MZAKQ v MIBP
[2016] FCCA 1186
•17 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAKQ v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1186 |
| Catchwords: MIGRATION – Application for protection visa – whether Tribunal applied correct test in assessing Applicant’s credibility – when “benefit of doubt” test applies – Tribunal did not ask wrong question – whether Tribunal failed to comply with s.424A – whether information fell within s.424A(3)(a) – particulars of information given by Tribunal member fell within s.424A(3)(a) – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 424A, 424AA, 464A, 499 |
| Cases cited: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 Minister for Immigration v SZRKT [2013] FCA 317 Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 MZZNK v Minister for Immigration [2015] FCA 217 NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 SZJJD v Minister for Immigration and Citizenship [2008] FCAFC 93 SZLPN v Minister for Immigration and Citizenship [2010] FCA 202 SZMCD v Minister for Immigration [2009] FCAFC 46 SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107 SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 SZTMD v Minister for immigration and Border Protection [2015] FCA 150 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 |
| Applicant: | MZAKQ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1834 of 2014 |
| Judgment of: | Judge Jones |
| Hearing date: | 17 February 2016 |
| Date of Last Submission: | 10 March 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 17 May 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Aleksov |
| Solicitors for the Applicant: | Carina Ford Immigration Lawyers |
| Counsel for the Respondents: | Mr Wood |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the Second Respondent be amended to the ‘Administrative Appeals Tribunal’.
The Application for judicial review filed on 9 September 2014 be dismissed.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1834 of 2014
| MZAKQ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the (then) Refugee Review Tribunal (“Tribunal”) dated 8 August 2014, in which the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) to refuse to grant a Protection (Class XA) visa (“the visa”) to the Applicant.
Background
The Applicant is a Shia Muslim from the Sialkot district in the Punjab province of Pakistan (CB 48, 144, 174). He first arrived in Australia on 4 February 2009 on a student (Class TU) (Subclass 572) visa (CB 167 at [22]). He remained here on a succession of student visas which ultimately expired on 24 November 2012. On 22 November 2012, the Applicant applied for a further student visa, which was refused. On 24 April 2013, the Applicant applied for the visa.
The Applicant’s claims for protection are that:
a)he was heavily involved with the Imamia Students Organisation (“the ISO”) (a religious and political organisation). Having joined the organisation in 2005, he was appointed Vice-President for the Marakiwal zone in 2007, and then appointed President of that zone in 2008 (CB 50, 136, 138, 167);
b)he remained in touch with the ISO after arriving in Australia in 2009, and gave them financial support (CB 51, 136, 137, 167);
c)he returned to Pakistan in September 2012 to attend a family event. On 10 September 2012, during this visit, he was attacked because of his affiliation with the ISO (CB 167);
d)the circumstances of the attack were that the Applicant had attended a large gathering of the ISO and given a speech criticising the Lashkar-e-Jhangvi (“the LeJ”), an affiliate of Tahreek-e-Taliban. He and his friend, Hassan Raza, were walking home after the speech when they were attacked. The attackers told the Applicant that he was on their hit list because of the speech he made, and that they would kill him. Some villagers heard the noise and came to where the attack was happening, and the attackers escaped. Due to the attack, the Applicant was hospitalised for two and a half weeks, and his friend died on the way to the hospital (CB 52, 136);
e)the Applicant's father lodged a FIR (First Information Report) at the police station, based on information he had received about the attack from those around at the time of the attack (CB 140); and
f)since the attack, members of the LeJ had issued many threats against him and his family, and he fears he will be killed by them if he returns to Pakistan (CB 53, 136, 145).
Tribunal Decision
The Tribunal accepted that the Applicant is a Pakistani national from Sialkot in Punjab (CB168 at [11]) and that the Applicant is a devout Shia Muslim from a prominent Shia family (CB 170 at [22]). Whilst the Tribunal accepted that the Applicant may have had some involvement with the ISO while he was a student, it did not accept the Applicant’s claims regarding the extent of his activities in the ISO (CB 170 at [23]).
The Applicant’s credibility was a significant factor in the Tribunal’s assessment of the Applicant’s claims. It stated (CB 169 at [17]):
“At the outset the Tribunal records that it considers significant aspects of the applicant’s documentary and oral evidence to be contradictory and lacking credibility and is further concerned about the genuineness (sic) of the documents he has produced in support of his claims. As a consequence the Tribunal has formed the view that certain aspects of his evidence should not be accepted. …”
The Tribunal dealt with the Applicant’s claims as follows.
The Tribunal did not accept the Applicant’s claims about the extent of his involvement with the ISO from 2005 onwards (CB 170 at [23]). The Tribunal was not satisfied that the Applicant was actively involved with the ISO after completing his studies in 2005, or that he was an office-bearer of that organisation at any time. That conclusion was reached having regard to various matters (CB 170 to 171 at [23]):
a)the Applicant’s evidence was that he did not join the ISO (a student organisation) until after he had ceased to be a student. When questioned about this anomaly, the Applicant indicated that he had more time to become involved in the student organisation after he ceased studying. The Tribunal did not consider that that explanation was plausible. The Tribunal noted that the Applicant had claimed to have attended all ISO protests and other activities whilst he was a student;
b)the Tribunal was not satisfied that a document purporting to be the Applicant’s ISO membership card (CB 121-124) was genuine. The Applicant claimed to have joined the ISO in 2005, but the card appeared to contain the same photo as was provided in his 2009 student visa application. When questioned about this anomaly, the Applicant explained that his father had applied for a replacement card using the later photo. When the Tribunal asked why the Applicant had not given that explanation to the delegate, the Applicant indicated that his father had not at that stage informed him of what he had done. The Tribunal did not consider it plausible that the Applicant’s father would replace the Applicant’s ISO membership card without telling the Applicant;
c)the Tribunal was not satisfied that letters purporting to confirm the Applicant’s appointments as Vice President and then President of the Marakiwal zone dated 9 March 2007 and 14 May 2008, respectively (CB 118, 120), were genuine. The Tribunal noted that the two letters were identical but for the use of the word “Vice President” in the former and “President” in the latter. The Tribunal considered it implausible that such letters would be written in precisely the same language, despite having been written more than a year apart; and
d)the Tribunal was also not satisfied that documents purporting to be receipts from the ISO (CB 103-111) were genuine. The Tribunal stated that the documents were strikingly similar despite purporting to have been produced over a period of 5 and a half years.
With respect to the Applicant’s claim that on 10 September 2012, he was attacked because of his affiliation with the ISO, the Tribunal accepted that a big annual majlis occurred on 10 September 2012 in Marakiwal (CB 172 at [28]). The Tribunal also accepted that the Applicant may have been involved in the organisation of that event, as a local member of the imam bargha. However, the Tribunal did not accept that the Applicant was a speaker at that event, nor that he or his friend were attacked (and his friend killed) by extremists after the event. The Tribunal reached this conclusion having regard to the following matters (CB 172 to 174 at [28]):
a)the Tribunal was unable to locate any media reports of the attack or the murder. While the Tribunal accepted that not all attacks are reported in the media, the Tribunal was concerned about the apparent absence of reporting given the nature of the claimed attack, including the size and significance of the event and the fact that the claimed attack from extremists was perpetrated against a speaker at the event;
b)the Tribunal was not satisfied, as the Applicant claimed, that the extremists recognised him from his role with the ISO given that it did not accept that the Applicant had been actively involved in that organisation;
c)the Tribunal was concerned by inconsistencies in the Applicant’s account of the incident. In the Applicant’s protection visa application (CB 52, 78), and in his father’s purported report to the police (CB 69), it was stated that he and his friend were attacked by 5 or 6 people and injured with daggers. His friend’s purported post-mortem examination (CB 72) also indicated that his injuries were caused by a sharp weapon. However, at the interview with the delegate the Applicant stated that he was attacked by 4 people and hit on the head with a pistol (CB 139);
d)the Tribunal was concerned that the father’s purported report to the police indicates that it was made only 30 minutes after the identified time of the incident. The Tribunal considered it implausible that the father would be able to recount details of the alleged attack (including the claimed words of the attackers) only 30 minutes after the alleged incident at a time when the Applicant claimed to have been unconscious and his friend killed. The Applicant sought to explain this apparent anomaly by stating that the incident occurred 30 minutes earlier than the report indicated, and that the father knew what happened because he had been told by witnesses to the attack. The Tribunal did not accept that explanation, in light of its broader concerns with the Applicant’s credibility; and
e)the Tribunal was concerned that the five purported affidavits by witnesses contained the same substantive paragraphs (CB 81-90). The Applicant sought to explain this on the basis that “the witnesses all saw the same thing and therefore describe it in the same way”. The Tribunal did not accept that explanation, including in light of its broader concerns with the Applicant’s credibility.
The Tribunal rejected the Applicant’s claim to fear persecution because of his Shia religion having regard to country information that the risk of sectarian violence on Shia Muslims in Siaklot is low (CB 175 at [33]). The Tribunal stated that at [34]:
“In making this assessment, the Tribunal has had regard to its findings that the applicant’s family are prominent in their local Shia community, that the hold weekly majlises in their home and attend further weekly majlises in the local iman bargha. The Tribunal has also had regard to its findings that the applicant may have been involved in the ISO in some capacity while he was studying arranging the big majlis that took place in September 2012. However none of these matters causes the Tribunal to accept that the risk to the applicant is elevated such that there is a real chance that he would be targeted for serious harm in Sialkot for reasons relating to his own or his family’s practice of the Shia religion if he returns to Pakistan now or in the reasonably foreseeable future. Rather it considers the chance of the applicant being targeted for serious harm on the basis of his own Shia religion and activities or those of his family to be remote. It follows that the Tribunal does not accept that the applicant has a well-founded fear of serious harm for any reasons relating to his Shia religion if he returns home in Sialkot, now or in the reasonably foreseeable future.”
The Tribunal was also concerned that the Applicant did not apply for a protection visa for more than 4 years after arriving in Australia on 4 February 2009. The Applicant sought to explain this on the basis that he was “mentally stressed from his ordeal in Pakistan in 2012”, and that he had nobody to ask for advice. The Tribunal was not satisfied by the explanation, noting that the Applicant had managed to apply for a student visa during this period. The Tribunal considered the long delay in seeking protection indicated that the Applicant did not have a genuine fear of harm in Pakistan (CB 176 at [35] to [36]).
The Tribunal found, for the reasons set out in relation to his claims of persecution and any other reason, that the Applicant did not satisfy the complementary protection criteria under s.36(2)(aa) of the Migration Act 1958 (“the Act”).
Judicial Review
By his Amended Application filed on 13 January 2016, the Applicant specifies two grounds of judicial review.
Ground 1
The Applicant’s first ground of judicial review is as follows:
“The Tribunal did not apply the correct test as to determining questions of credibility arising in the review.”
Applicant’s Submissions
The Applicant’s Counsel commenced his submission by arguing that the Applicant’s claims of persecution include two distinct but overlapping claims. The first being his membership of and activities in the ISO which resulted in him attracting adverse attention. The second being the attack on him on 10 September 2012 on his way home after giving a speech at the Majlis. The Tribunal accepted these as separate claims. The Applicant submits that, in dealing with the second claim, the Tribunal fell into error. The Applicant accepts that the Tribunal made credibility findings and was entitled to do so, however, he argues that because the Tribunal asked the wrong question or did not apply the correct test with respect to the question of the credibility of the Applicant’s claims about the 2012 attack, it fell into jurisdictional error.
The Applicant’s argument is developed in its written submissions as follows:[1]
[1] Contentions of Fact and Law of the Applicant at [6] to [12]
“6. There is nothing sacred about credibility findings (see Fox v Percy (2003) 214 CLR 118). In MZZNK v Minister for Immigration [2015] FCA 217, Beach J said at [22]:
…an error may be identified in how the Tribunal went about its task if the Tribunal had approached the task in one or more of the following ways:
(a) First, commencing a review of the material and evidence provided by an applicant with an unwarranted degree of scepticism.
(b) Second, engaging in confirmatory bias by inappropriately discounting material prima facie in support of the applicant’s position before the totality of the material had been considered.
(c) Third, viewing inconsistencies, vagueness or omissions in the applicant’s version of events without regard to imperfections in memory that naturally occur over time or due to stress or language difficulties (particularly when an interpreter has been used) or due to reticence to be forthcoming with people or bodies perceived to be in authority; inconsistencies, vagueness or omissions do not necessarily indicate a deliberate lack of truthfulness, although they may affect the assessment of reliability.
(d) Fourth, viewing the absence of documentary material without regard to the improbability that such material would exist or be in the possession of the applicant at either the time he applied for a visa or at the time of the review before the Tribunal.
(e) Fifth, discounting documentary material put forward by the applicant without good reason.
(f) Sixth, placing an onus on the applicant to establish that he was truthful.
(g) Seventh, failing to assess all material before reaching a view as to whether the applicant’s version of events was rational or indeed probable.
7. As Beach J observed, whether or not any of these errors amount to a jurisdictional error will depend on the circumstances of each case.
8. In Minister for Immigration v SZRKT [2013] FCA 317, Robertson J said at [75] (special leave refused: [2013] HCATrans 251):
It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.
9. The Court may infer that the Tribunal has not applied the correct test where the statement of reasons indicates that, despite identifying the correct test, the Tribunal approached the facts of the case in a way which demonstrates that it applied some test other than the correct test.
10. The correct test requires attention to the fact that applicants for refugee status face particular problems of proof because they may not be able to support their statements with documentary or other proof, and cases in which an applicant can provide such evidence are the exception rather than the rule. If an applicant's account appears credible, coherent and plausible, unless there are good reasons to the contrary, they should be given the benefit of the doubt (UNHCR Handbook on Procedures and Criteria for Determining Refugee Status 1992, [196], [203]).
11. It can be inferred that the Tribunal approached the review on a basis otherwise than in accordance with this accepted test. This can be inferred from the fact that the Tribunal gave manifestly disproportionate weight to minor inconsistencies, which amount to conduct that engages elements (a) and (c) of Beach J’s formulation.
a) The Tribunal exaggerated the significance of the applicant mentioning that 4 people might have attacked him, rather than 5 or 6 as claimed in writing (Reasons [28], CB 173). Natural deterioration in memory or the stress of the moment (whether at the time of the attack or at the time of the Tribunal hearing) would account for this inconsistency. Indeed, the applicant prefaced the evidence at the hearing that it might have been 4 people by saying initially “5 or 6”, then saying “maybe 4”.
b) The Tribunal exaggerated the significance of the applicant’s recollection of the nature of the weapon being used (Reasons [28], CB 173), given that the claimed incident that involved a surprise attack in which the applicant was seriously injured; it is to be expected that he would be less than clear in his recollection of such details.
c) The Tribunal’s treatment of the fact that the claimed attack was not reported suggests a sceptical approach from the outset (Reasons [28], CB 172-173). The Tribunal exaggerates when it says that the attack occurred at the Shia gathering. The applicant claimed that he was attacked whilst walking home from the gathering (CB 52); whilst in a broad sense this is an event that occurred at the gathering, it is not a fair characterisation of the attack for the purpose of determining whether or not it could be expected that it would be reported in the press. This is because there is a substantial difference between an attack at (or during) a gathering, when attention is focused on the speaker, and an attack that occurs after the gathering when attention is likely to have moved on. In the former circumstance, it would be expected that an attack would be reported; in the latter, such an expectation is dubious.
d) The Tribunal exaggerated the significance of the consistency in language of the affidavits (Reasons [28], CB 174). The affidavits contain four paragraphs; three of those paragraphs are standard form technical expressions which one would expect to be uniform in an affidavit (as where firms of solicitors using standard text for formal aspects of an affidavit). The paragraphs containing the relevant content is also uniform in language, but as the applicant suggested, that is unsurprising given that they all relate to the same incident.
12. If the Court accepts the applicant’s submission, and infers that the Tribunal did not apply the correct test as to credibility, then it follows that the Tribunal did not ask itself the correct question in relation to the determination of the applicant’s credibility, and its decision is thus affected by jurisdictional error.”
In oral submissions, Counsel for the Applicant commenced by responding to the Minister’s written submissions that the jurisdictional error it focused on was not one falling within the description of unreasonableness or irrationality. The Applicant submits that it does not rely on arguments of unreasonableness or irrationality.
Counsel submitted that the correct test as to credibility findings arises from the provision of s.36(2)(a) of the Act:
“(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; …”
It follows, the Applicant argues, that s.36(2)(a) of the Act, imports the notion that the test that one would apply, if considering whether a person is owed protection obligations, are those under the Refugees Convention. Given this, the correct test in the circumstances of this matter where the Tribunal was considering the credibility of the Applicant is located in the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status 1992 (“UNHCR Handbook”), at [196] and [203].
Paragraph [196] of the UNHCR Handbook provides:
“It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.”
The UNHCR Handbook further provides (at [203]):
“Benefit of the doubt
203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt.”
The Applicant submits that the question to be addressed, is not whether the Applicant ought to have been given the benefit of doubt, but whether the Tribunal understood and applied the correct test.
For example, in relation to its reliance on the Applicant’s inconsistent evidence of the number of persons involved in the attack – whether it was 4, or whether it was 5 or 6 – there is no evidence that the Tribunal paused to consider whether the stress of the moment (whether at the time of the attack or at the time of the Tribunal hearing) would account for this inconsistency. In other words, the type of error identified by Beach J at 22(c) in MZZNK. The error is, the Applicant argues, a jurisdictional error because the Tribunal failed to apply the correct test.
The Applicant argues that if the Tribunal was directing itself according to the correct test, which requires that it take account of natural difficulties that are to be expected in proving a refugee claim, such as deterioration in memory, then, in considering the Applicant’s evidence of the surprise attack, it is to be expected that the Tribunal would have mentioned those matters in its statement of reasons and dealt with them.
That omission, the Applicant submits, supports an inference that, whichever test the Tribunal was applying in relation to determining the credibility of the claim concerning the 2012 attack, it was not the correct test. The Applicant says that the same point is to be made in relation to the Tribunal’s assessment of the nature of the weapon used. The Applicant emphasises that there may be very good reasons to think that this inconsistency tends against the Applicant and, ultimately, leads to an unfavourable credibility finding. However, the question that the Court must address, is did the Tribunal adopt a pathway of reasoning which follows the contours of the test that it is required to apply.
The failure of the Tribunal to apply the correct test is, the Applicant submits, also evident in the Tribunal’s following reasoning.
First and significantly, is the reliance by the Tribunal on the fact that the attack was not reported. This reliance is impugned by the Applicant because he submits that his claim, consistently advanced, was that the attack occurred after the conference and as he was walking home. The Applicant argues that, applying the correct test, the Tribunal would have analysed whether the reporting in the media of an attack of a speaker during a conference would be objectively more likely than an attack on that speaker after the conference, as he is walking home and the crowds have dispersed.
Similarly, the Applicant submits, the Tribunal’s attack on the genuineness of the five affidavits lacks any reasoning that would disclose that the Tribunal properly considered the need to give the Applicant the benefit of the doubt, that it was objectively plausible that five people describing the same incident may use the same language in describing it, noting that the affidavits are taken sometime after the incident.
The Applicant submits that approaching the Tribunal’s credibility findings in this way, does not amount to the Court engaging in impermissible merits review. The Applicant relies on the reasoning of Robertson J in Minister for Immigration v SZRKT [2013] FCA 317 at [119] to [120]:
“119. The key features of the present case therefore are, first, that the Tribunal did not consider the Punjab University transcript and, second, the matter to which that transcript went founded the Tribunal’s rejection of the applicant’s claims, on the basis that he had been untruthful. This was not a case where the Tribunal took a nuanced approach to questions of credit by considering whether its disbelief of the applicant in one respect nevertheless did not mean that it disbelieved him generally: rather, the Tribunal’s approach was to disbelieve the applicant generally. In the former case it may more readily be seen that such a finding on credit goes only to a matter of fact and thus is quintessentially the province of the Tribunal.
120. The court is not involved in traversing findings of fact about the corroborative evidence because the Tribunal did not deal with it. The unexplored possibilities include that the transcript was false, that the applicant had studied the Persian language but was a bad student or had a bad memory, and that there was an ambiguity in what studying Persian meant, whether it was language or culture and history. It is for the Tribunal to deal with the material before it and to resolve any conflicts in it.”
The Applicant submits that his Honour’s reasoning was that the Tribunal seemed not to have given attention to a matter which, objectively, could be judged by his Honour to have been potentially significant to a claim. His Honour did not decide that it should have been significant. His Honour simply identified that it was potentially significant and, in the absence of the Tribunal attending to it, turning its mind to it, his Honour was satisfied the Tribunal did not perform the statutory task. The Applicant submits that his Honour was able to make that inference because his Honour considered the matter was objectively important and, if the Tribunal had considered it, it would be expected that it would appear in its statement of reasons.
By analogy in these proceedings, the Applicant argues, the Tribunal failed to turn its mind, in considering inconsistencies in the Applicant’s evidence, which later formed the basis for its adverse credibility finding, to alternative matters objectively available to it – for example, memory deterioration, and the fact it was night time at the time of the attacks. The Court is not being asked, the Applicant submits, to find that these matters should have been given significance, rather that absent an exploration of these objective plausible alternatives, the Tribunal failed to apply the correct test.
The Applicant also relies on Direction No. 56 – Consideration of Protection Visa application - made under s.499 of the Act by the Minister. Section 499 relevantly provides:
“(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.”
The reference to Direction 56 by the Applicant was made during his reply submissions, and the Court did not have the benefit of a copy of the document. Orders were made for the Applicant to file and serve a copy of the document relied on. During the course of the oral submission the Applicant’s Counsel read into transcript the following which I assumed at the time was an extract from Direction 56 as follows:
“It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support the statements by documentary or other proof and cases in which an applicant can provide evidence of all the statements will be the exception rather than the rule. In most cases, a person fleeing from persecution will have arrived with the barest necessities and, very frequently, even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases it may be for the examiner to use all means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.”
A copy of an extract from Direction 56: Chapter 10 – Credibility Issues – was filed by the Applicant. I am unable to locate the extract read out to Court anywhere in the document. There is, however, a section 10.4.2 – Benefit of the doubt – which is as follows:
“Where a decision maker finds an applicant to be generally credible, they should give the applicant the benefit of the doubt where they are unable to fully substantiate their claims. Benefit of the doubt applies only where the decision maker is satisfied as to applicant’s general credibility. A decision maker is not required to accept uncritically an applicant’s claims and the applicant is not entitled to have their claims accepted simply because there is a possibility that they might be plausible or because they should be given the benefit of the doubt.”
(footnotes omitted)
Minister’s Submissions
The Minister accepts that the fact that an adverse assessment of an Applicant’s credibility is made, does not, necessarily, immunise a Tribunal’s decision from review for jurisdictional error: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] per Flick J. However, the distinction to be made between the different functions of the Tribunal and the Court is paramount: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [67] per McHugh J.
Accordingly, as Beach J explained in MZZNKv Minister for Immigration [2015] FCA 217 at [23] where a Tribunal’s decision was challenged by reference to an adverse credit finding, the essential question for the Court is “whether it was open to the Tribunal to engage in the process of reasoning in which it did engage”. In this context, the Minister argues, the list at [22] of MZZNK of ways that error “may” be identified, amounts to no more than guidance as to possible circumstances that would warrant scrutiny by a Court. His Honour did not address whether any of these approaches could amount to jurisdictional error.
The Minister submits, with respect to paragraphs [22(b)] and [22(c)] of MZZNK, that the following principles apply from the authorities:
a)While it may be inapt to speak of an Applicant as bearing an “onus” of proof, the Tribunal is nevertheless required to refuse to grant a visa unless it is “positively” or “affirmatively” satisfied that the Applicant satisfies the criteria: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 at [71]-[74];
b)The Tribunal is entitled to express scepticism, doubt and to probe regarding claims or evidence which trouble it: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [19] (Allsop J, Moore and Tamberlin JJ agreeing), cited with approval in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [24] (Flick J, Allsop CJ agreeing);
c)the weight to be placed on matters, such as inconsistencies in evidence in assessing an Applicant’s credit, is a matter of fact and degree for the Tribunal to determine, subject to irrationality or unreasonableness: W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [66] (Tamberlin and RD Nicholson JJ). In certain cases, “an unfavourable view taken upon an otherwise minor issue may be decisive”: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [4] per Gleeson CJ;
d)A suggestion that inconsistencies in evidence are only “slight” and do not justify an adverse credit finding may simply be an invitation to engage in merits review: Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 (“Chen”) at [39] (Bennett, Nicholas and Yates JJ); and
e)There is no prohibition on a Tribunal from rejecting an Applicant’s evidence on credibility grounds unless there are no possible explanations for the inconsistency: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at [558]-[559] (O’Connor, Branson and Marshall JJ).
The Minister submits that the UNHCR Handbook is at most a guide for decision-makers, it does not constitute a test to be applied by the Tribunal. The Minister argues that Courts have questioned whether the “benefit of the doubt test” is consistent with the requirement under s.65 of the Act for the decision-maker to be “satisfied”. In any event, it is submitted, the “benefit of the doubt test” has no role to play in circumstances where the Tribunal is not satisfied as to the Applicant’s credibility.
The Minister submits that the issues raised by ground 1 are about questions of proof, not credibility. In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (“Randhawa”) at 451, under the heading “Proof of persecution”, Beaumont J said at 451 to 452:
“Proof of persecution in the context of an application for refugee status is a matter of some complexity. As Grahl-Madsen has noted (The Status of Refugees in International Law at 145-6), in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for, since it is a well-known fact that a person who claims to be a refugee may have difficulties in proving his allegations (cf. Gaudron J in Chan at 413); and it would go counter to the principle of good faith in the interpretation and application of treaties if a contracting state “should place on a suppliant a burden of proof which he, in the nature of things, could not possibly cope with.” This should not, however, lead to “an uncritical acceptance of any and all allegations made by suppliants.”
In discussing the burden of proof, the Handbook on Procedures and Criteria for Determining Refugee Status (1979) published by the Office of the United Nations High Commissioner for Refugees takes a similar position (at pp.47-9). Although limits on the use of the handbook in the interpretation of the treaty were indicated by Mason CJ in Chan (at 392), the Chief Justice went on to say (at 392) that he regarded the handbook “more as a practical guide for the use of those who are required to determine whether or not a person is a refugee.”
In that context, the handbook states:
“(2) Benefit of the doubt
203. After the applicant has made a genuine effort to
substantiate his story there may still be a lack of evidence
for some of his statements. As explained above (paragraph
196), it is hardly possible for a refugee to 'prove' every
part of his case and, indeed, if this were a requirement the
majority of refugees would not be recognized. It is
therefore frequently necessary to give the applicant the
benefit of the doubt.204. The benefit of the doubt should, however, only be
given when all available evidence has been obtained and
checked and when the examiner is satisfied as to the
applicant's general credibility. The applicant's statements
must be coherent and plausible, and must not run counter to
generally known facts.”The Minister argues the following may be drawn from this passage:
a)first, the paragraphs in the UNHCR Handbook relied on by the Applicant are concerned with proof, not general credibility;
b)second, the UNHCR Handbook provides that the “benefit of the doubt” is not applicable where the decision-maker is not satisfied as to the Applicant’s credibility; and
c)third, the UNHCR Handbook does not set out a test, but rather acts as practical guide.
With respect to the present case, the Minister argues the Applicant’s approach is misconceived, as it focuses on a series of evidential matters the Tribunal found inconsistent (such as the number of attackers, the weapon used, the media reporting of the attack) and posits that the Applicant ought to have been given the benefit of the doubt and considered another plausible explanation. This, the Minister submits, ignores the many adverse findings of the Tribunal in relation to the Applicant’s claims and evidence which are evident for example at [23], [24] and [29] of the decision record.
In SZLPN v Minister for Immigration and Citizenship [2010] FCA 202 (“SZLPN”), Flick J said at [15] to [17]:
“15. And an assessment of the claims advanced and the facts presented must necessarily be undertaken in recognition of the difficulties confronting some claimants for refugee status: Kopalapillai, supra. O’Connor, Branson and Marshall JJ there observed at 558 to 559:
Whilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanations for any delay in the making of claims, and for any evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency ... Nor is there a rule that a decision maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case. ...
16. But reservation is expressed as to whether there is any “benefit of the doubt” to be applied in Tribunal hearings: SZNRZ v Minister for Immigration and Citizenship[2010] FCA 107 at [19]. Reference was there made to the following observations of Beaumont J in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (“Randhawa”)(1994) 52 FCR 437 at 451
….
Reference was there also made to views previously expressed in this Court that the Tribunal must be “sensitive to the difficulties often faced by applicants and should give the benefit of the doubt to those who are generally credible, but are unable to substantiate all of their claims”: SZLVZ v Minister for Immigration and Citizenship[2008] FCA 1816 at [25] per Middleton J. In Gholami v Minister for Immigration and Multicultural Affairs[2001] FCA 1091 at [7], Tamberlin J referred to Randhawa and “the liberal attitude concerning proof of persecution in the context of an application for refugee status” there espoused by Beaumont J.
17. Whatever the scope may be, however, as to any “benefit of the doubt”, it has little (if any) role to play where claims have been rejected upon the basis of an assessment of a claimant’s credibility. The Tribunal is either satisfied as to a claimant’s credibility or not so satisfied. If the Tribunal is not satisfied that claims to refugee status have been established, a claimant is not entitled to have his claims accepted simply by reason of the fact that there is a “possibility” that the “claims are plausible” or because he should be given a “benefit of the doubt”.”
The Minister relied on SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107 (“SZNRZ”), where, Flick J, in considering the Particulars to a Ground of Appeal which asserted the Applicant was entitled to the benefit of doubt, said at [19]:
“…It is not correct to assert that a claimant is entitled to be given “the benefit of the doubt”. The Tribunal is not obliged to uncritically accept claims made by an applicant… But the difficulties confronting an applicant for refugee status have to be recognised: Randhawa …”
His Honour went on to state at [20] to [21]:
“20. For present purposes it may be accepted that in some circumstances it may be appropriate to extend to a claimant the “benefit of the doubt”. Left to one side is whether any such “benefit of the doubt” is consistent with the statutory requirement for a decision-maker to be “satisfied” of those matters set forth in s 65 of the 1958 Act.
21. But any such sensitivity as should be extended to those seeking to make out a claim for refugee status does not assist the present Appellant. Even to the limited extent that recourse may be had to the “benefit of the doubt” as expressed in the Handbook referred to by Beaumont J, the benefit only applies where the decision-maker “is satisfied as to the applicant’s general credibility”. That is simply not the present case. In the present case the Tribunal made findings of fact open to it on the evidence as to the now Appellant’s credibility. He was found by the Tribunal not to be a “witness of credit”.”
Turning to Particular b) of the Applicant’s ground 1, the Minister submits that the argument that the Tribunal did not apply the correct test, because it exaggerated the significance of inconsistencies in the Applicant’s evidence about the number of attackers, the Applicant’s recollection of the weapon used, the likelihood that the attack would be reported in the media and the similarities in the language contained in affidavits provided in support of the Applicant’s claim, is in reality an invitation to the Court to engage in merits review. The Minister submits that each of the alleged alternative plausible explanations which the Applicant asserts the Tribunal ought to have turned its mind to, were in reality submissions to be made to the Tribunal and not the Court. The Minister submits the Applicant’s arguments are “no more than reasons why a different decision-maker might have taken a different approach or come to a different conclusion”: Chen at [39].
In any event, the Minister submits, this Particular suffers from the same difficulty as Particular a); namely, in circumstances where the Tribunal had found the Applicant not to be credible, there was no obligation on the Tribunal to turn its mind to plausible or alternate explanations.
The Minister submits that for the reasons already given, this was a case where the Tribunal was not satisfied as to the Applicant’s credibility and, consequently, the guideline in clause 10.4.2 of the UNHCR Handbook was inapplicable. In those circumstances, the absence of any reference in the Tribunal statement of reasons to this guideline is consistent with the Tribunal (correctly) deciding that the guideline was inapplicable in this case.
The Minister relies on the decision in SZTMD v Minister for immigration and Border Protection [2015] FCA 150. An argument on appeal concerned the obligation on a Tribunal to comply with Ministerial directions. One of those directions was Direction 56. In its statement of reasons, the Tribunal did not refer to Direction 56 or other Ministerial directions. This silence of the Tribunal was germane to the Appellant’s argument that the Tribunal had failed to consider the Ministerial directions, including Direction 56. With respect to this argument, Perram J stated at [15] to [16]:
“15. It has been held that the effect of s 430(1) is that the Court is entitled to infer that a matter not mentioned in the Tribunal’s reasons was not considered by it to be material: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69] (“Yusuf”). Therefore it is permissible for this Court to conclude from the absence of any direct consideration of either the two guidelines or the country information that the Tribunal did not consider them to be material to its decision.
16. If that inference were to be drawn it would defeat the applicant’s argument at the threshold. This is because the silence of the Tribunal on these matters would then signify not that it had not considered the guidelines and country information but that it did not consider them material to the task it had to perform. This is significant because cll 2 and 3 of Direction No. 56, in terms, contemplate that the Tribunal is only obliged to consider the guidelines or country information to the extent that they are relevant.”
His Honour concluded that although the inference from Yusuf was not mandatory, in the circumstances of the matter before him, the Court was obliged to draw that inference, and conclude that the Tribunal did consider the relevance of ministerial directions and country information but decided they were not relevant: [18].
Consequently, the Minister submits no jurisdictional error is raised by this ground.
Consideration
As I understand it, the Applicant’s first ground of review rests on the presumption that the provisions of s.36(2)(a) of the Act import a test, in relation to credibility findings, which is located in the UNHCR Handbook. The test is described as the “benefit of the doubt” test, and requires the Tribunal to disclose in its reasoning that not only has it understood the test but applied it, by considering plausible alternatives (reflecting the difficulties facing claimants as identified by Beach J in MZZNK) before making findings regarding an Applicant’s credibility.
I am not satisfied that the correct test in determining questions of credibility arising in a review before a Tribunal dealing with claims for protection is, as the Applicant argues, located in the UNHCR Handbook. It seems to me to be settled principle that the UNHCR Handbook is no more than a guide in dealing with complex questions of the burden of proof involving refugees. The observation by Mason CJ in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (at 392), that he regarded the UNHCR Handbook “more as a practical guide for the use of those who are required to determine whether or not a person is a refugee”, has been approved by the Full Court in Randhawa, and Flick J in SZNRZ and SZLPN. In SZNRZ his Honour expressed doubt as to whether the application of the “benefit of the doubt” referred to in the UNHCR Handbook was consistent with the requirement under s.65 of the Act, that the Minister is “satisfied” that the Applicant meets the relevant criteria for the grant of a visa.
In any event, accepting that the UNHCR Handbook provides a guide for decision-makers who are required to determine whether or not the Applicant is a refugee, the relevant extracts from that Handbook makes two things clear. First, that the focus is on the difficulties claimants for refugee status have regarding questions of proof (in particular, providing documentary proof in support their claims). Second, that it is only where the decision-maker has assessed the Applicant’s claims for refugee status as credible, that it is appropriate for the decision-maker to give the Applicant the “benefit of the doubt.” The same approach is apparent in Determination Number 56 relied on by the Applicant.
The UNHCR Handbook qualifies the general statement made regarding the benefit of the doubt at [204] as follows:
“The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.”
I accept the Applicant’s submission that the Applicant made two distinct but overlapping claims, which were dealt with in this manner by the Tribunal. The first, regarding his membership of, and participation in, the ISO. The second, that he was attacked on 10 September 2012 on his way home, after delivering a speech at a majlis conference.
I do not accept, however, that the Tribunal’s adverse credibility findings regarding the Applicant’s involvement in ISO can be set to one side in considering the approach of the Tribunal to the Applicant’s claims and evidence regarding the attack. The Tribunal found, overall, that the Applicant was not a witness of credit when it said at CB 169 at [17]:
“At the outset the Tribunal records that it considers significant aspects of the applicant’s documentary and oral evidence to be contradictory and lacking credibility and is further concerned about the geuineness (sic) of the documents he has produced in support of his claims. As a consequence the Tribunal has formed the view that certain aspects of his evidence should not be accepted. …”
In addition, the Tribunal treated its credibility findings, regarding the two broad claims, as connected or overlapping. At CB 174 at [29], at the end of its discussion about the concerns about the claim the Applicant was attacked, the Tribunal refers to the totality or cumulative effect of its concerns thus:
“Taken together with the Tribunal’s other concerns about the applicant’s credibility discussed elsewhere in the decision record…”
As noted in Chen, findings of credibility on particular matters ought not be artificially separated from the whole. At [40], the Full Court stated:
“…It is also to be remembered in this regard that the Tribunal’s finding was based on the cumulative effect of the matters to which it had referred….”
In oral submissions, the Applicant’s counsel submitted that the statement in Particular b) that it could be inferred that the Tribunal did not apply the correct tests because it exaggerated various matters, was not an invitation to engage in merits review. Rather, the point being made was that the Tribunal failed in its reasoning to consider an alternative and plausible explanation prior to making its credibility findings.
I respectfully concur with the observation by Flick J in SZLPN at [17]:
“…The Tribunal is either satisfied as to a claimant’s credibility or not so satisfied. If the Tribunal is not satisfied that claims to refugee status have been established, a claimant is not entitled to have his claims accepted simply by reason of the fact that there is a “possibility” that the “claims are plausible” or because he should be given a “benefit of the doubt”.”
The Tribunal found that the Applicant was not generally credible. Its findings were cumulative and it expressly considered the Applicant’s credit regarding the attack, having regard to its earlier credit finding as regarding his involvement in the ISO.
With respect to Direction 56 made by the Minister under s.499(1) of the Act, the Minister filed supplementary written submissions. In those submissions, the Minister makes two points. First, clause 2 of Direction 56 only requires that, in performing functions or exercising powers under ss.414 and 415 of the Act, the Tribunal is to take account of the “guidelines” set out in the direction “to the extent that they are relevant to the decision under consideration”. Second, the relevant guideline in Direction 56 is contained in clause 10.4.2 of the UNHCR Handbook (see [33] above). This guideline in clause 10.4.2 of the UNHCR Handbook, reflects, in substance, the relevant part of the practical guide in the UNHCR Handbook set out in Randhawa.
Accordingly, I find that no jurisdictional error arises from ground 1.
Ground 2
The Applicant’s second ground of review is as follows:
“2. The Tribunal failed to comply with s 424AA(1)(b)(iii), in that it did not advise the applicant that he may seek additional time to comment on or respond to information put to him at the oral hearing turning his ability to join the ISO whilst he was still a student.”
Applicant’s Submission
The Applicant submits that the Tribunal failed to comply with s 424AA(1)(b)(iii) of the Act, and in the absence of complying with the provision of s.424A of the Act, the Tribunal committed jurisdictional error: SZMCD v Minister for Immigration [2009] FCAFC 46, per Tracey and Foster JJ.
The Applicant submits that the failure to comply with s 424AA(1)(b) of the Act arose as follows:[2]
“17. At the oral hearing, the Tribunal gave clear particulars of information to the applicant regarding his ISO membership, in that it said “the information before me about the ISO, which is that it is very very common for school students to become members of that organisation” and “what I am saying is that the information before me does not support your evidence that you can’t be a member of the ISO before you are 18”.
18. This information was put to the applicant for the first time at the oral hearing. The applicant was not advised that he may seek additional time to comment on or respond to the information. Accordingly, the Tribunal failed to comply with its obligations under s 424AA(1)(b)(iii), and fell into jurisdictional error.
19. It is acknowledged that aspects of this information were not specifically about the applicant, and about a class of persons (ISO members), and so, fell within the exception under s 424A(3)(a). Thus, even though “most” of the information contained in the quoted extracts above may be subject to the exception under s 424A(3)(a), if at least a skerrick of that information was about the applicant and not a class of persons, then that component of the information falls outside of the exception under s 424A(3)(a). The Tribunal said that the information before it did not support the evidence that the applicant was capable of joining the ISO whilst he was a student demonstrates; to this extent, the extracted quote includes this information, which was specifically about the applicant.”
[2] Contentions of Fact and Law of the Applicant
A copy of the transcript of the Tribunal hearing is marked as Annexure “SAT-1” to an affidavit filed by Sarah Ainslie Thompson on 16 February 2016. The particular extracts from the transcript relied on are as follows:
Page 21 – line 32
TRIBUNAL MEMBER: The delegate’s essential concern, which is my concern as well, is why you would not have been involved in that organisation as a student but would have become heavily involved in the organisation at a time you are no longer a student but when you were working.
Page 22 – line 11
TRIBUNAL MEMBER: That is not consistent with the information before me about the ISO, which is that it is very very common that students become members of that organisations (sic).
Page 22 -line 15
TRIBUNAL MEMBER: Independent sources before me indicates that the majority of Shia students, including school students, are members of the ISO.
Page 22 – line 25
TRIBUNAL MEMBER: What I am saying is that the information before me does not support your evidence that you can’t be a member of the ISO before you are 18.
The Applicant’s Counsel submitted that by the use of the word “concern” at p.21, the information being referred to falls within the scope of s.424AA of the Act and that in the extract from p.22 – line 25 of transcript, the words, “the information before me” fall within the exception specified under s.424A(3)(a) of the Act. However, Counsel argued that the statement made by the Tribunal member that “you can’t be a member” of the ISO “before you” are 18, is about the Applicant himself. It is information that his evidence is not connecting with the country information, and is to be characterised as information about the Applicant. Consequently, this information does not fall within the exception specified under s.424A(3)(a) of the Act. Accordingly, the Tribunal was obliged in accordance with s.424AA(1)(b)(iii) of the Act, to advise the Applicant that he may seek additional time to comment on or respond to that information.
It was conceded by the Applicant, in his written submissions and in oral submissions made on his behalf, that most of the information referred to by the Tribunal, about which it had concerns, related to country information. However, the Applicant maintained that for the purpose of s.424AA(1)(b)(iii) of the Act, even if there was just a “sliver” or “skerrick” of information relating to the Applicant, then that information obliged the Tribunal to conform in all respects with s.424AA(1)(b) of the Act.
Minister’s Submission
The Minister’s counsel submitted that, in having regard to the extracts from p.22 of transcript, two strands of information were being conveyed by the Tribunal member. The first strand of information was that it is permissible for a person to become a member of the ISO before they are 18 years of age, and that the majority of Shia students (including school students) are members of the ISO. The first bit of information is not about the Applicant, it is about the organisation. The organisation allows people under 18 to become members. At line 24 to 26 of that page, the Tribunal member is putting to the Applicant, that this information does not support his evidence that he could not be a member of the ISO before 18 years of age. In other words, the use by the Tribunal of the word “you” is not a reference to the Applicant in particular, but a statement that, given the rules of the organisation, a person or “one” can be a member before one is 18 years of age. The two references to “you” are plainly to be understood as “one”: Thus, the Tribunal is putting to the Applicant adverse information that the “country information, which suggests that you can become a member of the ISO before 18, is inconsistent with the Applicant’s evidence that you could not.”
The Minister further submits that the fact that the information is relied on to reject an Applicant’s claim does not say anything about the information itself. Section 424A of the Act is about the character of the information, and the character of the information is about the organisation of the ISO.
The Minister relies on the decision in SZJJD v Minister for Immigration and Citizenship [2008] FCAFC 93. At [11] the Full Court commences with an extract from the decision of the then Federal Magistrate thus:
“The Federal Magistrate, in reviewing the Tribunal’s decision, accepted that the fact that the Tribunal received no reply from the four Uruguayan institutions it contacted was information that formed part of the reason for the Tribunal’s decision within the meaning of s 424A(1) of the Migration Act. Her Honour continued at [81]-[83]:
However I am satisfied that the obligation in s 424A(1)does not apply because of the operation of s 424A(3)(a).As the first respondent contended, the information was not specifically about the applicant or another person. Consistent with the authorities referred to by both parties, it cannot be suggested that information was specifically about the applicant merely because he was a member of MPP (one of the bodies that did not reply). This is not a case in which there was a failure to reply to an enquiry to an organisation about whether a named applicant was a member or about treatment of a specific person. The requests to the Uruguayan organisations, including the MPP, were for general information about the current situation for unionists and leftists in Uruguay.
The fact that the Tribunal made an internal enquiry about the risk to unionists and leftists (and MPP members) in the context of its review of the applicant’s application for a protection visa does not convert the information consisting of Tribunal contact with the Uruguayan organisations about the treatment of leftists and unionists and the absence of a reply (in particular from the MPP) into information “specifically” about the applicant or another person. Nor does the fact that the Tribunal used this information as part of the reason for affirming the decision under review.
In particular, the fact that the internal Tribunal research request referred to the applicant’s review file number and was made in the context of the review of a particular application does not enliven s 424A(1).First, the internal research request, while providing the context in which the request to the Uruguayan organisations was made, was not itself part of the information that the Tribunal considered would be the reason or part of the reason for the decision. Further, even if the internal request was within the language of s 424A(1)on the basis that the internal research request initiated the process of seeking information from the Uruguayan organisations, in that sense it was not specifically about the applicant. While it described his claims about past harm as part of the background to the research request and referred to his file number, the relevant part of the request related to whether there was information about any reports of targeting of any leftists/unionists since 2004 in Uruguay.”
The Court noted, that at the hearing below, the Appellants argued that the use of their file number on the internal request for research assistance was a sufficiently proximate link to the first Appellant, to take the information concerning the Uruguayan institutions’ failure to reply out of the ambit of the exception in s 424A(3) of the Act. The Court noted that the then Federal Magistrate rejected this argument and said at [13]:
“…In our view her Honour was correct to do so for the reasons she gave. The fact that the Tribunal’s enquiry may have been prompted by the first appellant’s claims does not mean the information was about his claims. The information, such as it was, was about groups of persons (unionists, leftists, activists and members of the Movimiento de Participación Popular) of which the first appellant was a member. In no sense did it constitute information specifically about the first appellant. …”
Consideration
Sections 424A and 424AA of the Act are part of the statutory scheme for the provision of natural justice established by Div.4 of Pt.7 of the Act.
Section 424A of the Act provides that:
“(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.”
S.424AA of the Act provides:
“(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.
…”
In Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052 (“SZTJF”), Yates J discussed the interaction of ss.424A and 424AA of the Act, commencing at [27]:
“27…the relationship between ss 424A(1) and 424AA of the Act. A failure to comply with s 424AA(b)(iv) of the Act does not itself constitute jurisdictional error. In SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 (SZMCD) at [74]-[87], the Full Court explained that a decision to engage
s 424AA of the Act is discretionary in the sense that the Tribunal is not obliged to take a course which engages its provisions but may do so if it considers that course to be appropriate. However, the Tribunal must comply with s 424A. A breach of s 424A, unlike a breach of s 424AA(b)(iv), constitutes jurisdictional error: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at [77]-[78], [173] and [204]- [208].
28. In SZMCD, Tracey and Foster JJ said (at [77]):
[77] The immediate effect of a failure properly to comply with s 424AA is that the Tribunal will have purported to exercise a procedural discretion but will have in fact failed to do so in the manner required by the statute. The relevant sections when read together in their context suggest that the overriding obligation to provide the applicant with clear particulars of relevant information subsists and will be required to be discharged by other means (ie through s 424A(1)).
29. Therefore, in the present case, it is without relevant consequence to s 424A(1) of the Act that, in purporting to comply with s 424AA(b)(iv), the Tribunal failed to allow an adequate time for the first respondent to respond to the information referred to in [21] of the decision record if, as a matter of law, this information was not information of the kind which s 424A(1) required the Tribunal to give.”
There is no dispute that the Tribunal was drawing to the Applicant’s attention to concerns it had regarding his evidence. Nor is it disputed that at p.22 – lines 11 and 15 of the transcript, the information put to the Applicant is information to which s.424A(1)(a) of the Act refers.
I am satisfied that the character of the information being put to the Applicant was about the rules of the ISO and, in particular, those covering membership and the composition of the membership of the organisation.
I do not accept that the use by the Tribunal Member of the word “you” is a general reference to “one”. It is clear on a reading of that extract, that the Tribunal is referring to the Applicant’s direct evidence that he could not join the ISO before the age of 18.
However, the information put to the Applicant must be read in context. The Tribunal member referred to country information in order to put the Applicant on notice, that it was contrary to his own evidence. The information put to the Applicant was in relation to an organisation and not about his claim. The reference to “your evidence” and to “you” does not, in my opinion, convert the nature of the information put to the Applicant to “information specifically about the Applicant”. It defies a common sense reading of the extract to conclude that the Tribunal Member’s reference to the Applicant’s evidence he could not join before 18 years, was information “specifically about the Applicant”. The information put was about the rules of and organisation and the membership of the organisation which was contrary to the Applicant’s evidence. I find that the extract in question falls within the exception contained in s.464A(3)(a) of the Act.
In my opinion, the particular extract may, in any event, be appropriately characterised as the Tribunal Member expressing doubt about the veracity of the Applicant’s evidence. The Tribunal Member refers to country information, and then informs the Applicant about her doubts regarding his evidence. In SZTJF, Yates J said at [30]:
“When s 424A(1)(a) of the Act refers to information that “would be the reason, or a part of the reason, for affirming the decision that is under review”, it is not referring to every matter that the Tribunal might think to be relevant to the decision. Rather, it is directing attention to, and only referring to, information that would be tantamount to a rejection, denial or undermining of the visa applicant’s claims to be a person to whom Australia owes protection obligations under the Act: SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1 at [17]. Further, “information” for the purposes of s 424A(1)(a) is information that is “related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”; s 424A(1)(a) is not engaged by any material that contains or tends to reveal inconsistencies in the visa applicant’s evidence: SZBYR at [18]–[19].”
In my opinion, the extract relied on by the Applicant falls within the scope discussed in SZTJF and would not offend the obligations in s.464A(3)(a) of the Act.
Accordingly, I find that this ground does not give rise to jurisdictional error.
Conclusion
For the reasons set out in my judgment I dismiss the application for review with costs.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 17 May 2016
4
28
2