 October 2017. Its rejection of the Damaru risk assessments in the 9 October 2017 letter form part of the Tribunal’s “reasons” for affirming the delegate’s decision.
In paragraph 169 of the Tribunal’s decision the following words appear:-
“169….the concerns raised in relation to (Damaru’s) assessments, together with an assessment of the cumulative impact of the credibility concerns identified, result in the Tribunal not being satisfied that the applicant or is family face a real chance of serious or significant harm….”
What the Tribunal did in this case is precisely what Hill J warned against in SZAGF (supra) at paragraph 33. What otherwise appeared to be information that was “favourable” to the Applicants (namely, the Damaru risk assessments in his letter dated 9 October 2017) was assessed by the Tribunal and the Tribunal raised “concerns” about the Damaru assessments then used those “concerns” to “bolster its findings as to the Applicants’ lack of credibility” (to use the words of Hill J in SZAGF (supra)). The Tribunal actually uses the words “together with”. It cannot be clearer that the Tribunal used information from Damaru’s October 2017 letter (after assessing it) to bolster its adverse credit findings concerning the Applicants. In the particular circumstances of this case I have come to the conclusion that the Tribunal has breached section 424A of the Act. This amounts to jurisdictional error (SAAP (supra)).
The First Respondent also submitted that relief should be refused on discretionary grounds. In that regard I note that the Tribunal Member specifically told the First Applicant that he was going to obtain “more information from relevant authorities in PNG”. The Member went on to tell the First Applicant that he would provide the response to the First Applicant. The Tribunal did not provide the response to the First Applicant. I have come to the conclusion that this failure to provide the information (after telling the First Applicant that it would be provided) confirms my conclusion that section 424A has been breached – particularly taking into account the fact that the Tribunal went on to explicitly incorporate the rejection of the Damaru risk assessments (contained in the letter dated 9 October 2017) as part of the Tribunal’s reason for affirming the Delegate’s decision. This is reason enough for the Court to reject the submission made on behalf of the First Respondent that relief should be refused on discretionary grounds. Telling an Applicant for a protection visa that certain information would be provided to them – and then failing to provide them with the information is inappropriate.
Further, on this point, I note what was said by the High Court in SZBYR (supra) in particular at paragraph 29:-
“29. The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the Tribunal's finding that their claims lacked the requisite Convention nexus. The appellants' case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board, cited in Aala, was one in which ‘irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse’. In this regard, the references that were made in the course of argument to the ‘unbundling’ of a Tribunal's reasons into ‘impeachable’ and ‘unimpeachable’ parts were more likely to mislead than to assist. While there may well be cases in which a Tribunal's breach of s 424A affects its findings about the absence of a Convention nexus, this was not such a case.”
That decision was referred to by Counsel for the First Respondent. In the current case – the Tribunal’s breach of section 424A does affect its findings about the absence of a convention nexus. The breach of section 424A denied to the Applicants the opportunity to comment or respond to the stark, detailed, specific risks of serious harm detailed by the Director of the PNG National Fraud and Anticorruption Directorate, Detective Chief Superintendent Damaru. Further, I note the First Respondent’s reference to SZBYR (supra) at paragraph 17. That paragraph states:-
“17. Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration "would be the reason, or a part of the reason, for affirming the decision that is under review". The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense ("would be") rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.”
In SZBYR (supra) the High Court was not required to consider the particular point which arises here – namely, the Tribunal read otherwise favourable (independent) information; assessed that information; rejected that information and used that rejection to bolster its adverse credit finings against the First Applicant and concluded that the Applicants are not persons to whom Australia owes protection obligations under the Convention.
My attention has not been drawn to any decision which specifically addresses the point raised by Hill J in SZAGF (supra) at 33 and to which I have already referred.
Even if my conclusion concerning the section 424A argument is incorrect it makes no difference to my decision – because of my view in relation to ground 6.
Ground 6
Ground 6 in the amended application filed 29 March 2018 states: -
“The decision of the Second Respondent was legally unreasonable and infected by jurisdictional error because the Second Respondent's credibility findings against the First Applicant, and the reasoning leading to those findings, were irrational and illogical.
Particulars:
The Second Respondent found that there were inconsistencies in evidence, where there were no such inconsistencies;
Alternatively, if there were any inconsistences, they were objectively minor and provided no proper basis to reject evidence and claims of the Applicants….”
In the Applicant’s written outline of submissions filed 15 June 2018 Ground 6 is further particularised. In paragraphs 30, 31, 32 and 33 the Applicants state that:-
“30. Ground 6 is concerned with the Tribunal’s treatment, on the basis of credibility concerns relating to the applicants, of the evidence of the applicants and Detective Damaru.
31. As for the applicant’s evidence, the various inconsistencies referred to by the Tribunal in its decision are minor and are understandable in light of the passage of time between the events in questions and the provision of evidence in interviews and at the hearing. In addition, the primary concern raised by the Tribunal member at the hearing, in relation to inconsistencies, was evidence surrounding the incident or incidents involving a ‘black Mazda’ (referred to above). However, those concerns were squarely and properly addressed at the hearing, and differences in accounts were insignificant (and not enough reasonably to impugn the credit of any of the applicants: see SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451, at 21-23).
32. Even more troubling is the Tribunal’s having dismissed (without proper explanation) the unequivocal evidence provided by Detective Damaru in his letter dated 9 October 2017 (after the hearing) that the First Applicant was in fact at risk of harm were he to return to PNG – apparently on the basis of the Tribunal’s credibility concerns about the applicants. There is no logical basis, however, for the Tribunal to have disregarded the probative independent evidence of Detective Damaru (a PNG official in direct correspondence with the Tribunal) on the basis of credit concerns that the Tribunal apparently had (without proper reason, in the applicants’ submission) in respect of evidence of the applicants. Again, there is no connection between Detective Damaru and the applicants, and he has independently informed the Tribunal that the First Applicant will be targeted and exposed to harm if he returns to PNG (see paragraph 16 above).
33. That evidence of Detective Damaru cannot reasonably be disregarded, and causes the decision to become infected by legal unreasonableness, again, in the Li sense. The evidence plainly exposes as irrational the Tribunal’s conclusions at paragraph 151 of the decision (CB 30), upon which the Tribunal’s decision hinges, that: (a) ‘the applicant has either embellished or concocted claims’ about being threatened; and (b) there had been no such threats….”
In considering this aspect of the Applicant’s submissions it is necessary for the Court to have close regard to the credibility findings made by the Tribunal. It will then be necessary to review the credibility findings and conclusions of the Tribunal in the light of the independent corroborative evidence of Detective Chief Superintendent Damaru – including in particular the letter from Damaru dated 9 October 2017 addressed to the Registrar of the Administrative Appeals Tribunal.
In the First Respondent’s written outline of submissions filed 22 June 2018 – paragraph 11 sets out a summary noting that:-
“11. The Tribunal identified nine ‘credibility and other concerns’ with claims made by the First Applicant that he and his family faced a real chance of serious or significant harm on return to PNG due to his involvement in the Paraka matter.”
I note paragraph 77 of the Tribunal’s decision.
“77. The Tribunal has the following credibility and other concerns with claims by the applicant that he and his family face a real chance of serious or significant harm on return to PNG due to his involvement in the Paraka matter.”
First Concern
I note paragraphs 78 and 79 of the Tribunal’s decision. In those paragraphs the Tribunal stated:-
“78. Firstly, evidence of specific threats being issued towards the applicant or his family as a result of the Paraka issue has been inconsistent and unsatisfactory.
79. As indicated, the written claims in the applicants' Protection visa application forms indicate that threats have been issued by persons believed to be personally associated with Paraka. It is indicated that the applicant's home in Port Moresby is being monitored by people believed to be associated with politicians and those that have been charged by PNG fraud and police investigators. There is reference to the applicant's sons in Port Moresby being tailed in their car.”
The Tribunal went on to examine the evidence of the First Applicant in relation to his sons being followed by a motor vehicle. The Tribunal also considered evidence from (the Seventh Applicant) and (the Third Applicant). After considering this evidence the Tribunal made it clear that it was concerned at the number of discrepancies between the evidence given by the First Applicant and evidence given by the First Applicant’s sons, (The Seventh Applicant) and (the Third Applicant). Notwithstanding the Tribunal’s concerns – at paragraph 92 of its decision the Tribunal accepted that there was one incident where (the Seventh Applicant) and his cousin were followed by a vehicle. At that part of the decision the Tribunal did not specifically state the date that it accepted that (the Seventh Applicant) and his cousin were followed by a vehicle. However, the only car tailing incident otherwise referred to at that part of the Tribunal’s reasons occurred in July 2014 (note paragraph 81 of the decision). There does seem to be some inconsistencies in the Tribunal’s own decision as to the occupants of the vehicle being followed. In any event what is clear is that the Tribunal accepts that there was an incident where one of the First Applicant’s sons and a cousin were followed by a vehicle. The Tribunal goes on to state in paragraph 92 (in relation to the car tailing incident) – “however the Tribunal is not satisfied that this was an attempt to intimidate the Applicant or his family as a result of the Paraka issue”. The words, “followed by a vehicle” cannot mean anything else other than evidence of intimidation of the First Applicant’s family.
The Tribunal does not state in its reasons exactly what the Tribunal considers to be the cause of this intimidation. If not the Paraka issue – then what? The car tailing incident occurred in July 2014. There is no other evidence of any other time that could have occurred. The Tribunal accepted that (the Seventh Applicant) and his cousin were followed by the motor vehicle. The Applicant had earlier given evidence that the risk to him in relation to the Paraka issue materialised in July 2014 – “because this was when there was disclosure in the media of the complaint that the Applicant had made in March 2012 to the National Fraud and Anticorruption Squad” (note paragraph 101 of the Tribunal’s decision).
July 2014 was a crucial month in relation to these events and in the Tribunal’s consideration of the evidence and the Tribunal’s decision. July 2014 was when the First Applicant maintained that his complaint to National Fraud and Anticorruption Squad became public. That is also the month that (the Seventh Applicant) and his cousin were followed by a motor vehicle.
In paragraph 102 of the Tribunal’s decision the Tribunal speculated that other people may have known about the intended complaint – because a man named Steve Gibson, the Secretary of the Department of Finance, had received a letter from the Applicant dated 12 February 2012 where he, Gibson, was apparently informed that the First Applicant intended making a complaint to the National Fraud and Anticorruption Squad. In what is nothing more than pure speculation the Tribunal said, essentially, if Gibson’s involvement in the corruption was true – “then it might well be expected that Gibson would have informed Paraka and other alleged conspirators, including the Prime Minister of the intended complaint by the First Applicant to the National Fraud and Anticorruption Squad”.
As I say, this is pure speculation on behalf of the Tribunal. It appears to be an attempt by the Tribunal to break the time nexus between the disclosure in the media that the First Applicant had made a complaint of corruption (in July 2014) and the date that (the Seventh Applicant) and his cousin were followed by a motor vehicle (July 2014).
As noted earlier, there is no indication from the Tribunal (in its reasons) as to why (the Seventh Applicant) and his cousin were followed by a motor vehicle. There is just a bare statement that the Tribunal was not satisfied that this was an attempt to intimidate the First Applicant and his family as a result of the Paraka issue. On an objective reading of paragraphs 81, 92, 101 and 102 of the Tribunal’s decision the following is apparent:
i)The Tribunal accepted that there was an incident where (the Seventh Applicant) and his cousin were followed by a motor vehicle;
ii)It must follow that this occurred in July 2014 – there being no other date suggested; and
iii)This was the same month, July 2014, when there was publication in the media of the complaint that had been made by the First Applicant to the National Fraud and Anticorruption squad in March 2012.
Rather than accept what appears to be the only logical or rational conclusion - namely that the car tailing incident occurred in the same month that there was a publication in the media relating to the First Applicant’s complaint to the National Fraud and Anticorruption Squad – the Tribunal did not reach the logical and rational conclusion but rather speculated that another person (Steve Gibson) “might” have engaged in some further unknown intrigue or conspiracy at some point in time prior to July 2014.
Also, in paragraph 92 of the Tribunal’s decision the Tribunal accepted that there was a visit to the family home in 2013 when individuals spoke to cousins. The Tribunal was not satisfied that the visit to the family home related to the Paraka matter. The words “a visit to the family home” can only mean intimidation of the First Applicant’s family by persons unknown. Like the car tailing incident (which the Tribunal also accepted) this is further evidence which in fact corroborates the main thrust of the First Applicant’s, and, indeed all the Applicants’ contentions – namely that intimidation, threats and “payback” are a fact of life in PNG. It is also corroborative of the evidence of Damaru in relation to the fact that “payback” is an unfortunate fact of life in PNG.
Second Concern
In paragraph 11(b) of the First Respondent’s written submissions it is stated that:-
“11(b). The evidence as to death threats towards the First Applicant in 2007 was inconsistent and unsatisfactory.”
This may well be the case. However this did not stop the Tribunal from making the following finding referred to in paragraph 99 of the Tribunal’s decision:-
“99. The Tribunal is prepared to accept that there may have been a death threat from an anonymous source round this point of time but the Tribunal is not satisfied that it relates to the Paraka issue.”
This finding by the Tribunal is stated in the present tense. It seems the Tribunal grudgingly accepted that the First Applicant had received a death threat at some point in time. Once again, whatever the reason for the death threat, or the source of the death threat, it is, at the very least, corroborative evidence (accepted by the Tribunal) of the extremely serious nature of the “payback” system that operates in PNG. Once again, this evidence corroborates the general thrust of the First Applicant’s contentions and corroborates the evidence of Damaru in relation to the culture of “payback” in PNG. A death threat received by any individual is extremely serious. But when such a threat is made to the Solicitor-General of a country it is a matter of the gravest concern.
Third Concern
In paragraph 100 of the Tribunal’s decision it states that:-
“100. Thirdly, the claim by the applicant that he is at risk of harm as a result of payback for making the complaint in March 2012 is not suggested by the fact that the applicant faced no threats or harm on this basis from this time until leaving for Australia in January 2013, or thereafter.”
The logical and rational explanation provided by the First Applicant to this “concern” – namely that the complaint was only made public in the media in July 2014 was not accepted by the Tribunal. This is the point of time when the Tribunal embarked on some speculation as to what Gibson may or may not have done prior to July 2014.
The Tribunal made no finding against the evidence of the First Applicant that the Paraka issue became public in July 2014. The Tribunal accepted that (the Seventh Applicant) and his cousin were followed by another motor vehicle – and, as indicated earlier, this car tailing incident can only be taken to have occurred in July 2014 (there being no other evidence or finding to the contrary).
The Tribunal therefore accepts that:-
i)In PNG, at some point in time, the First Applicant received a death threat – apparently, according to the Tribunal, as a result of the First Applicant carrying out his lawful duties as the Solicitor-General for PNG;
ii)That (the Seventh Applicant) and his cousin were intimidated by a person or persons unknown in a car-tailing incident; and
iii)That, in 2013, “individuals” visited the First Applicant’s family home situated in Port Moresby and “spoke to cousins”. This can only be an acceptance by the Tribunal as evidence of intimidation.
The fact that the Tribunal accepts that this sort of behaviour and conduct takes place in PNG is crucial to the First Applicant’s claim which is now before this Court for Judicial Review of the Tribunal's decision.
There seems to be no logical, rational or reasonable explanation provided by the Tribunal to explain why it is that it would accept, on the one hand, that such frightening and dangerous incidents occur in PNG – apparently all as a result of the First Applicant carrying out his lawful duties as the country’s Solicitor-General. But on the other hand, the Tribunal was not prepared to accept the independent, corroborative evidence of Detective Chief Superintendent Damaru contained in his letter of 9 October 2017 to the effect that the First Applicant will be targeted because he exposed the alleged corruption scandal involving lawyers and senior members of the Executive Branch of Government in PNG.
The Tribunal appears to undermine the “Third Concern” by inclusion of paragraph 109 in its decision. Paragraph 109 states that:-
“109. The Tribunal does acknowledge that the passage of time, definitive and public action being taken against Paraka following the applicant's complaint and the potential commencement of prosecutions against others are subsequent relevant factors that would impact on the risk to the applicant beyond that which occurred immediately after the complaint was made in 2012, before it was clear that it was being acted upon. These issues are discussed in additional credibility issues and in the cumulative consideration of the various credibility concerns identified.”
In paragraph 109 the Tribunal accepts and provides a sensible conclusion and answer to the concern which he had raised in paragraph 100 – namely that the Applicant had faced no threats or harm between March 2012 and January 2013 or thereafter. Paragraph 100 states:-
“100. Thirdly, the claim by the applicant that he is at risk of harm as a result of payback for making the complaint in March 2012 is not suggested by the fact that the applicant faced no threats or harm on this basis from this time until leaving for Australia in January 2013, or thereafter.”
In fact, paragraph 109 of the Tribunal's own decision undermines all of the Tribunal's observations, conclusions, speculations and findings from paragraph 100 to 108 – inclusive – of the Tribunal's decision.
In paragraph 108 the Tribunal said that the fact that the Applicant had not faced any difficulties in PNG after he made the complaint in March 2012 (until leaving for Australia) “is significantly undermining of a claim that the Applicant would be harmed as payback for making the complaint”.
The Tribunal then torpedoes its comments in paragraph 108 by including its finding in paragraph 109.
There is a reasonable acknowledgement contained in paragraph 109 of the Tribunal's decision. The Tribunal then, in paragraph 110, appears to backtrack on this acknowledgement by saying that it would have expected individuals from PNG to convey threats to the First Applicant while he has been present in Australia. The conclusion – seemingly – is that if persons connected with lawyers or with members of the Executive Branch of Government in PNG (or others in PNG) were willing to intimidate the First Applicant should he return to PNG – then the Tribunal would expect that those same persons would reasonably be expected to engage in similar criminal activity in Australia. That conclusion is not logical.
Fourth Concern
In paragraph 111 of the Tribunal's decision the Tribunal doubted the importance of the First Applicant's evidence as a witness in the various prosecutions is as significant as has been claimed. In Paragraph 114 of the Tribunal’s decision, the Tribunal did in fact acknowledge, “that the correspondence and statements of the (First) Applicant are important for any prosecution. As Solicitor-General at the time, the First Applicant is obviously in a key position to testify that procedures for the payment to Paraka were not followed”.
The Tribunal's “concern” stated in paragraph 111 is significantly watered down by the Tribunal itself when it acknowledged that the First Applicant was the Solicitor-General for PNG at the time of the alleged corruption and he is in “a key position” to testify that the procedures for the payments to Paraka were not followed. It would seem very odd indeed for an underling to give that evidence – when the former Solicitor-General is available and willing to give the evidence. Again, a lack of logic emerges in the credit assessment of the Tribunal.
In any event, the “Fourth Concern” is, in fact, irrelevant when one has regard to the letter from Damaru dated 9 October 2017. The “Fourth Concern” relates only to the question of the importance of the First Applicant's evidence in prosecutions. But in the penultimate paragraph of Damaru’s letter dated 9 October 2017. He makes it clear that:-
“The (First Applicant) will be targeted because he was the one who exposed the matter which eventuated with the police investigation and arrest made and the warrant of arrest issued for the arrest of the Prime Minister, Mr Peter O'Neill.”
Not only that, Detective Chief Superintendent Damaru points out that the giving of evidence by the First Applicant is “secondary”. This indicates that the primary reason that the First Applicant will be targeted is because he exposed the corruption.
Fifth Concern
In Paragraph 120 of the Tribunal's decision. It is stated –
“120. Fifthly, there has been shifting evidence as to when the Applicant and his family began to fear harm in returning to PNG.”
Paragraph 121 of the Tribunal’s decision contains two sentences. These two pieces of evidence given by the First Applicant cannot be said to be “inconsistent”. In paragraph 121 it is stated, inter alia:-
“121. Initially, in the interview with the delegate, the applicant indicated that he first began to become aware that there might be a danger to him and his family at the time that he gave his first statement to the police in July 2013. Later in the interview, the applicant indicated, in contrast, that the danger did not become apparent until about July 2014 when the applicant's 2012 complaint (and the arrest of Paraka) were reported in the media.…”
These two sentences indicate:-
i)July 2013 was the date when the Applicant “began to become aware that there might be a danger”;
ii)Later in the interview the Applicant indicated “…that the danger did not become apparent until about July 2014 when the Applicant's 2012 complaint (and the arrest of Paraka were reported in the media.”
A proper examination of the Tribunal's reasons therefore shows that there is in fact no inconsistency – as claimed by the Tribunal. A person might begin to become aware that there might be a danger to him at one point in time. At a later point in time, that danger may become apparent. This is another example of the Tribunal's illogical credit assessment of the First Applicant.
Sixth concern
This “concern” identified by the Tribunal suffers from the same illogicality highlighted in the fifth concern above. The Tribunal's own decision (paragraph 121) makes it clear that the danger did not become apparent until about July 2014 when the media reported the corruption issue – including the fact that it was the First Applicant who had made the 2012 complaint.
The fact that the First Applicant's wife returned to PNG numerous times after July 2013 is irrelevant. This was prior to the widespread reporting in the media. Criticism of the First Applicant because of his wife’s visit to PNG in December 2014 seems an exceptionally trivial reason to criticise the First Applicants' claims – especially in light of the fact that the Tribunal itself had already (in more than one paragraph of its decision) accepted that the ongoing developments in the Paraka case meant that the First Applicant’s fears built in momentum over a period of time.
Paragraph 128 of the Tribunal's decision shows that the First Applicant provided rational and reasonable explanations in relation to any return visits to PNG.
In paragraph 129 of the Tribunal's own decision it implicitly accepts that when the First Applicant returned to PNG in August 2014 for the purpose of providing his second statement to the Police that he (the First Applicant) received Police protection. The logical conclusion from this implicit acceptance by the Tribunal would have been – this is clearly strong corroborative evidence of the First Applicant's claims that he and his family will be in danger and that there is a real risk that they will suffer significant harm if they are required to return to PNG.
Instead, and illogically, the Tribunal includes this acceptance of the need and the provision of Police protection for the First Applicant in a list of “credibility concerns”.
Seventh Concern
The seventh concern in fact, appears to be a point in favour of the First Applicant. The First Applicant was so concerned about his safety and the safety of his family that he sent an email to the new Solicitor-General on 8 September 2014 requesting a posting to Rabaul – his home province. The Applicant never received a response to his request. Surely that indicates that such a posting was not going to happen. Three years elapsed from the date of the email to the date of the hearing before the Tribunal – and still no response.
The First Applicant held one of the highest legal positions in the country. He sought a transfer to his home province where he thought he “might” be safe. The only logical conclusion is that the transfer request was denied. Having regard to the findings made by the Tribunal in this part of its reasons – it is apparent that the only way that the First Applicant could continue his career would be in Port Moresby.
I note section 36 (2B)(a) of the Act states:
(2B) “however, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:-
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm.”
The new Solicitor-General did not respond to the First Applicant's request for a transfer to Rabaul. Obviously, there is no position available for the First Applicant in Rabaul. In any event, I note that the person at the centre of the corruption scandal, Mr Paul Paraka, has a law firm in Rabaul. Taken together it could not be said that it was reasonable in the particular circumstances of this case to expect that the former Solicitor-General of PNG should give up his career in the capital city and move to Rabaul (even if he could have obtained a position there).
The possibility of relocating to the province of New Ireland was also explored. However, in paragraph 137 the Tribunal itself acknowledged that it might not be reasonable for the First Applicant to relocate to New Ireland.
The seventh concern is not a logical “concern” about the First Applicant's credibility.
Eighth Concern
Paragraphs 138 to 141 of the Tribunal’s decision detail the Tribunal’s so-called “eighth concern” relating to the First Applicant's credibility. It seems there was a period of about six days in June 2015 where the First Applicant became so frustrated with the process and, noting his financially straitened circumstances, wrote to the Tribunal indicating that he would withdraw the application for Protection Visas. Indeed the letter of 23 June 2015 notes that he had applied for a position in the Solomon Islands. The application for a position in the Solomon Islands is further corroborative evidence of the First Applicant's real concerns about a return to PNG. Pending a possible appointment in the Solomon Islands the First Applicant (for a six-day period in June 2015) considered that what he might have to do is return to PNG to work in some capacity while he waited to hear the outcome of his job application in the Solomons. The explanations provided by the First Applicant were reasonable. The Tribunal itself accepted that the First Applicant and his family have been under “significant financial strain”. It is illogical and irrational for the Tribunal to maintain that what occurred over a six-day period in June 2015 amounts to a credibility concern relating to the First Applicant’s claims.
Ninth Concern
The “ninth concern” is stated in paragraph 142 of the Tribunal's decision. The Tribunal stated that:-
“142. Ninthly, the Tribunal does not consider that the independent evidence as to threats or harm to individuals in PNG linked to the corruption scandal in PNG arising out of the Paraka payments demonstrates that the applicant is at risk.”
Remarkably, and illogically, under this heading there is no reference by the Tribunal to the letter received from Detective Chief Superintendent Damaru dated 9 October 2017. Under this heading the Tribunal accepts:-
i)That the Paraka scandal is continuing – with the current issue being the potential arrest of the Prime Minister;
ii)That the Paraka scandal has created factions within law enforcement in PNG;
iii)The former “Task Force Sweep” and the National Fraud And Anticorruption Directorate have not been supported by other arms of law enforcement;
iv)Offices have been ransacked;
v)Protection Officers of an individual leading one of the corruption organisations have been “disarmed” and this person has made claims of being monitored;
vi)A man named Detective Sergeant Premenga seems to have been threatened or came under some form of attack in October 2014 – and the Tribunal acknowledged that this issue was linked to the divisions between law enforcement resulting from the Paraka scandal;
vii)The Tribunal accepted that the Premenga incident highlighted the significant tensions in relation to the Paraka issue;
viii)The Tribunal indicates that the only reported death threat was made to the Finance Minister, James Marape. But the Tribunal downplays this death threat by indicating that Mr Marape is a person who is implicated in the corruption scandal – rather than a politician who was seeking to highlight improper conduct. This is an irrational attempt to downplay the significance of a death threat having been made to a Minister of State. No matter what side of the “scandal” Mr Marape may be on – the fact that the Tribunal accepts that the death threat was made is further corroborative evidence of the culture of “payback” and “retaliation” in PNG; and
ix)The Tribunal acknowledges in paragraph 149 that Detective Chief Superintendent Damaru is an ongoing central player – being the person driving the prosecutions.
A logical assessment of the matters stated above – which were matters already accepted by the Tribunal – leads to a conclusion that there are indeed serious security concerns for the First Applicant and his family in PNG – especially given the fact that he was the person who exposed the corruption scandal. It is irrational and illogical for the Tribunal in paragraph 150 to refer to the “relatively minor importance of the (First) Applicant in any future prosecutions” – especially in light of the penultimate paragraph of Damaru’s letter dated 9 October 2017.
I note at paragraph 161 of the Tribunal's decision where it is stated:-
“161. In making its findings, the Tribunal has paid particular regard to the assessments of Detective Chief Superintendent Damaru. Given his key role in pursuing prosecutions in the Paraka matter his views are important.”
Paragraph 161 of the Tribunal's decision is only one part of the decision where reference is made to the important role of Detective Chief Superintendent Damaru. It is said by the Tribunal that it “paid particular regard to the evidence of Damaru”. The Tribunal then went on to downplay the risks highlighted by Damaru (particularly) in his letter of 9 October 2017. In paragraph 164 the Tribunal concludes:-
“164. The Tribunal has difficulty, for the reasons indicated, that there is a risk of ‘payback’ to the Applicant given no harm or threats to date.”
That is a reference to the nine credibility concerns raised by the Tribunal. The problem for the Tribunal is that, on a close examination of the so-called “credibility concerns” – they are, at best, minor and, in some instances, just plain wrong. It is both illogical and irrational to rely upon what could best be described as some relatively minor inconsistencies as a basis for dismissing the compelling corroborative evidence from Detective Chief Superintendent Damaru in his letter dated 9 October 2017 to the effect that the First Applicant will be targeted because he was the person who exposed the corruption scandal.
In DAO16 v Minister of Immigration and Border Protection [2018] FCAFC 2 the Full Court of the Federal Court of Australia stated, in paragraph 30, the relevant principles relating to “legal unreasonableness” and in doing so referred to the relevant principles derived from decisions of the High Court including SZMDS (supra) and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332:-
“RELEVANT PRINCIPLES: LEGAL UNREASONABLENESS
[30] The relevant principles can be summarised as follows.
(1) While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on Judicial Review: CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146 (CQG15) at [37]–[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration & Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration & Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:
135....A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
(3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration & Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), ‘[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].’ Equally, jurisdictional error may be established by ‘a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document’: SZLGP v Minister for Immigration & Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].
(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration & Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:
156…An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny….
(citations omitted)
(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]–[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, ‘extreme’ illogicality must be demonstrated ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions’ (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, ‘[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality’: CQG15 at [61].”
In the current case before the Court, the adverse credibility findings made by the Tribunal were critical to the Tribunal's decision that it was not satisfied that the Applicants met the criteria for the grant of a visa. The cases referred to in the quotation above from DOA16 (supra) make it clear, especially per Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at paragraph 56 and approved in CQG15 v Minister for Immigration Border Protection (2016) 253 FCR that:-
“56…Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…”
The adverse credit findings made by the Tribunal in the present case relate to what the Tribunal has identified as “inconsistencies” in the evidence of the First Applicant. The Tribunal also noted inconsistencies in the evidence of the First Applicant's sons. But, a proper reading of the findings made do not indicate that the Tribunal considered the evidence of the First Applicant to be “implausible”. That is, there was no finding that the First Applicant was untruthful. There is a finding that the Tribunal considered that the First Applicant had embellished. There were no findings made by the Tribunal based upon the demeanour of the Applicants in the giving of their evidence. The adverse credit findings here were solely based on instances of inconsistency.
From page 56 of the Court Book there is a letter dated 5 September 2017 from the Administrative Appeals Tribunal (Migration and Refugee Division), addressed as follows:-
“Detective Matthew Damaru,
Royal Papua New Guinea Constabulary
National Fraud and Anticorruption Directorate.”
The first point to note is that the letter is addressed incorrectly to “Detective Matthew Damaru”. That is not his rank. He is a “Detective Chief Superintendent”. There is a significant difference. Furthermore, this gentleman does not merely “work” at the National Fraud and Anticorruption Directorate – he is, in fact, the Director of the National Fraud and Anticorruption Directorate.
The Tribunal informed Detective Chief Superintendent Damaru that it was considering claims made by the First Applicant to the effect that the First Applicant and his family face a risk of serious or significant harm in PNG as a result of his complaints against unlawful payments – and also in relation to the First Applicant's involvement in future legal proceedings against certain alleged corrupt individuals. The Tribunal informed Detective Chief Superintendent Damaru that it had considered the two letters written by Damaru – dated 27 February 2015 and 10 August 2017. The Tribunal highlighted some of its concerns in relation to the letters provided by Damaru. The Tribunal went on to state on the second page of its letter dated 5 September 2017 (page 57 of the Court Book), inter alia:-
“The Tribunal requests further information from you as to your assessment of the risk faced by (the First Applicant) and his family in relation to (the First Applicant's) involvement in the Paraka payment scandal and ongoing prosecutions, and why there is a risk. The Tribunal would appreciate any information that you can provide concerning harm that has come to other potential witnesses in the proposed or ongoing prosecutions, or to law enforcement officials or politicians prosecuting the cases from a legal or political perspective.
The Tribunal has researched issues concerning the Paul Paraka scandal in PNG and identified instances where individuals have claimed to have been threatened or harmed. A summary of such events is attached, one of which involves yourself.”
The attachment is included at pages 59 and 60 of the Court Book. The attachment is entitled, “Instances of threats/harms researched by Tribunal in relation to Paul Paraka matter”. Under the heading on the attachment there is included (over the course of 1 ½ pages) a list of the instances of violent threats made and harm caused to people associated with the investigation of and the prosecution of the alleged corrupt individuals in PNG relating to the Paul Paraka matter. The Tribunal went on to state in its letter to Detective Chief Superintendent Damaru:-
“Given the Applicants involvement in those contexts, the Tribunal has some difficulty accepting that the First Applicant or his family would face a real chance of serious or significant harm, either in order to prevent him from giving evidence, or as ‘payback’ for making the complaint in the first place, or for any other reason. The Tribunal also notes that there is no evidence that the First Applicant or his family suffered any difficulties as a consequence of making the complaint in March 2012, despite the fact that Steve Gibson was told by the First Applicant that such a complaint was to be made. If Mr Gibson was involved in a criminal conspiracy, then it might be assumed that he would have informed his co-conspirators of the complaint.
The Tribunal would appreciate your comments. The Tribunal would be grateful for a response by 10 October 2017.”
Detective Chief Superintendent Damaru replied by letter dated 9 October 2017. That letter is contained at pages 61 and 62 of the Court Book. The Tribunal's decision discounts and provides very little weight to the dire warnings contained in Detective Chief Superintendent Damaru’s letter dated 9 October 2017. In discussing Damaru's letter dated 9 October 2017 (incorrectly referred to as having been dated 5 September 2017) the Tribunal concluded (as stated earlier) at paragraph 164:-
“The Tribunal has difficulty, for the reasons indicated, that there is a risk of ‘payback’ to the applicant given no harm or threats to date.”
The Tribunal at paragraph 162 of its decision again sought to undermine the warnings of harm provided by Damaru. The Tribunal said:-
“162….that no specific threats in this respect were ever made. Therefore the foundation on which this risk assessment is misconceived”
The final sentence of paragraph 162 is less than satisfactory. There are typographical errors. The sentence is not completed. There is no full stop. It seems the Tribunal was trying to indicate that the risk assessment provided by Damaru in his letter of 27 February 2015 was based on a misconceived foundation because the Tribunal had concluded that there were in fact no specific threats that had ever been made.
Earlier in these reasons for judgment I have detailed the Court’s conclusions relating to the Tribunal's process of reasoning in relation to this issue. This Court has already concluded that the adverse credit assessments made by the Tribunal were illogical and irrational. This is because there was no logical connection between the evidence and the conclusions drawn.
The Tribunal has failed to deal with certain matters. In its letter dated 5 September 2017 to Damaru the Tribunal told the Detective Chief Superintendent that in its view, “there is no evidence that the First Applicant or his family suffered any difficulties as a consequence of making the complaint in March 2012”. The Detective Chief Superintendent, therefore, was aware (because the Tribunal made him aware) that the Tribunal “has some difficulty accepting” that the First Applicant or his family would face a real chance of serious or significant harm – because the Tribunal had come to the view that neither the First Applicant nor his family had suffered any difficulties as a consequence of the First Applicant having made the complaint in March 2012. Damaru was informed of the fact that the Tribunal did not accept that there had been any threats or intimidation to date. Notwithstanding that fact – Detective Chief Superintendent Damaru explained in detail the types of risks and harm that would be faced by the First Applicant – and then the Detective Chief Superintendent went on to specifically confirm that the First Applicant “will be targeted”. The Tribunal did not address this specific issue. The Tribunal had told Damaru that it did not accept the First Applicant’s evidence that intimidation had already occurred. The dire warnings contained in Damaru’s letter of 9 October 2017 were therefore made even after Damaru had been told that the Tribunal did not accept that any previous threats or intimidation had occurred.
It is also important to note the following. At page 89 of the Court Book there is a letter dated 11 August 2017. It is signed by Dr Allan Marat. Dr Marat was the Attorney-General of Papua New Guinea from 2007 to 2011. He represents the constituents of Rabaul Open Electorate in East New Britain Province. Dr Marat has also served as the Deputy Prime Minister of PNG – as well as holding other positions in the PNG Cabinet. In his letter Dr Marat states, inter alia:-
“In my role as an Attorney-General during the period 2007 to 2011, (the First Applicant) served under me as the acting Solicitor-General of Papua New Guinea and then was duly appointed by me to the position of Solicitor-General.
…
With reference to his visa application that is currently pending, I am fully aware as a Member of the PNG Parliament that (the First Applicant) in his former capacity as Solicitor-General of Papua New Guinea, reported to the Royal PNG Constabulary’s National Fraud and Anti-Corruption Directorate (NFACD), the illegal payment of K71.8 million to a PNG lawyer known as Paul Paraka in 2012. This was after the payment was alleged to have been cleared by the Prime Minister of PNG.
I am fully aware of this as being a Member of the Opposition and we raised this matter on the floor of Parliament in 2013 based on documentary evidence provided to us, and it is a very sensitive case today. Since our re-elected Prime Minister was to be arrested and charged this week over this matter.
I am also fully aware as a national leader that this case is highly sensitive and poses a serious security concern for the (First Applicant) and his family, as our PNG Parliament is yet to debate and pass into law, our whistle blowers legislation.
Notwithstanding this, I am mindful as a leader that in order for this sensitive case to proceed, the (First Applicant) is still required to give evidence soon in this case when the PNG police require him to do so.”
I agree with the submission made by Mr Byrne of Counsel on behalf of the Applicants in relation to the Tribunal’s handling of the corroborative evidence of Dr Marat. Dr Marat’s evidence corroborates the evidence of Damaru and it corroborates the evidence of the First Applicant. But the Tribunal discounted the evidence of Dr Marat because of its concerns about inconsistencies in relation to “objectively minor matters of fact”.
I note the recent decision of the Federal Court of Australia in CWR16 v Minister for Immigration and Border Protection [2018] FCA 859. In that case Allsop CJ reviewed the authorities (including DAO16 (supra). At paragraph 62, Allsop CJ stated that:-
“62. The fact that a finding by the Tribunal is on a matter of credit does not ‘shield its decision-making processes from scrutiny’: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. As Flick J wrote later in that paragraph, credit findings, ‘like all findings, must be rationally made and based upon facts having logical and probative weight’. Determinations on credibility and weight must ‘be made rationally and logically, and be articulated properly’ and minor inconsistencies and trivial errors in an Applicant’s account cannot be used to find that an Applicant is not credible: SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [25] per Gordon J. Where the Tribunal goes on to use such minor inconsistencies or omissions to make an adverse credibility finding and conclude that an Applicant’s claims are concocted, without disclosing a legitimate articulable basis for the finding, then it may become apparent that a decision is based on illogical or irrational findings or inferences: SZLGP at [26].
63. Determining whether credibility findings are so irrational, illogical or unreasonable so as to be infected with jurisdictional error requires an examination of the facts of the case and of the Tribunal decision: SZRKT 212 FCR at 121 [77]; CQG15 at [36]-[44]; ARG15 250 FCR at 130 [83]; and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 353 ALR 641 at 649-650 [30].”
Having examined the facts of this present case, and having examined the Tribunal's decision. I have come to the conclusion that the inconsistencies highlighted by the Tribunal and which led the Tribunal to make adverse credit findings against the First Applicant were in fact “minor inconsistencies” and examples of “trivial errors” (note the wording used by Allsop CJ in CWR16 (supra) at paragraph 62). To use the words of Robertson J in SZRKT (Supra) at paragraph 78 the inconsistencies highlighted by the Tribunal in the present case were in relation to, “objectively minor matters of fact”. This is especially so when one has regard to the dire and serious consequences for the First Applicant and his family – clearly articulated in writing by Detective Chief Superintendent Damaru in his letter dated 9 October 2017. It seems to me that the process to be followed by this Court, having regard to the relevant authorities, requires the Court to consider the nature of the adverse credibility findings – and having examined those findings and the facts upon which they were based – those findings must then be weighed against the objective and independent evidence of Damaru. Damaru’s evidence is compelling. Furthermore, Damaru’s evidence corroborates the First Applicant's claims. No proper basis has been provided by the Tribunal for attempting to diminish, water-down or reject the evidence of Damaru. But, in effect, that is precisely what has occurred. The Tribunal attempted to explain that it merely gave less weight to the evidence of Damaru. In fact, what has occurred is a rejection of Damaru’s evidence.
The Tribunal concluded that the evidence of Damaru should not be given any meaningful weight because, the Tribunal said, that there was no evidence of any harm or threats or intimidation of the First Applicant or his family which (so the Tribunal concluded) could be linked to the Paraka affair and the related prosecutions.
However, that finding of fact by the Tribunal was “not supported by logical grounds” – (to use the words of Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 at 998 paragraph 37 – 38). The Tribunal accepted that the car tailing incident occurred. A review of the Tribunal's decision makes it clear that the car tailing incident occurred in July 2014. This is the same month (July 2014) that the media in PNG first published details of the Paraka scandal and the fact that it was the First Applicant who, as the Solicitor-General in 2012, had laid the first complaint alleging the corruption. The Tribunal ignored the co-relation of these two events – occurring as they did in July 2014.
Instead, the Tribunal seems to have concluded – based on its own speculation and not on any evidence – that because the former Finance Minister, Mr Steve Gibson, had been told in early 2012, of the possibility of a complaint being made – that it (the Tribunal) would have expected that Gibson (if indeed he was a party to the alleged corruption) would have told his co-conspirators what he knew. The Tribunal concluded that it would have expected (presumably) Gibson and/or others to commence intimidation well before July 2014.
The Tribunal's conclusion in relation to these important pieces of evidence can only mean that, in the Tribunal's view, the fact that the car tailing incident occurred in the same month that the story was published in the media must be a coincidence. The Tribunal did not use those words but there is no other explanation. There is, in fact, no logical connection between the evidence and the conclusion drawn by the Tribunal. The evidence is:–
i)The media broke the Paraka story (and the First Applicant's involvement in lodging the first complaint) in July 2014; and
ii)In that same month (July 2014) the First Applicant's son was threatened by the intimidation which occurred when the motor vehicle in which he was travelling in Port Moresby was followed by a person or persons unknown. This is the so-called “car tailing” incident. It cannot be viewed as anything other than a threat and/or intimidation of a member of the First Applicant's family.
The Tribunal's conclusion drawn from that evidence (including paragraphs (i) and (ii) above) was that there was “no harm or threats to date” (note paragraph 164 of the Tribunal's decision). There is no logical connection between the evidence and the conclusion reached by the Tribunal. Nonetheless, the Tribunal uses that illogical (and irrational) conclusion to reject (or at the very least to give no meaningful weight) to the dire warnings contained in the independent corroborative evidence provided by a high-ranking anticorruption official in PNG (Detective Chief Superintendent Damaru). It is difficult to conceive who would be better placed in PNG to provide more reliable evidence on the risks of harm facing the First Applicant and his family should they be required to return to PNG on a permanent basis. This conclusion reached by the Tribunal was illogical and irrational. It was used as the primary reason to (essentially) disregard Damaru’s evidence contained in his letter dated 9 October 2017. At the very least, the conclusion reached by the Tribunal was used as the primary or critical reason for ascribing no meaningful weight to that evidence of Damaru. In this regard I note paragraph 164 of the Tribunal's decision.
The illogicality and irrationality identified in this finding made by the Tribunal amounts to jurisdictional error. That finding was “critical to the Tribunal's decision that it was not satisfied that the First Applicant met the criteria for the grant of a (protection) visa”: to use the words of Wigney J in SZUXN (supra) at paragraph 56 – and quoted in DAO16 (supra) at paragraph 30.
This was one of the critical findings (part of the reasoning) that the Tribunal made “along the way”: DAO16 (supra) at paragraph 30. I also note per Crennan and Bell JJ in SZMDS (supra) at paragraph 132 where their Honours stated, inter alia:-
“132. Because illogicality or irrationality may constitute a basis for Judicial Review in the context of jurisdictional fact finding as explained above, it becomes necessary to decide whether the Tribunal’s conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error….”
The Tribunal also referred to the “cumulative impact of the credibility concerns” in concluding that Damaru's evidence should not be given any meaningful weight. I note what was said by Allsop CJ in CWR16 v Minister for Immigration and Border Protection [2018] FCA 859. From paragraph 75 His Honour reviewed the High Court decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1. In CWR16 (supra) Allsop CJ stated, inter alia:-
“75. The Minister submitted that the approach taken by the Tribunal of giving no weight to the witness statements due to its prior rejection of the appellant’s claims was open to it, based on the decision of Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165. In that case, Gleeson CJ said the following at 77 ALJR 1168–1169 [12]:
…The essence of the complaint is that the Tribunal failed to consider the evidence as a whole, but first considered, and disbelieved, the evidence of the applicant/appellant, without taking account of the corroboration, and then considered and rejected the corroboration because of the rejection of the evidence of the applicant/appellant. I do not accept that this is a fair criticism of the Tribunal’s reasons. In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant’s story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering. The member could have expressed herself more clearly. It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.”
Allsop CJ also noted what was stated by McHugh and Gummow JJ in Ex parte Applicant S20/2002 (supra) at paragraph 49. Their Honours stated, inter alia:-
“76. McHugh and Gummow JJ put the matter in the following way at 77 ALJR 1174 [49]:
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. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant’s argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.”
In considering the High Court decision in Ex parte Applicant S20/2002 (supra) Allsop CJ from paragraph 77 in CWR16 (supra) stated, inter alia:-
“77. These passages are well known. Counsel and trial judges can often recall such a situation. As that experience will indicate, those passages contemplate a situation where the credit of an applicant or witnesses has been so damaged as to justify the complete rejection of any corroborative evidence put forward in support. I would question whether in the circumstances of a case where adverse credibility findings are made based on inconsistency or implausibility, the principle described is truly applicable, particularly in the sense of it being appropriate, before an inquisitorial Tribunal, to make an a priori assessment of credibility based on such matters and then reject wholly, without detailed analysis or discussion, corroborative evidence on that basis.”
In the present case, there is no suggestion by the Tribunal that the First Applicant has fabricated his claims. There is no suggestion that the First Applicant has told lies. There is no suggestion that the account provided by the First Applicant is implausible.
The Tribunal did provide some analysis of the letter dated 9 October 2017 from Detective Chief Superintendent Damaru. It did not give his evidence any meaningful weight. Rejecting such compelling, independent corroborative evidence on the basis of adverse credit findings based on objectively minor inconsistencies in the Applicant's evidence was illogical and irrational and amounts to legal unreasonableness in the sense that that term is used in DOA16 (supra), and CWR16 (supra).
The inconsistencies in the Applicant’s evidence are objectively minor for a number of reasons including, in particular, the compelling nature of the independent corroborative evidence of Damaru and the serious consequences for the First Applicant and his family in the event that the Tribunal's assessment of their claims turns out to be wrong.
Furthermore, the Tribunal's decision, overall, was illogical and irrational and amounts to legal unreasonableness because:-
i)Some of the critical findings were illogical and irrational (as outlined in these reasons);
ii)The Tribunal accepted that intimidation had occurred, but the Tribunal, using illogical reasoning, failed to connect the intimidation and threatening conduct – in the form of the car tailing incident – to publicity surrounding the Paraka affair and the involvement of the First Applicant in exposing the corruption scandal;
iii)The credit findings made by the Tribunal related to objectively minor matters of fact; and
iv)The independent and compelling corroborative evidence of Detective Chief Superintendent Damaru was given no meaningful weight by the Tribunal.
All of these four matters were critical to the Tribunal's decision that it was not satisfied that the First Applicant (and his family) met the criteria for the grant of a protection visa (section 65 and section 36 of the Migration Act1958 (Cth)).
For the reasons stated, I have come to the conclusion that the Applicants are successful in their application for Judicial Review. The Tribunal has fallen into jurisdictional error. The appropriate constitutional writs should issue.
The parties are to forward to the Court an appropriate draft order reflecting the Reasons for Judgment.
I expect that costs will follow the event. In the event that either party wishes to be heard further on the question of costs they should contact the Court and the matter will be listed for a hearing on the question of costs prior to the making of the final order.
I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 18 October 2018
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