MZZHQ v Minister for Immigration
[2015] FCCA 1421
•2 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZHQ v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1421 |
| Catchwords: MIGRATION – Application for extension in time to apply for judicial review – protection visa – whether explanation for delay reasonable – whether merits of substantive application render extension of time futile – whether Tribunal failed to engage in evaluative assessment of evidence – whether the Tribunal decision was unreasonable, unsupported by evidence or failed to disclose “intelligible justification” – whether the Tribunal gave the applicant particulars of information under s.424A and s.424AA – application for extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 424AA, 477(2), 91R(3), 36(2)(a) |
| Mohammed v Minister for Immigration and Border Protection [2015] FCA 184 Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 |
| Applicant: | MZZHQ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 592 of 2014 |
| Judgment of: | Judge Jones |
| Hearing date: | 25 March 2015 |
| Date of Last Submission: | 27 April 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 2 June 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Self Represented |
| Counsel for the Respondents: | Mr Smyth |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
The Application for an extension of time pursuant to s.477(2) of the Migration Act 1958 is refused.
The applicant pay the respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 592 of 2014
| MZZHQ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 1 April 2014, the applicant applied for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 8 February 2013, affirming a decision of a delegate of the Minister for Immigration & Border Protection (“the Minister”) not to grant the applicant a Protection (Class XA) visa (“protection visa”).
As the application was made on 1 April 2014, the application was approximately thirteen months outside the 35 day limit provided under s.477(1) of the Migration Act1958 (“the Act”), the applicant must first be granted an extension of the time to proceed with her application for judicial review.
Section 477(2) of the Act relevantly provides:
“(2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a)An application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)The Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.”
Whilst the discretion to the extend the time limit in s.477(2) is one at large, the matters relevant to the Courts consideration are well settled. In Mohammed v Minister for Immigration and Border Protection [2015] FCA 184, Perry J summarised the principles relevant to the statutory discretion as follows:
“15. In determining whether to grant an extension of time, factors to be taken into account include the extent of the delay, and the explanation for it, any prejudice that the respondents may suffer by reason of the delay and the merits of the proposed appeal: see e.g. SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [15] – [19]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 – 349.
16. The Minister did not contend that he would suffer any prejudice if an extension of time were granted. Nor is delay substantial, being a period of 17 days only. In this regard, the Minister accepted that if the proposed grounds of appeal had merit, so short a delay should not serve as an impediment to the grant of an extension of time. Furthermore, while the Minister submitted that the explanation for the delay, namely, that the applicant was not aware of the appeal time, was not adequate, I would not attribute much weight to that consideration in all of the circumstances; nor did the Minister suggest otherwise. The critical issue here, in my view, is that the application for leave to appeal is lacking in any merit for the reasons I explain below, as a consequence of which there is no utility in granting an extension of time: see Ford v La Forrest [2001] QCA 455; [2002] 2 Qd R 44 at [4] Thomas JA (McMurdo P and Cullinane J agreeing); Vatti v Minister for Immigration and Border Protection [2014] FCA 893 at [24] (Mortimer J). It is on this ground that I would refuse the application for an extension of time.
Background
The applicant is an Ethiopian national and claims to be of Amharic ethnicity and a member of the Ethiopian Orthodox Religion. She first arrived in Australia on 14 July 2011 as a holder of a visitor visa. She completed her primary and secondary school education in Ethiopia and Cuba and completed a Masters degree in Agronomy in Cuba in 1990. She describes her occupation as an Agronomist and was employed by the Ministry of Coffee and Tea, Harar, Ethiopia as a regional Horticulturalist from August 1990 to July 1995. She was then employed by the Department of Agricultural and Rural Development, Bahr Dar city, Ethiopia as a team leader from August 1996 to July 2011(CB 1 to 50).
The applicant legally left Ethiopia in July 2011 and came to Australia to attend a training course associated with dryland farming sponsored by the Australian Government. This trip was supported by the applicant’s employer (CB 350 [22], 353 [40] – [41]).
On 16 September 2011, the applicant applied for the protection visa (CB 1) and her substantive claims to protection was set out in a statutory declaration dated 14 September 2011 (CB 46).
On 10 November 2011, the applicant was notified that the delegate of the Minister had refused her application (CB 78). The delegate’s reasons were set out in a decision record (CB 92).
On 15 November 2011, the applicant sought review of the delegate’s decision by the Tribunal (CB 115). The applicant attended two Tribunal hearings, on 13 and 20 November 2012. On 8 November 2012, the Tribunal received a submission made on behalf of the applicant by her agent (CB 245 to 282). By correspondence dated 21 November 2012, the Tribunal invited the applicant to comment on various country information. This country information was in relation to the general situation on human rights in Ethiopia, the situation for members of the Amhara ethnic group, the treatment of failed asylum seekers in Ethiopia, the situation for supporters of the Ginbot7 and the CUG presently in Ethiopia, the Bureau of Agriculture and Rural Development and public sector employment in Ethiopia (CB 306 to 313). The applicant was also invited to comment on issues the Tribunal had raised with her at the hearings. On 28 November 2012, the Tribunal received a post-hearing submission prepared by the applicant’s migration agent (CB 316 to 339).
Applicant’s claims
In the submission made on her behalf on 8 November 2012 (CB 245 to 282), the applicant’s migration agent identified the following grounds for the applicant’s claim to fear persecution:
a)political opinion based on her membership and support of the political party Ginbot7;
b)her Amharic ethnicity; and
c)membership of a particular social group; namely, “returning asylum seekers.”
The applicant also claimed that if she returned to Ethiopia, she was at risk of significant harm in the form of arbitrary deprivation of life, torture, cruel and inhumane treatment or punishment and degrading treatment or punishment.
In her statutory declaration dated 14 September 2011 accompanying her application for a protection visa (CB 46 to 47), the applicant claimed:
a)in 2007 she joined a political party called Ginbot7 which was forced underground after its leaders were arrested and some forced into exile, her brother joined Ginbot7 in 1995;
b)she was an informant, and passed information from the government to Ginbot7. She also attended home meetings and stored party brochures and pamphlets at her own house;
c)in early 2011 the government declared Ginbot7 a terrorist party and said its members were terrorists and started investigating everyone suspected of being involved with Ginbot7;
d)her brother went into hiding in her house after she arrived in Australia. She later spoke to her mother who told her security forces stormed the house and arrested her brother and took the documents, including her computer, brochures and correspondence;
e)she feared the government had documents linking her to Ginbot7 and that as she was an informant and for Ginbot7 she would be severely punished and detained or even killed.
It is to be noted that on 3 October 2011, the applicant corrected two dates in her statutory declaration. She stated she joined Ginbot7 in 2009 and her brother joined the organisation in 2008 (CB 72).
In the submission made on her behalf on 3 July 2012 (CB 182 to 219), the applicant’s migration agent described the applicant’s background as follows (CB 182 to 183):
“The Applicant is a divorced female and is 42 years old. She was born in Gondar, Ethiopia, her ethnicity is Amhara, and her religion is Orthodox Christian. The Applicant’s father is deceased. Her daughter Hanna Hussein Yimer remains in Ethiopia in the care of the Applicant’s mother. The Applicant’s father was in the army and was killed during fighting while on duty. Under an agreement between Ethiopia and Cuba, war orphans, such as the Applicant, were entitled to study in Cuba if they wished. Our client therefore elected to do so, spending several years receiving education there, from approximately 1979, when she undertook Secondary School, through to her finalisation of tertiary studies in Agriculture. The Applicant then returned to Ethiopia in approximately 1990 and, after short period of unemployment, began working for the Department of Agriculture.
The Applicant travel to Australia in July 2011 under an AusAID sponsor training program, and had intended to return to Ethiopia at the end of the course, evidenced by the fact she had left her daughter behind. However, events which transpired in a home country during her stay in Australia have made her fearful to return to Ethiopia and forced to seek Australia’s protection.”
The submission repeated the applicant’s claims in her statutory declaration and expanded on the events that occurred whilst she was in Australia (CB 183) as follows:
“The Applicant claims that she left party documents, anti-government pamphlets and a laptop that possibly contained information identifying her as Ginbot7 member, and that these items were confiscated from her house by authorities when they attended to arrest her brother. Furthermore, her activities relating to the provision of confidential information and hiding her brother from authorities will be perceived as anti – government conduct and a breach of political loyalty.
The Applicant claims that her mother has signed a paper requiring the Applicant to report to police on return to Ethiopia, and that she has been told by her mother and work colleagues that she will certainly be arrested and even killed once she returns. The fact that her brother is missing without knowledge of his whereabouts is indicative enough of the fate she faces upon return.
The Applicant has stated that for this reason she is extremely fearful that if she returns to Ethiopia the authorities will identify her as a terrorist and she will be kidnapped, imprisoned, tortured, suffer brutal and inhumane treatment and be killed.”
The submission included extracts from country information in relation to the applicant’s claims (CB 191 to 215). There were, in addition, various attachments: a press release from Ginbot7 dated 18 July 2011 (CB 220 to 221), correspondence from Amnesty International to the chairperson of African Commission on Human and People’s rights dated 24 October 2011 (CB 222 to 225), a statement from Ginbot7 dated 3 April 2012 (CB 226), a “Letter of Attendance” from the applicant’s psychologist dated 26 April 2012 (CB 227), correspondence from the Ethiopian Community Association in Victoria regarding the applicant dated 21 May 2012 (CB 228 to 229), and correspondence from the Secretary-General of Ginbot7 to the Tribunal regarding the applicant dated 20 June 2012 (CB 230 to 231).
It appears that the extracts from reports of country information included in the submission dated 3 July 2012 were reproduced in the submission made on her behalf on 8 November 2012 (CB 254 to 278).
On 28 November 2012, the Tribunal received correspondence from Catherine Kelly, Brigidine Asylum Seekers Project and a post - hearing submission prepared by the applicant’s agent (CB 316 to 339). The post-hearing submission was responsive to issues raised by the Tribunal during the course of the hearing and the Tribunal’s invitation to the applicant to respond to or comment on certain country information made on 21 November 2012.
The issues raised by the Tribunal during the hearing which were dealt with in the post-hearing submission were the position the applicant held in her employment in Ethiopia upon entering Australia; and similarities between the applicant’s protection claims and that of two other Ethiopians who had sought political asylum and with whom the applicant shared accommodation whilst on the AusAID sponsored training program. The post-hearing submission also attached (untranslated) Ginbot7 membership payment slips; email correspondence between the applicant and Ginbot7 and various support letters from Ginbot7 dated 20 June 2012, the Ethiopian Community Association dated 21 May 2012 and the Support Group for Democracy in Ethiopia dated 28 March 2012.
On 29 November 2012 the Tribunal received correspondence from the migration agent attaching correspondence from the Secretary General, Ginbot7 (CB341).
Tribunal Decision
The Tribunal set out, in its decision record, the claims of the applicant set out in her statutory declarations and in the written submissions prepared by her migration agent on her behalf together with the evidence given by the applicant at the two Tribunal hearings. The Tribunal also set out the various concerns it raised with the applicant regarding her claims and evidence during the course of the hearings (CB350 [20] to CB 359 [70] ).
Having raised these concerns, the Tribunal then invited the applicant to respond to that information and informed her that she was entitled to ask for additional time in which to comment or respond. The applicant requested additional time and the Tribunal granted it (CB 359 [71]). The Tribunal then proceeded to summarise the content of the applicant’s post-hearing submission (CB 359 [73] to [77]).
The Tribunal set out extracts of country information from a 2011 US Department of State report on human rights practices for Ethiopia, a November 2007 advice by the Australian Department of Foreign Affairs and Trade (DFAT); the Political Handbook of the World report, (online edition 2010); a UNHCR report dated 4 September 2010, a report prepared by the Immigration and Refugee Board of Canada 2008: Ethiopian: Treatment of relatives of members of opposition parties, especially the Coalition for Unity and Democracy (CUD) (2006- 2007); Human Rights Watch report on violations of freedom of expression and association in Ethiopia (2010); advice to the Tribunal by DFAT in 2008 and 2009, a 2006 Amnesty International report; a 2010, Freedom House report 2010; a report by the CIA: The World Factbook – Ethiopian; and a report by the International Crisis Group: Ethiopia: Ethnic Federalism and its discontents (4 September 2009).
The Tribunal found that the applicant:
a)Was a citizen of Ethiopia;
b)She first arrived in Australia on a visitor visa on 14 July 2012;
c)Prior to her arrival, the applicant was employed by the Bureau of Agriculture & Rural Development, in the Amhara National Regional State.
However, the Tribunal did not find the applicant credible in relation to her past claims of discrimination and adverse treatment in Ethiopia, her claimed political affiliation or claims to be of adverse interest to Ethiopian authorities because of events she claimed occurred subsequent to her arrival in Australia. The Tribunal stated that in coming to this conclusion, it had considered the applicant’s material regarding her mental health, anxiety and observations made in the post-hearing submission. The Tribunal stated that whilst it had given this material some weight, it was not enough to dispel its conclusion that the applicant was not credible about critical aspects of her claims (CB 369 [108]).
As for her political opinion claim, the Tribunal reasoned, at CB 369-72 [109]-[118], that the applicant’s long-term professional employment by the Ethiopian government, including its sponsoring her to visit Australia, made her claims to be identified or perceived to be a critic or opponent of the government not credible. The Tribunal was not satisfied that the applicant was a member of Ginbot7 before coming to Australia, and was not prepared to rely on her assertions as to her family members’ membership of it either. This flowed from its “strong reservations as to the applicant’s credibility generally” (CB371 [114]). The Tribunal accepted that the applicant became a member of Ginbot7 after she arrived in Australia. It concluded that her joining Ginbot7 in Australia was conduct engaged in specifically and solely to bolster her claim to protection, so that s.91R(3) of the Act required it to disregard that conducted in assessing her claim to protection.
With respect to the applicant’s claim that, after she arrived in Australia, her house was raided and laptop (with incriminating material on it ) seized, the Tribunal stated (CB 374 [129]):
“[129] The Tribunal also considers the similar nature of the claims made by those three persons, in that each asserted that shortly after arriving in Australia, authorities in Ethiopia raided their homes and discovered material they claim would create an adverse political profile for them, suggests the applicant’s claim that she and those other persons did not discuss or share details of their situation with each other is implausible. This leads the Tribunal to reject that explanation and to conclude that this applicant’s claim of discovery of adverse information in her home after she arrived in Australia was concocted to explain why she was able to leave Ethiopia without difficulty on a government sponsored program.”
With respect to the applicant’s social group claim, the Tribunal reasoned (CB 372 [119]-[120]), that the applicant’s having travelled to Australia itself did not place the applicant at any risk of harm on return to Ethiopia. The Tribunal concluded that the applicant travelled to Australia because she was nominated and supported by an Ethiopian Government Agency and that while she might face difficulties “from an employment or contractual perspective” on return she would not be identified by the Government as a returnee asylum seeker. It concluded that her claims that she would be considered disloyal, a terrorist to anti-government activist “merely speculative on her part”.
With respect to the applicant’s ethnicity claim, the Tribunal reasoned, (CB 373 [121]-[130]), that though the applicant was a member of the Amhara ethnic group, such discrimination as she may have suffered on that basis did not amount to “serious harm” for the purposes of the Convention or “significant harm” for the purpose of the complementary protection regime. It noted (CB 373 [125]) that her:
“…History is not consistent with any significant discrimination, harm or persecution… because of her ethnicity, and suggests quite the opposite, particularly in her last employment position, from which she was nominated and sponsored for her Australian training program.”
Finally, as to her complementary protection claims, the Tribunal said (CB 375 [132]) that:
“Having concluded the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). The applicant relied on the same factual claims as a basis for fearing significant harm on return to Ethiopia. Having regard to its findings above in relation to these factual claims, and its assessment of her credibility, the Tribunal does not accept there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ethiopia, there is a real risk she will face arbitrary deprivation of her life; that the death penalty would be carried out on her or that she would be subject to torture, or to cruel or inhumane treatment or punishment, or to degrading treatment or punishment as defined.”
In view of those conclusions, the Tribunal affirmed the delegate’s decision to refuse the visa she sought.
Extension of time
Explanation for delay
The applicant’s explanation for the delay in making her application for judicial review is set out in an affidavit filed by the applicant on 10 March 2015. In summary she deposes:
a)after she received the Tribunal decision her mental health deteriorated. Her general practitioner referred her to a psychiatrist. She annexed correspondence from Dr Jenny Jobst dated 7 April 2014 regarding her physical and mental health issues and correspondence from Dr Peter Wigg, Consultant Psychiatrist dated 24 June 2014;
b)she sought legal representation from Victoria Legal Aid and from the Asylum Seeker Resource Centre (ASRC) both of whom gave her limited advice and assistance but informed her they could not provide her with ongoing representation;
c)she applied for judicial review (on 8 March 2013) but withdrew this application on 4 April 2013. She withdrew her application because of advice she had received regarding the financial costs of litigating at Court and the need to represent herself. She also decided to apply for Ministerial intervention
d)in April 2014, at the suggestion of Father Ray at Angelica Church in Albert Park, she sought legal advice from solicitors who assisted her but informed her that they could not represent her;
e)she reapplied for judicial review once her application for Ministerial intervention was unsuccessful.
The Minister does not contend that he would suffer any prejudice if the extension of time were granted. The Minister accepts that the applicant’s delay in making an application for judicial review is “to some extent” explained by her affidavit filed on 10 March 2015. The Minister argues that the delay in itself would not be decisive if there were merit in the application. However, the Minister submits that there is no merit in the application and, consequently, it would be futile to grant the necessary extension of time.
I am satisfied that the explanation for the delay in the applicant making her application for judicial review is reasonable.
The dispute in this case relates to the merits of the applicant’s substantive claim. This is dealt with below under the heading Judicial Review.
Judicial review
The applicant was assisted by the ASRC in the drafting of her Amended Application filed on 12 March 2015 and her Contentions of Fact and Law filed on 10 March 2015. The applicant was self represented at the hearing and appeared with the assistance of an interpreter in the Amharic and English languages. As the applicant was self-represented I explained to her the matters the Court must have regard to in determining whether to grant her an extension of time as well as the nature of judicial review proceedings and its difference to the merit review conducted by the Tribunal. The applicant confirmed that, in relation to her substantive application for judicial review, she relied on the two grounds specified in her amended application.
The applicant specified two grounds of judicial review in her amended application:
Ground 1 – The Tribunal failed to undertake its task of review pursuant to s.414 of the Migration Act as it made findings without engaging in any evaluative assessment of the evidence.
Ground 2 - The decision of the Tribunal is affected by legal error in that the Tribunal made findings of fact that:
(i) were unreasonable or not based on findings or inferences of fact supported by logical ground (sic); and
(ii) were unsupported by any evidentiary basis.
At the hearing, as the applicant was self-represented, I raised with the Minister’s Counsel whether a further ground of judicial review was evident in light of the material before the Court, which was not addressed or raised as an issue in the written submissions of either party. After canvassing this with the Minister’s Counsel, the issue was identified as follows:
“In its decision, the Tribunal made a negative credibility finding in respect to the applicant. One aspect of its reasoning on the credibility issue followed from it having identified similarities between the applicant’s claims for protection and claims for protection made by two Ethiopian nationals, with whom she shared accommodation in Melbourne. Did the Tribunal fall into jurisdictional error by failing to show the applicant, in redacted form or at all, to 2 applications to which it referred?
Directions were made for the first respondent and the applicant to file further submissions in relation to this issue. Further, submissions were filed by the first respondent and the applicant (who was again assisted by the ASRC). For the purposes of this decision I will treat this as Ground 3.
Ground 1
The applicant submits that the Tribunal’s conclusions at [135] of its decision record (where it considers the applicant’s complementary protection claims), in relation to its assessment of the applicant’s activities or involvement in Ginbot7 disclosed neither engagement in or evaluation of the applicant’s evidence. Paragraph [135] is as follows:
“The Tribunal is not however satisfied the conduct and activity which the applicant may have engaged in Australia have been of such a nature as to lead to her being personally identified in Australia or in Ethiopia as an anti-government activist, or high-profile opponent of the Ethiopian government. The Tribunal is also not satisfied that there are substantial grounds for believing the nature of her involvement in any activities or conduct in Australia would ever be known in Ethiopian, and the Tribunal is not satisfied her activities have been or would be identified and reported on by persons in Australia to authorities in Ethiopia. The Tribunal therefore finds there is no real risk the applicant would suffer significant harm if returned to Ethiopian, having regard to the claim circumstances.”
The conduct and activity the Tribunal is referring to in this paragraph is the involvement of the applicant in Ginbot7 in Australia.
It should be noted that in relation to the applicant’s claims for protection pursuant to s.36(2)(a), the Tribunal concluded that the applicant’s choice “to join Ginbot7 and protest the date of such conduct in Australia was conduct engaged in specifically to solely bolster her claim for protection, rather than any commitment to opposing the government of Ethiopia.” The Tribunal identified inconsistencies in the applicant’s evidence at hearing and in her “s.424AA” response stating this added “further to the concerns of the Tribunal as to her credibility, and the weight it can give to her assertions.” (CB 371 [116]). Consequently, the Tribunal was not satisfied the reason the applicant engaged in such conduct in Australia was not otherwise than for the purpose of strengthening her claim to be a refugee and so disregarded such conduct pursuant to s.91R(3) of the Act in determining if the applicant had a well founded fear of persecution for a convention reason.
The applicant identifies various material she submitted to the Tribunal supporting her involvement in Ginbot7: correspondence from the Vice Chairperson of the Ethiopian Community Association in Victoria, dated 21 May 2012 (CB 228 to 229), correspondence from the Secretary of the Support Group for Democracy in Ethiopia, Melbourne Victoria dated 28 March 2012 (CB 334 to 335), and correspondence from the Secretary General of Ginbot7: Movement for Justice Freedom and Democracy. The applicant argues that the Tribunal did not reject these letters of support on behalf of the applicant but gave them no weight on the issue of whether the applicant was a Ginbot7 member in Ethiopia (CB 370 [112]). The applicant argues that the Tribunal, thereby, did not actively engage and consciously consider this material. The applicant notes that the Tribunal conceded that the applicant is accepted by Ginbot7 as a member in Melbourne who has been active and involved in protests and vigils and that she may now be a member of Ginbot7. The applicant submits that paragraph [135] of the Tribunal decision contains conclusions only without any evaluation, assessment or explanation of the findings. The applicant points out that it is not entirely clear, for example, why the nature of the applicant’s activities in Australia would not become known to the authorities. She submits that the Tribunal, therefore, failed to properly determine whether her fear of persecution was objectively well founded.
The applicant further argues that the Tribunal’s finding at [126] (CB 374), rejecting the applicant’s claim she had suffered any past treatment or discrimination on the basis of her educational and professional employment history, particularly her nomination for the Australian training program, fails to consider the applicant’s claims that she was demoted at work, and suffered harassment and intimidation to engage in corrupt activity such as the falsification of data.
The applicant submits that the Tribunal’s reasons do not disclose any consciousness or consideration of central aspects of the applicant’s claims on the significant material before it and consequently failed to form the requisite state of satisfaction: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114.
In her oral submissions the applicant focused on what she said was the failure of the Tribunal to “look” at her support documents such as those from Ginbot7 and the Ethiopian Community Association which she provided in support of her claim to fear persecution or significant harm if she returns to Ethiopia. She said that, in light of this material, she did not see how the Tribunal could be satisfied about her safety if she returned to Ethiopia.
The applicant also stated, in her oral submissions that she felt the Tribunal had confused her case with another person’s case and consequently was not paying attention to her claims and evidence. She gave as an example the fact that at [124] of its decision record the Tribunal had stated that she worked in professional positions for government funded research institutes.
The Minister submits that the applicant’s submissions in relation to this ground are misconceived as it is the function of the Tribunal to weigh the evidence before it. Having done so it was entitled to reason as it did, and to reach the conclusion it did: VJAD v Minister for Immigration and Multicultural Affairs [2004] FCA 468 (VJAD).
As to the applicant’s complaint regarding the reference by the Tribunal to the applicant’s “professional employment in government research institutes” (CB 373 at [124]), the Minister submits that the reference is not a mistake as it involves the use of a collective term “research institutes” intended as a collective reference. In any event, the Minister submits that even if it were a mistake it would not disclose jurisdictional error: MZZXF v Minister for Immigration and Border Protection [2015] FCA 158 (MZZXF) at [73] to [77].
Consideration
The Tribunal considered the material the applicant provided in support of her claim to fear persecution and/or significant harm if she returned to Ethiopia during the course of its “Findings and Reasons” as follows (CB370 [112] and CB371 [115]):
“[112] The Tribunal is not satisfied the applicant was a member of Ginbot7 prior to coming to Australia as claimed, or that she attended meetings of that group in Ethiopia, or that she stored any Ginbot7 information or material in her home that was subsequently discovered as claimed. It is also not satisfied she was an informer for Ginbot7, or that she passed information she received in the course of her employment to that organisation. In reaching these conclusions the Tribunal notes the only material other than her own assertions on this issue were letters she provided from Ginbot7 which purport to attest to her current membership of that organisation. The Tribunal had regard to the documents and letters of support provided from Ginbot7 and local Ethiopian groups in Australia. It gives those documents no weight however as evidence that the applicant was involved in Ginbot7 prior to arriving in Australia. The more general material provided in support of her claim as evidence of the type of publicity material she claimed was left in her home, is of a type the Tribunal considers can readily be obtained through public sources, and is not indicative of past membership of Ginbot7 in Ethiopia. The Tribunal also notes the initial Ginbot7 letter said to demonstrate the membership of the applicant to that organisation whilst naming her, was extremely general in nature, failed to indicate when she actually joined Ginbot7, or the nature of her association with that organisation, and made no reference to any association with that organisation in Ethiopia. In addition the only specific reference to the applicant in the initial Ginbot7 letter was in the second last paragraph, which describes her as “a member of the Ginbot7 network in Australia. She is a tireless individual who has a track (sic) in fighting the tyrannical regime of Meles Zenawi.” In the subsequent Ginbot7 letter provided following the second hearing, the Tribunal accepts there was further specific reference to the membership and activities of the applicant in Melbourne, but again, nothing to indicate she was a member of that organisation in Ethiopia. As such, neither Ginbot7 letter displaces the conclusion of the Tribunal that her claims to have been a Ginbot7 member before coming to Australia were false, and its conclusion that she was never a member of Ginbot7 in Ethiopia. The Tribunal also considers that if she had genuinely been a member of Ginbot7 for a lengthy period of time in Ethiopia, that organisation could have confirmed this status, but did not.”
…
“[115]Despite its findings the applicant was not, prior to coming to Australia a member of Ginbot7, the Tribunal is mindful the material now provided suggests Ginbot7 confirms she is a member of that organisation in Australia. The applicant made no claim in her written application to have taken any role in Ginbot7 or anti-government activities since arriving in Australia, nor did she raise such activities at interview or at the first hearing. She did however at the second hearing claim to have been involved in Ginbot7 activities in Australia, and in particular demonstrating outside a Melbourne hotel and a protest in Federation Square in Melbourne. The supporting material provided following the second hearing also indicates she is accepted by Ginbot7 as a member in Melbourne who had been active and involved in protests and vigils. This was consistent with her claims at the second hearing, and the Tribunal cannot discount the possibility she may have attended such meetings. On this basis, the Tribunal is prepared to accept she may now be a member of Ginbot7, and may have joined after arriving in Australia, and may have engaged in some conduct here, such as the protests and vigil described in Melbourne or telling people about her political affiliation or membership after her departmental interview and after her protection application was made.”
In VJAD, Kenny stated at [28] to [29]:
“28. ………….Absent jurisdictional error, the Tribunal’s findings of fact cannot be set aside, whether or not the Court might have taken a different view of the material that was before the Tribunal at the time: compare Kyaing v Minister for Immigration and Multicultural Affairs [2001] FCA 1495 at [19] per Conti J. As I have endeavoured to show, when the Tribunal’s reasons are read as a whole, the Tribunal’s reasoning on this aspect of the applicant’s case is tolerably clear. The contrary conclusion would require the Tribunal to state expressly that, to the extent of any conflict, it preferred Mr Seth’s information to the other country information. There is, however, no basis for imputing such a requirement to the Tribunal: see Linett v McIntyre (2002) 117 FCR 189 at 190-191 [5] per Wilcox J and 198 [32] per Kiefel J; Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 at 614 [46] per Gaudron J and 640 [169] per Gummow J; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 644-645 [149] per Hayne J. As the Full Court said in Pollocks v Minister for Immigration and Multicultural Affairs [2001] FCA 689; (2001) 195 ALR 73 at 81 [35]:
The selection of what are material facts and what is the evidence, or other material, which is relied on for making those findings is a matter for the Tribunal in its consideration of the circumstances surrounding the application.
The Court added, at 82 [39]:
It is not necessary that there should be an in-depth discussion or evaluation or indeed a detailed catalogue of every piece of evidence on the basis of which the findings on [the] material questions of fact were made.
29. It was for the Tribunal to assess whether, in the circumstances of the applicant’s case, having regard to the material before it, her attendance at demonstrations in Australia might subsequently lead the Burmese authorities to treat her so injuriously as to give rise to a well-founded fear of persecution. It was also open to the Tribunal to determine that, in the circumstances, this attendance would not give rise to such a fear.”
It is clear from the decision record that the Tribunal considered the applicant’s material in support of her claims in some detail. The Tribunal did not give any weight to the applicant’s material in determining her claims of membership of and involvement in Ginbot7 whilst she was in Ethiopia on the basis it formed the view that the material could not be said to relate to the period before she arrived in Australia. The Tribunal conceded that the material did support her claim of involvement in and membership of Ginbot7 whilst she was in Australia, however, having regard to the fact that her participation in Ginbot7 was only raised at the second hearing the Tribunal took the view that these activities were engaged in solely to support her claim and consequently, pursuant to s.91R(3) these activities were disregarded.
The Tribunal was entitled to reach this decision. It was for the Tribunal to assess the applicant’s case, to decide what are the material facts and evidence it relies on for its findings. The Tribunal’s reasoning regarding the weight it gave the applicant’s material is detailed and cogent. The mere fact the Court may have reached an alternative conclusion does not give rise to jurisdictional error.
In relation to the applicants’ claim under s.36(2)(aa), the Tribunal concluded (CB 375[135]):
“The Tribunal is not however satisfied the conduct and activity which the applicant may have engaged in Australia have been of such a nature as to lead her to being personally identified in Australia or in Ethiopia as an anti-government activist, or high-profile opponent of the Ethiopian government. The Tribunal is also not satisfied there are substantial grounds for believing the nature of her involvement in any activities or conduct in Australia would even be known in Ethiopia, and the Tribunal is not satisfied her activities have been or would be identified and reported on by persons in Australia to authorities in Ethiopian. The Tribunal therefore finds there is no real risk the applicant would suffer significant harm if returned to Ethiopia, having regard to her claimed circumstances.”
The applicant submits that this paragraph contains conclusions only without any evaluation, assessment or explanation of the findings.
In determining whether the applicant’s claims satisfied the criterion under s.36(2)(aa), the Tribunal was entitled to rely on its assessment earlier in the decision record in relation to the applicant’s same factual claims: SZSTZ v Minister for Immigration and Border [2015] FCCA 93 at [66]. In SZSGA v Minister for Immigration and Citizenship [2013] FCA 774 at [56] Robertson J stated:
“There is in my opinion no jurisdictional error in the Tribunal referring to its previous findings of fact in this case as the claim under the complementary protection provisions as articulated could not survive those findings of fact that there were no relevant loans and therefore no threats of the nature claimed by the appellant and no factual basis for the appellant’s other claims.”
Likewise, in this case, the applicant’s claim under the complementary protection provisions could not have survived the Tribunal’s findings that the applicants’ claim she had been previously identified as perceived to be a critical opponent of the Ethiopian government, or that she was demoted or discriminated against because she refused to falsify information were not credible, its findings regarding her professional career in Ethiopian Government Agencies one of which supported her trip to Australia and its view that the applicant’s engagement in activities in Ginbot7 were contrived. Moreover, the Tribunal had earlier considered and made findings in respect of the applicants claim at (CB 372 [120]) when it stated:
“[120] The Tribunal accepts the applicant has remained in Australia beyond the period for which it was proposed she would need to complete the sponsored training program. It also accepts remaining in Australia may have consequences for her from an employment or contractual perspective, as her employer may have expected her to return and resume employment, and she may therefore be considered to have abandoned that employment. The Tribunal is not however satisfied the applicant has, or would on return to Ethiopia be identified as a returnee asylum seeker, or that there is a real chance she would face persecution if returned to Ethiopia now or in the reasonably foreseeable future because she remained in Australia beyond the duration of her initial visa. It is also not satisfied her decision to stay in Australia longer would imply to authorities in Ethiopia that she had unsuccessfully sought asylum, or that she would be imputed to have a political opinion opposed to the Government of Ethiopia, that she was associated with opponents of the government, that she would be considered to be disloyal because of her longer stay, or that she would be a terrorist or an anti-government activist and considers assertions on these aspects to be merely speculative on her part.”
The Tribunal made it clear that based on its findings in relation to the applicant’s factual claims and its assessment of the applicant’s credibility (that being an adverse assessment), it did not accept there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ethiopia are she would suffer significant harm. I repeat what I said in [53] above.
I agree with the Minister that the applicant’s submission that the Tribunal failed to consider her claim she was demoted at work and suffered harassment and intimidation to engage in corrupt activities by reference to [126] of the Tribunal decision record (CB 374) is misconceived in that it focuses on one paragraph out of context. That is, it fails to read the decision as a whole. Paragraph [126] does commence by reference to the applicant’s educational and professional employment history and then states that it rejects her claim that she was the subject of any past harm, mistreatment of discrimination for reasons of her ethnicity in the period from at least 1996 to 2011. However, the applicant’s claims to have suffered harassment and intimidation were earlier considered by the Tribunal. At [122] and [123] (CB 373):
“[122] In her response to the s.424AA invitation however, she also asserted she was harassed, intimidated and told to “go back where you came from” when stationed in the eastern part of Ethiopia, and was emotionally and psychologically hurt by such comments. Despite this however her own evidence at hearing was that she had not been subject to discrimination or adverse treatment because of her ethnicity from about 1996 up until she left Ethiopia in 2011. The Tribunal is unable to positively discount the possibility she may have experienced some discrimination in her workplace prior to 1996 as a result of her ethnicity, and therefore proceeds on the basis this may have occurred. It is not however satisfied such discrimination amounted to “serious harm” as required to constitute persecution or “significant harm” in the context of the complimentary protection provisions. More importantly however, based on her own assertion at hearing, the Tribunal also does not accept any such past discrimination occurred in the almost 15 years prior to her departure for Australia in 2011.”
“[123] The Tribunal notes the applicant has been the beneficiary of substantial education at the expense of the Ethiopian government leading to a Master’s degree, and has for a period of in excess of 20 years held various professional positions in government funded research institutes, most recently the Bureau Agriculture & Rural Development, in the Amhara National Regional State. The Tribunal finds she was recently nominated and sponsored by her employer and the Ethiopian government to attend a training program in Australia in 2011.”
The Tribunal then found that the applicant’s employment history is not consistent with any significant discrimination, harm or persecution of the applicant because of the ethnicity and that her history in fact suggests the opposite (CB 373 [125]).
I am satisfied that the applicant’s claim, in reality, invites the Court to engage in impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
The applicant complains in relation to [124] of the Tribunal’s decision, that she has never worked at a research institute. The Tribunal stated (CB 373 [124]:
“In reaching these findings the Tribunal relies on the contents of the visitor visa file relating to the applicant’s entry to Australia, which was the subject of as 424AA (sic) invitation to which the applicant responded at hearing. The Tribunal considered her assertion that her early education was undertaken under the former government, and assisted by her father’s status as a military officer. Whilst this may have been partially relevant to the early part of education, it does not explain her long-term professional employment in government research institutes, and her most recent selection for an overseas educational opportunity.”
The reference by the Tribunal to the applicant’s professional employment in government funded research institutes in Ethiopia in [124] of its decision record was made in the following context (CB 373 [123]):
“The Tribunal notes the applicant has been the beneficiary of substantial education at the expense of the Ethiopian government leading to a Master’s degree, and has for a period of in excess of 20 years held various professional positions in government funded research institutes, most recently the Bureau Agriculture & Rural Development, in the Amhara National Regional State. The Tribunal finds she was recently nominated and sponsored by her employer and the Ethiopian government to attend a training program in Australia in 2011.”
Even if it is accepted that the Bureau Agriculture & Rural Development is not a government funded research institute, I am satisfied that the Tribunal understood the history of the applicant’s employment in government agencies. I am satisfied, therefore, that even if the description of government agencies as government funded research institutes is an error of fact, such an error does not give rise to jurisdictional error. It is likely that the reference to government funded research institutes is an inadvertent reference in the context where the Tribunal had dealt with in some detail, the applicant’s history of employment in Ethiopia: cf MZZXF at [74].
I am not satisfied that the Tribunal’s decision gives rise to jurisdictional error on this ground.
Ground 2
The applicant’s submission in relation to this ground can only be described as containing a series of complaints followed by citations of relevant authorities without any detailed argument as to why the findings of the Tribunal are said to be unreasonable, unsupported by evidence or fail to disclose an “intelligible justification”. The particular paragraphs impugned by the applicant are paragraphs [135] and [124] of the Tribunal’s decision record. Paragraph [135] is extracted in full at [54] above.
The applicant does not explain why paragraph [135] is unreasonable or lacking “intelligible justification”. The applicant also submits that the finding made by the Tribunal that the applicant’s subjective fears of persecution were not well founded was also unreasonable. Again, no cogent argument was put to support this submission
The applicant’s complaint in relation to [124] of the Tribunal’s decision record is the same made by her under Ground 1, namely, that she has never worked at a government funded research institute.
The applicant submits at [27] of her written submission, “The finding that the applicant’s subjective fears of persecution were not well-founded were also unreasonable.” No explanation was given as to how it was said this finding was said to be unreasonable.
The Minister points out that the applicant’s submission as to unreasonableness is not accompanied by any explanation of what, precisely, is said to be unreasonable about the findings or what defect or absence there was in their evidentiary foundation. The Minister relies on the judgement of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) at [13] for the articulation of the matters required to establish the foundation for a claim that a Tribunal’s decision is affected by “illogicality” and “irrationality.”
The Minister submits the applicant’s claim that the Tribunal’s findings with respect to her subjective fears were unreasonable is misconceived as the “well founded” criteria in article 1A of the amended Convention incorporates an objective requirement which is not confined to the facts which formed the basis for the applicant’s subjective fears: SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [18]. In any event, the Minister argues that this complaint is nothing more than a complaint that the applicant disagrees with the Tribunal’s finding: Minister for Immigration and Multicultural Affairs v Eshetu (197) CLR 611 at [40].
Consideration
The applicant’s complaint regarding [124] of the Tribunal’s decision record does not disclose any jurisdictional error. I refer and repeat [62] to [64] above.
In SZMDS Crennan and Bell JJ stated at [130] to [131]:
“130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s.65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case.
131. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing Court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
As I have earlier indicated the applicant has not identified how it is said the findings made by the Tribunal at paragraph [135] of its decision record were unreasonable and/or unsupported by evidence, nor has she identified how those findings fail to disclose an “intelligible justification.” It is for the applicant to make her case and she has not proceeded beyond the point of making unsupported assertions. The same comments can be made with respect to the applicant’s complaint regarding the Tribunal’s findings about her subjective fear to persecution. Consequently, I reject the applicant’s submissions on these bases.
Similarly, the applicant’s complaints in relation to paragraph [128] of the Tribunal’s decision record are unsubstantiated and unconvincing. It is not clear to the Court why the findings are said to be unreasonable. There is nothing inherently illogical in rejecting a claim on the basis of contradictions in the arguments put by the applicant. Consequently, I reject the applicant’s submission on this basis.
I am not satisfied that the Tribunal’s decision discloses jurisdictional error on this ground.
Ground 3
The relevant extracts from the Tribunal’s decision record in relation to this ground are set out in full below (CB 355 at [49] to [51]):
“49. The Tribunal asked about her living arrangements in Melbourne. She said the Ethiopian community helped find housing, and she lived initially in Trugannia, Hoppers Crossing, Oak Park, and then Laverton and in the last 2 weeks in a new location. The Tribunal asked about accommodation arrangements and Laverton. She said she shared accommodation with other people. The Tribunal asked who those people were. She said they were the two other course participants from Ethiopia. The Tribunal asked how long she shared with these two people. She said it was for about one year, as that was (sic) lease period arranged by Red Cross.
50. The Tribunal asked about her knowledge of the visa status of these two persons. She said one had told her his claims had been rejected, but she did not know about the status of the other person. The Tribunal queried if she was referring to protection applications by those persons, and she confirmed she was. The Tribunal asked if she knew the basis on which either of those persons applied for protection. She said she did not know, as they never talked about such things, and she had no knowledge of their claims.
51. The Tribunal expressed surprise that given their common backgrounds as Ethiopians, employees in similar government service, participants on a government-sponsored training program in Australia, who had lived together for 12 months, and had all made protection claims, that they would not speak about those things. The applicant repeated her earlier statement that they never talked of such things, because in their community they were reluctant to share confidential information. The Tribunal asked if she believed either of them claimed protection on the basis of affiliation with Ginbot7. She said she did not know, as they did not talk about such things and did not trust each other.
52. The Tribunal indicated Departmental and Tribunal records showed the other two persons to whom she referred had lodged protection applications. Whilst it indicated it would not speak of their particular circumstances, it identified common attributes between their claims, namely that all claimed there was an event in Ethiopia shortly after they arrived in Australia, in which the houses were raided by security forces, and documents, and a laptop were seized, and as a result, the authorities would now persecute them if they returned. In light of this, the Tribunal expressed concern about accepting her denial that there had ever been any discussion of their circumstances, and indicated this raised concern on its part that her claims may have been concocted to remain in Australia, and she and the others has shared common assertions for that purpose. She again denied knowledge of the other two person’s situations.”
78.Section 424A of the Act provides as follows:
Information and invitation given in writing by Tribunal
(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.
Section 424AA of the Act provides as follows:
Information and invitation given orally by Tribunal while applicant appearing
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.The issue that arises in relation to this case relates to the obligation under s.424A and s.424AA to provide “clear particulars of information”. It can be seen that subsections (2A) and (3) of s.424A provides exceptions to the obligation under s.424A to provide “particulars of information.” A Tribunal is not obliged to provide written particulars of information if it provides those particulars orally at a hearing: s.424A(2A). Further certain specified information does not fall within the scope of the obligation under s.424A (1): s.424A(3).
In SZNKO v Minister for Immigration and Citizenship [2010] FCA 297 (SZNKO) his Honour Flick J, observed that s.424AA does not itself create obligations on the Tribunal but rather (at [8]):
“Information” for the purposes of s.424A does not extend to information provided by an applicant in support of a claim for a protection visa or the “thought processes” of the Tribunal itself”
“…is an enabling provision which permits the Tribunal, if it wishes, to give particulars at an oral hearing”: SZMUK v Minister for Immigration and Citizenship [2009] FCA 1372 at [22] per Perram J.”
His Honour noted that the evolution of these two provisions has been recounted by Tracey and Foster JJ in SZMCD v Minister for Immigration and Citizenship[2009] FCAFC 46, 174 FCR 415 at 429 to 430 who then observed at [71] to [72]:
[71] The policy and purpose reflected in s 424A is that the Tribunal should be compelled:
(a) To put the visa applicant on fair notice in writing of critical matters of concern to the Tribunal;
(b) To ensure that the visa applicant understands the significance of those matters to the decision under review; and
(c) To give the applicant a reasonable opportunity to comment on or to respond to those matters of concern.
[72] It is evident that the same policy and purpose underpin s 424AA.
In SZNKO the “information” being considered within the context of section 424AA was correspondence the Tribunal member was aware of as a consequence of another letter he had come across in an unrelated proceeding. The applicant in SZNKO was seeking to rely upon a letter supporting his claim that he was a Christian. The Tribunal member referred to the other letter, stating it was substantially the same as the letter the applicant sought to rely on and that his concern was whether the letter relied on by the applicant was a “made to order” one. In its reasons for decision the Tribunal found that the applicant did not give a truthful and credible account of his past experience. Its concerns as to the reliability of the letter “only fuelled the reservations that the Tribunal member had formed about the present (applicants) credibility” (at [14]). The Tribunal member stated to the applicant “Apart from the parts of this letter that identify you, that letter is identical to this letter. It uses identical phrasing and some of it is quite unusual phrasing”: SZNKO at [15].
It is evident that the applicant in SZNKO was not provided with the copy of the letter referred to by the Tribunal member, the source of the letter was referred to in only general terms and the content of the letter described as being identical to the letter the applicant provided.
His Honour stated at [23]:
23. “There may be circumstances in which the requirement to “give” information to which s.424A applies may not extend to a requirement to disclose the entirety of any document in which such “information” is contained. In those cases it may not matter for the purposes of making a decision affirming a refusal of a protection visa that the “information” in question is but part of a document or report touching other matters or containing diverse other matters. In those cases the disclosure of that specific part of a much lengthier document may be sufficient. But “information” for the purposes of s.424A cannot in all cases be clinically divorced from the context it which it appears. How much of that surrounding context must also be disclosed must necessarily depend upon the facts and circumstances of each individual case. In some cases it may be necessary to identify the “source” from which information has been obtained. Thus, in SZLIQ v Minister for Immigration and Citizenship [2008] FCA 1405 Buchanan J concluded that extracts from a published book and the source of that material should have been disclosed. Indeed, the extent of disclosure may not necessarily be confined to the disclosure of material which ensures that a particular part is not rendered misleading; the touchstone is that
s. 424A and s. 424AA require the disclosure of so much as to ensure that the opportunity to “comment... or respond...” is meaningful. In some cases the disclosure of the “substance” of information may be sufficient (NAVM v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCA 99 at [33]); in other cases “clear particulars” may require more.”His Honour concluded at [25] to [27]:
“25. But in the present proceeding and where the “information” is contained within a comparatively short letter which has come to the attention of a Tribunal Member, and which was presumably readily available, it is respectfully considered that details as to who wrote that other letter, the capacity of the person who wrote that letter and its date must be disclosed if “clear particulars” of that letter are to be given. Other than the similarity in the content of the two letters, the only other “particulars” disclosed in respect to that other letter are that it emanated “from a different union council” and was “signed by a different person”. That is not sufficient in the present case.
26. Although the concern of the present Tribunal Member that such letters can be “made to order” may not be without substance, such limited procedural protections as remain within Part 7 Division 4 of the Migration Act are to be given full force. Sections 424A and 424AA ensure that the decision-making function of the Tribunal in respect to “information” that forms “a part of the reason” for affirming the decision under review is assisted by an applicant’s “comment ... or respon[se]”.
27. A meaningful opportunity to “comment ... or respond” in the present proceeding required the disclosure of information that was withheld. An explanation may have been forthcoming if the applicant had been told more about the other letter that the Tribunal Member had come across. The reservations of the Tribunal Member, especially given his other concerns as to the credibility of the now Appellant, may not have been misplaced. No further “comment ... or respon[se]” may in fact have been forthcoming. But the opportunity to “comment ... or respond” is the very procedural safeguard which enables an applicant to at least have an opportunity to address those reservations. An opportunity to “comment ... or respond” to the other letter is only a meaningful opportunity if there has been disclosure of such particulars as enables an applicant to put that other letter into context. Letters in the same terms, but dated years apart, may be more difficult for an applicant to explain (for example) than letters written relatively contemporaneously in much the same circumstances.”
The question before the Court is whether the obligations under s.424A and s.424AA to give “clear particulars of information” was satisfied by the provision by the Tribunal of the following information:
a)That Departmental and Tribunal records showed the other two persons whom the applicant had said she had shared accommodation with in Laverton for a twelve month period had lodged protection applications;
b)There were common attributes between their claims and her claims. These were:
i)there was an event in Ethiopia shortly after they arrived in Australia, in which the houses were raided by security forces, and documents, and a laptop were seized;
ii)as a result, the authorities would now persecute them if they returned.
I agree with the Minister’s submission that the information the Tribunal felt would be a reason or the reasons, to affirm the delegate’s decision was firstly, her evidence that, despite having lived together for a period of twelve months and having common backgrounds as Ethiopians, employees in similar government service, and participants on a government-sponsored training program in Australia, the applicant and those two persons never discussed their claims, and secondly, the common attributes or similarities in their claims about events that occurred after they arrived in Australia.
The content of the common attributes were particularised by the Tribunal: see [52] of the Tribunal decision extracted at [77] above.
In these circumstances, I am satisfied that the Tribunal disclosed so much of the information that was necessary for the applicant to have a meaningful opportunity to comment on or respond to the information.
I am satisfied that the Tribunal decision discloses no jurisdictional error on this ground.
Merits
It will be apparent from my findings that there is no jurisdictional error disclosed in the Tribunal’s decision that I am satisfied that the substantive application is so lacking in merit that there would be no utility in granting an extension in time for the applicant to make her application for judicial review.
Conclusion
For the reasons set out in my judgment, I would refuse the application to extend the time period within which the applicant can make their application for judicial review and order costs.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 2 June 2015
0
25
2