SZBYH v Minister for Immigration
[2008] FMCA 407
•7 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBYH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 407 |
| MIGRATION – Review of decision of Refugee Review Tribunal – adverse credibility finding – claimed conversion to Jehovah’s Witnesses – Tribunal acting on information that is ‘public’ – Tribunal decision based on evidence before it – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.91R(3), 65, 36 |
| SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231 Percerep v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 483 |
| Applicants: | SZBYH & SZBYI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3907 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 6 December 2007 |
| Date of Last Submission: | 24 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 7 April 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Hawthorne Cuppaidge & Badgery |
| Counsel for the Respondents: | Ms V McWilliam |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The reference to the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application made on 28 December 2006, and amended on 6 December 2007, is dismissed.
The applicants pay the first respondent’s costs set in the amount of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3907 of 2006
| SZBYH & SZBYI |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 28 December 2006, and amended on 6 December 2007 (received by the Court’s Registry on 5 October 2007), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 17 November 2006, and handed down on 30 November 2006, which affirmed the decision of a delegate of the respondent Minister to refuse protection visas to the applicants.
Background
The first respondent has put a bundle of relevant documents before the Court (the Court Book – “CB”) from which the following background may be discerned.
The applicants are husband and wife. The applicant husband (“SZBYH”) claimed before the Tribunal to be a citizen of India and to have been formerly resident in Pakistan. The applicant wife (“SZBYI”) claimed to be a citizen of Pakistan (as did their son who is not an applicant before this Court).
The applicants arrived in Australia on 23 March 2000 (see CB 14.4 and CB 26.4). They applied for protection visas on 1 May 2000 (see the covering letter from their then migration agent at CB 76 to CB 77). (The applications with annexures are reproduced at CB 1 to CB 75.) The applications were refused on 6 June 2000 (see CB 79 to CB 90 for the delegate’s decision record and covering letter).
The applicants, including their son (who would have been aged four at the time), applied for review to the Tribunal on 5 July 2000 (see CB 91 to CB 95 for the application, including a covering letter from the applicants’ then migration agent). In the application for review, the applicant husband claimed to be an Indian national who had: “been in Pakistan for a number of years”, and feared return to India, his country of claimed nationality, because he said that there was: “an imputed risk as the indian (sic: Indian) authorities will claim/detain/torture me believing that I am an agent for Pakistan or a terrorist trained in Pakistan”. He also feared being arrested in Pakistan: “for travelling on a false [Pakistani] passport”.
The applicant husband had claimed to have left India and entered Pakistan illegally (see CB 18.3), and that he had been taken in by a “benefactor” who helped him. However, since the death of his benefactor (CB 17.7), the benefactor’s sons, who were jealous of the applicant, took his business away (the applicant had been sent to Thailand by his benefactor where he had set up a business for him), and threatened that they would report the applicant to the Pakistani authorities. He was fearful that he would be gaoled on return to Pakistan for this reason. The applicant husband also claimed to fear harm from the applicant wife’s brothers who had been told by the benefactor’s “jealous sons” that he was not related to them as he had: “claimed when we [the applicant husband and the applicant wife] got married” (see CB 18).
The Tribunal
Following a hearing on 18 February 2002, attended only by the applicant husband, the Tribunal affirmed the delegate’s decision. Subsequently this decision was the subject of a review before this Court, which on 2 September 2002 dismissed the application. The applicants, however, were successful in an appeal to the Federal Court which on 5 March 2003 quashed the Tribunal decision and sent the matter back to the Tribunal for redetermination.
A “second” Tribunal (differently constituted) again affirmed the delegate’s decision on 25 September 2003. A subsequent application for review of that decision to this Court again led to dismissal of the appeal on 22 December 2005. But, again, an appeal to the Federal Court was successful. On 24 March 2006 the Court, by consent, quashed the Tribunal decision and remitted the matter to the Tribunal to be again redetermined, but this time according to law.
For a third time the applicants were invited to a hearing before the Tribunal (for the third time differently constituted) by letter dated 24 May 2006 for a hearing scheduled for 5 July 2006 (CB 222 to CB 223). The applicants again (there was some history of this before the earlier constituted Tribunal) sought deferral of this hearing date (see communication at CB 231 from the applicants’ migration agent, who is also a solicitor, whose firm represents the applicant before this Court). On this occasion, however, the request for an adjournment concerned the ill-health of the applicants’ adviser, not the applicants.
Prior to the hearing, the applicant’s adviser sent by facsimile transmission dated 3 July 2006 statements by the applicant husband and applicant wife where it appears for the first time the issue of the applicant husband’s claimed conversion to Christianity as a Jehovah’s Witness was raised. The applicant husband stated (CB 238.8):
“9.I have also decided to become a Jehovah’s Witness. I have worked with Christians for about six years and have become very close to some of them. In April 2006 Jehovah’s Witnesses visited me at my home and spoke to me about Jesus and the Bible. I asked them very many questions over a number of meetings. It seems to me that the Christian message is one of peace. Every time I turn on the television I see Muslims killing other people. I see young children being trained as terrorists. I have lost my belief in Islam. After some time I started attending classes at the Kingdom Hall at Oxley Park, and have decided to convert.”
The applicant wife stated in this regard (at CB 240.7):
“4.My husband wants to convert to be a Jehovah’s Witness. I am desperately worried about this if I am forced to go back to Pakistan. My brothers think now that my husband is a Christian or Hindu and have threatened to kill me and my son if we return. I fear my brothers now, but I fear them more if it were discovered that he was Muslim but has converted to be a Jehovah’s Witness.”
The applicants, with their representative, did attend a hearing before the Tribunal on 5 July 2006 (CB 248). The Tribunal’s account of what occurred at the hearing is set out in its decision record (CB 342.2 to CB 343.9). (The Tribunal’s decision record is set out at CB 317 to CB 353.)
In its decision record, the Tribunal recorded the applicants’ claims and evidence as they existed up to the time of the “first” earlier constituted Tribunal (CB 320.5 to CB 321.2), and set out the claims and evidence of the applicants as recorded by the “first” Tribunal (CB 321.3 to CB 325.6). I note in particular, that the Tribunal member who made the decision currently before the Court noted specifically, at CB 325.7:
“There are comments in the nature of findings in this summary. My own findings appear below and are not based on anything in the nature of a finding in the summary cited above.”
The Tribunal also set out the “second” Tribunal’s summary of the applicants’ claims and evidence as they were at that time (CB 325.7 to CB 337.5). The Tribunal then recorded in full the statements dated 3 July 2006 by the applicant husband and applicant wife (CB 337.7 to CB 339.5).
The Tribunal found that the applicants were all citizens of Pakistan. It rejected: “the claims sometimes made by the applicant husband” that he was a citizen of India on the basis that there was “no evidence” before the Tribunal to support this claim. The Tribunal therefore considered the applicants’ claims in the context of Pakistan being the country of claimed persecution.
A plain reading of the Tribunal’s decision record reveals that the reason that it affirmed the decision under review was a comprehensive finding as to the lack of credibility of the applicant husband and applicant wife, and the applicant wife’s sister who gave evidence on their behalf (CB 348.9):
“As to the claims against Pakistan, they include a variety of claims to fear persecution for reason of nationality, religion, political opinion and membership of a particular social group. Possibly also race. I do not accept any of the applicants’ claims. I find that the applicant husband and wife are not truthful and neither is their witness. I believe that their claims and statements have been directed to a migration objective and not for reason of a fear of persecution.”
Hearing before the Court
At the hearing before the Court, the applicants were represented by Mr L Karp of Counsel. Ms V McWilliam of Counsel appeared for the first respondent.
While leave was initially granted for the filing in Court of an amended application which had been received in the Court’s Registry on 5 October 2007, only one issue was pressed before the Court. This was that the applicants asserted jurisdictional error on the part of the Tribunal in that there was no evidence to support the Tribunal’s conclusion relating to the applicant husband’s claimed conversion to Christianity in Australia. This was described as an independent claim made by the applicant husband.
The applicants put before the Court:
1)The affidavit of Paul Fergus, solicitor, who had conduct of the matter on behalf of the applicants, which annexed a transcript of the Tribunal hearing held on 5 July 2006 and on 15 August 2006. No objection was taken to this affidavit.
2)The affidavit of David Grigor, computer consultant, and an elder of the Church of the Jehovah’s Witnesses made on 4 October 2007 with annexures. Ms McWilliam objected to the affidavit on the grounds of relevance. That is, the affidavit sought to put other evidence before the Court by way of an opinion as to an underlying fact (being whether Jehovah’s Witnesses had to separate themselves from non-believers). The objection as I understood it was that this was not relevant to the one issue put before the Court by the applicants, that is, that the Tribunal made a finding for which there was no evidence. Mr Karp pressed that evidence to support a contention that there was no evidence before a Tribunal is admissible in this type of proceeding. I admitted the evidence, subject to relevance, to allow the hearing to proceed, and to enable argument as to the detail of the applicants’ complaints, so as to assess the relevance of the affidavit material in that light.
3)The applicants’ written submissions filed on 22 November 2007.
4)The applicants’ additional written submissions in relation to the issue of the admissibility of the affidavit of Mr Grigor.
In addition to the Court Book, and the respondents’ formal Response, I have before me the first respondent’s outline of submissions filed on 27 November 2007, and the first respondent’s supplementary submissions on the issue of the admissibility of the affidavit of Mr Grigor.
The Applicants’ Ground
Mr Karp’s submission was that the applicant had made essentially two claims before the Tribunal. The one specific set of claims was said to be what the applicant husband had said had occurred to him in his village in Kashmir, how he had gone to Pakistan and was “unofficially adopted” by a person subsequently called his “benefactor”, how he came to marry the applicant wife and had problems with his benefactor’s family. A separate set of claims was said to arise “fairly late in the piece”, and was said to be what was stated in his statement, relevantly, at “paragraph 9” by the applicant husband (see CB 238 and see also paragraph [10] above). Also, with reference to the applicant wife’s statement (see CB 240 at paragraph 4, and see also paragraph [10] above).
Mr Karp submitted that the Tribunal questioned the applicant husband at the hearing in relation to this claim. He referred the Court to those relevant parts of the transcript (“T”) (T 26.7):
“Q 152… Now, there’s a new claim that’s been submitted just very recently. You say you’ve decided to become a Jehovah’s Witness. I want to ask you something about that. Now, you say you were visited in your home in April, that’s not long ago, and you asked them many questions over a number of meetings and you’ve started attending classes at the Kingdom Hall at Oxford Park. So can you tell me what you’ve learned so far.”
The Tribunal then proceeded to question the applicant about his engagement with Jehovah’s Witnesses, and what he understood to be their beliefs. Then at T 29.7:
“Q 165… And what have you been told about your marriage to a Moslem
APPLICANT (DIRECT)
AWell, they don’t say anything, they just say that, Treat your wife with the love and don’t fight with them, don’t screaming, swearing, live a peaceful life and ….. .no need to change your name, your name is alright, it’s nice name [applicant husband’s name]. Because Jehovah Witnesses never force the people to change their religion.
Q 166Ah hmm. And what have you been told about your marriage to a Moslem?
APPLICANT (DIRECT)
A.So I don’t. I talk with my wife, she’s not angry, she’s not angry.
Q 167Yeah. Do you know that the Jehovah’s Witnesses won’t allow you to maintain a relationship with a person who is not a Jehovah’s Witness?
APPLICANT (DIRECT)
A.Yeah, we have to, we have to, in fact ….. people, Catholic and other people ….. the real message of God. Some people have even ….. and they don’t like us but we no need to hate with anyone.
Q 168 No
APPLICANT (DIRECT)
ABut they hated us, they have some problem but that’s not our problem, we have to love with everybody.
Q 169Do you know there is a famous case in the United States where a woman who was a member of the Jehovah’s Witnesses suffered the tragedy that her parents committed suicide, both of them, within a short time and the Jehovah’s Witnesses would not allow her to go to their funeral and they won’t allow members of the church to associate with non-members. And subsequently her daughter left the Jehovah Witnesses and she was not allowed to have anything to do with her daughter. Do you understand that” Do you accept that?
APPLICANT (DIRECT)
AMaybe I do not have to ask them that, why it happened and the, Jehovah’s Witnesses are not allowed to see someone if he’s Catholic or other religion.”
Mr Karp’s submission was that in light of Mr Grigor’s affidavit the questions asked by the Tribunal were based “on a fiction”, and that this fiction continued and affected the Tribunal’s decision. He referred the Court specifically to that part of the Tribunal’s reasoning at CB 352.7:
“The applicant appeared to see no problem in his son attending a Muslim school and his wife being a regular attendee at the local mosque, clearly being unaware or careless of the separation demanded of Jehovah’s Witnesses from non-Witnesses.”
Mr Karp submitted that the “pivotal sentence” in the Tribunal’s decision in this regard is what follows:
“His acceptance of his wife and son’s situation thus raises questions about his conviction.”
Mr Karp’s submission was that the Tribunal’s finding that it would disregard the conduct engaged in by the applicant husband in Australia pursuant to s.91R(3) of the Act was based solely on its view of the applicant husband’s religious conviction, which in turn was based on its view that he appeared to be unaware, or careless, of the alleged separation demanded of Jehovah’s Witnesses from non-Witnesses, a matter which, when read in the light of Mr Grigor’s affidavit, had “absolutely no evidence to support the Tribunal’s conclusion in that respect”. Mr Karp’s submission was that the factual basis on which the applicants’ complaint now rested was that the evidence of Mr Grigor, who was put forward as an expert (with reference to s.79 of the Evidence Act 1995 (Cth) (“the Evidence Act”)) negated the Tribunal’s assumption of fact, that is, as to what is said to be the separation demanded of Jehovah’s Witnesses from non-Witnesses.
In support, Mr Karp referred the Court to:
1)SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231 (“SFGB”), per Mansfield, Selway and Bennett JJ at [18] and [19]:
“[18]… The basis of the alleged jurisdictional error was put on various interrelated bases: that the tribunal did not correctly identify the proper legal test for persecution or, if it did, then it reached a factual conclusion unsupported by any evidence; or that it failed to consider other relevant evidence that was before it; or that its conclusion on the evidence was ‘Wednesbury unreasonableness’. But the essence of the argument was that there was no information before the tribunal from which it could realistically draw the conclusion that there was a government in control of the place from which the appellant came that could or would protect the appellant from persecution for a Convention reason.
[19]This argument, if it were made out, would be sufficient to establish that the tribunal had made a ‘jurisdictional error’ so as to found jurisdiction in this court to intervene. If the tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-7; 94 ALR 11 at 37-8; 21 ALD 1 at 23-4.”
2)Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-56:
“The question of whether there is any evidence of a particular fact is a question of law: McPhee v S Bennett Ltd; Australian Gas Light Co v Valuer-General. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light; Hope v Bathurst City Council. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v Broken Hill South Ltd. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v Maryborough Mining Warden.
But it is said that ‘[t]here is no error of law simply in making a wrong finding of fact’: Waterford v The Commonwealth, per Brennan J.”
(Citations omitted.)
3)SFGB at [20]:
“On the other hand, if there is sufficient evidence or other information before the tribunal on which it could reach the conclusion it did then it is for the tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a ‘jurisdictional fact’, there is no error of law, let alone a jurisdictional error, in the tribunal making a wrong finding of fact: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6; 93 ALR 1 at 24-5.”
4)SFGB at [22].
“In this case the tribunal member identified the information upon which she relied. In so far as the issues arising in this appeal are concerned, the member did not purport to rely upon any information that is not specifically referred to the tribunal’s reasons.”
5)SFGB at [23]:
“The general conclusions reached by the tribunal relating to the position of the Taliban generally in Afghanistan were supported by the material to which the tribunal referred. It is clear enough that the Taliban had been removed from government in Afghanistan. An interim government was established. But the appellant’s case did not depend upon the general situation in Afghanistan. The tribunal clearly understood that the case being put by the appellant was that he faced a real risk of persecution if he was returned to his home region in the north of Oruzgan province. And it was accepted before us that there was no analysis by the tribunal or the parties as to whether the appellant could return to any other area in Afghanistan: see for example, Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; 124 ALR 265; 35 ALD 1.”
6)With reference to [24]-[27] in SFGB, that the Court found that the relevant finding of the Tribunal in that case that the Taliban was no longer a force in Afghanistan, and that there was no evidence before it to support the applicant’s claim that elements of the Taliban remain viable in Afghanistan, led to the Court’s finding that there was jurisdictional error in the Tribunal having relied on information or evidence which did not exist. That is, that in that case there was no evidence before the Tribunal to support its conclusion (on the Taliban) in relation to the northern province of Afghanistan from which the applicant came, and in respect of which he claimed to fear persecution.
7)Bruce v Cole (1998) 45 NSWLR 163 at 189D per Spigelman CJ,
“I accept that a finding of primary fact by the Conduct Division will be vitiated if there was no probative evidence to support it. Similarly an inference of fact is vitiated if it is not open on the primary tax properly so found.”
8)Minister for Immigration and Multicultural and Indigenous Affairs v VOAO and VOAP [2005] FCAFC 50 at [5] and [9], in support of the proposition that an error of law would be established (as was conceded by Counsel for the Minister in that case) if it appears that the Tribunal has made a finding of fact or has drawn an inference without any supporting probative evidence. [Although I note that at [13] the Court found that: “[t]he situation that arose in this case might preferably be described as a failure to take account of relevant material, rather than ‘no evidence’.”]
In all, therefore, the applicants’ argument is that jurisdictional error will be revealed where there is no evidence to support an essential proposition in the Tribunal’s reasoning. In the present case, the Tribunal found that it would disregard the applicant’s conduct in Australia pursuant to s.91R(3) of the Act because the applicant husband’s acceptance of his wife and son’s situation raised questions about his religious conviction, and that this finding was based on the Tribunal’s earlier finding that the applicant husband was “unaware or careless” of “the separation demanded of Jehovah’s Witnesses from non-Witnesses”; a finding for which Mr Karp submitted there was no evidence before the Tribunal, and further, that in light of Mr Grigor’s affidavit, “not only was there no evidence there was evidence to the contrary.”
The Respondent’s Reply
In response, Ms McWilliam submitted five points which she said each, on their own, would be a complete answer to the applicants’ case:
1)She referred the Court to SFGB at [21]. Noting that while the Court had been referred to this case, the Court had not been referred to this particular paragraph:
“In considering the argument now put it must be remembered that the tribunal is not limited to the evidence that is formally put before it: s 353(2) of the Act. Subject to the other provisions of the Act, including the implied and expressed requirements of procedural fairness, the tribunal can inform itself as it thinks fit, including acting on information that his ‘public’. Nor should it be forgotten in this context that in the course of their duties tribunal members may well come to have a relatively detailed understanding of the political and legal situation in various parts of the world. Within the limits imposed by the Act itself there is nothing to prevent members from using this information.”
The submission was that, with reference in particular to T 30 (see particularly Q 169), the Tribunal took into account information, that is, a body of knowledge that it had built up in the course of its own experience, and used that information in its examination of the applicant husband at the hearing. A course on which it was entitled to rely based on the authority of SFGB especially at [21]. That is, that there was information before the Tribunal (albeit not put before it as “formal evidence”), but nonetheless there was a basis for its statement relating to the: “separation demanded of Jehovah’s Witnesses from non-Witnesses”.
2)The second point was that that part of the Tribunal’s decision record complained of by the applicant (“[t]he applicant appeared to see no problem in his son attending a Muslim school and his wife being a regular attendee at the local mosque, clearly being unaware or careless of the separation demanded of Jehovah’s Witnesses from non-Witnesses”) was a statement as what followed: “[h]is acceptance of his wife and son’s situation thus raises questions about his conviction”, were mere passing references and were not actual findings. That the Court was being asked to elevate these to something more “significant”. Which in light of what the High Court said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) the Court should not do. That is, the Court is being asked to go through the Tribunal’s decision with a “fine tooth-comb”, and that even if there was some error in these statements it was not an error going to jurisdiction.
3)As an alternative, that if these statements were findings, they were not findings without evidence, because there was evidence in support. In essence, this point is that the paragraph in which the sentences complained of by the applicants appear should be read as a whole. The relevant exercise of the Tribunal’s jurisdiction flows from its consideration pursuant to s.91R(3) of the Act. Even if the sentences complained of do contain some error in a finding of fact (which was not conceded), it was not an error in a finding of fact in the exercise of jurisdiction. In other words, the Tribunal considered whether it should disregard the applicant’s claimed activities relating to his conversion to Christianity in Australia pursuant to s.91R(3) of the Act. In the exercise of this jurisdiction, the Tribunal took into account a number of factors which are evident on a plain reading of the entire paragraph beginning with: “[f]inally I turn to the applicant’s claimed conversion to Christianity” (CB 352.6). Simply, that there was ample evidence to support the Tribunal’s finding in relation to the application of s.91R(3) of the Act.
4)The fourth point is an extension of the third and relies on SFGB at [19], a paragraph relied on by the applicants in support of their argument. Ms McWilliam reminded the Court that what was said in SFGB was: “[i]f the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error”. Her argument was that the sentence complained of was not a critical step in reaching the Tribunal’s ultimate conclusion because while it may be said to be a passing reference “to something that did operate on the Tribunal member’s mind”, there were a number of other matters that were the critical steps leading to the Tribunal’s ultimate decision.
5)The fifth point for the Minister was that the Court should refuse the relief sought by the applicants in the exercise of its discretion. The argument was that if the Court accepted that there was an error, and that it was secondly a factual error, and thirdly a factual error going to jurisdiction (in other words it was a jurisdictional error), then the Court should in any event refuse the relief sought because, with reference to Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 (“Aala”), the Tribunal made a comprehensive finding in rejecting the credibility of the applicants. That even if the Tribunal were to have had before it what is now contained in Mr Grigor’s affidavit, that this would not affect the outcome of the decision given the overwhelmingly strong adverse credibility finding, and further given that the material contained in Mr Grigor’s evidence goes to an issue that was merely in the Tribunal’s mind and would not in all the circumstances have affected the ultimate outcome. In other words, there would be no utility or purpose in sending the Tribunal’s decision back for reconsideration as the outcome would not in any event be different.
Consideration
Although, given the reasons which I set out below, the resolution of this matter does not depend on the exercise of the Court’s discretion in this way, I should just record that the invitation issued by Ms McWilliam in this regard is fraught with great difficulty and, in agreeing with Mr Karp, “great danger”, given that ultimately what is at issue is the question of whether Australia owes protection to these individuals pursuant to, not only its international obligations flowing from the signature to the 1951 Convention Relating to the Status of Refugees (and the 1967 Protocol), but obligations that flow from domestic law (see for example ss.65 and 36 of the Act). Ultimately, this is a question for the Tribunal and not the Court.
In my view, if jurisdictional error is found, then in the exercise of the discretion pertaining to the relief sought by the applicants (certiorari and mandamus), the consideration should be as to whether there was some disentitling conduct, or whether granting the relief would be a futile gesture. (As to disentitling conduct see, for example, Aala at [53], per Gaudron and Gummow JJ, and SAAP Minister for Immigration and Multicultural and Indigenous Affairs ; (2005) 228 CLR 294; [2005] HCA 24 at [80], per McHugh J. See also Commonwealth of Australia (Department of Defence); Ex parte Marks (2000) 177 ALR 491; [2000] HCA 67, per McHugh J.)
The applicants’ complaint is that in a critical aspect of its reasoning the Tribunal made a finding for which there was no evidentiary basis, and that the absence of any such evidence results in jurisdictional error on the part of the Tribunal. Further, that not only was there no evidence to support the Tribunal’s relevant finding but that evidence which is now sought to be adduced to this Court (the Grigor affidavit) shows that the Tribunal’s “assumption of fact” is negated.
Putting aside the issue as to whether what is complained of by the applicants now was a mere passing reference by the Tribunal (the context in which Ms McWilliam referred the Court to Wu Shan Liang), I do agree with Ms McWilliam that this Court, in resolving this matter, needs to be mindful of what was said by the High Court in that case as to how Tribunal decisions should be read.
In resolving the applicants’ complaint before the Court now, I am mindful of what was said in Wu Shan Liang, particularly under the heading of: “The proper role of a reviewing court” at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ, and in particular, the endorsement in what was said by a Full Court of the Federal Court (per Neaves, French and Cooper JJ) in Collector of Customs v Pozollanic Enterprises Pty Ltd (1993) 43 FCR 280 where that Court (at 271-272):
“ … collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be ‘concerned with looseness in the language … nor with unhappy phrasing’ of the reasons of an administrative decision-maker.”
The Court continued:
“‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”
(Citations omitted.)
I am further, and particularly, guided by what was said relevantly by Kirby J in the same case (at 291):
“What are the principles which should guide the judge conducting that review and appellate court supervising such a decision?
1. The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb ….”
The reasons under challenge must be read as a whole. Any plain reading of the Tribunal’s decision record, any plain reading of its analysis, its “Findings and Reasons”, reveals very clearly that the applicants were unsuccessful before the Tribunal because of a comprehensive rejection of the truthfulness of the applicant husband and wife, and that of the one witness who gave evidence in support of their claims, the applicant wife’s sister.
It does not require any beneficial reading of the Tribunal’s decision record to see that the reason for the Tribunal’s decision, the issue on which the decision to affirm the delegate’s decision turned, was a comprehensive finding of a lack of credibility of the applicants, their witness and their claims.
The Tribunal’s reasons begin with a rejection of the: “claim sometimes made by the applicant husband that he is a citizen of India” on the basis that there was “no evidence” before the Tribunal to support such a claim and, in any event, the apparent subsequent acceptance by the applicants, through their adviser’s submission of 14 July 2005 (see CB 264.4 – paragraph 5), that the applicant husband was not a citizen of India and was a citizen of Pakistan. That this was the country of origin against which the claims to fear persecution needed to be considered. The Tribunal found that the applicant husband’s initial claim to have been a citizen of India did not have “any merit” (see CB 348.8).
Having resolved the issue of the applicant husband’s nationality (in a finding which is not disputed now by the applicants), the Tribunal begins its consideration as to the applicants’ claims against “Pakistan” with the following (at CB 348.9 to CB 349.1):
“As to the claims against Pakistan, they include a variety of claims to fear persecution for reason of nationality, religion, political opinion and membership of a particular social group. Possibly also race. I do not accept any of the applicants’ claims. I find that the applicant husband and wife are not truthful and neither is their witness. I believe that their claims and statements have been directed to a migration objective and not for reason of a fear of persecution.”
The Tribunal’s analysis ends with the following (CB 352.8):
“In all the circumstances, I am not satisfied as to anything that the applicants have claimed relevant to their claim to protection. I do not accept that the applicant was born in Kashmir. I do not accept that he has any claim to Indian citizenship. I do not accept any part of the story of his benefactor and his sons. Neither do I accept that there exists any problem of any kind between the applicant and his wife’s family. I simply do not believe the evidence of either the applicants or their witness on this point. I believe that their interest in pursuing this story is migratory only. I do not accept that they have been harassed in Pakistan by his benefactor’s sons or by the Pakistani authorities or that there is any risk of their suffering any harm whatsoever from them should they return to Pakistan. Similarly, I do not accept that the applicant wife’s family constitutes a threat to the family or to any member of it either here in Australia or in Pakistan. I do not accept that there is a real chance of the applicant suffering harm amounting to persecution because his (sic: ‘he’) is or is thought to be Indian, Christian or a spy. In short, since I find that the applicants’ complete story is a work of fiction, I accept none of their claims, explicit or inherent, arising from this story.”
(Emphasis original.)
What is set out in between this starting proposition and ending conclusion are the Tribunal’s detailed reasons for this comprehensive rejection of the applicants’ credibility and their claims.
In considering the detail of these claims, the Tribunal variously found that there were “significant discrepancies” in the applicant husband’s evidence in the various accounts given over a number of years in relation to his departure from the village in which he claimed to have been born. The Tribunal found that the applicant husband’s evidence in this regard was “not credible”, a finding for which it gave reasons (CB 349.5 to CB 350.7).
In relation to the applicant husband’s account of his life with his benefactor, the Tribunal found that the applicant husband had provided “various and conflicting characterisations of his working situation” (CB 351.1), and found the contrast in various statements made each of the statements “impossible to accept”; the Tribunal found that the: “applicant will say anything which seems convenient at the moment to advance his cause without any regard to the truth” (CB 351.4).
Further, in relation to the claim that the applicant wife’s family did not know that the applicant husband was not “the natural son of his benefactor” and that this led to claims to fear harm from them, that the Tribunal, in all the circumstances presented to it, was unable to “believe that his wife’s family would not have realised that he was not of the same origin as his benefactor’s family at the time of the wedding” (CB 351.5).
In relation to the applicant husband’s claims that his benefactor’s children had affected his finances, the Tribunal, for reasons given, found that the “applicant (in context, the applicant husband) will say anything regardless of the truth if it seems convenient at the moment” (CB 351.8).
In relation to the applicants’ claims as to the time that they spent in Thailand (the applicants had claimed that the applicant husband had been sent there and set up in business by his benefactor), the Tribunal found that even “apart from the inconsistency” between various statements made by the applicant [in context, the husband] for reasons given, the Tribunal found his description of how he gave away his business in Thailand “implausible” and did not accept it (CB 352.3).
The Tribunal then set out its consideration in relation to that aspect of the applicants’ claims relating to the attempts of the applicant wife’s brothers to visit Australia in order “to kill the family”. Again, for reasons given (and again, not challenged by the applicants before the Court now), the Tribunal found that the attempts of a brother of the applicant wife to obtain a visa to come to Australia (including an attempt in 2003 under a false claim) was “purely migratory – he wished to join his two sisters in Australia”, and not for any reason of being “malicious vis-à-vis the applicants”. The Tribunal found it had no doubt that attempts by the applicant wife’s other brother to obtain visas for Australia “fall into the same category” (CB 352.5).
What follows is the Tribunal’s consideration of the applicant husband’s claim to have converted to Christianity some time after his arrival in Australia (noting that the applicants arrived in Australia in March 2000, and that the Tribunal’s consideration, including the hearing before the Tribunal, took place in the latter half of 2006). It is important to set out the Tribunal’s consideration in this regard in full to properly understand the applicants’ complaint which is said to arise from, at best, one or two sentences in this passage of the Tribunal’s decision record (CB 352.6 to CB 352.8):
“Finally, I turn to the applicant’s claim to conversion to Christianity. Here again, the evidence is contradictory. According to the applicant husband, his interest was aroused between one and two years ago. However, it only manifested itself in April this year, when he received a knock on the door from two Jehovahs Witnesses, who have supplied a letter of support. The letter states that his study began on 1 April. His own statement was different: ‘Louise and Allan had knocked on his door in April and informed him about Jesus. The following week, they had brought more people.’ His wife claims to have told her family of his conversion in April, yet the Carpenter’s letter, dated October 2006, only states that ‘He shows an interest in becoming on of Jehovah’s Witnesses in the future, but this is entirely up to him.’ The applicant appeared to see no problem in his son attending a Muslim school and his wife being a regular attendee at the local mosque, clearly being unaware of careless of the separation demanded of Jehovah’s Witnesses from non-Witnesses. His acceptance of his wife and son’s situation thus raises questions about his conviction. He was able to demonstrate at hearing that he has learned some of the doctrine of the Jehovah’s witnesses, but I believe that his interest is purely intended to further his protection application. I will accordingly disregard it pursuant to s.91R(3) of the Migration Act 1958.”
(Errors in original.)
The applicant husband’s claim to fear persecutory harm on the Convention-related ground of religion was a claim made, albeit with different iterations, from the beginning in 2000.
Before the first-constituted Tribunal, the applicant husband claimed to fear persecution, amongst other things, on religious grounds, because of what he said were Indian Hindus’ suspicions of Muslims who were regarded as extremists and therefore led to his fleeing India for Pakistan (see CB 321.4). Before the first-constituted Tribunal, the applicant wife claimed, amongst other things, that she would be “scorned for traditional reasons linked to the religious and moral codes of Pakistan” (CB 323.8).
Before the second-constituted Tribunal, the ground of religion appeared linked to the applicants’ claims to fear harm from the benefactor’s sons and the applicant wife’s family because, amongst other things, the applicant wife’s family had been told by the benefactor’s sons that they “were not sure if he (the applicant husband) was a Muslim or not”. This was said to be part of the animosity said to be emanating from both sets of families towards the applicants (CB 328.4). (See also CB 332.8. Further, at CB 335.5, where at the hearing before the second-constituted Tribunal, the applicant is reported as saying: “the applicant said that religion was the main factor”, that was in the context of explaining his problems with his alleged benefactor’s family and his wife’s family.)
It was before the currently constituted Tribunal that the applicants first raised the issue of the applicant husband’s claimed conversion to Christianity (Jehovah’s Witnesses) in Australia. (The applicant husband and applicant wife’s statements under cover of their adviser’s submissions of 3 July 2006. See CB 236 and in particular, CB 238.8 (paragraph 9 of the applicant husband’s statement) and CB 240 (paragraph 4 of the applicant wife’s statement). See also as reproduced at CB 338.8 and CB 339.4 in the Tribunal’s decision record. See also paragraph [10] above.) The issue of the applicant’s claimed conversion in Australia was also discussed at the hearing with the Tribunal on 5 July 2006 (see the Tribunal’s account in its decision record at CB 343.4 to CB 343.7, and the transcript of the hearing at T 26.6 to T 32.8).
Mr Karp submitted that the applicants made “essentially two claims”. The first claim was said to be based on what the applicant husband had said had happened to him in his village in Kashmir, how he went to Pakistan and was “unofficially adopted by his ‘benefactor’”, married the applicant wife and had problems with his benefactor’s family. He then submitted that there was a separate and specific claim that arose “fairly late in the piece” which was that he had converted to become a Jehovah’s Witness in Australia.
On any plain reading of the material before the Court, I cannot agree with this characterisation of the presentation of the applicants’ claims. Specifically, the applicant’s claim to fear harm on the ground of religion was not new, and was not a claim that emerged “late in the piece”. As set out above, the Convention ground of religion had been put forward from the beginning. (See in particular the application for protection visa at CB 94.9, CB 17.5 and CB 20.2, and see further the various accounts given to the differently constituted Tribunals.) What could be said to be “new” was the claim made before the third-constituted Tribunal that the applicant had converted to Christianity in Australia.
The applicant’s claim to fear harm on the Convention ground of religion, therefore, was not new. The Tribunal recognised this in its various setting out of the applicants’ evolution of their evidence and claims over the years since they had first applied for protection visas in Australia. This properly formed the basis (at least in part) for its finding that the applicant husband would say whatever was felt to be necessary and ultimately, that the applicants were motivated by “migratory” reasons and not fear of persecution.
I cannot accept Mr Karp’s submission that the applicant husband made essentially only two claims. With respect, this ignores, or seeks to deflect, what is plainly open on the material contained in the Court Book that the applicants made a large number of claims which evolved and developed over time. The Tribunal dealt with each aspect of these claims, in my view, in a logical and comprehensive fashion. It is, in my view, a misrepresentation both of how the applicants’ claims evolved over time, how they were ultimately presented to the Tribunal and how the Tribunal dealt with the claims, to seek to argue that the claimed conversion to Christianity in Australia was a separate and distinct claim to all other claims made by the applicants.
It is plainly not for this Court to make findings of fact, including such findings on the credibility of the applicants’ claims. Such a course is not available to this Court (Wu Shan Liang, Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67] (“Durairajasingham”), per McHugh J). Plainly this was the role and function of the Tribunal which in my view was exercised without demonstrable error.
A holistic reading of the Tribunal’s decision record reveals plainly that it rejected in their totality, the applicants’ claims on the basis of their lack of credibility. That part of the Tribunal’s decision complained of now must be read in the context of the paragraph in which it appears, and that paragraph must be read in the totality of the Tribunal’s reasons. The applicant’s claim to fear harm on grounds of religion did not fail solely on the basis that the Tribunal could be said to have formed a view that the adherents of Jehovah’s Witnesses were required to be separate from non-Witnesses. The Tribunal rejected the claimed persecutory harm based on the grounds of religion for the same and only reason that it rejected the applicants’ claims to fear harm on other Convention-related grounds. Namely, to put it bluntly, that the applicants had lied, and continued to lie, before the Tribunal (“the applicants’ complete story is a work of fiction” (CB 353.2)), for the express and sole purpose of achieving a migration outcome (“I believe that their claims and statements have been directed to a migration objective and not for reason of a fear of persecution” (CB 348.10 to CB 349.1)).
I agree with Ms McWilliam that the Tribunal’s rejection of all of the applicants’ claims, and even the Tribunal’s rejection of the applicants’ claims, as they related only to the ground of religion, did not turn on its view of whether Jehovah’s Witnesses required separation from other non-Witnesses or not. But turned on its overwhelming rejection of the credibility and truthfulness of what the applicants had said (including the applicant wife’s sister who gave evidence on their behalf).
That the Tribunal saw the disposition of the applicants’ claims and the determination of the review before it in these terms, can be seen not only from what it said at the beginning and end of its analysis, as referred to above, but even with reference simply to the paragraph within which the sentences complained of appear. The Tribunal saw the applicant husband’s claim to have converted to Christianity in Australia as exhibiting the same deficiencies as the rest of the applicants’ evidence. That is, that their claims and evidence were contradictory and motivated by the desire to achieve a migration outcome. That the Tribunal saw the claim to religious conversion in Australia in the same light as all the other claims can be seen also with what appears at the beginning of the relevant paragraph which in effect begins with: “[h]ere again, the evidence is contradictory”.
When seen in this way, even if what the Tribunal said in the sentences complained of, is a finding by the Tribunal, it is not as Ms McWilliam submitted correctly, in the total sense, a critical step in the rejection of the applicants’ credibility, which was after all, the determinative issue in the review. Plainly, the Tribunal had already formed a view as to its comprehensive rejection of the applicants’ credibility. The plain language “here again”, and the location of the relevant paragraph in the analysis, shows that the critical step in the Tribunal’s reasoning was the comprehensive rejection of the applicants’ credibility. This “step” (using the term in the context as put forward in SFGB and relied on by the applicants now), was the critical step. The finding on the applicants’ credibility, which is of course a finding for the Tribunal to make as the “decision-maker par excellence” (Durairajasingham), was plainly open to it for all the reasons that it gave.
There was certainly a large amount of evidence put before the Tribunal, and it must be said, by the applicants themselves, to ground the Tribunal’s finding, that is, its adverse finding, as to the lack of credibility on the part of the applicants’ claims. The sole ground pressed before the Court now that there was “no evidence” to ground the Tribunal’s conclusion in relation to the applicants’ claim to fear harm on the ground of religion is, in my view, not made out when the Tribunal’s decision record is read plainly in its totality.
But the applicants’ complaint does not succeed even with reference only to the paragraph within which the “offending” sentences occur. Amongst other things, the applicants claimed that the applicant husband had engaged in conduct in Australia (that is, his conversion to Christianity – Jehovah’s Witnesses) which was conduct which gave rise to a well-founded fear of being persecuted if he were to be returned to Pakistan.
The applicants’ claim in this regard must be seen in this light. The relevant question that the Tribunal was ultimately required to answer was not whether Jehovah’s Witnesses require separation or not from non-Witnesses, but whether the applicant husband’s claimed conduct in relation to his conversion in Australia gave rise, whether on its own or in the totality of the applicant’s claims, to a well-founded fear of persecution if the applicants were to be returned to Pakistan. The Tribunal plainly understood that this was the question that it was required to determine. (See generally its decision record at CB 318.6 to CB 320.5, CB 348.8 (“claims to fear persecution for reason of nationality, religion, political opinion and membership of a particular social group. Possibly also race.”). Ultimately, at CB 353.3: “I find that the applicants do not have a well founded fear in Pakistan for a Convention reason”.)
Equally as plainly, the Tribunal understood that this question needed to be determined, mindful of the provisions of s.91R of the Act (see CB 319.6 and CB 320.2). This included the provisions of s.91R(3) of the Act. The relevant paragraph must be seen in that light. I agree with Ms McWilliam’s submission that to view the “offending” sentence or sentences in isolation is to ignore the direction provided by the High Court in Wu Shan Liang. The exercise of the Tribunal’s jurisdiction required proper consideration of s.91R of the Act, that is, the application of Article 1A(2) of the Refugees Convention to the applicants in the way as set out in that section. Any plain reading of the Tribunal’s decision record, and even just focussing on the relevant paragraph, reveals that the Tribunal well understood that its consideration in the manner set out in s.91R of the Act was mandatory. This included the provisions of s.91R(3) in relation to the applicant husband’s claims to conversion to Christianity as this claimed conversion had taken place, not in the claimed country of persecution, but relevantly, in Australia.
The applicant husband claimed to have engaged in conduct in Australia which was relevant to the determination of whether he had a well-founded fear of being persecuted. The Tribunal was required by the provisions of s.91R(3) of the Act to disregard this conduct in determining that question unless the applicants satisfied the Tribunal that the conduct (that is the claimed conversion to Christianity in Australia) was engaged in otherwise than for the purpose of strengthening the refugee claims.
The Tribunal found that it could not be so satisfied because it found that his interest in the doctrine of Jehovah’s Witnesses “was purely intended to further his protection application”. This finding, that is, the inability to be so satisfied was based on ample evidence.
First, it was based on the applicants’ otherwise and already discredited credibility (“here again… (CB 352.6). Second, the Tribunal was not satisfied as to the conduct in Australia, amongst other things, because of the contradictory evidence given by the applicant husband, the letter of support provided on behalf of the applicants, the applicant husband’s statement, the applicant wife’s evidence as to when she told her family of his conversion, and the inconsistency between this and the terms of the letter provided in support.
Any plain reading of the Tribunal’s decision record focussed even only on the relevant paragraph leads to a rejection of Mr Karp’s submission that the Tribunal rejected the applicant’s claim to have converted to Christianity, simply on the basis of his unawareness or careless of the separation demanded of Jehovah’s Witnesses from non-Witnesses and the dispute now that this was not the case. The Tribunal disregarded the applicant’s conduct in Australia, not because it made any finding that he had not converted, in fact the Tribunal said that he “was able to demonstrate at the hearing that he has learnt some of the doctrine of the Jehovah’s Witnesses”, but the claimed conversion to Christianity was disregarded in determining the question that it was jurisdictionally required to determine because the Tribunal formed the view that the applicant husband’s conduct was “purely intended to further his protection application”.
In this way, even if (as not conceded by the first respondent) there could be said to be some factual error in the Tribunal relying on something for which it is now said there was no basis, then such a factual error is not jurisdictional error even if it could be said that the Tribunal assumed that there was some separation required from non-Witnesses, because an error of fact made by the Tribunal when exercising its jurisdiction is not a jurisdictional error (Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [137]).
The Tribunal’s findings in relation to the applicant husband’s conversion to Christianity in Australia was that it would disregard this conduct because of its finding that this conduct was “purely intended to further” the protection visa application. This finding was made in the exercise of the Tribunal’s jurisdiction provided by the relevant statute. In light of this, even if the Tribunal wrongly assumed that Jehovah’s Witnesses required their adherents to reject non-Jehovah’s Witness spouses and family, this was not a jurisdictional error but an error made within the jurisdiction. As was said in SZJHR v Minister for Immigration and Citizenship [2007] FCA 1901 at [45]:
“An error of fact made by the Tribunal when exercising its jurisdiction is not a jurisdictional error. An error of that kind does not provide this Court with jurisdiction to quash the decision: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [137].”
There was clearly ample evidence being the evidence on which the Tribunal overwhelming and comprehensively rejected the applicants’ credibility and evidence as to the contradictory nature of elements of the claimed conversion as referred to in the Tribunal’s decision record in the relevant paragraph, which supported the Tribunal’s finding in relation to s.91R(3) of the Act.
But even if the Court were to focus only on the sentences complained of by the applicants they would not still succeed. I also agree with Ms McWilliam that with reference to SFGB at [21] that the Tribunal was not limited to the evidence that was formally put before it (s.353(2) of the Act remains unchanged from the time as it existed when the Full Court considered SFGB until now). As was stated, the Tribunal can inform itself as it thinks fit subject, of course, to relevant provisions in the Act, including the requirements of procedural fairness. In this case, the Tribunal member drew on his own experience and acted on information that he considered was “public”. That it was drawn from the public domain can be seen in the terms of the Tribunal’s question to the applicant during the hearing (see T 30.3 – Q 169: “do you know there is a famous case …”).
I cannot see that there were any limits imposed by the Act itself to prevent the Tribunal from using this information relating to what occurred in the United States and its relevance as an example of the Tribunal’s proposition to the applicant husband that the adherents of Jehovah’s Witnesses required separation from non-Witnesses. In this sense, there was evidence before the Tribunal (albeit obtained from its own store of knowledge of what existed in the public domain) to support its view that separation between witnesses and non-Witnesses was demanded.
Importantly, both in terms of what the Court said in SFGB at [21], and more broadly in terms of what the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”) relating to procedural fairness pursuant to the discharge of the Tribunal’s obligations flowing from s.425 of the Act and a fair hearing, this information was squarely put to the applicants at the hearing (see T 30.3), and the applicant husband was given the opportunity to respond.
While I address the affidavit of Mr Grigor more fully below, it is important to note that the evidence which the applicant now seeks to put before this Court was not, despite clear opportunity, put before the Tribunal. It is important to note that the same adviser who assisted the applicant before the Tribunal, and who was present at the Tribunal hearing (and it must be said that in this Court’s experience of reviewing a number of transcripts of Tribunal hearings and listening to tapes of hearings, was permitted a far greater interventionist role in the Tribunal’s non-adversarial process than appears to be the usual practice), was therefore present when this issue was raised. While the adviser made a number of submissions on the applicant’s behalf both at the hearing, and otherwise in writing, the applicants did not take up the opportunity available to them to put before the Tribunal the evidence which Mr Grigor now seeks to put before this Court, to contradict the Tribunal’s understanding of what it said it knew about the expectation of Jehovah’s Witnesses and their relationship with non-Witnesses. The applicants cannot complain that they were denied any opportunity in this regard.
In my view, the reason that the Tribunal found that it could not be satisfied that the applicant husband engaged in conduct in Australia relating to his conversion to Christianity other than for the purpose of strengthening his refugee claims was because the Tribunal had comprehensively rejected the applicants’ credibility in relation to all their claims. It was this comprehensive rejection, reached for reasons having to do with all of the iterations of the applicants’ claims, and for reasons arising and specifically in relation to religion and in addition to the contradictory nature of the evidence put before it by the applicants and their supporters, that caused the Tribunal to disregard the conduct pursuant to s.91R(3) of the Act. Its finding that the applicant husband accepted his wife and son’s situation (in the context of the separation demanded of Jehovah’s Witnesses from non-Witnesses) raised questions about his conviction must be seen in the context of the already comprehensive rejection of the credibility of their claims to protection.
In terms of procedural fairness, there is no doubt that the applicants’ credibility was understood to be a live issue even before the hearing with the Tribunal. In seeking an adjournment of the hearing to enable written submissions to be made, the applicant’s adviser stated that (at CB 231.4):
“As the Presiding Member will recognise a number of credibility issues have arisen in this case. I wish to address these in writing before the hearing because I think that will best assist the Presiding Member in dealing with those issues. This is particularly important for the reason that a number of the credibility issues arise out of the way the Tribunal, as previously constituted on two separate occasions, has dealt with claims made by [the applicant husband] and tried to assess the veracity of his claims.”
Credibility was also a live issue during the course of the hearing. The adviser variously made reference to it. (T 23.7 – Q 136: “… and that this was put in to give a sense of truthfulness”; further at T 23.9 – Q 138: “and it’s important because it does go to his credibility”; and even further, in what plainly reveals that the adviser was on notice that the applicants’ credibility across the range of their claims was at issue at T 24.5 – Q 141: “… then that helps to show that at least in one instance they are being truthful and if there’s any doubt at all about their credibility that doubt should go in their favour because they have, they can be shown to have been truthful in one instance at least”).
Ultimately, on the issue of his credibility and his claimed religious conversion in Australia, that is, the issue of his religious conviction, the Tribunal squarely put to the applicant husband (T 32.3 at Q 181):
“You must understand, it comes as a bit of a surprise after the length of time you’ve been in Australia that suddenly two or three months before you come to your third hearing before this Tribunal you suddenly decide you want to become Christian.”
Then further (at T 32.5 at Q 182):
“My concern is just whether this has happened because it might be convenient for your protection visa application or whether it’s genuine, and of course it's so recent it’s very hard for me to make a judgement about that. If it’s genuine it’s one thing, if it’s just in order to improve your chances of getting a protection visa it’s another thing. Anyway, but there are many Christian churches but the one that you’ve chosen is very hard on its members, very demanding.”
Then ultimately (at T 32.7 – Q 183):
“Well, it’s not a matter of like or dislike but it’s very demanding and very exclusive and from what I know about it it’s likely to cause problems for you with the rest of your family, including your wife and child, if they are not also members. It’s not up to me, it’s up to you, but anyway, I have to think, that’s not an issue for me really, that’s just a comment, but I have to think about whether this is genuine or not, that is an issue for me.”
As the Court said in SFGB at [21]:
“Subject to the … requirements of procedural fairness, the tribunal can inform itself as it thinks fit, including acting on information that is ‘public’.”
Plainly, in the circumstances, the Tribunal acted on information which it regarded as public knowledge and complied with the relevant procedural fairness obligations (s.425 of the Act and SZBEL) and squarely put to the applicant husband its concerns about the credibility of his religious convictions, and the possibility that it might form a view that the claims relating to religious conversion in Australia were put forward for the purposes of improving the chances of improving a protection visa.
The parties made additional written submissions in relation to the issue of the admissibility of Mr Grigor’s evidence. Mr Karp submitted that relevant authorities provide for the following conclusions:
1)That Mr Grigor’s evidence is admissible to enable the applicant to “negative” a finding of fact made by the Tribunal such that the applicants’ “no evidence” ground could be made out.
2)That Mr Grigor’s evidence is admissible on the basis that it is the only way that the applicants could prove that the facts relied upon by the Tribunal “do not exist” and would be to “adduce evidence of their non-existence”.
The authorities relied on are:
1)Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 (“Clements”) at [13] (relevant to “appeal” under s.44 of the Administrative Appeals Tribunal Act):
“13.In matters within the original jurisdiction of the Court, there is a general right in a party to place before the Court evidence that is probative of facts in issue. Because an appeal under s 44 of the AAT Act is limited to a question of law, generally there will be no facts in issue. The facts found by the Tribunal will be regarded as the facts for the purposes of the appeal. In a case such as the present, however, it is necessary for the Court to find some facts, because the applicant cannot establish the denial of procedural fairness of which he complains unless that is done. See Percerep at 495. Accordingly, his affidavit is admissible.”
2)Percerep v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 483 (“Percerep”) at 495:
“It is, no doubt, rare for the Court when hearing an application in the nature of an appeal pursuant to s 44 of the AAT Act to receive evidence which was not before the Tribunal. In Servos v Repatriation Commission (1995) 56 FCR 377 at 385 Spender J expressed the view that the jurisdiction of the Federal Court pursuant to s 44 of the AAT Act does not permit the reception of further evidence which was not before the Tribunal, a proposition which is generally unassailable. The very limited circumstances in which such evidence will be received must, however, include those cases where it is contended that the applicant has been denied procedural fairness before the Tribunal, and evidence is required to make good that claim.”
3)In Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 (“Australian Retailers Association”), Weinberg J addressed the question whether evidence not before the decision-maker could be adduced in support of an allegation of “Wednesbury unreasonableness”. At 458:
“Wednesbury unreasonableness is, in some respects, simply a variant of the ground that a decision-maker lacked jurisdiction to make the decision because jurisdiction was dependent on an actual state of facts that did not exist, or that the decision-maker based the decision on a finding of a particular fact that did not exist. If additional evidence is available, in cases reliant upon such grounds, there is no reason in principle why such evidence should not also be admissible where the ground is couched in terms of unreasonableness.”
4)NAAX v Minister for Immigration and Multicultural Affairs (2002) 119 FCR 312 (“NAAX”) as authority for the proposition that evidence would be admissible to establish that there had been jurisdictional error such as a breach of natural justice.
5)In SZFDE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1979 at [16]-[30], and SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [39], where evidence of the fraud of a purported solicitor and migration agent said to vitiate the Tribunal decision was admitted into evidence before the Court.
By way of these submissions Mr Karp also sought to raise what he described as “an additional aspect of this topic”. He referred to what he said was the common law position in England to the effect that if it is necessary that a particular fact exist before a decision can be made, the courts must enquire as to whether that fact exists (Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014). He proposed that the position in Australia “may well be the same”. He referred to Military Superannuation Board v Stanger (2002) 68 ALD 12 at [20], per Kiefel J for the proposition that absence of evidence to support a decision is an error of law, and that this was consistent with the Full Federal Court in SFGB at [18]-[20], and QAAA of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 98 ALD 695; [2007] FCA 1918 at [20]:
“If there is no evidence in the case of a critical step in the Tribunal’s ultimate conclusion then that constitutes a jurisdictional error.”
I agree with subsequent submissions made by Ms McWilliam that the cases referred to by Mr Karp do not assist the applicants as authority for the proposition that affidavit evidence is admissible in the context of establishing a “no evidence ground of review” in the circumstances of this case. The first respondent does not contest that further evidence may be relevant to matters where there are complaints of a denial of procedural fairness, allegations of fraud or “Wednesbury unreasonableness”.
Specifically, with reference to the authorities relied on by the applicants now, Clements involved a claim of a denial of procedural fairness, as did Percerep. The reference in NAAX was to a breach of natural justice. Australian Retailers Association was concerned with an allegation of unreasonableness (not argued in the current case), Mr Karp’s subsequent submission (see paragraph 6 of the further written submissions) that the Court observed that there was no reason that this principle would not be applicable to the “no evidence” ground of judicial review, in my respectful view, needs to be seen in context that the contextual variation noted by his Honour was as between a “Wednesbury unreasonableness” and that of a decision-maker lacking jurisdiction to make the relevant decision because jurisdiction was dependent on an actual state of facts that did not exist. Plainly, SZFDE involved evidence of fraud.
The applicant has not made any complaint in relation to any, or all, of these three issues. For the reasons already set out above, I could not in any event see a denial of procedural fairness in relation to the issue of the applicant’s claimed conversion to Christianity in Australia, nor is there any suggestion, let alone an allegation, of fraud. Nor could I see that any allegation of unreasonableness in the “Wednesbury” sense would succeed. I cannot see that anything in the Tribunal’s reasoning in the relevant part of its decision record would come close to what must be said to be the high “Wednesbury” threshold. Further, noting that such a threshold would be even more difficult to meet when at best what could be said to be alleged was unreasonable fact-finding, rather than any unreasonable exercise of a discretion (see Director of Animal and Plant Quarantine v Australian Pork Ltd (2005) 146 FCR 368, particularly [63]-[66] and [103]). Noting of course that the applicant does not rely on any allegation of “Wednesbury unreasonableness”.
Nor does the subsequent submission set out at [83] above assist the applicants. Even if it can be said that the Tribunal made a factual finding (which given what I have already set out above does not reveal jurisdictional error) that Jehovah’s Witnesses require separation from non-Witnesses, Mr Grigor’s evidence does not establish there was no evidence to support any such finding, it is evidence that contradicts, but does not negate what the Tribunal drew upon to make its finding.
Ultimately, I agree with Ms McWilliam that in being able to assess whether there was “no evidence” before the Tribunal to make the necessary finding, all that is required before the Court is the evidence that was before the Tribunal member. The issue is, as is in my view correctly submitted, whether there was “any evidence before the Tribunal” in relation to the relevant issue. For the reasons set out above, the relevant issue was whether the Tribunal should, or should not, disregard the conduct in Australia which was the claimed conversion to Christianity. For the reasons set out above, I find that there was evidence before the Tribunal to base its assessment relating to this issue.
I cannot see that the evidence sought to be provided by Mr Grigor, even if it is accepted as expert evidence, can be seen to be more than material contradicting what was before the Tribunal. Evidence, which it must be said was generated after the making of the Tribunal’s decision. I agree that this has no bearing on the central question before the Court as to the state of the evidence before the Tribunal. That there may have been evidence that may have been available to the applicants to put before the Tribunal to contradict the Tribunal’s understanding of the requirements of Jehovah’s Witnesses would not now go to the issue of showing that there was no evidence before the Tribunal. For the above reasons, I do not admit Mr Grigor’s affidavit into evidence before the Court.
However, even if I had been minded to admit such evidence, this would still not have assisted the applicants. Even accepting Mr Grigor’s position and relevant experience (within the purposes of s.79 of the Evidence Act), then even at best I do not see Mr Grigor’s evidence as showing that there was “no evidence” before the Tribunal in relation to the relevant critical issue that was before it (the issue being whether to disregard the conduct in Australia or not, and the evidence before the Tribunal being the applicant husband’s own evidence, the applicant wife’s evidence and the evidence given on the applicants’ behalf, including letters of support, and the Tribunal’s understanding and knowledge of information that is said to be “public”).
At best, Mr Grigor’s evidence would serve to contradict some part of the total evidence (but not all) relevantly before the Tribunal on this issue. Further, while Mr Grigor (at paragraph 5 of the affidavit) asserts that he does not know of the example used by the Tribunal (the reference to the case in America – raised at Q 169 in the transcript – T 30.3), this is at best evidence that contradicts the public information relied on by the Tribunal (the conduct described is totally inconsistent), but does not assert (nor in the circumstances could it) that such public information simply did not exist.
Despite opportunity, and with the benefit of what I would respectfully describe, on what is before me, as a competent adviser (the adviser is not only a migration agent but a solicitor), and having the issue squarely raised, the applicants plainly had the opportunity to put before the Tribunal the evidence of Mr Grigor, which they are now, after the event, seeking to put before this Court. What the Tribunal may have made of such evidence would have been a matter, of course, for the Tribunal. The weighing of evidence and the findings of fact to be derived from such a process is of course reserved for the Tribunal and, importantly, not for this Court.
Given that I have found that there was evidence before the Tribunal to base its critical finding in relation to how the applicant husband’s claim of conversion to Christianity in Australia was to be regarded, it is clearly not open to this Court now seek to substitute a different finding of fact based on Mr Grigor’s evidence in partial contradiction.
The applicants’ sole ground put forward with the assistance of legal counsel, for the reasons set out above, is not made out. Accordingly, the application is dismissed.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 7 April 2008
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