GDS18 v Minister for Home Affairs
[2019] FCCA 1944
•17 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GDS18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1944 |
| Catchwords: MIGRATION – Application for judicial review of Administrative Appeals Tribunal decision – decision to cancel the Applicant’s protection visa under s.109 of the Migration Act 1958 (Cth) – where Applicant travelled to home country, Iraq, on 4 occasions for a total of 32 months – claimed to be seeking kidney donor – where Tribunal found Applicant had provided incorrect answers in his visa application – whether Tribunal made unwarranted assumption that medical advice and procedures in Iraq are the same or similar to those in the United Kingdom – whether Tribunal made a finding of inconsistency based on false factual premises – whether Tribunal denied the Applicant procedural fairness in the conduct of the hearing. |
| Legislation: Migration Act 1985 (Cth), ss.101(b), 107, 109, 422B, 425, 476 |
| Cases cited: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576 Minister for Immigration & Multicultural & Indigenous Affairs v SCAR SZRHL v Minister for Immigration and Citizenship (2013) 136 ALD 641 SZRJS v Minister for Immigration and Citizenship [2013] FCA 682; (2013) 213 FCR 317 WAGO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 437 |
| Applicant: | GDS18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3300 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 7 May 2019 |
| Date of Last Submission: | 7 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 17 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Zipser |
| Solicitors for the Applicant: | Ms M Mamarot, South West Migration & Legal Services |
| Solicitors for the Respondent: | Ms D. Watson, Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3300 of 2018
| GDS18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act1958 (Cth) for judicial review of a decision of the Administrative Appeals Tribunal dated 24 October 2018. The Tribunal affirmed a decision of a Delegate of the First Respondent, the Minister for Home Affairs, to cancel the Applicant’s Class XA subclass 866 protection Visa on 13 June 2018. The application to this Court was filed on 26 November 2018.
The Applicant is an Iraqi national and a citizen of Iraq. He arrived in Australia on 27 November 2011 as an illegal maritime arrival. On 16 July 2012 the Applicant was granted the Visa.
Applicant’s claims
The Applicant claimed to be a Sunni Muslim born in 1983 in Al‑Basrah, Iraq. In his statement of claims seeking the Visa dated 18 February 2012 he claimed that he fled from Iraq as his life was in danger from the Shia militia in Iraq. He fled with his brother as both their lives were at risk after they had worked for the same American company, and had been threatened by the Shia militia.
As summarised in the Tribunal’s decision, and further summarised by the Minister in written submissions, with which statements the Applicant’s counsel, Mr Zipser, has not taken issue, the Applicant’s claims included:
(a)the Applicant and his brother Ahmed had been captured and tortured by the Shia militia in November 2006 because he and his brothers worked for an American logistics company in Iraq. One of his brothers gained his and Ahmed’s release;
(b)they returned to their employment in 2007, but the militia attended the house and took away another of his brothers while the Applicant hid and was not found. This brother was later found dead;
(c)nothing further happened until September 2011, when he and his brother received a threatening letter, and, fearing that they would also be killed, they tried to flee and applied for passports, but were told that a restriction had been placed on them by the militia, so they were not allowed to leave Iraq. A contact then arranged fake passports for him and his brother and they left Iraq, and eventually arrived in Australia.
In his statement of claims, the Applicant stated his fear that if he returned to Iraq he would face a real chance of being tortured and taken away by the militia; that he risked being killed on return due to the fact that he had worked for the Americans; and that he would be targeted because he was a Sunni Muslim. He said that in January 2012, the militia went to his home and took his paternal uncles, whom they accused of harbouring him and his brother, and detained them for 25 days until the family was able to raise enough money for their release. The Applicant claimed he had no defence against the militia. They control the government and have their hands in everywhere. The Iraqi government would not protect him from the militia. He would not be safe in Iraq. He had no place to hide. He would not be able to survive in Iraq and relocation to another area in the country was not a reasonable option.
Applicant’s post Visa background
According to a statutory declaration made by the Applicant in 2018, in 2012, shortly after obtaining his Visa:
(a)he was “told … by my doctor that my kidneys were so bad that I needed a “kidney transplant”, but that “the waiting time [in Australia] was around 7-10 years”;
(b)the Applicant commenced on dialysis 4 times per day, at Bankstown and Liverpool hospitals; and
eventually he had dialysis at home.
On 8 September 2015 the Applicant’s consultant nephrologist reported that the Applicant was “looking into the prospects of arranging a visa for [the Applicant’s] brother who is presently living in Iraq [and who] could act as a potential donor but will need to come to Australia to be investigated as to his suitability”.
On 2 November 2015 the Applicant undertook a test at a hospital in Basra, Ira q to check if his wife and sister were suitable donors.
On 31 March 2016, six days after returning from Iraq, the Applicant was admitted to Liverpool Hospital in Sydney “for the management of end stage renal failure”.
In May 2016, the Applicant reported to a registrar in the Renal Unit at Liverpool Hospital that he was “trying to organize for his wife to be investigated as a potential donor [but] this has been complicated by his wife not currently being a resident in Australia”.
On 8 June 2016 the Applicant’s wife applied for a Medical Treatment visa. A letter from the Renal Unit at Liverpool Hospital dated 17 May 2016 makes clear that the plan was that, following the wife’s arrival in Australia, a kidney transplant from the Applicant’s wife would take place at Liverpool Hospital.
On 29 June 2016 the Department of Immigration and Border Protection made a decision refusing to grant the wife a medical treatment visa.
As at 29 June 2016, the waiting time in Australia for a kidney transplant was “around 4 years”, and a GP reported that the Applicant was “trying his luck in another country where it might be cheaper and sooner than in Australia”.
Travel records obtained by the Department indicate that the Applicant left Australia and departed to Iraq four times between August 2012 and July 2017 as follows:
(a)17 August 2012 (entry at Erbil, Ira q) to 24 April 2013 – eight months;
(b)21 June 2014 to 24 April 2015 (entry and exit from Al-Basrah International Airport) – ten months;
(c)29 September 2015 to 25 March 2016 (entry and exit from Al-Basrah International Airport) – six months;
(d)13 November 2016 (entry at Erbil) to 5 July 2017 – eight months.
Visa Cancellation
On 13 June 2018, the Applicant’s Visa was cancelled under s.109 of the Act. The Delegate determined that the Applicant had provided incorrect information in his application form 866C for the Visa and not complied with s.101(b) of the Act.
Notice of Intention & International Treaties Obligation Assessment
Preceding the Delegate’s decision, the Department issued a Notice of intention to consider cancellation under s.109 of the Act dated 16 November 2017. The Notice contained the following statement:
You have stated that you feared harm from militia groups in Iraq and that they prevented you from applying for a passport and departing the country, you stated that you therefore could not return to Iraq. You have since obtained a passport and travelled to Iraq on four occasions for significant periods of time. As this information was material to the determination that you were owed protection, it appears that you do not hold the adverse profile that you have claimed and that you may not have engaged Australia's protection obligations.
As well as setting out the above statement, and noting that the Applicant had been granted the Visa on the basis of the information contained in the statement of claims, and the answers to the questions, including questions 45, 46, 47 and 48 in Form 866C, the Notice recorded the travel departure and arrival movements I have described above. The Notice also referred to the fact that an Iraqi passport in the Applicant’s name (the hidden passport) had been located in the luggage of another person who had entered Sydney airport on 24 June 2016. That person advised that the Applicant’s parents had requested that the person carry this passport back to Australia for the Applicant’s use. Stamps in the hidden passport indicated the Applicant had used it while in Iraq in late 2015 to travel from Iraq to Iran for a few days.
The Notice invited the Applicant to provide a response to the proposition that the Applicant had not complied with s.101(b) of the Act because he provided incorrect answers in his application for the Visa. I note that the Department re‑sent the Notice to different addresses in December 2017 and on 11 January 2018.
By letter dated 2 February 2018 the Applicant, by his migration agent, responded to the Notice. In summary, the response stated that the Applicant's answers given in his Visa application were correct. However, due to his circumstances it appears as if he did not comply with s.101(b) of the Act. In particular, the Applicant referred to his health deterioration as a result of his kidney disease as being the reason why he returned to Iraq on several occasions. He claimed that during these visits, he maintained a low profile, and focused on his health but that he had no alternative other than returning to Iraq due to his health issues. He also provided an explanation as to why he obtained an Iraqi passport, and why this passport was brought back by another person to Australia. He confirmed that he continues to fear for his life if he returns to Iraq.
An International Treaties Obligation Assessment (ITOA) was done in relation to the Applicant and concluded on 18 May 2018. In that ITOA the assessor noted that since obtaining his Visa on 16 July 2012 the Applicant had returned to Iraq on four occasions (see above at [14]). The Applicant's claim that he has a serious kidney disease, which ultimately resulted in a kidney transplant at the end of 2016, was noted and accepted. However, the assessor raised issues as to how the Applicant was able to obtain a valid Iraqi passport in circumstances where he had previously claimed in his statement of claims when applying for the Visa, that he had been unable to do so. Issues were also raised about the Applicant's claims where he stayed when he travelled to Iraq. In particular, the assessor concluded that the Applicant spent considerable time in the southern part of Iraq, where his family resides.
The ITOA assessor concluded that, having made four lengthy trips to Iraq for a total of 32 months between 2012 and 2017 and spent some 16 months in southern Iraq without apparent incident, the Applicant did not have a subjective fear of harm. Nor did the ITOA assessor accept that the Applicant had an adverse profile in Iraq for any Convention related reason. For similar reasons the ITOA also concluded that he was not a person to whom Australia had a non-refoulement obligation under other relevant international treaties.
The Delegate’s Decision
As I have said, the Delegate determined that the Applicant had provided incorrect information and not complied with s.101(b) of the Act. After considering various discretionary factors, the Delegate decided to cancel the Visa. The Delegate was satisfied that the Applicant had provided incorrect answers on his application form for the Visa, specifically in response to questions 45 to 48 in form 866C, which referred to the claims contained in the Applicant’s statement of claims (dated 18 February 2012). The Delegate summarised the incorrect information in response to the questions in form 866C as follows:
•In response to question 45 which asks “What do you fear may happen to you if you go back to that country?” the visa holder stated “Please refer to any documents which form part of the previous protection request and held by [the Department] referring to his claims he would be taken and tortured by the militia and possibly killed. This information appears to be incorrect as the visa holder has since returned to Iraq on four occasions without apparent impediment or harm.
•In response to question 46 which asks “Who do you think may harm / mistreat you if you go back?” the visa holder stated “Please refer to any documents which form part of the previous protection request and held by [the Department]” referring to his claims he feared harm from militia groups in Iraq. This information appears to be incorrect as the visa holder has since returned to Iraq on four occasions without apparent impediment or harm.
•In response to question 47 which asks “Why do you think this will happen to you if you go back?” the visa holder stated “Please refer to any documents which form part of the previous protection request and held by [the Department]” referring to his claims he feared harm from militia groups as he had a profile due to his employment with an American company. This information appears to be incorrect as he has since returned to Iraq on four occasions without apparent impediment or harm.
•In response to question 48 which asks “Do you think the authorities of that country can and will protect you if you go back?” the visa holder stated “Please refer to any documents which form part of the previous protection request and held by [the Department]” referring to his claims that the Iraqi Government could not protect him as they were controlled by the militia. This information appears to be incorrect as the visa holder has since obtained a new passport from the Iraqi authorities and have travelled back to Iraq on four occasions for significant periods of time without apparent impediment or harm.
Proceeding before the Tribunal
On 29 June 2018, the Applicant applied to the Tribunal. The migration agent acting for the Applicant throughout the cancellation process provided material to the Tribunal, including a statutory declaration from the Applicant dated 29 September 2018. On 4 October 2018, the Applicant attended a hearing before the Tribunal together with his migration agent, and had the assistance of an interpreter.
After the hearing, the Applicant’s agent provided to the Tribunal a post-hearing written submission, as foreshadowed by the agent, and permitted by the Tribunal member. The agent also provided a bundle of documents. The post-hearing submission contained a background chronology of events referenced to relevant law, and submissions seeking consideration of matters under the following heads: “Medical Treatment”, “Sunni vs Shia”, “Relocation” and “Condition 8559 – Schedule 8 Migration Regulations 996”. The documents attached to the submission are listed under the heading “Tender Bundle Part 3”, and comprised documents described as:
• Article@ ‘Renal Transplantation in Iraq: History, Current status, and Future Perspectives’ dated January 2016;
• 1619674 (Refugee) [2017] AATA 222 dated 5 February 2017;
• Country Information: Iraq: Sunni (Arab Muslims) dated August 2016;
• Evidence of renting premises in Kurdistan dated ‘various’, and
stated that “evidence of being Sunni- translation by NAATI Interpretor will be provided by Tuesday 16 Oct 18.” This evidence was subsequently provided.
The Tribunal accepted the Applicant’s medical condition. The Tribunal stated at [16] and [17] of its decision:
[16]At the beginning of the hearing the applicant was asked about the witness he had noted on his form and exactly what he would talk about. The applicant said that the witness knew all about his kidney condition and his trips to Iraq. The Tribunal established that the intended witness had no first-hand knowledge of the applicant’s activities in Iraq. The [Tribunal] advised the applicant that it accepted he had a kidney condition and the applicant was told that the Tribunal did not intend to call the witness because it accepted his medical condition but that if the applicant thought that something needed to be included then the Tribunal would call the witness. The applicant said that he understood.
[17] He was advised about the presence of a s 438 certificate. The Tribunal believes that the certificate was a valid one and the applicant was advised by the Tribunal that, while not all information that was covered by the certificate was relevant but the information that was relevant would be put to him during the hearing. The information that was considered relevant was the discovery of a valid Iraqi passport belonging to the applicant that was found during a search of another person’s luggage traveling through Sydney airport on a different day. The tribunal notes that this information was also previously put to the applicant in the Notice of Intention to Consider Cancellation.
The Applicant was asked why he returned to Iraq for nearly three years over four visits, and the Tribunal recorded the Applicant’s responses at [21] and [22] as follows (without amendment):
[21] Asked why he returned for nearly three years over four visits even though he had claimed he would be killed by Shi’a militias and had nowhere to hide. He claimed he went to Kurdistan in the north where his doctor was. Asked about his points of entry he noted the following:
a. August 2012. Flew into Irbil direct from Abu Dhabi (he never left Irbil)
b. June 2014-April 2015: Entered through Basra airport then drove in a private taxi to Irbil. Asked why he didn’t fly to Irbil direct, he claimed that it was an urgent booking and could only find seats into Basra. It was put to him that it was dangerous going to Basra, and he claimed all his life was in danger;
c. Sep 2015: Same as previous. Landed in Basra then taxi to Irbil. He also went to Iran for four days to look for a kidney. He got a taxi from Irbil back to Basra and then entered Iran through the land border close to the border. He didn’t stop in Basra to see anyone. He used an Iraqi passport his brother Abdullah organised (he lived in Basra) as they wouldn’t accept an Australian travel document. He later changed this to his brother Khalaf. Asked why he didn’t enter Iran through the crossing closest to Irbil rather than risk coming back to Basra, he claimed that the passport only allowed him to leave through Sharamshah as his brother had contacts there who wouldn’t enter his details on the computer. In Irbil they are Kurds and don’t speak Arabic.
d. In November 2016 he entered through Irbil directly and had a kidney transplant done there. Asked if he had entry stamps showing him entering Irbil he said that they were all contained in his passport.
[22] Asked why he entered Iraq on four occasions even though he had claimed there was nowhere for him to hide in that country, he claimed that he went to look for a kidney and the process would take many years in Australia. His brother, sister and wife were also all looking for him – they found him on and he had a transplant and would now never go back.
An issue which concerned the Tribunal was why the Applicant’s brother who ultimately gave him his kidney in 2016, did not give it to him in 2012. The Tribunal at [25] to [28] recorded its discussion of this concern with the Applicant:
[25] He said he put his life at risk to do this and it was either to die from dialysis or from opponents. Asked where he got his kidney from that was transplanted, he said his wife wished to come to Australia but her application was rejected. His brother Abdullah gave him his kidney in 2016. Asked why Abdullah didn’t give it to him in 2012, he claimed they were afraid but later realised that his situation was very serious.
[26] It was put to him that he had previously said he was desperate to find a kidney transplant and he was searching everywhere and went to Kurdistan regardless of the dangers but couldn’t find a kidney donor anywhere. Country information was put to him that siblings and close family members were most likely to have compatible kidneys for transplant and, if he was so desperate for a kidney in 2012 then surely his siblings would have been the first tested. Given his brother donated a kidney in 2016 it was strange that he searched for four years for a donor when he could have received one in 2012 from his brother. The delay didn’t appear to make sense.
[27] He claimed his situation deteriorated quickly and his brother donated it because they had tried to treat it previously. It was put to him that they would surely have tested his siblings in 2012 for their compatibility. He claimed they were tested in 2015 but they were too scared earlier. He was asked why they were too scared to be tested, and he said that they were scared to donate but did it when the situation was too serious for him. It was put to him that tests were only blood tests, and he said that only his brother turned out to be compatible.
[28] He was again asked why his brother wasn’t tested in 2012 and why they sought to bring his wife and children to Australia for testing when his brother hadn’t been tested. It raised concerns in the Tribunal’s mind that this was simply a ploy to get his wife and children into Australia given neither he nor his doctors appeared to have tried to find the compatibility of his siblings. He claimed there was compatibility because she was his paternal cousin. It was put to him that this did not automatically mean she was compatible. He claimed that he applied for his wife and two of his children but this was rejected. He and his wife had lived in Basra only – his wife’s family was from Basra.
At [42] the Tribunal returned to the subject of the Applicant’s brother Abdullah, who ultimately donated his kidney, and recorded the Tribunal’s discussion with the Applicant, as follows:
[42]Abdullah was in Basra but he was young and didn’t work in trucks and was with the applicant’s wife and children. Asked how old he was, he said Abdullah was 20 (he was actually 26 years old according to the applicant’s visa application). He was asked why Abdullah wasn’t kidnapped and killed, or used to draw Khalaf or the applicant to return to Basra, or targeted by the Shi’a militia in Basra and he claimed that Abdullah didn’t work with the Americans. It was put to him that Abdullah was Sunni which should have meant he was targeted if his claim that Sunnis in Iraq were being targeted. He claimed that Abdullah was very vulnerable and anything to happen to him at any time as the situation in Basra was very bad.
At [45] the Tribunal described “country information” it put to the Applicant as follows:
[45]Country information was put to him that there were seven renal transplant programs in Iraq currently, including one in Basra and Basra nephrology and transplant centre had opened with the support of the centre in Baghdad and that around 500 transplants were conducted in Iraq annually. On the one hand he had said that treatment wasn’t available in Iraq yet he had travelled there on four occasions to receive treatment which indicated that he had confidence in the Iraqi medical system. The medical facilities simply had to be sufficient to return to in Iraq, not the same as in Australia.
At [46] the Tribunal summarised its concerns as follows:
[46]The Tribunal had concerns that he had not spent all his time in Kurdistan and it made no sense that he hadn’t tested his siblings for compatibility. The Tribunal had concerns that the Shi’a militia had no interest in him given the presence of two brothers living in Iraq and he had returned there four times despite previously claiming that nowhere in Iraq was safe. There were also concerns that he was not even Sunni but was Shi’a, that he was never on a list stopping him from getting a passport and the hiding of an Iraqi passport in someone else’s luggage was because he knew this would be against his previous claim. Concerns were also apparent that he may never have been detained, tortured or given a threatening letter. Country information also indicated that medical facilities were available for his condition and he had a wide family support network in Iraq, including his immediate family.
The Tribunal then set out its analysis of the evidence and its critique at [49] to [54], as follows:
[49]While I accept that the applicant has had a kidney disease and had a transplant in Iraq, I am not satisfied that the applicant has travelled to Iraq exclusively to search for a donor and to undertake the procedure. To begin with, country information indicates that siblings and other close family relatives are generally the most suitable donors and that they are tested via blood tests and other non-invasive procedures to assess their suitability.
[50]Given this, his brother’s (who ultimately donated his kidney) suitability could have been established very early on in the process. The applicant had claimed that his siblings were scared of the procedure (meaning the live kidney transplant rather than the compatibility testing procedure which is non-invasive) and that he and his brother spent years searching for a kidney without success, and his brother only donated the kidney once the situation became very serious. The issue of interest to the Tribunal however, is not whether they were scared to donate, but that the applicant claims that no family member underwent basic tests (such as blood tests) to see whether they were compatible. It is reasonable to believe that the applicant’s doctors in Iraq would have done this early on in the consultation stage when the applicant claimed he returned to Iraq for the sole purpose of seeking a donor.
[51]The applicant’s willingness to return to Iraq on four occasions is also inconsistent with his claim made in his protection visa application that he had no place to hide and would not be safe or able to survive in Iraq. Not only did he survive, he was able to father a child and to receive a kidney transplant in the nearly three years (over four occasions) in which he lived there.
[52]I do not accept that he exclusively went to Kurdistan and only transited through Basra (or caught a service taxi from there) as he could not get a direct flight. This does not explain why he did not route through Baghdad and avoid Basra entirely (the alleged location of his persecution and of his family), or even use another carrier entirely.
[53]I also note that his response to the Notification of Intent to Cancel stated that ‘he departed to Basra al-Sadr teaching hospital for ABO cross match’ (folio [x]) and there are some medical reports from 2 November 2015 in the name of [Applicant] (the applicant’s name) from the same hospital (folios [y] & [z]) which is inconsistent with his claim that he spent no time at all in Basra. While I am willing to accept that he spent some time in Irbil, Kurdistan I am satisfied that he also spent considerable periods of time in Basra with his family.
[54] I do not accept his claim that his doctor in Irbil sent him to see a specialist in Basra and that he went there on a day trip but didn’t stay there because it was unsafe. It lacks credibility that the hospital that had already treated the applicant and that would perform his kidney transplant would not have the requisite specialist and would send the applicant to a place as allegedly dangerous as Basra for a consultation. The applicant appears to have attended an ultrasound and x-ray specialist (folio [A]) in Basra and it lacks credibility that the kidney transplant hospital in Irbil did not have such a specialist within its facility or elsewhere in Irbil. Nor does it explain why he was only sent all the way to have an ultrasound in Basra on only one occasion in the four visits to Iraq.
At [49] the Tribunal referred to, and footnoted, what it described as “country information”. The article footnoted is titled “Organ Donation and Transplantation - Kidney transplants from relatives and friends” from the National Kidney Federation UK’s website, written on 1 May 2000, and accessed on 15 October 2018.
In sum, the Tribunal accepted that the Applicant had a kidney condition, but was not satisfied that the Applicant had travelled to Iraq exclusively to search for a donor and to undertake the procedure. It did not find the Applicant's claim credible that this was the sole reason for his numerous visits in light of the information that only more recently had any tests been done on family members to assess their compatibility to be a donor (at [50]).
The Tribunal considered the Applicant's multiple visits back to Iraq to be incompatible with his initial claim in his Visa application that there was no place to hide in Iraq, and nowhere for him to be safe. It noted that during his visits he was able to secure a kidney transplant, and father a child during the periods of time he lived there. The Tribunal did not accept the Applicant's explanation as to why he had only transited through Basra but spent the majority of his time in Kurdistan. The Tribunal considered that the Applicant's explanation of having no alternative but to transit through Basra was not credible, for the reasons set out at [52]. Some of the documents provided by the Applicant also supported that he had spent time in Basra, and his explanation that this was only for a day was not accepted, for reasons set out at [53]-[54].
The Tribunal also considered that the Applicant's initial claims which resulted in him being granted the Visa lacked credibility. The Tribunal said that this was not only due to the Applicant’s frequent travel back to Iraq but also due to the fact that one of his brothers, who had the same shared history as the Applicant, had remained in Iraq unmolested for the past 6 years. The Tribunal noted that another brother who had lived with the Applicant's family had also been left alone (at [61] and [62]).
The Tribunal was satisfied that the Applicant would receive medical support in Iraq, and gave reasons why it doubted the veracity of some of the Applicant’s medical evidence (at [65]-[66]). The Tribunal concluded that the Applicant had fabricated his underlying claim to fear harm in Iraq, which resulted in the grant of the Visa, and, therefore, gave incorrect answers to the questions identified in the Notice. It was satisfied that there was non-compliance with s.101 in the way described in the Notice issued pursuant to s.107 of the Act. The Tribunal then went on to consider discretionary matters (from [73] to [88]), and concluded, stating it had regard to all of the matters set out in the decision, that the Visa should be cancelled.
Grounds of review
The application for judicial review contains three grounds, the first two of which are directed to the finding that the Applicant did not comply with s.101 of the Act, and the third involving a claim of failure to comply with s.425 of the Act in relation to the way that the hearing was conducted, that is, that there was a want of procedural fairness. The Applicant pressed each of these grounds of review at the hearing before me. The grounds of review are as follows (without alteration):
1. The Administrative Appeals Tribunal ("the Tribunal") found at [49] that it was "not satisfied that the applicant has travelled to Iraq exclusively to search for a donor and to undertake the [transplant] procedure". The Tribunal based this conclusion on UK country information which "indicates that siblings and other close family relatives are generally the most suitable donors and ... are tested via blood tests ... to assess their suitability", and on its view at [50] that "it is reasonable to believe that the applicant's doctors in Iraq would have done this early on in the consultation stage when the applicant claimed he returned to Iraq for the sole purpose of seeking a donor". There are two errors in the Tribunal's reasoning process leading to the conclusion at [49]. First, it is not appropriate for the Tribunal to base a conclusion concerning medical advice and procedures in Iraq on country information concerning medical procedures in the UK. Second, the Tribunal's finding at [50] as to what "the applicant's doctors in Iraq would have done" does not follow from the country information at [49]. The Tribunal's reasoning process is irrational or illogical. For one or both reasons, the Tribunal's finding at [49] is infected by jurisdictional error.
2. The Tribunal at [53] asserted that the applicant "claim[ed] that he spent no time in Basra" and made a consequential adverse finding of inconsistency against the applicant. However, the applicant never claimed that he spent no time in Basra. For the Tribunal to wrongly assert a claim by the applicant and then make an adverse credibility finding against the applicant because of its mistake is a jurisdictional error.
3. On 4 October 2018 the applicant attended a hearing before the Tribunal. At one point during the hearing the Tribunal member spent 10 minutes putting multiple concerns to the applicant, following which the member invited the applicant to comment. Such conduct by the Tribunal was procedurally unfair. In the circumstances, the applicant was denied procedural fairness, and the Tribunal breached s 425 of the Migration Act 1958 (Cth) by not giving the applicant a fair hearing.
The proceeding before me
The Applicant is in immigration detention at Villawood. Mr Zipser of Counsel appeared for the Applicant, and the Applicant, at Villawood, listened to the course of the hearing by telephone, and, I was informed, with the assistance of an English speaking roommate. Ms Watson, solicitor, appeared for the Minister. I note that at the commencement of the hearing, Mr Zipser accepted that he faced some hurdles in seeking to persuade the Court, and he put his submissions appropriately, and with care.
The evidence before me comprised a court book of documents of material before the Tribunal and from the Department’s records, collated by Ms Watson’s client, and the transcript of the oral hearing before the Tribunal on 4 October 2018.
Ground 1
In relation to ground 1, the question of significance for the Tribunal was why the Applicant returned to Iraq four times over the period 2012 to 2017, and why his brother and other siblings were not tested before 2015. The Tribunal was also concerned with the Applicant’s entries into Basrah (also referred to as Basra).
Mr Zipser focused on the Tribunal’s decision at [49] and [50] (see above at [31]), and submitted that the error in the Tribunal’s findings and reasoning process are that it is not appropriate for the Tribunal to base a conclusion concerning medical advice and procedures in Iraq on country information concerning medical procedures in the United Kingdom.
Mr Zipser submitted that the Tribunal made an assumption that in relation to kidney donations and transplants, medical advice and procedures in Iraq are the same or similar to those in the United Kingdom, but that this assumption is unwarranted. Mr Zipser referred to WAGO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 437 at [54]:
The unwarranted assumptions of the Tribunal as to matters relevant to formation of a view on the credibility of the corroborative witness caused the Tribunal to disbelieve and disregard that evidence and constituted a failure by the Tribunal to duly consider the question raised by the material put before it: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gleeson CJ at [4]. Although the remarks of the Chief Justice in Aala were directed to entitlement to review by constitutional writ on the ground of absence of authority for the Tribunal to make a decision that exercised the decision-making power in a manner that was not procedurally fair, his Honour’s comments are equally pertinent to an unauthorised exercise of decision-making power that results from the Tribunal failing to take into account relevant material. In misunderstanding the material before it, the Tribunal thereby failed to have regard to relevant material, resulting in a decision for which the Tribunal had neither authority nor jurisdiction under the Act: Yusuf per McHugh, Gummow and Hayne JJ at [82]-[85]. It follows that grounds for review of the Tribunal’s decision arise under s 476(1)(b) and (c) of the Act.
Mr Zipser concedes that the Tribunal put this “country information” to the Applicant and invited him to comment on it (see Tribunal decision at [26]). He accepts that the answer given by the Applicant was that his siblings were scared, meaning scared of the operation.
I accept Ms Watson’s submission that it is a misnomer to refer to this information as “country information”. Rather, it is medical information. That information is to the effect that siblings and close relatives are generally the most suitable donors for kidney transplants. The information relied on was medical information about kidney organ donation and that blood tests, that is non-invasive tests, were used to assess a donor’s suitability.
The Tribunal had evidence before it of blood testing in Iraq, as is evident from the transcript at pages 28 and 29:
INTERVIEWER: Why didn’t your brothers and your sisters have been the first ones tested to see who is compatible because Abdullah’s obviously compatible so why didn’t he donate it in 2012? Why did you have to wait four years to do that? It doesn’t make sense.
INTERPRETER: [Arabic]
CLIENT1: [Arabic]
INTERPRETER: When my situation disintegrated extremely and I was hopeless…
CLIENT1: [Arabic]
INTERPRETER: Because—at the beginning they were trying to solve the problem through treatment or—and when they didn’t find any treatment and I was hopeless and desperate, and he gave it to me.
INTERVIEWER: Obviously they tested you in 2012 to make sure that he is potentially a donor, did they test all of your siblings in 2012? That’s the obvious thing to do surely.
INTERPRETER: [Arabic]
CLIENT1: [Arabic]
INTERPRETER: Eventually, they were tested in 2016 because at the beginning they were scared.
INTERVIEWER: Scared to be tested? I don’t understand why you’d be scared to be tested.
INTERPRETER: [Arabic]
CLIENT1: [Arabic]
INTERPRETER: They were scared to give me an organ because it’s not an easy process, and when they realised that my situation deteriorated dramatically, then they gave me a scan.
INTERVIEWER: Now, when you mean testing, it’s just blood testing to make sure there’s compatibility, is it not?
INTERPRETER: [Arabic]
CLIENT1: [Arabic]
INTERPRETER: In terms of compatibility, it’s only my brother who was compatible. When we did the testing 2015/2016, it turned out that he was compatible and the right one to give me the kidney.
Consideration
The Applicant’s response to questioning about the evidence that his brothers did not wish to submit to being tested in 2012 reveals that their concern was that they were scared to be kidney donors. The Applicant did not take issue with the Tribunal’s propositions that blood testing for compatibility was available in Iraq in 2012, and that testing siblings was “the obvious thing to do”. The Applicant’s further responses about the testing undertaken in 2015/2016 demonstrate his acceptance that the testing was just blood testing to make sure there is compatibility.
The evidence in the court book is that the Tribunal had before it 2015 blood compatibility cross-match information relevant to the Applicant and a potential donee with the same family name from an Iraqi hospital laboratory.
I do not consider that the Tribunal has relied on “country information” (at [49] to [50]) that led to an unwarranted assumption. The Tribunal’s concern was to test whether the Applicant’s visits to Iraq were for the exclusive purpose of seeking a kidney donor. In inquiry about the Applicant’s claimed motive for return, the Tribunal sought the Applicant’s explanation why testing of family members, particularly siblings, was not done in 2012, early in the Applicant’s consultation process in Iraq in seeking to identify a potential donor.
The Applicant’s evidence is that his siblings were scared of finding out that they were compatible and would have to donate a kidney. He does not dispute the propositions that the Tribunal put that the siblings and other close family members are generally the most suitable donors, that donor/donee compatibility can be established by blood tests, and that it was reasonable to believe that such testing was available to the Applicant’s doctors in Iraq, and that his Iraqi doctors would have sought to administer such tests on siblings early in the consultation process.
Implicit in the Tribunal’s reasoning is that had the Applicant returned to Iraq exclusively to find a kidney donor, his siblings would have undergone blood tests for donor compatibility on his first return visit, in 2012, and if they didn’t have such tests, then the return visits were unlikely to be exclusively for the purpose of finding a kidney donor.
I do not consider that the assumptions about the state of medical knowledge, and availability, of blood tests in Iraq was unwarranted, nor that the Tribunal’s reliance on that medical information in assessing the Applicant’s credibility was unwarranted.
In my view, the assumptions that the Tribunal made were reasonably open to it, namely that siblings and other close family relatives are generally the most suitable donors, that they are tested by blood tests, and that it was reasonable to believe that such tests were available, and in light of the Applicant’s claims that when he returned to Iraq in the period 2012 to 2016, he did so for the sole purpose of seeking a donor (that is, on each of the four visits), that the Applicant’s doctors in Iraq would have administered such tests early on in the consultation process.
Whilst awkwardly expressed, I do not consider that the Tribunal’s assumptions give rise to jurisdictional error as described in WAGO. Mr Zipser’s written submissions asserted a second error – that the Tribunal’s reasoning process is irrational or illogical, however, he expressly did not press that argument at hearing. I note in this regard in any event the recent decision of the Full Federal Court in the matter of Fattah v Minister for Home Affairs [2019] FCAFC 31 at [45], which contains a useful summary of illogicality.
It follows from the above, that ground 1 is not made out.
Ground 2
Mr Zipser directs the Court’s attention to the statement by the Tribunal at [53] that the Tribunal found that the Applicant departed to Basra Al Sadr Teaching Hospital for ABO cross match, and that there were some medical reports from 2 November 2015 from the same hospital, were “inconsistent with his claim that he spent no time at all in Basra”. Mr Zipser submitted that the Applicant, however, never claimed he spent no time in Basra.
Mr Zipser submits that the Tribunal’s finding of inconsistency of the Applicant’s claims at [53] was then relied on by the Tribunal for further findings of inconsistencies at [65] and at [68] of the Tribunal’s reasons. He submits the Tribunal:
(a)wrongly asserted at [53] that the Applicant claimed “that he spent no time at all in Basra” when he did not make this claim;
(b)made a finding of “inconsistency” at [53] based on the false factual premise; and
(c)relied on this finding of “inconsistency” at [65] to make an adverse credibility finding against the Applicant; and
(d)relied on this finding of “inconsistency” at [68] to reject other evidence given on behalf of the Applicant.
At [65] the Tribunal said, “…I have already noted several instances of inconsistencies in his claims that call into question his credibility as a witness…”, and at [68] the Tribunal said, “…there is nothing contained in the submission from the Applicant’s advisor that is of sufficient relevance to outweigh the inconsistencies evident throughout the Applicant’s claims, such as the ability of his brothers (one of whom allegedly worked for the same US logistics company) to live in Iraq unmolested for the past six years, even though at least one was wanted by the Shia militias, … or concerns about the plausibility of his account such as going to Basra for a specialist appointment on one day from Erbil [Irbil] and never having visited it on any other occasion, or his brother or siblings not being tested for their compatibility as kidney donors until 2015.”
The Applicant submits that the Tribunal thus sets up a straw man, finds inconsistencies, and therefore concludes the Applicant is not credible. If the Applicant never made the claim in the first place, then the Tribunal has “damned the Applicant on a false premise”. Mr Zipser submits that the finding at [53] is not simply loose language, but rather a finding on which it continued to rely. He relies on SZRHL v Minister for Immigration and Citizenship (2013) 136 ALD 641; [2013] FCA 1093 at [34] and [35] where Logan J stated:
[34] As I opined by reference to earlier authority in SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 at [37], “the adjectives ‘ignorant’, ‘arbitrary’ and ‘perverse’ aptly apply to a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise”. That is this case. The process of reasoning that led to the damning of the first appellant’s credibility by the Tribunal was premised upon the basis that a reference to a “false case” laid against him in the courts of Bangladesh had only emerged belatedly, as opposed to when the visa application was made. That premise was not peripheral.
[35] One way of characterising the Tribunal’s reasoning as to the first appellant’s absence of credibility is that it, based as it is upon a false premise, it is illogical or irrational. That is the alternative way in which the appellants grounded their challenge in the court below to the Tribunal’s decision and, in this Court, put their case that the Federal Magistrates Court had fallen into error. A decision so based is not “within the range of possible acceptable outcomes” (Li at [105]).
Mr Zipser submits this reasoning process applies to the present matter.
Mr Zipser points to instances where the Applicant referred to time spent in Basra in his response to the Notice, in his 29 September 2018 statutory declaration, and during the oral hearing before the Tribunal:
(a)in his response to the Notice, he stated that he attended Basra Al Sadr Teaching Hospital during a visit to Iraq;
(b)in his statutory declaration, he stated, at [35]: “During this visit my doctor in Kurdistan referred me to a specialist near Bashra, Iraq. I took a taxi from Kurdistan to see the specialist. It was a daytrip and I didn’t stay in Bashra because it wasn’t safe. The specialist was fair and acceptable. He only charged me US$50. Other doctors often ask for US$200. I went to get treatment and he gave me medication for my kidneys. The taxi cost less than US$100.”;
(c)during his interview at the hearing before the Tribunal, he acknowledged that he flew from Australia into Basra in his trips in 2014 and 2015:
(i)in relation to the trip in 2014, in response to a question about the point where the Applicant entered Iraq in 2014 the Applicant said through the interpreter: “From Sydney on Etihad to Basra, and then straightaway through the transits, and then straightway to Erbil. And I was renting in Erbil so I went straightaway from the airport to Erbil.” In a further exchange when the Tribunal (interviewer) again asked, “In 2014 why didn’t you fly straight into Erbil?” the Applicant answered, “I booked and it was urgent booking. And because I didn’t find the seats, I went to Basra. And from the Basra I caught a taxi that took me straightaway to Erbil.” (transcript pp.18-19);
(ii)in relation to his entry into Iraq in September 2015, the Applicant said: “It was the same steps. I went on Etihad to Basra and then from Basra to Erbil. And then also I went to Iran in order to find a kidney for a kidney transplant, but I didn’t find any.” (transcript p.19). He gave evidence to similar effect when the Tribunal reiterated the question (at transcript p.20).
I note that the Tribunal again returned to the September 2015 trip later during the hearing. At transcript p.23, the following exchange occurred:
INTERVIEWER: So you drove from Erbil back down to Basra and then crossed into Iran at the closest border crossing from Basra. Is that correct?
INTERPRETER: But I wasn’t driving; it was a taxi…
INTERVIEWER: Did you stop in Basra – visit some relatives?
INTERPRETER: On the way, but I didn’t stop at Basra and it wasn’t my brother Abdullah, it was my brother Khalaf who accompanied me.
INTERVIEWER: So why did you come back down to Basra? Why didn’t you just drive through from Erbil across into Iraq? Why risk coming back down to Basra?
INTERPRETER: Because the passport that my brother organised for me would enable me to go through the crossing point of Sharamshah because he had connections there and then they would not use the computer. And only have a look at it and then we could be let in.
Further evidence given by the Applicant at the hearing before the Tribunal relevant to time in Basra is set out in the transcript at p.25:
INTERVIEWER: So, how is it that you could – so, you had no place to hide in Iraq, but yet lived there for nearly three years without any problems.
INTERPRETER: It wasn’t three years in a row and I was living there for 6/7 months looking for the kidney – doing the – or receiving the treatment. I was coming back and forth. I didn’t live in Baghdad. I didn’t live in Basra. My brother, my sister – everybody was looking with me for a kidney. I lived in the north of Iraq because, there, there is a stable government. Yes, when I – I stayed up there up until I did the kidney transplant and then I came back.
And at transcript p.30:
INTERVIEWER: …and your wife’s always lived in Basra?
INTERPRETER: Yes.
INTERVIEWER: And you guys live in Basra?
INTERPRETER: I didn’t live there. I was in Erbil, but then she was coming to see me and go back.
INTERVIEWER: But until you left Iraq, you and your wife lived in Basra.
INTERPRETER: I was – myself, my wife, my mother – we were all living in Basra before I came here.
In her submissions in answer, Ms Watson also drew attention to references to Basra made during the oral hearing before the Tribunal, which references are included in the above extracts, and to other paragraphs of the decision, including at [21], and [52], [54].
Ms Watson submits ground 2 is an instance of reading the Tribunal’s reasons with an eye attuned to error, against which the High Court has warned: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2. She submits that fairly read, the Tribunal’s reasoning does not provide any basis for a finding of jurisdictional error.
Consideration
The Tribunal’s characterisation at [53] of the Applicant’s claim as a claim that he spent “no time at all in Basra” must be read in the context of the Tribunal’s earlier description of the Applicant’s travels at [21], the description of his claims at [52], the Tribunal’s finding at [53] that the Applicant spent “considerable periods of time in Basra with his family”, and the discussion of the medical consultations at [54].
The detailed description of the Applicant’s travels set out at [21] discloses that the Tribunal was well aware that the Applicant was claiming that he transited through Basra – see also the summary of his claim at [52] – as well as claiming to have undertaken a daytrip to Basra for medical treatment (ultrasound and x-ray). It is clear from this context that the Tribunal was well aware that the Applicant said that he transited through Basra, and that the Applicant had asserted that on one occasion he went to Basra for the day to see a specialist.
Given this context, I accept Ms Watson’s submission that the expression used by the Tribunal at [53] – “he spent no time at all in Basra” – was a colloquial, or short-hand, way of saying that the Applicant’s claim was that he had spent no significant time in Basra; he never lived there, but merely passed though. Fairly read, by the expression at [53] the Tribunal was not saying that the Applicant had asserted that he was never in Basra. Rather, the Tribunal is grappling with the question whether the Applicant spent only an insignificant time in Basra and only transited through Basra save for that one occasion as claimed.
The responses given by the Applicant during the hearing reveal that the Applicant was trying to give the impression that he was not living in Basra, and that he merely transited through Basra to Irbil (Erbil). In context, the concern the Tribunal sought to explore was once the Applicant got to Basra, was he spending any significant time there, given his claim that it was too dangerous a place in which to stay, and he claimed that he exclusively went to Kurdistan. The Tribunal identified that the medical reports available to it showed that the Applicant had seen a doctor in Basra. At [53] of its decision the Tribunal refers to those medical reports, and at [54] the Tribunal focuses on, and raises questions about, the credibility of the Applicant’s claim that his doctor in Irbil (Erbil) sent him on a daytrip to see a specialist in Basra.
In the light of the Applicant’s travels set out earlier in its decision at [21] and [22], the Tribunal’s reference at [53] to the Applicant’s claim was not that the Applicant did not claim he transited through Basra, but that the claimed transit through, and an asserted sole day trip to see a medical specialist in, Basra was not the true picture of the Applicant’s time spent in Basra.
It was also of concern to the Tribunal that the Applicant claimed that Basra was not safe for him, yet the Applicant used it as an arrival point (see at [52]). The Tribunal dealt with the Applicant’s claim that he travelled to Kurdistan during his return trips to Iraq and only transited through Basra (where he had claimed to fear harm – see at [49]). It is in this context that the Tribunal notes the medical records to which I have already referred. The Tribunal rejected the Applicant’s claim that he was always in Kurdistan, and rather, the Tribunal was satisfied that the Applicant “also spent considerable periods of time in Basra with his family”. In the light of the Applicant’s claim that Basra was too dangerous a place to stay, it is reasonable for the Tribunal not to find the Applicant credible.
I find that the Tribunal was dealing properly with the claims advanced by the Applicant regarding the time he spent in Basra, and was aware that the Applicant had stated that he spent very limited time in Basra. I do not read the expression “spent no time at all in Basra” literally, as the Applicant’s counsel does. The Tribunal’s characterisation of the Applicant’s claim at [53], and its reasoning there, and subsequently at [65] and [68], does not disclose jurisdictional error. Ground 2 fails.
Ground 3
Ground 3 is concerned with the allegation of a denial of procedural fairness by the Tribunal’s behaviour during the hearing on 4 October 2018. Mr Zipser submits that the Applicant was not given a genuine opportunity or a meaningful opportunity to comment or respond to a spray of questions or propositions that the Tribunal put to the Applicant.
Oral hearing – relevant exchanges
In order to consider this ground in context, it is first appropriate to set out the exchange between the Tribunal (interviewer) and the Applicant, the interpreter and the Applicant’s agent at pp.54 through to 56 of the transcript, as follows:
INTERVIEWER: Well country information about the – there are seven renal transplant programs running in Iraq currently, including one in Al Basra.
CLIENT1: [Arabic]
INTERPRETER: Treatment?
INTERVIEWER: And the Al Basra Nephrology and Renal Transplantation Centre opened under patronage support from the Nephrology and Renal Transplantation Centre in Baghdad. So, there’s support for the Basra Centre from the main Centre in Baghdad, and there are about 500 transplants now conducted in Iraq over the year.
INTERPRETER: [Arabic]
INTERVIEWER: So, you’re saying they don’t exist in Iraq and, on the other, you say you claimed you travelled across four times to avail yourself of the Iraqi medical system. So, that would indicate that you have a degree of confidence in that system.
INTERPRETER: [Arabic]
INTERVIEWER: The system in Iraq doesn’t have to be at the same standard as it is in Australia. It just has to be a sufficient standard in Iraq and country of information that is available to me indicates that it is a sufficient standard. And the fact that you had a kidney transplant in Iraq would indicate that you agreed that it has sufficient standards to attend your medical treatment.
INTERPRETER: [Arabic]
INTERVIEWER: I’ve got significant concerns that you didn’t spend two years and nine months in Kurdistan exclusively and only just flew in to Basra and got a taxi straight away and left.
INTERPRETER: [Arabic]
INTERVIEWER: It makes no sense that you wouldn’t have at least texted your siblings as the first people to see whether they were a likely kidney donor in 2012. There’s no reason why wouldn’t have been – as you said you and your brothers spending 10 months in Kurdistan trying to find a kidney donor when you could have asked one of your brothers, “Where’s your kidney donor?” So, it raises questions as to where you actually were during those two years, nine months.
INTERPRETER: [Arabic]
INTERVIEWER: I have concerns that the Shi’a Militia have any interest in you given the fact that your brother in the same circumstance has been living for the past six years since you’ve left in Iraq with no problems. You have another brother whose been living in Basra, again, with no problems. While at the same time, you said the Shi’a Militia are throughout the government and they’ve got their hands everywhere. You, yourself, have gone back to Iraq four times. It means that there wasn’t nowhere you could have gone back to that was safe.
INTERPRETER: [Arabic]
INTERVIEWER: All right, yes, I have concerns you might actually not even be Sunni and you’re maybe Shia but trying to hide the fact.
INTERPRETER: [Arabic]
INTERVIEWER: I have concerns that you aren’t on– you’ve weren’t ever on any list that meant you couldn’t be issued a passport and the fact that an Iraqi passport in your name was hidden in the luggage of somebody coming to Australia gives me concerns that the reason it was hidden is because you knew that was inconsistent with your claim as to be unable to gain a passport. And so, you deliberately hidden so you could use it at a later time without the knowledge of the Australian authorities.
INTERPRETER: [Arabic]
INTERVIEWER: And I have concerns that you were never detained by Shi’a Militias – never tortured, never had a letter given by them to you threatening your life before you left in 2012.
INTERPRETER: [Arabic]
INTERVIEWER: And country information indicates that medical facilities in Iraq appear to be sufficient for your – to treat you. You’ve shown sufficient confidence in them to have medical procedures done in that country and that you have got a wide support network including your immediate family waiting for you in Iraq.
INTERPRETER: [Arabic]
INTERVIEWER: So, what’s your response to those concerns?
In these passages the Tribunal puts approximately 10 to 15 propositions or concerns to the Applicant, first referring to country information, then referring to the medical circumstances of the Applicant, and then identifying, and laying out, concerns or questions.
I note that the hearing record in evidence indicates that the interpreter started at 11.47 am, the officer attending identified that the hearing opened with an audio check at 12.08 pm, and that the hearing was completed at 2.48 pm. The transcript also reveals that the hearing time concluded at 2.48 pm. The transcript shows that there were 53 and a half pages of exchanges between the Tribunal member (interviewer), and the Applicant, aided by an interpreter, before reaching the part of the hearing about which the Applicant complains which I have set out above.
After that part of the hearing, the interviewer, over the course of the next two pages, from page 57, asks this question – “Is there anything else you would like to raise?”, and again at two pages later, “Is there anything else you want to raise?” The following exchange, then occurred (pp.59 – 60):
INTERVIEWER: Is there anything else you want to raise?
INTERPRETER: [Arabic]
CLIENT1: [Arabic]
INTERPRETER: Just that I want them to help me for the sake of my health and for my children.
INTERVIEWER: Advisor, is there anything – would you like some time with the applicant?
FEMALE: I would request that I do written submissions.
INTERVIEWER: Okay you will get some time, but do you want some time now with him, or –
FEMALE: For his – for –
INTERVIEWER: Just have a chat before you come back to me with any issues, or are you going to contain them all in the –
FEMALE: I will contain them all in the –
INTERVIEWER: Okay.
FEMALE: Thank you.
INTERVIEWER: So, can you just –
INTERPRETER: [Arabic]
CLIENT1: Okay.
INTERPRETER: Okay.
The interviewer invites the Applicant, if he disagrees with the country information concerning renal transplantation in Iraq written in July 2016, to provide his own country information. The interviewer then gives the Applicant until 11 October to “look up that”, and again before the hearing concludes, says, “Is there anything else you would like to raise now before we conclude the hearing?” to which the Applicant, through his interpreter, responds, “I have nothing.”
The parties’ submissions
Mr Zipser refers to s.422B of the Act, which relevantly provides:
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
…
(3)In applying this Division, the Tribunal must act in a way that is fair and just.
He also relies on s.425(1) of the Act, which provides that the Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Submitting that is not sufficient just to permit an applicant to respond, Mr Zipser refers to Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, where at [57], Hayne, Kiefel and Bell JJ, in considering s.357A of the Act, which is analogous to s.422B, stated: “it is firmly established that the denial of procedural fairness by an officer of the Commonwealth may result in a decision made in excess of jurisdiction for which prohibition will go under section 75(5).”
The invitation to attend an oral hearing for the purpose of giving evidence and presenting argument pursuant to s.425 of the Act must not be a hollow shell or an empty gesture: Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 at [33]. As Farrell J stated in SZRJS v Minister for Immigration and Citizenship [2013] FCA 682; (2013) 213 FCR 317 at [16], the invitation must be “real and meaningful, and this obligation exists whether or not the Tribunal is aware of circumstances which would defeat that obligation”.
Mr Zipser submits that in the circumstances of the hearing before the Tribunal, the barrage of questions or propositions put to the Applicant was procedurally unfair. Having put a large number of propositions to the Applicant all at once, procedural fairness was not afforded the Applicant by the Tribunal then saying, first, “So what’s your response to those concerns?”, and then a page later, “Is there anything else you would like to raise?” The hearing is an opportunity for the Tribunal member to ask questions of the Applicant, in which hearing the agent has a limited role. In the Applicant’s circumstances, where an interpreter was required, a layer of complexity was present, interrupting any discussion, which exacerbated the lack of procedural unfairness.
Ms Watson submits that in the circumstances in which the propositions were put, where the hearing has been on foot for some time, the Tribunal member did not conduct the hearing in a procedurally unfair manner, and that there has been no procedural unfairness.
Ms Watson submits that what is happening at the part of the hearing of which the Applicant complains is that the Tribunal member, towards the end of the hearing, sets out a series of concerns that the Tribunal member has with the Applicant’s evidence. The Applicant is then asked for a response to those concerns, and the Applicant provides certain responses. The Tribunal member then asks on at least two further occasions whether there’s anything else the Applicant wishes to raise. As is apparent from the exchange at page 60, which I have extracted above, it is clear that the Tribunal member has urged the Applicant’s agent to have time with the Applicant now, and invites the agent to ask for a brief adjournment. The Applicant, through the agent, submits that anything further will be contained in the written submissions. There is then some discussion about certain country information, as I have described above.
I note the Applicant’s advisor provided a detailed submission and further material after the hearing, to which I have already referred above. Ms Watson notes, and I accept, that there was no complaint made about the way in which the hearing was conducted at the time or afterwards, nor was there any request by the Applicant for a further hearing because of any concern about the way in which the hearing was conducted. Ms Watson submits that in this context there is no factual basis for the Applicant now arguing that there has been a breach of s.425 by not giving the Applicant a fair hearing.
Consideration
I accept Ms Watson’s submissions. As the Federal Court said in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576 at 590-591, to which Ms Watson drew my attention (citations omitted):
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material: Dixon v Commonwealth. However, …
". . . the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If that were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would be abolished."
A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted. On the other hand, if information on some factor personal to that person is obtained from some other source and is likely to have an effect upon the outcome, he or she should be given the opportunity of dealing with it … Within the bounds of rationality a decision maker is generally not obliged to invite comment on the evaluation of the subject's case …
Having considered the transcript of the hearing, I find that the Tribunal member provided the Applicant a meaningful opportunity to appear and to give evidence and respond on a question by question basis, and that what the Tribunal member was doing at the passages of which Mr Zipser complains is putting the propositions which, having heard the evidence, given over the previous period (53 pages) remained of concern to the Tribunal member.
Whilst it may be preferable to put each proposition in a standalone manner, I do not consider that there is a want of procedural fairness in the facts and circumstances of this case: in circumstances where the Applicant was represented at all times, where the Tribunal member invited the Applicant’s agent to have an adjournment to discuss matters with the Applicant at the hearing, and reiterated several times the invitation to say anything further, where the Applicant, through his representative/migration agent, responded that he was content to have the opportunity to provide written submissions, and where the Applicant took the opportunity offered and provided post hearing submissions.
For the above reasons, I conclude that ground 3 is not made out.
Conclusion
It follows that I dismiss the application. Both parties have accepted that costs follow the event at scale. Accordingly, I will make orders the application be dismissed. As this application was commenced in November 2018, I order that the Applicant pay the First Respondent’s costs fixed in the sum of $7,467.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Baird
Associate:
Date: 17 July 2019
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