SZEUO v Minister for Immigration

[2006] FMCA 67

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEUO v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 67

MIGRATION – Refugee – irrational and illogical reasoning – identity – procedural fairness – credibility – corroborative evidence.

Migration Act 1958, s.359A(1)
Judiciary Act 1903, s.39B
Federal Magistrates Court Rules 2001, r.21.02(2)(a)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 [2003] 198 ALR 59
NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235
S635/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1162
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263
VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679
Applicant V346 of 2000 vMinister for Immigration and Multicultural and Indigenous Affairs [2001] 111 FCR 536
Malik v Minister for Immigration andMulticultural Affairs (2000) 98 FCR 291
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74

Applicant: SZEUO

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1828 of 2004

Judgment of: Nicholls FM

Hearing date: 31 May 2005

Date of Last Submission: 31 May 2005

Delivered at: Sydney

Delivered on: 31 January 2006

REPRESENTATION

Counsel for the Applicant: Mr. R. Webb SC / Mr. Altan

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr. G. Kennett

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Refugee Review Tribunal is joined as the second respondent in these proceedings.

2. A writ of certiorari issue quashing the decision of the Refugee Review Tribunal made on 29 April 2004.

3. The matter be remitted to the Refugee Review Tribunal, differently constituted to redetermine the review application according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1828 of 2004

SZEUO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 15 June 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 29 April 2004 and handed down on 20 May 2004 affirming the decision of a delegate of the respondent Minister made on 31 May 2003 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent to these proceedings.

2. The applicant claimed to be a citizen of Nigeria who arrived in Australia on 28 April 2003. His application for protection centred around his claim that he and both his parents were converts to Christianity from Islam and that as a result they had suffered harm at the hands of Muslim activists and the police in Nigeria. He claimed the family had been forced out of their home and attacked in a church where they had taken refuge and that some of his family were charged with adultery before a Shariah Court (Islamic Religious Court).

   
   

   He claimed that his father, who had not been in custody, “tried everything” to secure their release and that they finally escaped from prison with the help of prison guards on 19 April 2003. The applicant went to Lagos and stayed with a friend. However the police found out and tried to arrest some members of the applicant’s family, and in escaping from the police his father was shot in the leg. The applicant feared that if he were to return to Nigeria he would be captured again, “prosecuted and ill-treated” by the government and the Islamic activists. The Tribunal had before it the applicant's protection visa application (Court Book (“CB”) 1 to CB 27), application for review to the Tribunal (CB 54 to CB 57), information provided by the applicant, and other independent country information (CB 113.8 to CB 115). In addition, the applicant gave oral evidence to the Tribunal on 13 April 2004. The Tribunal’s account of what occurred at the hearing is set out in its decision record reproduced at CB 110.8 to CB 113.8. The Tribunal affirmed the delegate’s decision on the basis that it did not accept that he had suffered any Refugee Convention related harm in the past, or that there was a real chance of harm occurring in the reasonably foreseeable future if the applicant was to return to Nigeria. It therefore concluded that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention.

3. The applicant's amended application to this Court made a number of claims, but Mr. Webb of Senior Counsel (with Mr. Altan), who appeared for the applicant at the hearing before me, pressed only the following:

   “(iv) the Tribunal erred in law as the Tribunal came to a conclusion which involved a serious illogicality of reasoning. The Tribunal found that it could not be satisfied that any harm suffered by the applicant would constitute serious harm. “For these reasons” the Tribunal was not satisfied that any harm occurred in the past or would occur in the future to the applicant, an inference of fact that cannot be reasonably drawn in the circumstances.

   (vi)the Tribunal failed to afford procedural fairness to the applicant as it failed to allow him the opportunity to provide additional evidence with regard to his identity, or to properly assess the existing evidence of his identity.”

4. Mr. Kennett appeared for the respondent Minister. Mr. Webb’s submission on behalf of the applicant in relation to the first complaint was that the Tribunal relied on an inference that could not logically be drawn. This inference critically underpinned the Tribunal’s approach, and was significant in relation to the making of a finding in respect of the applicant's credit. Mr. Webb submitted that the Tribunal’s approach to his credit, which led it into reviewable error, depended critically upon its view as to the credibility of the applicant in so far as his statements, or claims, in respect of his identity and his passport were concerned. His argument was that even though the Tribunal did look at whether there was a risk of a Convention-recognised harm, its findings were infected by the credit assessment which had to do with what the applicant had said about his identity.

5. Mr. Webb pointed to the following in the Tribunal's decision record under the heading of “Findings and Reasons” reproduced at CB 116.5:

   “The Tribunal has concerns about the applicant's credibility. The applicant gave inconsistent versions of events, he claimed to have used a false passport and told stories that the Tribunal has found implausible.”

   Mr. Webb’s argument was that at CB 116.1 the Tribunal said that it was satisfied that the applicant was a citizen of Nigeria, but then went on to say that it was not satisfied that the applicant was the person whom he was claiming to be. That lack of satisfaction therefore, which the Tribunal said was based on evidence before it that the applicant had travelled to Australia using a passport that was in a different name to his claimed identity, is the foundation for the Tribunal's subsequent statement that the Tribunal had concerns about the applicant's credibility, amongst other reasons, because the applicant claimed to have used a false passport. Mr. Webb’s argument was that if the Tribunal could not form a view as to whether the applicant was who he claimed to be (by being unable to be satisfied one way or the other), then it could not have used the claim that the passport was false to make an adverse finding in relation to his credit. A key element of Mr. Webb’s submission is that the effect of this reasoning is that it was not open to the Tribunal, as a matter of logical possibility, to find on the one hand that the applicant was a citizen of Nigeria, but on the other that on the material before it, that it could not be satisfied as to who he was. The argument is that both matters are coextensive. The Tribunal had to either accept both, or neither.

6. Mr. Webb pressed the point that the whole of the evidence concerning nationality and identity was coextensive, and that there was no basis, as a matter of logic, for accepting one of those two things, and not being satisfied in regard to the other. In relation specifically to the passport evidence, Mr. Webb pointed to CB 113. That part of the Tribunal's decision record reports on matters discussed at the hearing that it had with the applicant. In particular, at CB 113.1, the Tribunal records that it asked the applicant about his passport, and the applicant's response was that he had destroyed the passport that he had used to travel to Australia for the reason that it was not his, and that he could not keep it, but that he kept copies to show as evidence for when he wanted to apply for a visa. The applicant's claim, according to the Tribunal's record of what occurred at the hearing before it, was that the applicant’s photograph had been placed in the passport which was not otherwise his passport. Mr. Webb compared this with the Tribunal's “Findings and Reasons”, where at CB 116.2 the Tribunal referred to the copy of the photograph on the passport, and found that it “appeared” different to the person who was present at the hearing before it. However, the Tribunal acknowledged that this could be due to the fact that what it had before it was a photocopy. Further, at CB 119.1 the Tribunal stated that on the basis of the available information, the Tribunal could not make a finding concerning how the passport was obtained, and noted that the copy of the photograph on the passport appeared to be different to the person who was present at the hearing before it, which supported the applicant’s claim that it was not his passport, but that this would contradict the applicant's own evidence that it was his photograph that had been placed in the passport. Mr. Webb’s submission was that the net effect of all of this was that the Tribunal, on the evidence, found that the applicant was a Nigerian, but that it could not make a finding as to his “true identity”. Despite that, the Tribunal proceeds on a view as to the applicant's credibility where the Tribunal says that it has concerns about the applicant's credibility and that this is based on the assumption that he is not the person he says he is in his application for a visa (CB 116.5). The Tribunal's stated concern about the applicant's credibility, in Mr. Webb’s view, is founded on his claim to have used a false passport.

7. Mr. Kennett for the respondent conceded that the Tribunal's “Findings and Reasons” suffer from, as he described it, “some kind of verbal tic”, in that the reasons are studded throughout with expressions of “for these reasons”, and “it follows”, and then proceeds with “on the basis of the evidence as a whole”, with following passages beginning with “in light of the above findings”. (One example at least of this is at CB 117.8). Mr. Kennett's submission was that the structure of the Tribunal's decision record in this regard, discloses a pattern of repeating this type of presentation. He conceded that in several parts of the Tribunal’s “Findings and Reasons”, if the reasoning is taken apart and dealt with from the point of view of strict logic, each element of a particular part of the Tribunal’s reasoning does not actually, or strictly, follow from what has gone before. Nonetheless, his further submission was, bearing in mind the High Court authority in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 that the Tribunal's decision should not be read by placing excessive stress on the use of the connecting phrases such as “it follows”. In this light he submitted that the beneficial construction of the Tribunal's decision record reveals a set of reasons which in truth, despite presentational difficulties, do not reveal themselves as illogical.

8. I accept Mr. Kennett's submission to the extent that there is clear authority that a Tribunal's decision record should not be overzealously scrutinised with a view to finding any error, but needs to be looked at in its totality, and not to be distracted by clumsy expression and presentation. In relation to illogicality as a ground of review, while some members of the High Court in Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 [2003] 198 ALR 59 (“S20”) expressed some support for illogicality as a ground of review, the utility of illogicality is limited:

   -In NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 (“NACB”) at [29] and [30] the Full Federal Court held there is nothing in the remarks of the High Court in S20 which would warrant a departure from earlier line of decisions in the Federal Court to the effect that illogical reasoning does not in itself constitute an error of law or jurisdictional error. The Court said, at [29] and [30]:

   “[29] In our view, there is nothing in these remarks which would warrant a departure from the earlier line of decisions in this Court to the effect that illogical reasoning does not of itself constitute an error of law or jurisdictional error.  Nor does the want of logic which has been identified in the present case sound a “warning note” of the type referred to in Epeabaka (at 422) as to whether there was only a purported, and not real, exercise of power by the RRT.

   [30] Accordingly, the conclusion we have reached in the present case is that there is substance in the argument that there was a want of logic in one aspect of the reasoning of the RRT.  However, want of logic does not of itself suffice to constitute error of law, still less error of law which is jurisdictional.  There is nothing else in the material, apart from the one aspect of illogicality, to cast doubt upon the RRT’s reasoning.  Moreover, there are several bases upon which that reasoning can, in any event, be supported.  Accordingly, on the present state of the authorities, there is no reviewable error.”

   -In S635/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1162 Moore J., held that notwithstanding various observations of members of the High Court about illogical reasoning, he was bound to follow NACB.

   -In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 at [53] to [54] the Court stated that:

   “[53] It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision.  This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf [2001] 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351 to 352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact …

   [54] Error of law may occur within jurisdiction – S20/2002 at 72 [57] …The observations in the joint judgement in S20/2202 did not offer any clear guidance upon the circumstances in which factual error may amount to jurisdictional error for the purposes of the exercise by the High Court of its constitutional jurisdiction under s.85(v) or the exercise by this Court of its analogous statutory jurisdiction under s.39B of the Judiciary Act.  The comments did, however, indicate that, absent a question of jurisdictional fact, which in itself may be a matter of some complexity involving questions of fact and law, the circumstances in which factual error will amount to or evidence jurisdictional error is likely to be quite limited.”

   -I note also that there is authority in the Full Federal Court decision of VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 [16]-[19] for the proposition that illogicality would not of itself suffice to show jurisdictional error.

9. The one particular given by Mr. Webb to show illogical or irrational reasoning on the part of the Tribunal was that it was nonetheless inconsistent on the part of the Tribunal’s reasoning to rely on the applicant's passport to be satisfied that the applicant was a citizen of Nigeria, but that in spite of nationality and identity being coextensive, then finding that it could not be satisfied as to the applicant's identity. The finding in relation to the applicant’s identity while being an issue for the Tribunal, needed to be consistent with other relevant findings. Nationality and identity, he argued, are coextensive and it was illogical to make a positive finding in relation to nationality, but to not be able to make a finding on the applicant’s identity. He argued that the passport issue was then subsequently used by the Tribunal as a base to make an adverse finding as to the applicant's credibility.

10. In relation to this claim I do not accept the submission that there is necessarily an inconsistency between accepting that the applicant was a citizen of Nigeria, and having doubts about the genuineness of the passport. It is clear that the stated nationality on the face of a passport can be an element, sometimes determinative, of the nationality of the bearer in matters that come before the Tribunal. However, I cannot see in the case before me, that the Tribunal’s finding as to the applicant's nationality was necessarily derived solely from the applicant's passport. Nor, in the circumstances before the Tribunal, would the doubts about the passport and the applicant's identity, necessarily cast doubt on the applicant's nationality.

11. I do not accept Mr. Webb’s submission that on what is before me the two issues are coexistent, to the extent that a finding in relation to one must necessitate a finding in relation to the other. In the case before me the Tribunal does not appear to have relied on the passport as the determining factor as to the applicant's nationality. The Tribunal itself says at the beginning of its “Findings and Reasons” at CB 116.1 that its satisfaction that the applicant is a citizen of Nigeria was based “on the basis of available information”. The definition of refugee as contained in Article 1A(2) of the Refugees Convention requires a person, (unless they are stateless) to have a well founded fear of persecution, to be outside the country of nationality and be unable or unwilling owing to such fear to avail himself of the protection of the country of nationality. In this regard the applicant himself in his application to the Tribunal (CB 55.2) states his nationality and citizenship as being that of Nigeria. Further, in his claims to the Tribunal in his application for review at CB 56.3, the applicant gives as his reason for claiming to be a refugee as:

    “Because I will face persecution if I go back to Nigeria…”

    The applicant's claims are expressed as fearing harm should he return to Nigeria, and are expressed in the context of harm that he claimed occurred to him while in Nigeria. The applicant did not assert that he was stateless. In all these circumstances, it was certainly open to the Tribunal to find that the applicant was a citizen of Nigeria. How else should his claims have been understood other than (in the absence of any assertion or suggestion that he was stateless) that Nigeria was the country against which the claims of persecution were made, and from which arose his unwillingness or inability to avail himself of the protection of Nigeria. In the context of the refugee definition in the Refugees Convention, and his claim to be a refugee, it was clearly open to the Tribunal to deal with Nigeria as the country of nationality and this was not dependent on the applicant’s passport.

1. Further, the subsequent doubts about the identity of the applicant, as they can be said to arise from the issue relating to the passport, do not in the circumstances of this case affect the finding on nationality. It was certainly open to the Tribunal to find that the applicant was a citizen of Nigeria as he claimed, and to base this “on available information”, and to deal with the passport and individual identity as a separate issue, or at the very least an issue which did not detract from the clear finding on the applicant's nationality. I note further that the applicant's own evidence was that he had found this passport in a hotel room in Nigeria and that he had been born and grew up in Nigeria. It was clearly open to the Tribunal to make a determination to identify Nigeria as the country of nationality on what was before it.

2. The issue of the passport was discussed with the applicant at the hearing that the Tribunal held with him on 7 April 2004. The Tribunal's decision record, which is unchallenged by any contrary evidence before me, at CB 113.1 states:

   “The Tribunal asked the applicant about his passport. The applicant said he had destroyed it about nine months ago by tearing it into pieces and later burning it. The Tribunal asked the applicant to explain the reasons for the destruction of the passport and the applicant said “it's not mine so I can't keep it”. He nevertheless kept copies “to show as evidence … for when he wants to apply for a visa”. The Tribunal asked “isn't the passport the best evidence itself?” to which the applicant replied “it's not mine so I can't keep it”. The Tribunal noted that the photograph on the copies of the passport provided to DIMIA (FOLIO 33) does not appear to look like the applicant. The applicant insisted that it was his photograph which was placed in the passport. The Tribunal asked the applicant about how he had obtained the passport and the applicant said that he found the passport when he was hiding from the police in the room in Lagos. The passport with the Australian visa happened to be in the room. The Tribunal asked the applicant why he had not said previously that he found the passport and he replied because the Tribunal had asked him.”

3. In its “Findings and Reasons” (and in this regard in a logical progression) having dealt with the issue of nationality, the Tribunal then turned to the issue of identity. The Tribunal could not be satisfied that the applicant was the person whom he claimed to be (CB 116.2). The Tribunal was unable to make a finding as to the “true identity” of the applicant. In part this was derived from matters surrounding the passport, and was also partly based on the Tribunal’s view of documents and education records, submitted by the applicant, which were in his “claimed name”. (I will return to the issue of the documents below). The Tribunal was clearly concerned about the passport issue and this was linked to the identity and credibility issues. At CB 116.3, the Tribunal said that it could not make a finding as to the “true identity” of the applicant. This was based on evidence before it of his having travelled to Australia on a passport that was in a “different name to his now claimed identity”, but that that passport was no longer available to be examined for authenticity, or the possibility of photograph substitution, to support the applicant's claim as to what had happened in this regard (CB 116.3). Further, the Tribunal at CB 117.9 found that it could not accept the applicant's explanation that he had found the passport in a hotel room in Nigeria (CB 117.9), nor could it accept that the applicant travelled using a false passport. (This links back to the Tribunal’s stated concerns at CB 116.5 about the applicant’s credibility being, in part, linked to his claim to have used a false passport). But nor could it make a finding as to how otherwise the passport was obtained (CB 118.1). It noted that on the copy of the passport before it the photograph of the bearer appeared to be different to the person before it at the hearing, which it said supported the applicant’s claim that this was not his passport, but on the other hand would contradict the applicant’s own evidence that it was his photograph that had been placed in the passport. It was unable to verify that the photograph was the applicant’s (as he insisted) because the applicant claimed to have destroyed it. The Tribunal was open to the possibility that the photo may have been that of the applicant, but in the circumstances it could not be certain. On what was before it there was clearly sufficient doubt for the Tribunal to say that it could not be satisfied as to the applicant’s true identity. While all of this is perhaps not explained as well as it could be, there is in my view sufficient to support the Tribunal’s doubts about the applicant’s identity.

4. The critical issue however is whether this stated doubt about the applicant's identity, including the circumstances of how the passport was obtained, is then elevated, in spite of the stated doubt, to one of the bases on which the Tribunal grounds its adverse finding as to the applicant's credibility. At CB 116.5 the Tribunal states:

   “The Tribunal has concerns about the applicant's credibility. The applicant gave inconsistent versions of events [basis 1], he claimed to have used a false passport [basis 2] and told stories that the Tribunal has found implausible [basis 3].” (I have inserted basis identifier for ease of reference).

5. In relation to the first and third bases, that is the inconsistent versions of events and the “implausible stories”, the Tribunal record shows that the Tribunal accepted as being plausible that the applicant was a Christian, and that his parents had converted to Christianity, and even found that the ill-treatment claimed to have been suffered by the applicant's mother in Sudan was also plausible. As indeed it found similarly, in relation to the claims of ill-treatment suffered by his father from Muslim activists when he had converted to Christianity. But the Tribunal at CB 116.8 stated that it could not be satisfied that any harm suffered by any member of the family would constitute serious harm. The Tribunal did not accept that the applicant's claimed sequence of events starting with the claim that Muslim activists made his family leave their house, that the applicant's father was assaulted and the home was set on fire on 25 August 2002, nor that the applicant's father was taken to hospital for treatment, nor that the family subsequently lived in a church and that the church was set on fire in February 2003. The Tribunal noted that the applicant gave inconsistent evidence in relation to this latter issue and was not persuaded by the applicant's explanation as to the inconsistency in his evidence (CB 116.8 to CB 117.2).

   Further, the Tribunal found as implausible that:

   a)The applicant's father, who was supposedly the main concern of Muslim activists because of his conversion, managed to continue working in his panel beating business without being harmed during a time when other members of the family had supposedly been actively pursued (CB 117.3).

   b)That if indeed members of the applicant's family had been sentenced to death by stoning, by a Shariah Court (Islamic religious court), and later escaped, that they did not lodge any appeals. It found the applicant's explanation for this as unconvincing and it gave reasons (CB 117.4).

   c)It also did not accept that the police had arrested his father, mother and sister in Lagos, but that he managed to escape to another room where he was not found by the police. It also noted that the applicant's evidence in this regard was inconsistent and contradictory. Nor did it accept his explanation given to explain the inconsistency (CB 117.8).

6. These findings were not challenged by the applicant before me. What was challenged, related to the second base of the Tribunal's concern about the applicant's credibility. That is, that he claimed to have used a false passport. As I have referred to above, the Tribunal could not make a finding on how the passport was obtained, or whether the passport (the copy before the Tribunal) was indeed the applicant's passport. But a plain reading of the Tribunal’s decision shows that the Tribunal's concern about the applicant's credibility was not based on its inability to make a finding about the provenance of the passport, or to make a finding as to the applicant's identity arising out of the passport issue. It was a concern that arose from the applicant's own claim at the hearing before the Tribunal that he had in fact used a false passport. The critical issue was not so much whether the passport used was a false passport, but that the applicant claimed to have used a false passport in circumstances where the Tribunal found it could not accept he had used a false passport. The Tribunal’s view of the applicant’s claim as to the use of the false passport needs to be seen in the Tribunal’s rejection of the applicant’s claimed sequence of events of harm suffered, leading it to find that he did not use a false passport. Its credibility concern (at CB 116.5) was that while he claimed to have used a false passport, the Tribunal found in all the circumstances it did not accept that he had done so. The Tribunal's decision record clearly reveals that it was the inconsistency in the applicant’s versions of events, and the implausibility of the “stories” and explanations that he gave that were to a great extent the bases upon which it had concerns about the applicant's credibility. The claim in relation to the use of a false passport is grounded in the applicant's own statement made to the Tribunal. The Tribunal did subsequently make a finding it could not accept that the applicant had travelled using a false passport, which in turn was also linked to its concerns about the applicant's credibility. But it also clearly stated that part of its concerns about the applicant's credibility arose from the applicant's own claim to have used a false passport (“he claimed to have used a false passport” – CB 116.5). While refugee claimants may often be in a position of needing to use false travel documentation to escape from situations of persecution, it was certainly open to the Tribunal in the circumstances of the case presented to it, to have partly based its concerns about the applicant's credibility on the claim that he used a false passport to travel to Australia which it subsequently found it could not accept as being the case. This is particularly so as the Tribunal at CB 117.9 found that it could not accept that the applicant had found the passport in the room as he had claimed, nor that he had then used that passport to travel out of Nigeria. The Tribunal's doubts about how the passport was a obtained, although it was clear that it did not accept that it was obtained in the hotel room as claimed, and the Tribunal's doubts about the applicant's identity, do not detract from the applicant's claim that he had used a false passport, and do not detract from the Tribunal's finding that it could not accept the applicant's “story” of how he had found that passport in the room as claimed. In this sense the Tribunal's concern about the applicant's credibility is linked to the applicant's own claim of using a false passport. The Tribunal's finding that it did not accept the applicant's explanation of how he came into possession of that passport, and the ultimate provenance of the passport is distinct from its doubts about identity. None of this gives rise to any illogicality of reasoning and this ground in my view does not succeed.

7. The applicant’s second complaint is that when the Tribunal considered the issue of the applicant's identity, which Mr. Webb submitted underlies its unfavourable finding of credit, it failed to afford “procedural fairness” by properly assessing existing evidence of identity. The submission is that the Tribunal did not take into account evidence submitted by the applicant (CB 61 to CB 62), which was a copy of his Nigerian driver’s license, and that when the Tribunal considered this question of his identity, it failed to afford procedural fairness by not treating this driver’s license as evidence and using it in its decision making process.

8. It is clear from the Tribunal’s decision record that in reviewing the applicant's claims and evidence the Tribunal makes reference (at CB 110.6) that on 3 July 2003 the respondent Minister’s Department received from the applicant, copies of a number of documents “pertaining to school records”. These documents are reproduced at CB 45 to CB 53. [In the context of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 and Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679, I note that the documents appear to have subsequently been given to the Tribunal under cover of a letter. (In his letter to the Tribunal of 7 July 2003 (CB 60) the applicant makes a reference to the error in the spelling of his name on the “Famosel Computer College” certificate – this error is apparent in the document at CB 53)]. The Tribunal clearly dealt with these documents in its decision record at CB 116.4, and said it could not be satisfied that they were genuine, not that they supported the applicant’s claims about his identity.

9. The applicant however also submitted a copy of his driver’s licence to the Tribunal on 14 December 2003 (CB 62). However the driver’s license was not referred to by the Tribunal in its decision record.
   Mr. Kennett submitted that clearly this “item of evidence” was overlooked, but that this was not a case of the Tribunal failing to properly and adequately deal with a claim. Nor did he see it as a breach of procedural fairness in any conventional understanding of that concept. The respondent’s submission was that it does not appear to be more, or less, than a failure by the Tribunal to notice that a “piece of material” was there.

10. In addressing this omission by the Tribunal it is of benefit to see how the issue of identity was developed during the course of the application for a protection visa and the subsequent review. (The drivers licence is obviously linked to the issue of identity before the Tribunal):

    1)It is not clear whether this issue was an important issue before the Minister’s delegate. The delegate in his decision record at CB 44.6 notes:

    “I therefore find it unnecessary for the applicant to leave Nigeria in a false passport with a different name.”

    2)It is clear that the school documents submitted by the applicant to the Minister’s Department were also subsequently given to the Tribunal by the applicant. The applicant, in a covering letter copied at CB 45, makes reference to the documents relating to his school identity and his birth certificate.

    3)The documents are referred to by the Tribunal in its decision record under the heading of “Claims and Evidence” at CB 110.6 and the Tribunal notes that:

    “The records are in the name of the person whom the applicant claims to be rather than the name appearing on the passport.”

    4)The issue of the passport and identity certainly arose during the hearing that the Tribunal conducted with the applicant on 7 April 2004. At CB 113.1 in discussing the issue of the passport that he used to travel to Australia, the Tribunal records the discussion with the applicant concerning the photograph on “copies” of the passport. It put to the applicant that the photograph did not look like the applicant. The Tribunal records the applicant's insistence that it was his photograph that had been placed in the passport, but that the passport was not his own passport. The Tribunal also then records the applicant's response as to how he had obtained the passport. Further, at CB 113.4 the Tribunal records that it had put to the applicant that it found some of this evidence to be “incredible”, and the fact that he had claimed to have used a false passport could mean that any further documents that he had provided could be found to be forged. The Tribunal further put to the applicant that it would be easy to forge the documents, (being his “school documents”), which he claimed to be in his real name as opposed to the name in the passport. By reference to the documents “as those in folios 54 to 62 of DIMIA file” the Tribunal was clearly not referring to the driver’s license which had not been provided to the Minister’s Department. That document had only been provided subsequently to the Tribunal itself.

    5)Nor is there any mention of the driver’s license in the Tribunal's “Findings and Reasons” where the Tribunal, at CB 116.3 is clearly dealing only with the documents at “(Folios 54-62) DIMIA file).”

11. The issue however, is whether this is an “oversight”, as Mr. Kennett submits, and that no jurisdictional error should arise where a decision maker has overlooked and failed to discuss or take into account a piece of evidence. The submission was that the overlooking of this piece of evidence does not lead to the procedure being characterised as unfair. I agree with Mr. Kennett's submission that it was the applicant who provided the school documents to the Tribunal, and these clearly were intended to go to the issue of his identity. The applicant's position presented at the hearing was that the passport that he used, while it contained his photograph, was not his passport, and the name noted on the passport, as the bearer, was not his name. It is clear that at the hearing before the Tribunal, as revealed by the Tribunal's summary, that questions relating to the applicant's identity and the genuineness of the school documents were discussed. Further, it is not apparent that the applicant at the hearing sought any further opportunity to provide any further material, or to deal in any additional way with the material that was already before the Tribunal. Indeed the unchallenged report of the Tribunal’s hearing in this regard shows that the applicant responded to the Tribunal’s concerns, but he is not recorded as seeking any further opportunity to deal further with the documents.

12. I also agree with Mr. Kennett that the principles of procedural fairness, to the extent that they apply in these circumstances, would not have required the Tribunal to alert the applicant to the doubts it had about the authenticity of that material. In Applicant V346 of 2000 vMinister for Immigration and Multicultural and Indigenous Affairs [2001] 111 FCR 536 at 558 to 559, Ryan J., follows findings made by Wilcox J. in Malik v Minister for Immigration andMulticultural Affairs (2000) 98 FCR 291 at 294:

    “I consider that s 424A is directed to ensuring that an applicant is apprised of, and given an opportunity to comment on, any specific information coming to the notice of the Tribunal which will lead, or contribute, to its making a decision adverse to the applicant. As Wilcox J said in Malik v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 291 at 294, in relation to s 359A, which imposes on the Migration Review Tribunal an obligation in substantially identical terms to that imposed on the Tribunal by s 424A:

    " ... I think the purpose underlying s 359A(1) is to ensure that any information which comes to the Tribunal, otherwise from the applicant and which is potentially prejudicial to the applicant's case, shall be drawn to the attention of the applicant, in order that he or she may have the opportunity of dealing with it. I do not think s 359A(1) was intended to require the Tribunal to signal to an applicant its doubts or hesitation about the sufficiency of the case which the applicant, himself or herself, had put before the Tribunal.

    The distinction between the two situations is readily understandable. It is an obvious breach of natural justice to take into account information which has been received by a decision maker from a third party, and which is detrimental to the case being made by a person seeking the exercise of a statutory discretion, if the person affected by the decision is left unaware of the information. On the other hand, if the problem, from the applicant's point of view, is simply that the material which he or she has put before the Tribunal is not sufficiently persuasive, it can hardly be said the applicant has been denied natural justice. He or she put such information as was thought useful, but it turned out to be insufficient to achieve the desired result."

    In any event, it is clear that the Tribunal did put to the applicant the doubts that it had about the authenticity of the school documents and the circumstances surrounding the obtaining of the passport.

1. But the issue however remains as to the Tribunal's overlooking of a piece of evidence, namely the drivers license. It is clear that a failure to deal with a claim raised by an applicant is an error going to jurisdiction. Mr. Kennett submitted however that there is a distinction between a claim, and a “piece” of material that supports a claim. He referred to that distinction articulated by the Full Federal Court in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 (“WAEE”).

2. This issue (driver’s licence and identity) could go to the issue as to whether the Tribunal fully considered an important element arising out of the applicant's claims that went to the heart of resolving the issue of identity, which in turn was relevant to whether he had used a false passport (as the applicant claimed) or not. In turn, as I have set out above the applicant’s claim to have used a false passport, was an important element in the Tribunal’s concerns about the applicant’s credibility. Findings of fact, including findings on credibility are, of course, matters for the Tribunal. Notwithstanding that, the failure to properly consider evidence that goes to the heart of the reasoning used by the Tribunal to dispose of the application is in my view a different matter. The centrality of the issue of identity as it relates to the use, or otherwise, of the false passport, is also intertwined with the other two bases for the Tribunal’s adverse credibility concerns. At CB 117.9 the Tribunal said it could not accept that the applicant had found the passport in the hotel room nor could it accept that the applicant travelled using a false passport. But these findings “follow” the Tribunal’s findings that the applicant gave “inconsistent” and “contradictory” evidence relating to the arrest of other members of his family (CB 117.8). This in turn was found “in light of the above findings” which were that the applicant’s claims concerning the appearance of his family before a Sharia Court were variously “implausible”, “unconvincing” and “fabricated” (CB 117.4). This was also in turn based on the Tribunal’s rejection of the applicant’s claims that he and members of his family were arrested (CB 117.3), which in turn “follows” from the Tribunal’s finding of “inconsistent” evidence given by the applicant in relation to the “church fire” (CB 116.9), which “follows” from its lack of satisfaction that Muslim activists set fire to their home or that his father was assaulted (CB 116.7) which precipitated the series of events which ultimately led to the claimed finding of the passport in the room which then led the Tribunal to its finding that it could not accept that the applicant had used a false passport to travel to Australia (CB 117.9). There is clearly a circuit of reasoning, an analytical loop that links the initial statement by the Tribunal at CB 116.5 that the applicant claimed to have used a false passport to the Tribunal stating at CB 117.9 that it could not accept that the applicant had travelled using a false passport. This on its own was clearly an important element for the Tribunal in raising concerns about the applicant’s credibility. But importantly by its presentation of its reasons the Tribunal has clearly linked this element of its credibility concern to the other two elements being the “inconsistent version of events” and “stories” that it “found implausible”. Clearly by its presentation (the linking of its findings by the use of “in light of the above findings”, “give that”, “it follows”), means that all three bases used to ground the credibility concern were in the Tribunal’s analysis intertwined. Whether the passport used to travel to Australia was a “false passport” or not, in the circumstances of this case is clearly linked to whether the applicant “is the person whom he is claiming to be” (CB 116.2). The Tribunal was not satisfied that the applicant is the person that he claimed to be. Critically therefore the issue of the applicant’s identity is not only relevant as to whether the applicant travelled using a “false passport” or otherwise, but also linked (as set out above) to the other bases supporting the Tribunal’s concerns about the applicant’s credibility. Ultimately the applicant was not successful before the Tribunal because of the view the Tribunal took of his credibility. In this very real sense its failure to deal with a critical piece of evidence which may have disposed of the identity issue in favour of the applicant affects all of its reasoning in rejecting the applicant’s claims. The applicant put before the Tribunal a series of documents which went to the issue of his identity. The Tribunal dealt with all but one of these documents. The driver’s licence (given amongst other things that it contained a photograph – CB 62) was perhaps the strongest of all the documents submitted by the applicant as it went to the issue of his identity.

3. In WAEE, the Court was presented with a situation where the Tribunal in that case failed to address a matter that the Court found was a significant element in the applicant’s application. While the Tribunal recounted certain claims early in its reasons, its failure to consider the evidence presented, and the contention that flowed from the evidence, led to the conclusion that it failed to address this issue. The Full Court comprising French, Sackville and Hely JJ, in a joint judgment, said at [46]-[47]:

   “It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323... at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

   The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

4. Further in Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340 Sackville J., applied the principle in Minister for Aboriginal Affairs v Peko-Walsend Ltd (1986) 162 CLR 24 (“Peko-Walsend”), where Mason J. said at 39 that:

   “The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action.”

   This means that a failure to take into account relevant considerations will constitute jurisdictional error if the failure could have materially affected the decision.

5. In the case before me it is clear that the Tribunal's decision was based on its concerns about the applicant's credibility. Further, in some great part, this was based on the applicant's inconsistent version of events and the implausibility of the “stories” that he put to the Tribunal. But as I have already set out above, in some important and interconnected part also, this was based on the applicant’s claim to have used a false passport. The only reason that the Tribunal appears to give, as to why the claim to have used a false passport was an issue that led to concerns about the applicant's credibility, is that the Tribunal subsequently could not accept that the applicant had used the false passport for the purposes of travelling (presumably to Australia). What remains is that the Tribunal could not accept that the applicant had travelled using a false passport, and therefore his claim to have used a false passport went directly (along with other inter connected issues) to the issue of his credibility.

6. The applicant asserted that he had used a false passport. The evidence that the applicant brought forward to show that this was so, were the school records and the driver’s license showing that he had “another” identity. The Tribunal rejected that the school records documents were genuine. This at least in part, was based as the Tribunal stated at CB 116.4:

   “Given the issue with the passport.”

   Looking at the Tribunal’s decision record, the issue with the passport had two aspects. The first is the aspect that goes to the true identity of the applicant, in relation to which the Tribunal said that it could not make a finding as to the true identity of the applicant (CB 111.3). The second is that it could not accept the applicant's claim that he had travelled using a false passport (CB 117.9). Had the Tribunal accepted that the applicant had travelled using a false passport then the Tribunal's concerns about the applicant's credibility based on this particular claim (CB 116.5), could have been, or may have been, understood as relating to the issue that the applicant was a person who used false passports, that is, who was given to some sort of subterfuge, and therefore that gave rise to concerns about his credibility. But the Tribunal did not do this. The Tribunal in fact did not accept that the applicant had travelled using a false passport. Its statement therefore, that its concerns about the applicant's credibility arising in part from the claim to have used a false passport, must refer to something else. This, in the circumstances of this case, could only be the issue of the applicant’s actual (or real) identity. In this regard, the applicant's claim, which he in part supported by the documentary evidence of the school records, was also supported by the driver’s license from Nigeria. The Tribunal’s failure to acknowledge, let alone take into account, this one additional piece of corroborative evidence, which on its face appeared even stronger than the school records, given that it contained a photograph and signature (but nonetheless this would have been a matter for a finding by the Tribunal) does reveal, that while the license may not have made any difference to the Tribunal's ultimate finding had it taken it into account, equally it could have been the difference in the Tribunal finding that the claim to have used a false passport was true. An important plank in the Tribunal’s reasoning therefore would not have been available as an issue going to concerns about the applicant's credibility. Further, as I have already set out above the “false” passport issue (“false” in the sense of the applicant’s real identity) was inextricably linked (in the Tribunal’s presentation of its analysis) to the other two bases which underpinned its concerns about the applicant’s credibility. In this regard, this was an important piece of corroborative evidence, central to the applicant’s claims as put to the Tribunal at the hearing the Tribunal conducted with him, and going to the heart of the Tribunal's findings which were based on its adverse view of the applicant's credibility. A failure to take into account an important piece of corroborative evidence put forward by an applicant, in circumstances where it is at least an important element in the Tribunal’s finding about the applicant's credibility, on which its decision ultimately turned, does in that sense constitute a failure to consider an important element of the applicant's case. In WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 at [27], their Honours Lee and Moore JJ., stated that:

   “However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error. (See: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82]-[85]).”

   Nor is it clear, in reading the Tribunal’s decision record, that this was a situation as envisaged by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59, where the Tribunal in that case had already formed a clear adverse view as to the applicant's credibility, and the “well” had been:

   “… well and truly poisoned.”

7. The Tribunal decision is therefore infected by jurisdictional error in this regard and the matter should be remitted to the Tribunal for consideration by a Tribunal differently constituted. I will make orders quashing the Tribunal's decision, and returning the matter for reconsideration.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate: Wagma Aziza

Date: 31 January 2006