SZCNG v Minister for Immigration & Anor
[2006] FMCA 505
•2 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
SZCNG v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 505
MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth) –whether finding so unreasonable no reasonable Tribunal could have made the finding – whether no evidence on which Tribunal could have based conclusion.
Migration Act 1958, s.424A
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
Paul v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 113 FCR 396
Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27
MZWMQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 126
M47 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1414
M47 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 176
VBAM v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 504
Minister for Immigration & Multicultural & Indigenous Affairs v Awan (2003) 131 FCR 1
SZBWJ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 13
Peniche v Minister for Immigration & Multicultural & Indigenous Affairs [1999] FCA 709
Applicant M164of 2002v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16
NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 747
WAJS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 139
Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 70 ALR 147
NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 124
Applicant: SZCNG
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG137 of 2004
Judgment of: Barnes FM
Hearing date: 16 February 2006
Last Submission: 23 March 2006
Delivered at: Sydney
Delivered on: 2 May 2006 REPRESENTATION
Counsel for the Applicant: Nil
Solicitors for the Applicant: Mr M Jones
Counsel for the Respondent: Mr T Reilly
Solicitors for the Respondent: Blake Dawson Waldron ORDERS
(1)
A writ of certiorari issue to the second respondent removing the decision of the Refugee Review Tribunal handed down on
22 December 2003.
(2)A writ of mandamus issue directed to the second respondent to rehear and determine the applicant’s application for review according to law.
(3)A writ of prohibition issue directed to the first respondent preventing her or her agents or delegates from acting upon or giving effect to or enforcing the purported decision.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEYSYG137 of 2004
SZCNG Applicant
And
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent
REASONS FOR JUDGMENT
Background
1.This is an application seeking review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 22 December 2003 affirming a decision of a delegate of the respondent not to grant a protection visa to the applicant.
2.The applicant, who is a citizen of Lebanon, visited Australia in September 1999 and October 2001. He last arrived in Australia in February 2003. He applied for a protection visa in March 2003. The application was refused and he sought review by the Tribunal. He attended a Tribunal hearing on 3 September 2003.
3.The applicant claimed to fear persecution for reasons of his political opinion. He claimed to have been involved in a clash between protestors and Syrian security forces at a Maronite church in Lebanon in April 2001 and that he had referred to the Syrian President using offensive names. He claimed to have been harassed by and to fear persecution from the Syrian intelligence agencies and the authorities because of his perceived anti-Syrian sentiment. He claimed that Syrian agents had sought information on his whereabouts on a continuous basis, that serious harassment started in 2002 and that he feared he would be detained and harmed if he returned to Lebanon now or in the foreseeable future.
Tribunal decision
4.The Tribunal accepted that the applicant attended a commemorative Mass in April 2001 and may have been hit during the clash between authorities and demonstrators. However it found that if this had occurred it resulted from the applicant being located in the area and the crowd involved in the clash and not from any systematic and discriminatory conduct targeting him. It also accepted that the applicant may have shouted offensive words regarding the Syrian President, but accepted his evidence that he was not arrested or detained by Syrian authorities during or following this demonstration in April 2001. It accepted that the applicant was not a member or supporter of any political party.
5.The Tribunal noted that the applicant had been able to travel out of Lebanon via Beirut International Airport without difficulty in October 2001 (en route to Australia for a three month visit) and returned in January 2002. On the basis of country information that it would be extremely difficult for a person of adverse interest to the authorities to leave Lebanon through the international airport without restriction and also information as to the close co-operation between Lebanese and Syrian military and intelligence authorities, it found that the applicant was not a person of adverse interest to the Lebanese or Syrian authorities at the time he left the country in October 2001.
6.The Tribunal did not accept the applicant’s claim that following his travel to Australia in October 2001 (some 8 to 12 months after the April 2001 incident) Syrian agents started to seek information on his whereabouts or that they had interest in his activities because he had made insulting comments about the Syrian President. It had regard to country information and to the applicant’s lack of a public profile as a political or community figure as well as the absence of any claim that he was involved in any further anti-Syrian demonstrations or activities. It did not accept that Syrian agents had been seeking the applicant over a long period of time for the purpose of causing him any harm.
7.The Tribunal found that the travel of the applicant out of Beirut International Airport without being questioned, detained or harmed in October 2001 and February 2003 was not consistent with him being wanted or sought out by Syrian authorities. The Tribunal found that the applicant had not suffered any mistreatment from Syrian or Lebanese authorities since the incident at the church in April 2001.
8.It found his claim that he left his village and lived in cattle herders’ huts and other properties for almost 12 months (after his return to Lebanon in 2002 and before his travel to Australia in 2003) to be implausible given the lack of detail and lack of adequate explanation as to how he maintained himself and his family. It did not accept his claims in this respect or that Syrian agents were looking for him during this period.
9.Nor did the Tribunal accept that after the applicant travelled to Australia in 2003 Syrian agents had come to the family home on a weekly basis seeking information on his whereabouts. It accepted that agents may have attended his home on one or two occasions seeking information on his whereabouts, but found it implausible that they would return each week, given the absence of any prior action to find him before he left Lebanon or to restrict his movement out of Lebanon. It found that his travel to Australia would be recorded in the Lebanese authority’s immigration records, which would be accessible to the Syrian authorities so they would have no need to attend the family home, even if he was of adverse interest. The Tribunal also had regard to country information suggesting that the Syrian authorities do not attend the homes of persons of adverse interest regularly to check on their whereabouts.
10.The Tribunal did not accept the evidence of the applicant’s niece or her husband given at the Tribunal hearing that they observed armed men entering the family home to look for the applicant during their short stay in his village in Lebanon in February 2002. It stated:
Firstly the witnesses are members of the applicant’s family and keen to assist a well-regarded uncle in his claims. Secondly as previously stated I do not accept that the Syrian agents would be regularly attending the family home of the applicant in the circumstances set out above and in this context I have given their evidence little or no weight.
11.The Tribunal found that the applicant’s failure to apply for a protection visa on his October 2001 visit to Australia was not consistent with a genuine fear of persecution. It did not accept his explanation that his problems with the Syrians did not start until after October 2001. It did not accept that the applicant had a genuine fear of persecution for reasons of his perceived anti-Syrian sentiment.
12.The Tribunal also considered the situation if the applicant returned to Lebanon. It did not accept that he was or is of any adverse interest to either Lebanese or Syrian authorities. It found that he could return to his family and village without any risk of harm and that the authorities were able to provide reasonable and adequate protection and services to all Lebanese citizens, including Maronite Christians. The Tribunal was not satisfied that if the applicant returned to Lebanon now or in the foreseeable future he would face a real chance of persecution from either the Syrian or Lebanese authorities for his perceived anti-Syrian sentiment. Hence it was not satisfied that the applicant had a well-founded fear of persecution by reason of his political opinion or for any Convention-related reason.
This application
13.
The applicant sought review by application filed in this Court on
19 January 2004. That application raised grounds of a denial of natural justice, unreasonableness and no evidence. In written submissions the solicitor for the applicant sought to rely on a failure to comply with s.424A of the Migration Act 1958 (Cth) (the Act) in light of the decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162. Leave was granted to the applicant to file and serve an amended application, in which it was clarified that the grounds relied on were breach of s.424A, unreasonableness and no evidence.
The evidence in issue
14.Each of the grounds relied on by the applicant relates to the Tribunal’s treatment of and findings in respect of evidence given at the Tribunal hearing by two witnesses other than the applicant.
15.In response to the Tribunal’s invitation to a hearing the applicant’s migration agent had indicated that the applicant wished to be accompanied by two named witnesses. A form in relation to witnesses which stated their names (and that they were to give evidence about Syrian intelligence breaking into the applicant’s house in Lebanon to arrest him when they were at his house) was completed.
16.A transcript of the Tribunal hearing is before the Court. At the start of the hearing the Tribunal member had the witnesses provide their names and addresses. For convenience the female witness is described as “A”, the male witness as “B”. They were sworn in and then asked to wait outside until called. The Tribunal provided a preliminary explanation of the procedures and the definition of refugee and then stated to the applicant (at page 4) as follows:
TM: Okay you have two witnesses.
THE INTERPRETER: Correct.
TM: At the end of our interview we’ll ask them to come in and you’ll have to tell me what it is that they would like to tell me so that I can ask them questions, so that I know what to ask.
THE INTERPRETER: Okay. These witnesses they went past Lebanon and they saw by their own eyes what happened to me and what’s going on over there. They’re not living in Lebanon but they saw what’s going on.
TM: All right well I will ask them about that.
THE INTERPRETER: Okay.
17.The applicant told the Tribunal member that after the events of April 2001 the Syrians started coming to his place from time to time looking for him, so he left his village. The hearing continued (at 8):
TM: Where?
THE INTERPRETER: They call it Valley of [name provided]. The same area but like a bush, far away from the village and I used to come secretly to my place to just you know be with the family for up to four hours, short period of time and every time I tried to enter the village people used to give me warnings, say be careful, people from the Syrian authorities, they’re still coming looking for you. Just when you come here take all your precaution and be careful. And I knew at that time about [A], the one you know who’s going to be a witness, married to a fellow and I knew she’s coming here to have honeymoon in Lebanon with her husband and then just to show her some respect, show [A] some respect I went to my place, when we were inside the house the group of armed people came to my place and I fled you know through the garden and then I didn’t see [A] since till I come to Australia. Okay and she was inside and when she was there you know for her honeymoon she noticed the group from the Syrian people army who come for me came three times to my place and ask about me and she’s going to give you this evidence when she’s going to talk to you …
18.Later in the hearing, after the Tribunal member had asked questions of the applicant, the member continued:
TM: All right, would you like to get your witnesses to come in. We might start off with Mr – or which one would you like to start off with, [A]?
THE INTERPRETER: It’s up to you, I leave it up to you.
TM: Well you’re the one that’s presenting your case, which one do you think has the more relevant evidence?
THE INTERPRETER: Doesn’t matter, doesn’t make any difference to me.
TM: Doesn’t make any difference but we’ve got to have one before the other.
THE INTERPRETER: I leave it up to you.
TM: Well we’ll have, what’s her name.
THE INTERPRETER: [A].
19.The Tribunal member confirmed A’s name and continued:
TM: The applicant has asked you to come along to give evidence and he tells me that the evidence that you can give concerns a time when you went back to visit the village and what you observed so what I want you to do is tell me when you went back and what it is that you observed?
A: Okay, basically we were on our honeymoon, my husband is Australian so it was nice of him to sort of – I wanted him to see where my parents came from and stuff and so we went back on our honeymoon which was February of 2002, last year. We only went there for a week but we stayed at my auntie’s house and [the applicant] is married to my auntie which is my dad’s sister.
TM: So sorry, the applicant is married to your aunt?
A: Sorry, yeah. My auntie, yeah, so my dad’s sister and we stayed with them for the week but I think it was not sure exactly what night it was but we were having dinner and we just thought, we were just generally having dinner and then these guys just barged in.
20.The Tribunal questioned the witness further about the events she had seen. She explained that the men were holding guns like the authorities in Lebanon, but that they spoke a different type of dialect so she did not “totally understand” what was happening. According to her aunt they were after the applicant. She said they demanded to speak to him but he had gone. She claimed they said they would be back and if anyone saw him to get hold of him. She did not know who these people were. She told the Tribunal her aunt reckoned they were “like the FBI and detectives type of people, not like part of the army”. She stated that she had no idea why they were looking for her uncle. She claimed that her aunt said she did not know, but that if they caught him they would kill or slaughter him. She also claimed the applicant did not return home during their one week visit, but that the men returned a couple of days later asking for the applicant.
21.The Tribunal member then commented, and it appears from the transcript and the response that the comment was directed at the applicant, as follows:
TM: All right. Now, what I just want to say is that the best evidence in a case is what’s called independent evidence. Your evidence obviously you want to verify your claims. Right, your relatives, your wife and niece all want to help you so whilst I’m bound to consider the evidence that your niece has given it may not have as much what we call - - -
THE INTERPRETER: Weight.
TM: … weight, yes.
THE INTERPRETER: I’m sorry.
TM: That’s all right. Because naturally as a family member your niece would want to help you, she cares about you, she cares about the family. So whilst I will consider what she’s said and what you’ve said it may be that I don’t give her evidence the weight that I would if it was from someone who was completely independent of your family.
THE INTERPRETER: I agree with you but she’s not, I mean, 100 per cent related to me. She’s related to my wife.
TM: I understand, I’m just trying to explain …
22.The Tribunal member subsequently asked the applicant if he would like to call witness B. The applicant responded:
THE INTERPRETER: You are presiding of the …
TM: No, you are the one that says this is important, I need this person to.
THE INTERPRETER: Okay, yes please.
23.The Tribunal member confirmed that the witnesses were husband and wife. The Tribunal then heard evidence from B who confirmed that he did not speak Arabic and that his evidence was what he had observed rather than what he had heard. He said that during dinner at the applicant’s place “a couple of gentlemen with guns just came in”. He asked his wife what was going on. He suggested the applicant’s wife was a bit hysterical. He did not know where the applicant went.
24.At the conclusion of the hearing B asked what is recorded in the written transcript as “Can I have a character of my personal about …” It appears that B was raising the issue of providing a personal character reference for the applicant. The Tribunal explained that humanitarian issues were for the Minister and that “So even though you probably want to say you know that you know your uncle is, well the applicant you know is a good man and hard working and there’s no problem with that, it’s not going to assist his case”. The witness responded “Okay”.
Section 424A
25.The first ground in the amended application is that the Tribunal’s decision involved jurisdictional error of law in that the Tribunal failed to comply with the requirements of s.424A of the Act in the manner prescribed by sub-s.424A(2). The particulars of this ground are that:
The Tribunal considered that part of the reason for affirming the decision under review was information which one of the witnesses gave at the hearing to the effect that the two witnesses were related to the applicant. This was information that was specifically about the individuals concerned, was not given to the Tribunal by the applicant for the purpose of the applicant, and was not non-disclosable information. Pursuant to s.424A(2) the Tribunal was required to give this information and an invitation to comment to the applicant in the form of a document, which it did not do so.
26.Section 424A is as follows:
(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on 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.
(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; or
(c) that is non-disclosable information.
27.It was contended that the information which gave rise to the s.424A obligation was the information given to the Tribunal by witness A as to her relationship with the applicant (that is, that she was the niece of the applicant’s wife) and that witness B was the husband of A. It was contended that this was information which formed part of the reason for the Tribunal decision as evidenced by the fact that after hearing from the applicant’s niece, the Tribunal said to the applicant that evidence from his “wife or niece” (his wife did not give evidence) would not carry as much weight as “independent” evidence because “your niece would want to help you, she cares about you, she cares about the family”.
28.It was submitted that in its reasons for decision the Tribunal declined to accept both the witnesses’ evidence as truthful, partly for the reason that they were “members of the applicant’s family and keen to assist a well-regarded uncle in his claims”, but that at no time did the Tribunal put to the applicant in the manner required by s.424A the information that the witnesses were related to the applicant and the relevance of that information to the Tribunal decision.
29.It was said that the Tribunal had failed to comply with s.424A because it had not given the information to the applicant in writing with an explanation of its relevance and an invitation to comment as required by s.424A(2)(a). It was contended that the exception to the s.424A(1) obligation in s.424A(3)(b) did not apply, as it could not be said that the information about the relationship was given to the Tribunal by the applicant. He did not give information about the relationship to the Tribunal either in the response to hearing invitation, in the Tribunal hearing or otherwise.
30.On this basis it was contended that, consistent with SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162, there had been a failure to comply with s.424A and that a failure to comply strictly with that section was a denial of natural justice and also an error going to the jurisdiction of the Tribunal.
31.In SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 the majority of the High Court found that the Tribunal had failed to comply with s.424A of the Act, in that it was obliged to give a visa applicant written particulars of information it had obtained from evidence her oldest daughter had given at the Tribunal hearing. In reaching this conclusion the majority found that s.424A applied when the procedure for a Tribunal hearing under s.425 of the Act was engaged and to information given during the course of the Tribunal hearing. (see McHugh J at [52] – [63], Kirby J at [154] – [170] and Hayne J at [184] – [202]).
32.In SAAP it was not disputed that the evidence in issue that had been obtained from the applicant’s daughter constituted “information” that the Tribunal considered would be the reason or a part of the reason for affirming the decision that was under review. In this case the material in question is the evidence from the applicant’s niece and her husband as to their familial relationship with the applicant. It is the case that s.424A(1) does not apply to “the subjective appraisal or thought process of the Tribunal) (see Paul v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 113 FCR 396 at [95] per Allsop J with whom Heerey J agreed and Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 at [54] per Sackville J).
33.Thus, as Allsop J stated in Paul at [91], the concept of “information” would not extend to the subjective views of the Tribunal as to the evidence, in particular in this case as to whether to accept the evidence of the applicant’s niece and her husband. However, as Allsop J also pointed out in Paul, the distinction between information or knowledge that has come to or been gained by the Tribunal and subjective appraisal or thought processes:
“can become very fine. If the subjective thought processes of the Tribunal are as they are because of the perceived importance of some piece of knowledge, those thought processes may merely reveal the relevance (for the purposes of para 424A(1)(b)) of information (for para 424A(1)(a)), requiring the Tribunal to give particulars of that information and to explain its relevance” (at [95]).
34.The solicitor for the applicant made it clear that the claim in relation to s.424A related to the evidence at the hearing that the two witnesses were related to the applicant and not the Tribunal’s conclusions concerning the witnesses’ evidence, in particular that they were keen to assist a well-regarded uncle in his claims. In SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 Allsop J considered prior authority (in particular Paul and VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 and SAAP) in relation to the operation of s.424A(1). His Honour reiterated the distinction between information and the Tribunal’s subjective appraisals, thought processes or determinations (at [206]) and stated that the concept “has been taken as referring to knowledge of relevant facts or circumstances communicated to, or received by, the Tribunal … or knowledge which has come to or has been gained by the Tribunal” (at [205]). I am satisfied in this instance that the knowledge about the relationship between the witnesses and the applicant is “information” for the purposes of s.424A(1).
35.It is then necessary to consider whether or not such information is information that the Tribunal considers would be the reason or a part of the reason for affirming the decision under review. The decision in SZEEU was handed down after the hearing in this matter. Argument at the hearing had proceeded on the basis that the law was as it stood prior to SZEEU (see in particular Paul and VAF). However the parties were given the opportunity to make further submissions. I note in that respect that in VAF at [33] Finn and Stone JJ stated that to ascertain whether the Tribunal considered information would be the reason or a part of the reason for affirming the decision “the Court as a matter of judgment is required to isolate what were the integral part of the reasons for the Tribunal’s decision” (at [33]). Their Honours concluded at [41] that particular information was not a part of the reason because it was not “so integral to the reasoning process rejecting the appellant’s claim as to require as a matter of fairness that the appellant be told that information … and why it was relevant to the review”.
36.However in SZEEU Allsop J, with whom Weinberg J agreed, concluded at [214] - [215] that:
“…it is clear that the majority of the High Court in SAAP was of the view that the words of s.424A should be applied without being controlled by any consideration of the operation of the principles of procedural fairness. Thus, it seems to me that to the extent that Paul and VAF include notions of fairness derived from the rules of procedural fairness as part of the analysis of whether something is part of the reason for affirming the decision, those decisions are in conflict with the approach of the majority in SAAP.
In my view, in the light of SAAP, in circumstances where one is faced with a decision of the Tribunal with reasons and the complaint is a contravention of s.424A(1), the question to ask, by reference to the reasons of the Tribunal in the context in which one finds them (as revealed in what would be the reason or a part of the reason for affirming the decision immediately prior to the making of the decision), is whether the information in question was a part (that is any part) of the reason for affirming the decision. To the extent that the reasons of the relevant majorities in Paul and VAF can be seen to require that the relevant part of the reasons have a stature or importance, or be of a character, which would make it unfair not to invoke the procedures of s.424A, I think SAAP requires that such an approach be rejected. It is only necessary that the information be a part of the reason.”
37.His Honour also observed at [216] however, that consistent with aspects of what had been said by Finn and Stone JJ in VAF at [33], the mere fact that something was contained in the reasons which involved “information” did not conclude the question of whether it was (and would be) a part of the reason for affirming the decision. Allsop J explained:
“The whole of the reasons must be analysed and interpreted in context to assess why the Tribunal acted as it did (and in the relevant sense, to assess what would be, prior to making the decision, the reason or a part of the reason). Having thus ascertained the reason or reasons (if there be more than one) the Tribunal was not relevantly satisfied, any information that was (and thus, in the relevant sense, would be) a part of the reasoning process to explain such reason engages the operation of s.424A without any additional requirement (for which Paul and VAF appear to call) that the relative importance of the information to the reasoning process be assessed to form a judgment as to whether fairness requires the engagement of s.424A. The above tasks of assessment or interpretation of the Tribunal’s reasons, of ascertaining what was any reasoning process and of assessing the relevance of any information thereto may not be straightforward and may lead to conclusions about which minds may differ.”
38.To identify the reason or a part of the reason for affirming the decision under review requires, as discussed in Paul, VAF and SZEEU, “some unbundling” of the reason for affirmation of the decision, which is ultimately the lack of satisfaction as to the existence of protection obligations. In this case the Tribunal was not satisfied of the existence of protection obligations because it was not satisfied that the applicant faced a real chance of persecution from the Syrian or Lebanese authorities for his perceived anti-Syrian sentiments as he claimed. That was partly because it did not accept his claims about past consequences or his claimed fear that he was or would be of any adverse interest to either Lebanese or Syrian authorities.
39.
In particular, the Tribunal rejected the applicant’s claim that his participation in the Mass in April 2001 and use of offensive language against the Syrian President had caused Syrian authorities to seek him out with an intent to cause him harm for reasons of his perceived
anti-Syrian sentiment. It reached this conclusion based on its rejection of each of the applicant’s claims about the consequences of his participation in the Mass and use of offensive language. It took into account that it did not accept that the applicant had been pursued by Syrian agents, that he had had to avoid detection, that armed men or Syrian agents came looking for him on a regular basis in his family home, or, in particular, that they came looking for him on one occasion when his niece and her husband were present. Thus, one of the claims that it rejected was that armed men entered the family home in Lebanon to look for the applicant during the stay of his niece and her husband in the applicant’s home in February 2002. The Tribunal did not accept the evidence of the niece and her husband that they observed armed men entering the home to look for the applicant. It gave two reasons for rejection of this evidence – the first of which was that the witnesses were members of the applicant’s family and keen to assist a well-regarded uncle in his claims and the second was that the Tribunal did not accept that the Syrian agents would be regularly attending the family home for reasons it had already given.
40.Thus the applicant’s claims were rejected for cumulative reasons relating to a consideration of all of his claims. One specific aspect of his claims as to the past (the only one in relation to which he provided corroborative evidence of witnesses) was rejected, in part because of his relationship with the witnesses. In these circumstances, I am satisfied that the relationship between the applicant and his niece and her husband was “a part of the reason” for affirming the decision under review in the sense considered in SZEEU. As Allsop J stated in SZEEU “it is only necessary that the information be a part of the reason and not a part of stature or importance or of a character which would make it unfair not to invoke the s.424A procedure” (at [215]). In this case the relationship was a part of the reasoning process to explain the reason why the Tribunal was not relevantly satisfied. Thus it engages the s.424A(1) obligation, subject to any exclusion under subsection 424A(3).
41.Hence it is necessary to consider whether any of the exceptions to the s.424A(1) obligation apply. It was contended for the respondent that if s.424A(1) applied, nonetheless the material was information “that the applicant gave for the purpose of the application” within s.424A(3)(b). A number of issues are raised in relation to the scope of this exception. I note first that the word “application” in s.424A(3)(b) means the proceeding before the Tribunal (see Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27 and SZEEU). Consistent with this interpretation and with the approach to s.424A taken in SAAP and SZEEU, I am satisfied that the fact that the information in question was known to the applicant is beside the point. An applicant would know information which he gave to the Minister in connection with an application for a protection visa. Nonetheless s.424(1) would apply if such information was the reason or part of the reason for affirming the decision under review. Further, as pointed out for the applicant, when s.424A(1) applies it requires not only that the Tribunal give particulars of information to the applicant in writing but also that it ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review (s.424A(2)) and is invited to comment. This is what is of importance, even if an applicant knows the particular information in question.
42.It was contended for the respondent that information given to the Tribunal in the course of the Tribunal hearing by a person who was a witness of the applicant, in the sense of someone from whom the applicant had asked the Tribunal to take evidence, should be regarded as information given by the applicant within s.424A(3)(b). It was suggested that SAAP could be distinguished, because in that case the appellant’s daughter was not someone whom the appellant had asked to give evidence to the Tribunal. Rather in SAAP Tribunal had itself decided to ask the daughter to give evidence. It was also suggested in post-hearing submissions that certain authorities in relation to evidence given by members of the family unit of an applicant were of assistance in indicating that such material was given by the applicant. It was submitted that the same conclusion should follow in respect of evidence of a witness nominated by an applicant under s.426 of the Act. Mr Reilly for the first respondent drew the Court’s attention to MZWMQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 126 which was followed in M47 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1414 and [2006] FCA 176 and to VBAM v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 504.
43.In MZWMQ Marshall J considered (inter alia) the possible impact of the fact the Tribunal had given no written notice to a visa applicant about its intention to rely on adverse evidence given at the Tribunal hearing by the applicant’s wife (who was also a visa applicant and the second appellant in the proceedings). However, his Honour stated (at [24]):
“Whatever other answers there may be to any submissions, if put, in reliance on that aspect of SAAP, s.424A(3)(b) of the Migration Act 1958 (C’th) operates to excuse the RRT from giving any written notice in the circumstances. That is because the second appellant was an applicant before the RRT; see by way of analogy, Minister for Immigration & Multicultural & Indigenous Affairs v Awan (2003) 131 FCR 1 at [58]”. (emphasis added)
44.In other words, the information in that case was said to be given to the Tribunal by an applicant, whereas in this case neither the niece nor her husband was a visa applicant. M47 of 2004, in which Young J referred to s.424A(3)(b) as applying to ‘joint applications’ combined pursuant to the Migration Regulations (in that case a wife’s application and her husband’s dependent application as a member of her family unit), can be distinguished for the same reason. It is notable that Young J observed at [20] that:
“…the proposition that the exception in s.424A(3)(b) extends to all evidence given on behalf of the appellant, including that given by other unrelated witnesses, goes further than MZWMQ, and beyond the issue in this case.”
45.The witnesses in this case were in one sense “related” to the applicant but they were not applicants for visas as members of the family unit of the applicant. While Young J found it to be consistent with the object and statutory purposes of s.424A(3)(b) to construe the reference therein to “an application” as including joint applications combined pursuant to the Regulations, there is no such combined application in this case. These authorities do not address the broader issue of whether information given by a witness nominated by an applicant is given by the applicant within s.424A(3)(b).
46.In M47 of 2004 Young J referred to what was said in VBAM of 2002 v Minister for Immigration & Multicultural Affairs [2003] FCA 504 but found that it went beyond the issue before him. In that case the applicant, who was legally represented, claimed that he had been denied procedural fairness. He did not allege a breach of s.424A of the Act. Gray J stated, at [44], that s.424A did not oblige the Tribunal to give notice to the applicant of a finding it proposed to make that the source of the evidence of three witnesses at the Tribunal hearing was the applicant or his wife and that s.424A(3)(b) excluded from the obligation in s.424A(1) information given by witnesses put forward by the applicant at the Tribunal hearing as “information that the applicant gave for the purpose of the application.” However his Honour made this obiter remark in the course of considering the ground of a denial of procedural fairness. His Honour found, at [43], that the Tribunal was not obliged to indicate to the applicant its processes of reasoning as part of its obligation to accord procedural fairness.
47.It was also submitted for the respondent that SZEEU (at [172] and [252]) was broadly consistent with the respondent’s argument that the evidence of a witness falls within s.424A(3)(b). SZEEU dealt primarily with information given by the applicant to the Department before an application for review. However in SZEOP (one of the appeals dealt with by the Full Court and reported as SZEEU) the Court considered a claim that information consisting of the Tribunal’s concerns about inconsistencies (between the applicant’s evidence and evidence in a letter from a third person that had been sent to the Tribunal attached to a submission from the applicant’s adviser) should have been put to the applicant under s.424A(1). Moore J found (at [65]) that the Tribunal’s “views” in this respect were not “information”. Allsop J agreed with the conclusion that s.424A was not applicable, but preferred to base his conclusion on the fact that the letter was sent to the Tribunal attached to a submission from the applicant’s adviser. His Honour found in these circumstances (at [252]): “Plainly s.424A(3)(b) applied to it.” Weinberg J did not express a view on this issue, but at [172] agreed with Moore J that the ground of appeal relating to this issue should be dismissed.
48.The contents of such written material was clearly part of the evidence put to the Tribunal by the applicant. If an applicant chooses to put written evidence or a prepared statement of a witness to the Tribunal in circumstances where the applicant must be taken to have advance knowledge of the precise contents of such evidence, the applicant should properly be seen as giving information contained in such a statement to the Tribunal. However it is for the Tribunal to determine not only whether it will hear from a witness proposed by an applicant at a hearing but also to decide what questions to ask such a witness. The oral evidence of a witness given in response to questioning by an inquisitiorial Tribunal at a hearing (as occurred in this case) is not of the same nature as written evidence (or even a prepared oral statement of a witness) submitted by the applicant (or his adviser) to the Tribunal. Indeed, in the absence of a common law obligation to accord procedural fairness (see s.422B of the Act), an applicant may not have an opportunity to address the relevance of the oral evidence of a third person given in response to Tribunal questioning (unless s.424A applies).
49.Mr Reilly for the respondent drew the Court’s attention to the fact that this issue was also considered in the recent decision in SZBWJ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 13 at [22] – [36]. However in that case Nicholson and Emmett JJ suggested that s.424A(3)(b) must be taken to refer to the particular non-citizen who has applied to the Tribunal for review of the decision and that s.424A would apply separately in relation to each application. It had been contended for the Minister that evidence given by a witness at the request of an applicant under s.426 would be information given by the applicant for the purposes of s.424A(3)(b) as part of an argument put to the Full Court in relation to whether leave to raise a new ground should be given. It had also been suggested that SAAP could be distinguished, not only because the evidence for the Minister in issue in SZBWJ had come from the wife of the visa applicant who was also herself an applicant for a protection visa, but also because in SAAP the daughter was not a witness her mother had proposed to call. However, their Honours stated (at [45]) that an analysis of the visa application provisions and the Tribunal review provisions in the Migration Act “suggests that the Minister’s contentions may not be well founded”. The further discussion of this point indicates that their Honours were concerned primarily with the fact that the wife in that case was also an applicant for a protection visa and it was in that context suggested that each application for the review by the Tribunal was separate and independent (also see Peniche v Minister for Immigration & Multicultural & Indigenous Affairs [1999] FCA 709 and cf MZWMQ and M47 of 2004). SZBWJ does not support the respondent’s case.
50.Further, in Applicant M164of 2002v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16 conflicting obiter views were expressed in relation to whether oral evidence of the applicant’s husband (who was also a visa applicant) given when the applicant was present was information given by the applicant. The husband’s evidence was said by the Tribunal to be inconsistent with the applicant’s oral evidence “in some key respects”. Lee J, with whom Tamberlin J agreed, stated at [99]:
“If the Tribunal did rely on the alleged inconsistency as the reason, or part of the reason, for making its decision then, as confirmed in SAAP, the Tribunal was bound by s.424A of the Act to set out in writing the perceived inconsistency between the information obtained in the hearing and the details provided by the appellant in her oral account and in the written accounts attached to the application for a visa, and to invite the appellant to respond thereto”.
51.Lee J went on to state at [100] that it was irrelevant to that obligation that the appellant or her migration agent was present when the husband provided that material to the Tribunal (making it clear that his concern was with the evidence of the husband as another person, not simply with inconsistencies in the evidence of the applicant given to the Department and to the Tribunal). Further, Lee J suggested at [101] that a similar issue would arise (the application of s.424A to the oral evidence of the wife) if the husband of the appellant was also regarded as an applicant for a protection visa (albeit even more plainly because the husband was excluded from the hearing while his wife provided information to the Tribunal).
52.Dowsett J acknowledged at [185] that the majority considered that the view of the High Court in SAAP:
“demonstrates that s.424A required the Tribunal to inform the appellant in writing of any information derived from her husband in the course of the hearing in the Tribunal, upon which information the Tribunal intended to rely in affirming the decision under review, and to invite her to comment on it…It is also said that, pursuant to s.424A, the Tribunal was obliged similarly to inform the appellant’s husband of any information given by her which was contrary to his interests as an applicant.”
However Dowsett J did not see SAAP “as authority for either proposition”. He expressed the view that SAAP could be distinguished because in the case before him both the appellant and her husband wished to give evidence and both appeared to accept that each was a relevant witness in establishing whether or not the appellant was a person to whom Australia owed protection obligations. His Honour suggested that there was no reason to limit the concept information “given by the applicant” to information given in evidence by the applicant and that it included all information put before the Tribunal by the applicant including information given by calling a “witness”. His view was that the appellant put before the Tribunal the evidence of her husband. However his Honour continued at [186] “The position may have been otherwise if one of them had, at the instigation of the Tribunal, addressed issues of which the other spouse was completely unaware”.
53.Applicant M164 of 2002 was determined on the issue of whether there had been a failure by the Tribunal to provide procedural fairness to the appellant in its treatment of documentary material, but the views of the majority in relation to s.424A do not support the respondent’s contention.
54.Thus, there are conflicting views expressed in relation to the scope of s.424A(3)(b) in the various cases cited. In this instance the applicant indicated in the response to the hearing invitation that he wanted the Tribunal to take evidence from the two named witnesses. This was confirmed in a facsimile letter from his migration agent to the Tribunal. In other words, the applicant requested the Tribunal to call witnesses, in the sense that under s.426(2) of the Act he gave the Tribunal written notice that he wanted “the Tribunal to obtain oral evidence” from persons named in the notice. Section 426(3) provides that if the Tribunal is notified by an applicant that the applicant wants the Tribunal to obtain oral evidence from named persons, the Tribunal must have regard to the applicant’s wishes “but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice”. It is clear from the conduct of the Tribunal hearing that the member proceeded on the basis that there were two witnesses put forward for the applicant. It took their evidence in the presence of the applicant.
55.Consistent with the Tribunal’s inquisitorial function, it is for the Tribunal to determine whether or not to obtain evidence from persons nominated by the applicant and “to get any information that it considers relevant”. (See s.424).
56.These provisions do not support the view that if the Tribunal chooses to obtain oral evidence from a nominated person such evidence is then information “that the applicant gave for the purpose of the application”. The clear distinction between the manner in which the Tribunal conducts its review and adversarial proceedings in a court where an applicant can be said to present a case, including evidence of the witnesses for the applicant, is of relevance in interpreting s.424A(3)(b). As McHugh J stated in SAAP at [55]:
“The main purpose of [Division 4 of Part 7 of the Act] is to accord procedural fairness to applicants in determining whether a decision of the Minister or the Minister’s delegate should be affirmed. The Tribunal is the vehicle through which this purpose is effected. The Tribunal is empowered to use an inquisitorial process to conduct the review of the decision. The Division does not provide for an adversarial contest that culminates in a trial of issues joined between the parties.”
(Also see Minister for Immigration & Multicultural & Indigenous Affairs v Awan (2003) 131 FCR 1 at [97] per Merkel J, with whom Marshall J agreed.)
57.Moreover while the circumstances in SAAP differ factually because the Tribunal in that case sought the information from the appellant’s daughter, the attitude taken by the majority of the High Court to the interpretation of s.424A is of significance. In considering the operation of s.424A, McHugh J drew a clear distinction between obtaining information from the applicant and obtaining information from a third person and contemplated that the Tribunal was under an obligation to give the applicant notice of any adverse material that emerged when a third person gave evidence to the Tribunal during the Tribunal hearing (at [54]). His Honour stated at [60] that the Division “should be interpreted so as to require the Tribunal to give the applicant the opportunity to comment on adverse material obtained at a hearing before the Tribunal (when the applicant or another person gives evidence)”.
58.Further, McHugh J indicated that it would be anomalous if the Tribunal summoned a person to give evidence which disclosed adverse material but was not required to put that material to the applicant (at [58]). While these views were expressed in the context of considering whether s.424A was exhausted at the time of the invitation to appear, nonetheless it is relevant to note that in SAAP the majority proceeded on the basis that information given by a third person would be subject to the s.424A obligation. It does not appear to have been argued in SAAP that the information given by the appellant’s daughter was given by the appellant within s.424A(3)(b).
59.Critically McHugh J also stated at [63]:
“Arguably, it is unnecessary to require the Tribunal to provide adverse material to the applicant in writing when the applicant is present to hear the information given by another person that the Tribunal receives as evidence. However, an applicant may not understand the significance of that information. So it is in the interests of fairness that the applicant should have the information in writing and should be given an opportunity to comment on it. For that reason, s.424A should not be regarded as spent because the applicant is present at the hearing.”
60.I note in this case that, while counsel for the applicant took no issue with whether the applicant knew or understood what the witnesses told the Tribunal, the transcript of the hearing reveals that it was not until after the questioning of “A” was completed in English that the interpreter asked the Tribunal if he or she should “say briefly what [A] said to you in Arabic”. It is not clear from the transcript before the Court whether there was any simultaneous translation of the witnesses’ evidence from English to Arabic. However on the reasoning of McHugh J in SAAP it is not necessary to resolve this issue.
61.As Hayne J stated in SAAP at [208]:
“Where the Act prescribes steps that the Tribunal must take in conducting its review and those steps are directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, both the language of the Act and its scope and objects point inexorably to the conclusion that want of compliance with s.424A renders the decision invalid. Whether those steps would be judged to be necessary or even desirable in the circumstances of a particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case”. (emphasis added)
62.In SZEEU Weinberg J at [159] to [163] addressed the rigorous approach taken by the High Court and adopted by the Full Court of the Federal Court when considering the consequences of a breach of natural justice. His Honour concluded at [163] that:
“The strict view that the courts have taken in relation to breaches of the rules of natural justice can, in my view, inform the application of the expression ‘a part of the reason’ in s.424A. The cases suggest that this expression should be read benevolently, in favour of an applicant for review. If there is any doubt as to whether information that is adverse to an applicant did form a part of the reason for decision, that doubt should generally be resolved in favour of the applicant”.
63.Such an approach would also suggest that the exceptions to s.424A in subsection (3) should be read strictly, consistent with the fact that s.424A is, as McHugh J put it in SAAP at [77], “one of the centrepieces of the Migration Act’s regime of statutory procedural fairness”. Also see Gummow J at [136], Kirby J at [173] and Hayne J at [204] – [208] in SAAP.
64.In all the circumstances, particularly in light of the approach taken in SAAP and the view that s.424A imposes a mandatory requirement and given that under s.424A it is not simply a question of giving the applicant information but also of ensuring as far as reasonably practicable that the applicant understands the relevance of that information and is given an opportunity in writing to comment, I am of the view that information is not given by the applicant where it is given orally by a third party in response to questioning at a Tribunal hearing. The fact that the applicant had given the Tribunal notice that the applicant wanted the Tribunal to obtain oral evidence from that person and the Tribunal decided to do so in the presence of the applicant does not alter my conclusion (see Hayne J at [199] in SAAP). Hence, on balance I am not pursuaded that the information given by the applicant’s niece and/or husband was information that the applicant gave for the purpose of the application within s.424A(3)(b).
65.It was further contended for the respondent that even if the information was not initially given to the Tribunal by the applicant, the applicant had confirmed the information as to the relationship between himself and, at least, his niece in the course of the Tribunal hearing. After the niece gave evidence, the Tribunal member raised the issue of the weight to be given to evidence from family members such as his niece. The applicant responded “I agree with you but she’s not, I mean, 100% related to me. She’s related to my wife”. This was said to constitute a confirmation in which the applicant himself gave the information about the relationship to the Tribunal.
66.However, consistent with the approach taken in SZEEU at [17] per Moore J, with whom Allsop and Weinberg JJ agreed on this point, even if the applicant by this response could be seen as adopting the information or confirming its correctness, as was held in NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 747 at [36] – [39], s.424A(3)(b) only comprehends information actively advanced by the applicant and not information adopted as a result of questions from the Tribunal. In SZEEU at [20] Moore J expressed the opinion that the approach of Jacobson J in NAZY was correct and did not accept that by the applicant adopting a statement at the hearing before the Tribunal, that information (which in that case had been given by the applicant in connection with his protection visa application) was transformed into information provided by the applicant in his application for review. Thus the mere adoption of a statement (of a third party) by the applicant during the review process is not such as to result in the information being given by the applicant for the purpose of the review application. Such a view is consistent with the fact that it is not simply a matter of the giving of information to the applicant which is comprehended by the strict s.424A(1) obligation. The Tribunal must give a notice in writing and ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant and invite the applicant to comment on it.
67.Accordingly a failure to comply with s.424A has been established. As the High Court held in SAAP, compliance with s.424A is mandatory. Hence the failure gives rise to a jurisdictional error such that the decision of the Tribunal is invalidated (see in particular McHugh J at [72] – [77]). This is not a case in which there is an independent basis for the Tribunal reasons for decision not affected by error.
Discretionary relief
68.Contrary to the submissions for the respondent the fact that the applicant was aware of the relationship between himself and his niece and her husband and that he was given an opportunity during the hearing to respond orally to the Tribunal’s view as to the weight of such information is not such as to warrant the withholding of discretionary relief. In SAAP McHugh J addressed a submission by the Minister that the applicant had been made aware of what her daughter said and had sufficient opportunity to respond so that no unfairness occurred, the breach could not have affected the outcome of her claim and relief should be withheld. However his Honour stated at [83] – [84]:
“Where the relevant breach is a failure to observe fair decision-making procedures, the bearing of the breach upon the ultimate decision should not of itself determine whether the constitutional writs of certiorari and mandamus should be granted…if the decision is invalid for want of procedural fairness there is no reason to withhold discretionary relief.”
69.McHugh J suggested at [84] that the issue of whether the appellant was in fact deprived of the relevant opportunity to deal with the adverse material received by the Tribunal from her eldest daughter should not affect the discretion to grant relief. (Also see Hayne J, with whom Kirby J agreed at [204] – [209] concluding that want of compliance with s.424A rendered the decision invalid and at [210] – [211] rejecting the notion that if the giving of a notice in writing in accordance with s.424A would serve no practical purpose relief should be refused on discretionary grounds).
70.In any event, while the Tribunal raised the issue of the weight of independent evidence with the applicant, it was not put to him that the evidence of his niece and wife might not be accepted at all. The Tribunal did refer to giving little or no weight to that evidence at the conclusion of the paragraph of its reasons in which the evidence was discussed, but it is clear from the reasons as a whole that the Tribunal did not accept that the events of which the niece and her husband gave evidence had in fact occurred. In other words their evidence in that respect was not accepted.
71.It has not been established that the conduct of the applicant warrants the refusal to exercise the discretion to grant relief. As in SAAP there is no suggestion of delay, waiver, acquiescence or other conduct of the applicant to stand in the way of his receiving relief in relation to a decision which is invalid.
72.The decision of the Tribunal should be set aside and the matter remitted for redetermination according to law. For the sake of completeness I have also considered the other grounds relied on by the applicant.
Unreasonableness
73.It was contended that the Tribunal’s finding that the witnesses were not truthful was so unreasonable that no reasonable Tribunal could have made such a finding. The particulars to this ground are:
The Tribunal set aside the witnesses’ evidence based solely on the fact that they were related to the applicant, and concluded that they would be willing to give false testimony in support of the applicant because of their ‘respect’ for him, without any evidence being before the Tribunal as to the closeness of the relationship between the witnesses and the applicant or their degree of respect for him.”
74.The relevant Tribunal finding is as follows:
“I do not accept the evidence of the applicant’s niece and her husband that they observed armed men entering the family home to look for the applicant during their short stay in [the applicant’s village in Lebanon]. Firstly, the witnesses are members of the applicant’s family and keen to assist a well regarded uncle in his claims. Secondly as previously stated I do not accept that the Syrian agents would be regularly attending the family home of the applicant in the circumstances set out above and in this context I have given their evidence little or no weight.”
75.However, contrary to the contentions for the applicant, the Tribunal did not set aside the witnesses’ evidence about the events of February 2002 based solely on the fact that they were related to the applicant. Rather it had regard not only to the relationship and its findings as to their keenness to assist the applicant but also to its conclusion (for reasons not related to the evidence of the witnesses but based on the applicant’s evidence, country information and implausibility in some aspects of his claims) that the applicant had not been wanted or sought out by Syrian agents over a long period of time because of his activities at the 2001 mass. In concluding that it did not accept Syrian agents would be regularly attending the applicant’s home the Tribunal had regard to all “the circumstances”, including its finding that the applicant had not suffered any mistreatment, and that he did not wander ‘aimlessly’ as claimed and that Syrian agents were not looking for him in the 12 month period before his travel to Australia in February 2003. It was in these ‘circumstances’ that the evidence of the niece and her husband was given little or no weight. Moreover, the Tribunal did not simply conclude the witnesses would be willing to give false testimony in support of the applicant because of their “respect for him”. Insofar as the Tribunal relied on their keenness to assist the applicant, it raised this issue with the applicant in the course of the Tribunal hearing. The applicant agreed. In those circumstances it cannot be said that the Tribunal’s finding was so unreasonable that no reasonable Tribunal could have made such a finding.
No evidence
76.The last ground relied on is that there was no evidence before the Tribunal on which it could have based its conclusion that the witnesses were prepared to give false testimony out of “respect” for the applicant. As was pointed out in WAJS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 139, while there is a principle that an administrative decision-maker falls into a jurisdictional error in basing a decision upon a finding of fact which lacks any supporting evidence, it is difficult to apply such principle to a rejection of evidence (see Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 70 ALR 147 at 150 per Wilcox J and WAJS at [12]). In essence what occurred in this case was a rejection of the witnesses’ evidence and the claim presented in that evidence. In NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 124 there was no probative evidence to support a finding or conclusion that the Tribunal made not to accept a particular claim of the applicant and to reject the applicant’s evidence. However, as Nicholson and Edmonds JJ stated at [33] “none was required”, there being no probative material pointing the other way.
77.In any event, in this case, in raising with the applicant in the course of the hearing the fact of the relationship and the weight to be given to the evidence of relatives, the Tribunal put to him “because naturally as a family member your niece would want to help you, she cares about you, she cares about the family”. The applicant agreed. In these circumstances it cannot be said that there was no evidence before the Tribunal on which it could base the conclusion it did make. The Tribunal did not find that the witnesses were prepared to give false testimony as such or that this was out of “respect” for the applicant, but rather that they were family members keen to assist a well-regarded uncle. There was evidence before the Tribunal on which it could base this conclusion. The applicant has not established a jurisdictional error on this basis.
However as jurisdictional error is established on the basis contended for in ground 1 of the amended application, the decision of the Tribunal should be set aside.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 2 May 2006
10
0
1