SZOZU v Minister for Immigration
[2011] FMCA 393
•1 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOZU v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 393 |
| MIGRATION – Review of decision of Independent Merits Reviewer – applicant an irregular maritime arrival – whether in the interests of the administration of justice to extend time – whether the reviewer denied procedural fairness – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 46A, 195A, 476, 477 Australian Constitution, s.75 |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14; (2010) 85 ALJR 133 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437; (2003) 77 ALJR 1909; (2003) 75 ALD 1 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 United Nations Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) |
| Applicant: | SZOZU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 271 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 25 May 2011 |
| Date of Last Submission: | 25 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 1 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr J F Gormly |
| Solicitors for the Applicant: | Legal Aid Commission of NSW |
| Appearing for the Respondents: | Mr A Markus |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 18 February 2011 is not competent.
The time for the making of the application of 28 April 2011 is extended pursuant to s.477(2) of the Migration Act 1958 (Cth).
The application made on 28 April 2011 is dismissed.
The applicant pay the first respondent’s costs as agreed between the parties or pursuant to Rule 21.02(2)(c) of the Federal Magistrates Court Rules 2001 (Cth) for referral for taxation under Order 62 of the Federal Court Rules 1979 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 271 of 2011
| SZOZU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The issue in this case is whether, in light of Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14; (2010) 85 ALJR 133 (“M61/M69”), the Court should grant declaratory relief in relation to a recommendation made by the second respondent to the Minister for Immigration and Citizenship (“the Minister”) that SZOZU (“the applicant”) does not ultimately meet a relevant criterion for the grant of a protection visa under the Migration Act 1958 (Cth) (“the Act”).
Specifically, the recommendation was that the applicant should not be recognised as a person to whom Australia has protection obligations. That is, in essence, that he does not meet the definition of “refugee” as set out in Article 1A(2) of the United Nations Convention Relating to the Status of Refugees.[1] (see s.36(2) of the Act).
[1] Opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (“Refugees Convention”).
Background
The relevant background to this case can be derived from the Court Book (“CB”) filed in these proceedings by the Minister.
The applicant arrived at Christmas Island by boat in March 2010. The Minister had put in place certain arrangements to deal with any such persons who, on arrival or subsequently, submitted claims to be in need of Australia’s protection because they feared persecutory harm, as that term is understood in the Refugees Convention, if they were to return to their country of origin.
On 15 May 2010, with the assistance of a migration agent, the applicant submitted his claims to the Minister in support of a request that he be assessed as, in effect, a “refugee”, thereby calling on Australia to provide him protection (CB 54 to CB 113).
Claims to Protection
The applicant is a citizen of Sri Lanka and of Tamil ethnicity.
The applicant’s claims to protection were based on a fear of persecution in Sri Lanka because of his political opinion, arising from his active membership of the Tamil National Alliance (“TNA”) and his suspected involvement in the Liberation Tigers of Tamil Eelam (“LTTE”). He also claimed to fear persecution based on his marriage to a Christian Tamil woman of a lower caste.
Initial Assessment
The applicant was interviewed by an officer of the Minister’s department in relation to his claims on 18 May 2010. The officer’s ultimate assessment was that the claimant did not have a genuine fear of harm and that there was not a real chance of persecution occurring if he were to return to Sri Lanka. The officer therefore concluded that the claimant’s fear of persecution was not well-founded as that term is understood pursuant to the Refugees Convention (CB 119 to CB 134).
Independent Review
On 13 July 2010 the applicant lodged a request for review of this assessment by an independent review assessor (CB 139 to CB 144).
The applicant’s migration agent made submissions, with annexures, on the applicant’s behalf on 4 September 2010 (CB 139 to CB 151). For reasons that will become clear below, I note that one of the annexures was a letter addressed “To Whom it May Concern” and was said to have been signed by a member of the (Sri Lankan) Parliament (CB 151).
The applicant, with his adviser present, was interviewed by the second respondent in these proceedings, Mr Luke Hardy (“the reviewer”), who had been assigned to conduct the independent merits review of the departmental officer’s assessment. (An account of this interview is to be found in the review record (CB 118.9 to CB 161.5).
The reviewer ultimately understood the applicant’s claims to protection to be grounded in:
1)Political opinion, arising from the claimed involvement with the TNA and suspected involvement with the LTTE which brought him to the adverse attention of political opponents.
2)Religion and membership of a particular social group, arising out of his marriage.
3)Imputed political opinion, arising from his “use of illegal means to depart Sri Lanka” (CB 167.5).
The reviewer accepted some part of the applicant’s account of relevant events, but made a number of adverse findings resulting from an adverse assessment of his credibility. Ultimately, the reviewer stated (CB 172.3):
“I do find overall, however, that [the applicant] has presented to me as an unreliable witness and I do not accept the bulk of his specific claims.”
Relevantly, the reviewer did not accept the claims of active involvement with the TNA and the claim to fear persecution arising from his marriage (see generally CB 168 to CB 171).
Again, relevant to the consideration below, while the reviewer accepted the applicant had some low level of support for the TNA, he rejected that he had been a member or office-holder in, or that he had been actively involved with, the TNA, or played a significant role in the elections of 2001. The relevance here was that it was the applicant’s claim that this involvement in particular had given him the profile which attracted attention from political opponents (CB 168).
The reviewer’s reasoning was that the applicant’s claims to fear persecutory harm in this regard were said to arise from a high level of active political involvement. He found that the applicant was merely, at best, a supporter of the TNA, and therefore did not attract the adverse interest of political opponents as claimed.
The reviewer found that the applicant did not meet the definition of “refugee”, and therefore recommended that the applicant not be recognised as a person to whom Australia owed protection (CB 173).
The Application to the Court
By way of amended application, the applicant put forward the following grounds:
“That the decision of the second respondent (the reviewer) was affected by legal error in that:
1. The second respondent (the reviewer) did not afford procedural fairness to the applicant in that the reviewer did not give the applicant an opportunity to ascertain or be heard on relevant issues.
Particulars
• In relation to evidence of the applicant’s claims relating to his participation in the Parliamentary General Election of 2001 in a letter from a member of the Sri Lankan Parliament for the district in which the applicant’s family resided, the reviewer found the member was retelling events, unknown to him, as described to him by the applicant upon the applicant’s recent solicitation.
• It was a requirement of procedural fairness that the applicant could ascertain whether the member’s knowledge of the events described in the letter was in issue.
• It was also a requirement of procedural fairness that the applicant could ascertain how the letter came into being was in issue, including whether the applicant had recently solicited the letter.
• The second respondent did not put to the applicant or his advisor that these matters were in issue as would put the applicant on notice to adduce further evidence including oral evidence from the member.
2. The second respondent (the reviewer) did not afford procedural fairness to the applicant in that the reviewer did not put the nature and content of adverse material to the applicant.
Particulars
• The adverse material was independent confirmation that the said member’s letter was probably very recent and had only recently arrived on Christmas Island.
• The reviewer used this information as evidence that the member’s letter was recently solicited and as evidence in support of its finding that the member was retelling events unknown to him as described by the applicant.”
[The second ground was abandoned at the hearing.]
M61/M69
As I said in Darabi v Minister for Immigration & Anor [2011] FMCA 371 (“Darabi”), a recent case similar in many respects to the current case, a number of points arise from M61/M69 which particularly bear on the current proceedings.
In M61/M69 the High Court found that the decision by the Minister to establish and implement procedures to deal with persons who arrive (as in M61/M69, at Christmas Island) by boat (“the offshore entry person”), and who claim that Australia owes them protection, was a decision “… by the Minister to consider whether to exercise …” powers under either s.46A or s.195A of the Act in respect of any such person (see M61/M69 at [65] – [66] in particular).
The High Court also found that the initial assessment and the subsequent review assessment made under these procedures, undertaken for the purpose of the Minister considering whether to exercise power under either s.46A or s.195A of the Act, were subject to the principles of procedural fairness given that the claimants’ right “… to liberty from restraint at the behest of the Australian Executive is directly affected …” (at [77]). In addition, any such consideration and review conducted under these procedures “… must proceed by reference to correct legal principles, correctly applied.” (at [78]).
The High Court found that, as one of the powers whose exercise was being considered was the power to lift the “bar” under s.46A of the Act, to enable the claimant to make an application for a protection visa, the exercise of that power must be made “… according to the criteria and principles identified in the Migration Act, as construed and applied by the courts of Australia…”. For present purposes, what was referred to in the relevant review procedural manual as: “… Australian legislation and relevant case law …” was “… to be treated as binding …” on the reviewer (at [88]).
The Court’s Jurisdiction and the Competency of the Application
In this light also, some consideration must be given to this Court’s jurisdiction and the competency of the application made.
The application to the Court in this case was made on 18 February 2011. The reviewer’s recommendation is dated 7 January 2011. Section 477(1) of the Act requires an application to this Court for a remedy to be granted pursuant to this Court’s original jurisdiction under s.476 of the Act in relation to a “migration decision” to be made within 35 days of that decision.
I took the view that the circumstances of this case fall within the definition of the “date of the migration decision” as set out at s.477(3)(d) of the Act. The relevant date therefore is the date of the written notice to the applicant of the reviewer’s decision. That is, 17 January 2011 (CB 152). The application therefore was made within the time specified in s.477(1) of the Act.
However the application to the Court was deficient in one important respect. It did not properly invoke the jurisdiction of this Court pursuant to s.476(1) of the Act. That section provides that this Court has the same original jurisdiction in relation to a migration decision as the High Court has under s.75(v) of the Constitution. Relevantly, it does not have, as the High Court does, jurisdiction in relation to s.75(i) or (iii).
Further, the status of the reviewer as an “independent contractor”, and the assumption therefore that he is not “an officer of the Commonwealth” (which must be seen in light of s.75(v)), led the High Court to state that “… a claim for mandamus, prohibition or injunction against [such] persons would not, standing alone, found the original jurisdiction of [the High Court] under s.75(v) of the Constitution.” (M61/M69 at [51]). By extension, therefore, it is the same before this Court.
It was not necessary, given the circumstances of the cases before it, for the High Court to consider whether the reviewers, as “independent contractors”, could nevertheless fall within the expression of an “officer of the Commonwealth” in s.75(v) (M61/M69 at [51]).
However in the current circumstances there is no need to enter into any greater consideration or analysis of the High Court’s judgment in this regard. Both parties agreed that, given that relevant analysis and reasoning, an application to this Court which is made within time and which seeks injunctive and declaratory relief is valid and competent. An application that seeks a declaration, but does not seek an injunction restraining the Minister from relying on the reviewer’s recommendation, is not (see variously M61/M69 at [8], [50] – [52] and [99] – [103]).
The application to the Court did not meet this requirement (only a declaration was sought). It was therefore not competent. The Minister did not oppose the Court granting the applicant leave to file and serve an “amended” application addressing this deficiency. The applicant filed such an application on 28 April 2011. It sought both an injunction and a declaration.
On reflection, however, there is a strong argument to say that this application should not be considered an “amending” application. The “first” application was not competent because of a want of jurisdiction of this Court, given the nature of the relief sought and the provisions of s.476.
In my view the filing of the “amended” application could not serve to, in some way “retrospectively”, make competent an application that is not competent. The “amending” or “second” application therefore is to be viewed as being competent in the sense that it properly invoked the jurisdiction of this Court pursuant to s.476. It was, however, filed outside the time limit provided for in s.477(1) of the Act. The application does seek an extension of time pursuant to s.477(2) which complies with s.477(2)(a) of the Act. There was no opposition by the Minister to the Court granting the extension of time.
While, in my view, what is in the interests of the administration of justice pursuant to s.477(2) of the Act should in the normal course of events include some assessment of the prospects of success of the grounds of the application, I am persuaded in the current circumstances that time should be extended prior to the consideration of the merits of the application.
What I recently said in Darabi at [34] – [37] in this regard applies equally to the current case:
“[34] The reasons generally advanced in support of this application are that the applicant commenced his application at a time when he had no realistic opportunity to obtain legal advice as to how to properly invoke the jurisdiction of this Court in light of M61/M69. Further, he suffered from the disadvantage of not being able to speak English, and was held in immigration detention which further mitigated against the capacity to obtain such advice. Even further, that the applicant, notwithstanding any difficulties, did attempt to make his application within time.
[35] I would add to this that this is amongst the first of this type of matter to be put before this Court. That also would be, in itself, a disadvantage to the applicant in the sense that there was no or little precedent as to how he could go about properly invoking the jurisdiction of this Court.
[36] It is also important to note that the Minister, fairly, did not oppose the granting of any such extension in the interests of the administration of justice, but sought the dismissal of the application on the basis that there was no legal error in the decision of Mr Connolly to recommend that the applicant was not a person to whom Australia owed any protection obligations.
[37] These reasons are sufficient, in my view, and of such weight as to satisfy the Court that it is in the interests of the administration of justice to extend time pursuant to s.477(2) without having regard for this purpose to the merits or prospects of success of the grounds of the application as pleaded.”
The Complaint Before the Court
The applicant presses one ground in his application (see [17] above).
The applicant’s complaint derives from the reviewer’s claimed treatment and consideration of a letter, said to have been signed by a Sri Lankan MP, that was put before the reviewer (see a copy of the letter at CB 151).
The relevant part of the reviewer’s analysis is as follows (CB 169):
“I have not forgotten that [the applicant] presented a letter that he said was written by a politician. I find that although this letter is not dated, it is probably very recent, as I have independently confirmed, and this is potentially favourable for [the applicant], that the name of the author is consistent with the name of the current Vanni MP. My main problem with the letter is not a question of its authorship but a question of whether I can rely on its content as independent evidence of all or any of the facts it contains. [The applicant] has not suggested he ever worked with the author in his past. The author does not say how [the applicant] is known to him. The author does not confirm that [the applicant] was a member of the TNA or on the staff of a local TNA candidate. It does say he canvassed and monitored a polling booth in 2001, exposing attempted electoral fraud. [The applicant] told me that the best way to prove membership of a party is to get a friend in the party to write a vouching letter, apparently like the one presented, but that opens up the question of how much one can rely on a letter from a friend, when the claimants own claims are vague and lacking in an air of reality.
Looking at the letter in detail, none of it reads like an eyewitness account; it is not contemporaneous evidence or a contemporaneous account. There is no suggestion in the letter as to how other author has independent knowledge of the facts contained in it. I am of the view that the author is retelling events that have been described to him, true or false, by another person or persons. I consider it reasonable to be cautious about relying on the word of an author, even a local public office holder, doing this in an undated recent letter. On reading the letter, considering how it covers events in different cities over about a decade, it strikes me as having been recounted to the author from the one source. Nothing suggests to me that he has received the information over time from a range of sources. The recent arrival of the letter on Christmas Island is evidence of recent solicitation and, whereas the mere solicitation of written testimony does not of itself mean that the testimony is false, there is no sense in this case that the details in the letter are presented or recounted from the original perspective of anyone but [the applicant], whose own evidence about his role in the TNA is vague and unconvincing. I am not satisfied that this letter provides reliable independent corroboration of [the applicant’s] claimed involvement with the TNA and his problems with the army and other political entities. Notwithstanding its superficial ‘consistency’ with [the applicant’s] claims, and also notwithstanding that it purports to refer to an official complaint by [the applicant] to the Human Rights Commission, I give this letter no weight.”
[Emphasis in the original.]
The applicant’s complaint, in essence, is that the reviewer acted contrary to the requirements of procedural fairness at common law by not putting to the applicant his suspicion that the MP had referred to events not known to him, had no regard to the truth or falsity of what was stated, that the letter contained a version of events as described to him by another person or persons, and that the letter emanated from the applicant’s “recent solicitation”.
Important to this submission was the applicant’s reading of his letter to the Court. Mr Gormly, who appeared for the applicant before the Court, submitted that, with reference to the author’s assertion that the applicant is known to him and the lack of qualification in the letter, the letter should be properly read as an assertion by the author of the truth of the statements, and that it presented as being within the ambit of his own knowledge.
The complaint is that the reviewer took the view that the author was retelling events described to him without regard to whether they be true or false. Further, that implicit in the reviewer’s findings is that the author had no personal knowledge of the events recounted, and that this called into question the applicant’s role as to how the letter came into being. The argument is that the reviewer found that the letter contained fabrications, that the statements presented as being true were not, and in fact that they had been invented by the applicant and that some collusion was involved. In these circumstances, he was denied procedural fairness because the reviewer’s “suspicions” in this regard were not put to him for comment.
Mr Gormly submitted that these circumstances are similar to those before Einfeld J in Meadows and Another v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370 (“Meadows”).
In that case the Refugee Review Tribunal had before it two letters put in support of that applicant’s claims. The Tribunal made findings that there had been some “collusion” in the generation of the letters and that this was in circumstances where there was no dispute as to the actual authors of the letters. In this regard, Einfeld J said (at 376 G):
“It is not entirely clear what the Tribunal actually found about the letters. It appeared not to conclude that they were forged or concocted but to have decided that they were procured from the people purporting to have written them who were persuaded to lie about the relevant assertions for the sole or prime purpose of assisting the appellants’ case for refugee status. However, what parts were fabricated and what were not was nowhere identified.”
The core of the submission in the current case was that the reviewer found that the applicant “contrived”, with the MP, for the MP to present a series of statements in circumstances where the MP was indifferent to their truth or falsity. This, it was said, brings the matter within the ambit of what was found in Meadows. That is, that the reviewer attacked the claim of the MP to know of the events that he recounted. He presented the applicant’s role in the genesis of the letter as being part of a collusion to present the matters asserted as being true, when the reviewer found otherwise. That is, that they were not true.
Mr Gormly characterised the reviewer’s approach as having “dressed up” the findings as not giving weight to corroborative evidence. But the submission was that the reviewer had gone further than this in his assessment of the letter.
The applicant also asserts that the reviewer fell into error in the way described in WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912 (“WAGU”) at [36]:
“Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party's credibility. In such a case a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness. This is just a special case of the general proposition that procedural fairness does not require the decision-maker, in this case the Tribunal, to invite comment upon its thought processes on the way to its decision. But where corroborative evidence is rejected on the basis of a finding of fraud or forgery or on some other positive basis which has never been put to the tendering party there may be a failure of procedural fairness. Such a failure may have very practical effects for it means that the corroborative material is never weighed in the balance of the general assessment of the tendering party's credibility.”
Mr Gormly also submitted that, when regard is had to how the reviewer dealt with the applicant’s involvement in the 2001 elections and with the TNA, the reviewer did not make any assessment of adverse credibility and then reject the applicant’s claims, but instead rejected the claims as being vague and lacking “reality”.
Mr Gormly relied on the reviewer’s caution (at CB 172.1):
“… I take care to note that have not assumed on the basis of his initial and sustained deception on this particular point that he must have been lying about his role with the TNA and his problems with the PLOTE, EPDP and the army; as shown above, I have made findings directly on the quality of his claims about that role and those problems, and on how one finding logically leads to others. I am prepared to accept that whether or not he was in Sri Lanka in 2010 and saw things there for himself, he was entitled to put for my consideration the view that the general state of affairs for Tamils had not improved significantly in Sri Lanka by early 2010, and I have considered that.”
In this regard, therefore, the submission was that this case does not fall within what was said in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59; (2003) 77 ALJR 1165 (“Applicant S20”) at [49] per McHugh and Gummow JJ, as also extracted in WAGU at [35] (noting that the extraction in WAGU precedes the paragraph already extracted above from that case at [44] above).
In short, there was, based on the reviewer’s own words, no finding of adverse credibility in this case that so weakened the applicant’s credibility that what was offered in corroboration (the MP’s letter) was given no weight because of that circumstance.
The applicant also relied on WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171; (2003) 131 FCR 511 at [38] – [58] and WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188 (“WAEJ”) at [50] – [57] and as having provided the basis for the Court’s reasoning in WAGU (see the reference to those cases in WAGU at [40] – [45]).
Mr Gormly also drew a link between Meadows, WACO at [48] and WAEJ at [56] to submit that it is not necessary for a finding by the reviewer that the letter was a forgery, or that fraud was involved, for the reasoning in those cases, and WAGU, to apply to the circumstances of the current case.
In this regard:
1)WACO at [48]:
“Von Doussa J said at 383:-
‘Proceedings before the Tribunal are, of course, not adversarial, but the same notion of basic fairness that underlies the rule in Brown v Dunn required that the Tribunal before making a finding of dishonesty that would be destructive to the appellants' case, give to the appellants the opportunity to address that issue in their evidence.’
Similar views were expressed by Einfeld and Merkel JJ at 382 and 388 respectively.”
2)WAEJ at [56]:
“If, however, the RRT used the word ‘genuineness’ in a loose sense intending to convey not that the document was a forgery but that the weight to be given to the content of the document provided no support to the ‘genuineness’ of the appellant's claim as to his degree of connection or involvement with Farahanipour, or the Marz-e-Porgohar group, then perhaps that was a conclusion available to the RRT, notwithstanding the inappropriate or infelicitous expression of that conclusion.”
Ultimately, it was submitted that what links the current case to those above is that the corroborative evidence here was rejected “on some other positive basis” (with reference specifically to WAGU at [36]) which had never been put to the applicant. This was said to reveal a failure of procedural fairness.
Consideration
In light of the applicant’s submissions, a number of points need to be drawn from the authorities relied on.
First, notwithstanding the applicant’s reliance on WAGU and WACO, it is important to note that, where corroborative evidence, such as the MP’s letter, is rejected on the basis of “no weight” being assigned to it, derived from adverse findings as to the applicant’s credibility, procedural fairness does not require the reviewer to put this to the applicant (WAGU at [36], WACO at [41] (see also in this regard NAAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 113 at [31] per Bennett J).
As was confirmed in WAGU, there is a general proposition at common law that procedural fairness does not require the relevant decision-maker (here the reviewer) to invite comment upon his or her thought processes on the way to the making of its decision (WAGU at [36] – see above). (See also Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437; (2003) 77 ALJR 1909; (2003) 75 ALD 1 at [54], Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (“Alphaone”) at 592, WACO at [46]).
What is required is, as I set out in Darabi at [91] to [93]:
“[91] The natural justice hearing rule, or, more relevantly, the accepted obligations of procedural fairness, require the decision-maker to give a claimant the opportunity to put his or her case. Fairness requires that a claimant be given the opportunity to be heard. An element of this is that the decision-maker has an obligation to unambiguously and clearly raise the critical issues on which the decision will turn (Kioa at 587, VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74; (2003) 129 FCR 168 at [27])… the extent of this requirement is derived from the circumstances of each particular case (Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 at 672 per Gaudron J).
[92] There is a clear requirement of fairness that a claimant be informed of the type of matters that the reviewer may take into account, but this does not lead to the proposition that procedural fairness requires the claimant to have the opportunity to comment on all “adverse” information irrespective of its credibility, relevance or significance (Kioa at 628 per Brennan J).
[93] The reviewer’s obligation, and indeed the claimant’s entitlement, is to have the claimant’s mind directed to the core or critical issues on which the decision will turn. This is, of course, so that the claimant will have the opportunity of dealing with it (Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591). This is especially the case where the critical issue to the decision is not apparent from its very nature or even the terms of the statute under which it is made (here the Migration Act). (Ex parte Miah at [194] per Kirby J.)”
It is the case that there may be a breach of procedural fairness, depending on the particular circumstances of the case, where the corroborative evidence is rejected on a clear finding of fraud, forgery or on some other positive basis, and which has not been put to the applicant (see WAGU at [37]). However, I have some difficulties with the reading of the MP’s letter and its claimed context as presented by the applicant now.
The MP’s letter was provided in the context of corroborating the applicant’s claim that he feared persecutory harm because of his high level, active involvement with the TNA and in particular his involvement in elections in 2001, where he claimed to be a canvasser, organiser, personal assistant and “right hand man” to a TNA candidate.
The reviewer’s analysis of the letter (as extracted above at [36]) must be understood in the context of the issue to which it related, and his analysis of this issue.
The reviewer’s analysis begins in the decision record reproduced at CB 168.5. The reviewer accepted that the applicant may have voted for the TNA and even that it had his “moral support”. What the reviewer emphatically did not accept was that the applicant had any active involvement with the TNA, that he played any role, as claimed, in the 2001 elections, and that he came to the attention of political opponents as a result. The reviewer found the applicant’s evidence about his work for the TNA to be “vague” (CB 168.9), and his explanation as to why he could not provide “any evidence” of his membership of the TNA or of his position in it as being “far-fetched” (CB 169.1).
It was in this context that the reviewer turned to consider the MP’s letter to the extent that what was stated in it went to the issue of the applicant’s claims to have been actively involved with the TNA, and particularly the claimed role in the 2001 elections and its aftermath. What is relevantly extracted at [36] above sits in the middle of the reviewer’s analysis of this issue which continues through to CB 170.7.
No transcript of the interview by the reviewer of the applicant has been put into evidence before the Court. The reviewer’s account in that respect remains unchallenged. It reveals that the issue of his claimed association with the TNA, its character and depth, and the consequent attention that was said to have been visited on him by political opponents, was at least sufficiently raised at the interview (see in particular at CB 159.7 to CB 160.4).
In this sense, I accept the Minister’s submissions that the applicant was given the opportunity to deal with adverse material that is “credible, relevant and significant to the decision made” (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 629). That is, the critical issue on which the decision was likely to turn (see the reference to Alphaone and Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57; (2001) 179 ALR 238; (2001) 75 ALJR 889 at [55] – [56] above).
The disposition of this case turns in large part on the actual nature of the reviewer’s treatment of the MP’s letter.
First, there is no finding in the reviewer’s analysis that the letter was a fabrication in the sense found in Meadows (see [41] above). What was made clear by von Doussa J, when agreeing with Einfeld J, was that the letters in that case: “… were deliberately fabricated to exploit the imprisonment of Mrs Meadows’ sister-in-law in late 1996 by falsely implicating the appellants in LTTE activity …” (at 382 G). This was as Mr Markus, who appeared for the Minister, submitted a “positive finding” as to fabrication.
The critical difference between the situation in Meadows and the current case is that, in Meadows, the two authors of the corroborative letters were involved in, and were deliberate in, the fabrication of what was contained in the letters. In the current case I do not accept that, on balance, it can be said that the reviewer found that the MP acted in such a deliberate fashion.
Mr Gormly relies on the words “true or false” as they appear in the reviewer’s analysis (see above at [36]) to argue that this reveals some suspicion that the MP was not telling the truth. A plain reading of the analysis, however, reveals that what the reviewer was saying was that the MP did not know if what was being asserted could be true or false. That is, that he was making representations on behalf of the applicant based on what the applicant told him.
This does not mean that the MP acted in some untruthful way. Perhaps a less colourful or curt expression may have better communicated what is otherwise clear in this analysis, namely that the MP simply did not know whether these events occurred, but was rather merely recounting what had been told to him. For this reason what he said in the letter adds nothing to the applicant’s account, and was in that sense not corroborative of his claims. As the reviewer said, it does not read like an “eyewitness account”. In short, it was of “no weight”.
Nor can it be said that the reviewer found that this letter was “not genuine” or a “forgery”, or invoking fraud, in the sense explored in WACO and WAGU. The reviewer acknowledged the author of the letter as being the MP. There was nothing in the analysis to say that the reviewer found, or even suggested in the sense put by the applicant now, that the MP was a party to some collusion or conspiracy to “defraud” the Australian government.
On its face, the MP was clearly asked by a “person or persons” to provide a letter in support of the applicant. There is nothing to say he did not act in good faith. The applicant’s focus on the words now that he is recounting events told to him “true or false” does not assist him. Clearly, in context, this phrase is not suggestive of the MP’s indifference to the truth as such, but rather that he simply could not have known whether the “events” actually occurred or not. The focus of these words, when plainly read in context, is on the “events”, not the MP himself.
As I set out above, the reviewer’s approach in this regard must be understood in the context from which the letter arose, and its connection to the applicant’s claims, and how those claims were in turn dealt with by him.
The critical issue in this instance, the issue which engaged the reviewer’s procedural fairness obligations to the applicant, was whether the claimed involvement with the TNA, and particularly the 2001 elections, led to a well-founded fear of persecutory harm emanating from the applicant’s claimed opponents.
While the reviewer did not make a comprehensive adverse credibility finding against the applicant (in the sense envisaged in Applicant S20 – see [47] above), nonetheless critical aspects of the applicant’s account in this regard were rejected on credibility grounds.
The reviewer accepted that the applicant may have voted for and given “moral” support to the TNA. This was found, and it was not claimed otherwise, not to have been of such character as to have caused the harm said to be feared.
What the applicant did put forward as generating this fear was his high-level, active and prominent involvement with the TNA and his important role on its behalf, both during the 2001 elections and in the aftermath, in the claimed exposure of the electoral fraud on the part of some of the TNA’s opponents.
On the only account of the interview before the Court, the importance of the TNA related claims, and his electoral work for it, to the disposition of the review was sufficiently raised with the applicant (CB 159). The connection between the MP’s letter and its contents to these claims was clearly made at the interview when the contents of the letter were specifically noted with the applicant (CB 160.8).
Further, it was quite clear that, at the interview, the reviewer was concerned at the lack of documentary evidence to support both the applicant’s claims of membership of the TNA and his claimed positions within it. The reviewer records that he expressed “surprise” at the applicant’s explanation that a “formal political alliance” such as the TNA did not issue IDs or other evidence of membership to its members (CB 161.2). The MP’s letter must be seen, in context of the interview, as having been viewed by the reviewer as part of the “disconnect” between the applicant’s claims and the lack of acceptable documentation to support those claims.
Given all of the above, I am satisfied that the applicant and his adviser would have been on notice, and were given the opportunity to address, the reviewer’s view, as presented at the interview, of this disconnection, or more precisely the deficiency in the applicant’s presentation of his case. When viewed in this light, the reviewer’s approach to the letter in his analysis is no more than an evaluation of a piece of evidence before him to which he assigned “no weight” because it could not be seen as anything more than a second-hand recounting of events (not an “eyewitness account”).
Further, as the reviewer rhetorically asked: “… how much one can rely on a letter from a friend, when the claimants own claims are vague and lacking in an air of reality.” (CB 169.5).
Ultimately, reflecting on the view that emerged or was indicated at the interview, the reviewer’s reason for assigning “no weight” to the letter was that he was: “… not satisfied that this letter provides reliable independent corroboration of [the applicant’s] claimed involvement with the TNA and his problems with the army and other political entities.” (CB 169.7).
Both the central issue of the level of claimed involvement with the TNA, and the claimed consequent fear, and the issue of the lack of satisfactory independent corroboration of the applicant’s claims in this regard, which were otherwise seen as vague and lacking in reality, were matters arising from the interview.
The subsequent analysis of the letter and its deficiencies can therefore be seen as follows. The author was not said to have worked with the applicant or the MP for whom the applicant claimed to have worked. The author did not identify how he knew the applicant and gave no confirmation that the applicant was a member of the TNA or worked for any local candidate. There was nothing to identify the source of the author’s knowledge of the events claimed.
Given what is set out above, and when seen in that light, this again is no more than an evaluation of a piece of evidence before a decision-maker as to how much weight should be given to it. I agree with the Minster that the principles of procedural fairness at common law do not require such evaluation to be separately or further raised with the applicant.
Conclusion
With the benefit of legal representation the applicant has not made out the sole remaining ground of the application. In this circumstance I will make an order dismissing the application.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 1 June 2011
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