SZQMZ v Minister for Immigration and Citizenship
[2012] FCA 1005
•13 September 2012
FEDERAL COURT OF AUSTRALIA
SZQMZ v Minister for Immigration and Citizenship [2012] FCA 1005
Citation: SZQMZ v Minister for Immigration and Citizenship
[2012] FCA 1005Appeal from: SZQMZ v Minister for Immigration and Citizenship & Anor [2012] FMCA 161 Parties: SZQMZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 438 of 2012 Judge: COWDROY J Date of judgment: 13 September 2012 Catchwords: MIGRATION – appellant and appellant’s sister apply for protection visa – Tribunal constituted by same member hears and considers both applications – whether apprehension of bias because of Tribunal’s findings as to credibility – whether apprehension of bias because of similarity in Tribunal’s reasoning in both decisions – whether s 424A Migration Act 1958 (Cth) required Tribunal to put statements made by the appellant’s sister in her hearing to the appellant – appeal dismissed Legislation: Convention relating to the status of Refugees 1951
Migration Act 1958 (Cth) ss 424A, 424AACases cited: Applicant WAEE v Minister for Immigration and Citizenship (2003) 75 ALD 630
Briginshaw v Briginshaw (1938) 60 CLR 336
G v H (1994) 181 CLR 387
Laws v Australian Broadcasting Tribunal
(1990) 170 CLR 70
Michael Wilson & Partners Limited v Nicholls
(2011) 244 CLR 427
Minister for Immigration and Citizenship v SZQHH
(2012) 200 FCR 223
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Re JRL; Ex parte CJL (1986) 161 CLR 342
Re Refugee Review Tribunal; Ex parte H
(2001) 179 ALR 425
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
SZQMZ v Minister for Immigration and Citizenship & Anor [2012] FMCA 161Date of hearing: 31 July 2012 Date of last submissions: 8 August 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 68 Counsel for the Appellant: Mr LJ Karp Solicitor for the Appellant: Messrs Rasan T Selliah and Associates Counsel for the First Respondent: Mr HPT Bevan Solicitor for the First Respondent: DLA Piper Australia
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 438 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQMZ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COWDROY J
DATE OF ORDER:
13 SEPTEMBER 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The Appellant pay the costs of the First Respondent.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 438 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQMZ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COWDROY J
DATE:
13 SEPTEMBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant appeals from a decision of Smith FM: see SZQMZ v Minister for Immigration and Citizenship & Anor [2012] FMCA 161. Such decision affirmed the decision of 8 July 2011 of the Refugee Review Tribunal (‘the Tribunal’) to refuse a protection visa to the appellant.
The appellant is a Sri Lankan national and is of Tamil ethnicity. The appellant, who held a visitor visa, travelled to Australia with his sister and arrived in Australia on 23 April 2010.
On 27 May 2010 the appellant’s sister applied to the Department of Immigration and Citizenship (‘the Department’) for a protection visa. On 4 June 2010, the appellant applied to the Department for a protection visa. On 14 December 2010 the appellant’s application was refused by the Department. On 8 March 2011, the appellant’s sister’s visa application was refused by the Department.
Both the appellant and his sister applied to the Tribunal for review of the decision on their respective applications. The applications were heard by the same member of the Tribunal. The Tribunal member heard the appellant’s application on 14 April 2011. The Tribunal heard the appellant’s sister’s application on 25 May 2011. The Tribunal published its reasons for decision in the appellant’s sister’s application on 8 July 2011. The Tribunal published its reasons in the appellant’s application three days later on 11 July 2011.
In his application for a protection visa, the appellant stated that in February 2007 he was arrested by the Sri Lankan Army and taken to an army camp upon suspicion of being involved with the Liberation Tigers of Tamil Eelam (‘LTTE’). Such organisation is more widely known as the Tamil Tigers. The LTTE was involved in a long-running conflict with the Sri Lankan Army. Upon his detention, the appellant claimed to have been assaulted. The appellant claimed that subsequently supporters of Karuna (a faction which split from the LTTE and which supported the Sri Lankan government) continued to visit the appellant to convince him to work for their organisation and also to demand bribes. The appellant claimed that Karuna supporters also harassed the appellant’s mother and sister. The appellant’s younger brother, who was in Australia, sponsored the appellant’s mother to come to Australia. The appellant claimed that in the latter part of 2007 he was detained by members of Karuna, which caused him to lose his employment.
The appellant further claimed that in mid-November 2009 he was detained by Criminal Investigation Department (‘CID’) members and was tortured, but he escaped and that this incident crystallised his desire to seek asylum in Australia.
The delegate of the Department found that the appellant had wanted to leave Sri Lanka since at least 2009. The delegate further found that the appellant had commenced the orderly planning of his departure in September 2009, prior to the date of the alleged incident in 2009 where the appellant was detained and tortured by the CID. The delegate found that the appellant had a long term plan to come to Australia. The delegate found for this reason that the torture alleged to have occurred in November 2009 did not in fact take place. Based upon such finding the delegate found that the applicant did not face a real chance of abduction or harm from government forces or pro-government paramilitaries.
The delegate concluded that there was no evidence to indicate that the appellant would be of interest to the authorities or would be subject to discrimination in the reasonably foreseeable future if he were returned to Sri Lanka and found that the appellant was not a person to whom Australia owed protection obligations under the Convention relating to the status of Refugees 1951 (‘the Refugees Convention’).
APPLICATION TO TRIBUNAL
By application filed on 6 January 2011 the appellant applied to the Tribunal for a review of the delegate’s decision.
In its findings and reasons delivered on 11 July 2011 the Tribunal noted that the appellant had applied on 30 November 2009 for an Australian tourist visa claiming that he resided in Barathy Lane, Batticaloa (Sri Lanka). He attached a letter in such application from his brother dated 10 November 2009 which indicated that the brother’s wedding would take place on 17 January 2010 in Sydney. The application for a visitor visa was refused on 12 February 2010. However the appellant’s brother had written in support of a review of the refusal of the appellant’s visa application a letter dated 12 February 2010 which stated inter alia:
My brother is permanently settled in Batticaloa with his family and presently there is no reason for him to move out of the country for any special reason …
The discrepancies concerning the statements made for the tourist visa application caused the Tribunal to doubt the appellant’s statements made in support of his protection visa application. It also noted that there were discrepancies in the protection visa application. The Tribunal concluded that the alleged incident in February 2007 in which the family was visited by CID officers and paramilitaries did not occur. The Tribunal did not find the appellant credible and concluded that it was not satisfied that the appellant had suffered any harm as claimed at least since 2004. The Tribunal concluded that the appellant did not satisfy the criterion in s 36(2) for a protection visa.
The Tribunal’s findings on the appellant’s sister’s application
It is convenient at this stage to refer to the findings made by the same Tribunal member with regard to the appellant’s sister’s application for a protection visa.
In its findings and reasons in the appellant’s sister’s decision the Tribunal referred to statements made by the brother (i.e. the appellant) to the Department concerning his claimed arrest in February 2007 and referred to inconsistencies between the brother’s version and the sister’s version of the events. The Tribunal considered that the sister should have known of those events had they in fact occurred.
The Tribunal also found that the sister was not telling the truth in respect of her claim that her brother stayed with her after paramilitaries allegedly apprehended him in 2007 because she was unable to indicate the approximate duration of such stay.
APPEAL TO THE FEDERAL MAGISTRATES COURT
By Amended Application filed on 29 February 2012 the appellant raised five grounds of appeal. The first ground alleged that the Tribunal breached s 424A of the Migration Act 1958 (Cth) (‘the Act’). Three particulars were relied upon. They are not relevant for present purposes. Smith FM found that the first ground was not established.
The second ground claimed that the Tribunal committed jurisdictional error concerning inconsistencies of the visitor visa application, and the third ground claimed jurisdictional error because of a failure to make findings. Smith FM rejected both grounds and these are also not relevant for the purpose of this appeal.
Ground 4 alleged that the decision was ‘infected by a reasonable apprehension of bias’ arising from the appellant’s sister’s unfavourable decision delivered on 8 July 2011, and of similar reasoning. It was also claimed that the Tribunal ‘carried out a template based and/or formulistic approach’ and failed to give proper consideration to the appellant’s claims. This ground was also dismissed by his Honour.
Ground 5 alleged jurisdictional error by a misapprehension of the evidence. This ground was also dismissed and again is not relevant to this appeal. Smith FM consequently dismissed the appellant’s application.
APPEAL TO THIS COURT
By Notice of Appeal filed on 20 March 2012 in this Court prerogative writs were sought by the appellant in respect of the Tribunal’s decision. One ground of appeal was relied upon in support of the claimed relief, namely that the learned Federal Magistrate erred in holding that the decision of the Tribunal was not affected by a reasonable apprehension of bias.
In submissions filed on 19 July 2012 in this Court the appellant gave notice that he sought to rely upon an amended application. Counsel for the appellant indicated that an Amended Notice of Appeal would be filed at the hearing. The grounds articulated in the Amended Notice of Appeal stated as follows:
1.The Tribunal breached s 424A of the Act because it failed to give clear particulars of information, being evidence given by the appellant’s sister that led to the Tribunal concluding that events claimed by the appellant to have occurred did not in fact occur.
2.The decision of the Tribunal is infected by reasonable apprehension of bias because the Tribunal imported findings from the sister’s decision into the decision of the appellant and therefore predetermined the claims made by the appellant on the basis of information provided by the sister.
Since the first respondent did not oppose the grant of leave, the Court granted leave to consider both grounds, even though such grounds were not the subject of the determination made by the Federal Magistrate, and no error could be accordingly said to exist in the conclusions of his Honour. The Court will now consider each of the grounds referred to in the amended notice of appeal.
Ground 1A: Apprehension of bias related to adverse findings of credibility
The appellant submits that an apprehension of bias arises following the decision provided by the Tribunal in the sister’s determination. That determination was delivered, as stated previously, on Friday 8 July 2011. Three days later, on Monday 11 July 2011, the appellant’s decision was delivered.
In the appellant’s application he provided a statement to the Department in which he said:
Around February 2007, while I was at home in Batticaloa with my family I was arrested by the SLA and was taken to the Batticaloa army camp in Kalladi in suspicion of LTTE involvement.
The appellant also stated:
The Karuna paramilitaries took me for interrogation and they promised to assist me if I paid them money and worked for them in Colombo whenever they approached me. In the meantime my sister in Wattala released me with the help of MP Maheswaran.
In its findings in respect of the appellant’s application for review the Tribunal found at [55]:
The Tribunal does not find the applicant credible when he states that he was identified and targeted by Karuna or that the authorities came to his house around February 2007 and as a direct response his mother was sponsored by his brother out of the country, or that he was again approached and detained in late 2007.
In the sister’s application the Tribunal found that the sister was unable to repeat details which were consistent with the appellant’s evidence concerning the duration of his arrest and of his release. The Tribunal in the sister’s application then said:
Whilst the Tribunal has considered this, the Tribunal finds the applicant did not know details about her brother’s alleged detention and release that it considers she should know if the alleged detention had occurred and if she had been involved in his release. This lead the tribunal to find she is not telling the truth about this incident.
The second matter relied upon by the appellant as establishing bias relates to the Tribunal’s finding that it did not believe the appellant’s sister in respect of her evidence that her brother stayed with her. The Tribunal found at [42] in respect of the sister’s application:
In her response dated 24 June 2011, the applicant stated that her brother stayed with her for several days and she did not mention his details as he did not stay with her for six months continuously. However at hearing, she could not tell the Tribunal if he had stayed with her for weeks or months. The tribunal finds that if her brother had stayed with her for several days, she would have been able to say that at hearing. This leads the Tribunal to conclude the applicant is not telling the truth about her brother moving in with her after paramilitaries approached him.
In the brother’s Tribunal decision, no specific reference was made to the appellant’s alleged stay with his sister. However the Tribunal stated at [56] of its decision in the appellant’s application:
In summary, the Tribunal is not satisfied that the applicant has suffered any harm as claimed since at least 2004.
Counsel for the appellant submitted that the Tribunal’s conclusions in the sister’s case caused it to predetermine and arrive at the same adverse conclusion as to the appellant’s credibility in the appellant’s case; and that a reasonable hypothetical observer would have found that there was predetermination and accordingly the claim of apprehended bias should be upheld.
Finding
As was observed by the High Court, apprehended bias can vitiate a Tribunal’s decision: see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]. Further, as was also observed by Mason J (as his Honour then was) in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352, the apprehension to be proved is that the matter may not be decided impartially, rather than an apprehension that an adverse outcome may be reached when the decision is made.
Smith FM referred to the fact that where a court or tribunal addresses similar claims in concurrent hearings, the principles have particular effect. His Honour clearly treated the two proceedings as ‘concurrent proceedings’. However his Honour concluded at [49] of his decision that there was no suggestion that the Tribunal member ‘prematurely arrived at an adverse conclusion in relation to either of the applications for review, before completing her hearing and inquiry processes in both of them’.
His Honour referred to the recent High Court decision in Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427. The High Court at [63] in that decision referred to the need of the party making an allegation of apprehended bias to establish:
… the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making.
Smith FM was unable to find any such connection.
It has been recognised that an assertion of bias is a serious matter which must firmly be established: see Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100; G v H (1994) 181 CLR 387 at 399 and Briginshaw v Briginshaw (1938) 60 CLR 336.
The Minister contends that the Court could not be satisfied that any basis for the claim of bias exists and points out that had the two decisions been delivered simultaneously, the allegation of bias would have had no opportunity to arise. It is only because of the two days interregnum between the delivery of the judgments that the appellant has been able to make such claim.
The Court is satisfied that the claim raised falls within the category of an apprehension that a particular adverse outcome might result from delivery of an adverse judgment in respect of the sister rather than any actual ground for apprehension of bias. Significantly, in the appellant’s decision the Tribunal member did not refer to any matter specifically decided in the sister’s decision as part of the Tribunal’s reasons for refusing the application. That is, the Tribunal did not refer in the appellant’s decision to the fact that the sister was unreliable in her evidence concerning the appellant’s alleged detention in 2007, nor of the payment of money being made for the appellant’s release. Rather, the Tribunal member decided the appellant’s decision by relying upon matters other than by reference to the findings which were adverse to the sister in her application.
In Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 the Full Court considered a claim for apprehended bias where a decision-maker had previously expressed a view on the same or a similar subject. By majority (Rares and Jagot JJ) the Court found that no apprehension of bias existed and in arriving at their conclusion referred to the observations of Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72] as follows:
The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.
It follows that the mere fact that findings were made which were adverse to the sister in her application and which were not referred to in the appellant’s Tribunal’s decision could not amount to bias.
Ground 1B: Apprehension of bias relating to similarities in the appellant’s and appellant’s sister’s decisions
The appellant alleges that the existence of similarities between the appellant’s and the appellant’s sisters decisions also demonstrates the existence of apprehended bias.
This ground of appeal was considered by Smith FM in the proceedings below. In his Honour’s decision, Smith FM stated at [47] that it was a common practice of the Tribunal to hear similar claims of two claimants concurrently for reasons of convenience and that usually applicants prefer the same Tribunal member to hear the claims of all persons belonging to the same family unit. At [50], his Honour stated:
In effect, therefore the complaint concerns the publication of two decisions arriving at consistent outcomes over a space of two working days. That circumstance in itself, in my opinion, would not give rise to any possibility of a relevant apprehension of a closed mind before either of the decisions was arrived at in the present case.
Smith FM referred to Michael Wilson & Partners Limited v Nicholls (2011) 282 ALR 685, where Gummow ACJ, Hayne, Crennan and Bell JJ stated at [63]:
The bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision-making.
At [55]-[56], Smith FM stated:
55. Nor finally can I find any substance in the applicant’s contentions in respect of apprehended bias from the fact that in two paragraphs of the “Findings and Reasons” of the Tribunal member in relation to each of the review applicants, the Tribunal used similar, although not exactly identical, language in its opening sentences. In this respect, the applicant’s counsel compared the opening sentence at paragraph 51 in relation to the decision concerning the applicant with a similar opening sentence at paragraph 37 of its decision concerning his sister. In these paragraphs, the Tribunal introduced its general adverse findings about the credibility of the two applicants, and then proceeded to illustrate its reasons in relation to each of them by reference to the different circumstances and claims of the applicant and his sister. Patently, in my opinion, the reasoning addressed different factual issues and different evidence.
56. In my opinion, the similar structuring of these parts of the two decisions provides no evidence that the Tribunal arrived at either of these decisions with a closed mind as to the merits of the matters before it. As in Applicants S1527 of 2003 v Minister for Immigration & Anor [2005] FMCA 1846 at [17] – [20], the different language and reasoning provided by the Tribunal concerning the details of each case disproves the contention that duplication in its reasons reveals prejudgment and a failure to give genuine consideration to the specific matter before it. This is manifest if only in the change of gender in the two cut-and-pasted sentences, but also in the different contexts in which these two sentences were repeated.
Although not specifically referred to before the Federal Magistrates Court, the appellant had argued that similar statements had been made by the Reviewer in each case and that this constituted a ground of bias. In the Tribunal’s decision relating to the sister the Tribunal member made certain statements in the findings and reasons. In [37] of the decision relating to the sister the Tribunal said:
The Tribunal has concerns as to whether the timing of the applicant’s actions and her family’s actions are consistent with their alleged persecution by the authorities.
Correspondingly at [51] of the brother’s judgment, which is also contained in the findings and reasons, the Tribunal reproduced this sentence in identical form except for the pronoun being changed from ‘her’ to ‘his’.
The second instance of similarity exists in [42] of the sister’s decision in which the Tribunal said:
In addition, [the appellant’s] passport was issued on 27 November 2009. According to the Department of Foreign Affairs and Trade in July 2006, the Sri Lankan Department of Immigration and Emigration have a list which contains the names of persons who are wanted or are being investigated by Sri Lankan agencies e.g. intelligence agencies or police. Whilst the Department also stated that a person on that list would be denied a passport and that the system relies on the agency investigating a suspect to notify the Department of Immigration and Emigration, so there is a chance that people could slip through the system and receive a passport even if they were under criminal investigation, the applicant claims her brother has been arrested and detained on more than one occasion and over a number of years and more importantly, at a time very shortly after the 25 year civil war had ended and at a time when presumably persons who were of the utmost interest would be detained. The Tribunal does not accept that the issuance of a renewed passport to the applicant’s brother in November 2009 so shortly after the war ended is consistent with the authorities’ alleged active and continuing interest in him.
Paragraph [52] of the appellant’s decision contains a similar statement, but with changes to pronouns.
The third matter relied upon is contained in [39] of the sister’s decision wherein it states:
In addition, Departmental movement records indicate that her mother Ms Thavamanie Thavarajah was granted her 114 visa on 16 December 2008 and arrived in Australia on 3 August 2009. The applicant produced a copy of her mother’s passport and stated that her mother’s visa was in fact granted on 3 March 2009. Even if the Tribunal accepts that this is an accurate record and that the visa was in fact granted on 3 March 2009, the Tribunal findings the applicant’s mother still delayed some five months before her travel to Australia.
An identical statement exists in [53] of the brother’s decision.
The similar wording in these instances can be explained by the substantial degree of factual overlap between the appellant’s and the appellant’s sister’s claims in relation to their protection visa applications. On 26 May 2011, the Tribunal sent an ‘Invitation to Comment on or Respond to Information’ (‘Invitation’) to the appellant. In that Invitation the Tribunal stated, inter alia:
Movement records indicate that your mother [the appellant’s mother’s name and birth date] was granted her 114 visa on 16 December 2008 and arrived in Australia on 3 August 2009.
This is relevant because the Tribunal may [sic, may not] find that your mother delayed in her travel to Australia which may not be consistent with her alleged fear. This may lead the Tribunal to conclude you are not telling the truth.
The Tribunal also sent an Invitation to the appellant’s sister. The date of such Invitation is not apparent to the Court. In the Invitation the Tribunal made an identical request for comment of the appellant’s sister as was made to the appellant.
On 20 June 2011 the appellant responded to the Invitation on this point by stating:
My mother [appellant’s mother’s name] arrived in Australia on 3rd of August 2009. She refused to travel to Australia as she feared for her children’s safety, including the applicant. The applicant had to force to mother to leave Sri Lanka convincing her that all her children would manage to escape arrest and imprisonment. This is the reason for my mother’s delay in leaving the country. My mother was attached to my last brother that we could convince her to travel overseas and settle in Australia. More than my mother, every one of her children faced persecution back in Sri Lanka. My mother from Australia continued to question as to our safety and for her health reasons we never mentioned anything to her till we arrived in Australia. Please note that the applicant’s mother was granted with the visa on 3 March 2009.
In her response to the Invitation, the appellant’s sister stated on this point:
My mother did not want to leave immediately as she was concerned for our own safety and was suffering from asthma. She had a lot problems [sic] and therefore she was reluctant and was refusing to go. That is later we insisted and send her. My mother’s visa was granted on the 3.03.2009. However your letter mistakenly states that she was granted the visa on the 16 December 2008.
A comparison of these two responses indicates that although the wording is different, the substance of the response to the Tribunal’s question (that the mother delayed her travel because of health reasons and her concern for her children) is identical.
In the Invitations to the appellant and his sister, the Tribunal asks for a response to its concerns concerning the fact that the appellant was able to obtain a passport even though a government watchlist would have prevented persons of interest from obtaining passports. Both the appellant and his sister stated that they obtained their passports from an agent.
The coincidence of the findings made in both the appellant’s and the sister’s Tribunal decisions is unremarkable when it is considered that the claims which were made by both the brother and sister arose out of the same incidents and circumstances and both the brother and sister responded to the Tribunal’s questions on these points in essentially identical fashion. The Court does not regard the use of identical sentences in the separate reasons as indicating a predetermination of the issues. It regards the use of identical sentences as the Tribunal coming to the same conclusion based on the same questions asked and the same responses being received. Accordingly the Court rejects the ground of bias as stated by the appellant.
Ground 2: Claim under s 424A
The appellant submits that findings were made in the sister’s decision which were then used adversely by the Tribunal against the appellant. The Tribunal’s findings in relation to the sister were not put to the appellant and accordingly the appellant was denied the opportunity for comment which s 424A of the Act requires be provided to him.
The particular instances relied upon in support of this ground are as follows. At [38] of the sister’s decision the Tribunal stated:
At the Departmental interview on 12 August 2010, the applicant’s brother, [the appellant’s name] stated that in February 2007 he was detained for two days and that his wife paid money for his release. When asked at hearing, the applicant stated [the appellant] was arrested in February 2007, she could not remember how long he was detained but said approximately for a month. When the Tribunal put to her that he had told the Department he was held for 2 days, she stated she could not remember. The Tribunal also asked how he was released. The Tribunal put to her that [the appellant] told the department money had to be paid. She confirmed this and then stated that [the appellant] paid the money. The Tribunal finds the applicant was unable to repeat details that were consistent with [the appellant’s] evidence about how long [the appellant] was arrested and how he was released in February 2007… The Tribunal finds the applicant did not know details about her brother’s alleged detention and release that it considers she should know if the alleged detention had occurred and if she had been involved in his release. This lead [sic] the Tribunal to find she is not telling the truth about this incident.
In the brother’s decision, the Tribunal did not accept that the detention incident had occurred. It considered the appellant’s mother’s delay in leaving Sri Lanka and stated, inter alia, at [53]:
The applicant’s mother’s delay in departing is not, in the Tribunal’s opinion consistent with her alleged fear or her family’s alleged fear for her. It also leads the Tribunal to conclude that the alleged incident in February 2007 in which the family was visited by the CID officers and paramilitaries did not occur.
The appellant submits that the Tribunal member was required to put to the appellant the statements made by the appellant’s sister in her Tribunal hearing. The appellant relies upon the observations of Kirby J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294.
In SAAP, an appellant sought a protection visa. The Tribunal took evidence from the appellant’s daughter and such evidence was potentially adverse to the appellant’s case. The Tribunal invited the appellant to respond orally to the statements made by the appellant’s daughter.
The High Court found that the extant s 424A of the Act required that the information be put to the appellant in writing and that the Tribunal breached such section. Kirby J at [161]-[170] discusses the factors that led his Honour to such conclusion. The Act has since been amended to no longer make it mandatory that the information be put in writing: see s 424A(1)(a) and s 424AA of the Act. However in this appeal the appellant submits that the information was not put to the appellant at all.
Finding
Section 424A(1)(a) required the Tribunal to give to the appellant ‘clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review’. The consequence of the Tribunal finding that the sister did not know critical facts about the circumstances of the appellant’s alleged detention in February 2007 caused the Tribunal to doubt the sister’s credibility. It did not affect the Tribunal’s assessment of the appellant’s credibility.
Although the Tribunal ultimately determined in the appellant’s case that the detention incident never occurred, it did not reach this conclusion based upon the sister’s evidence. As is seen in [53] of the Tribunal’s decision in the appellant’s application, it reached this conclusion based upon a lack of credibility of the appellant with respect to claims concerning the appellant’s mother.
This demonstrates that for the purpose of the appellant’s decision, the sister’s comments were not considered by the Tribunal to be a reason or part thereof for affirming the decision made in the appellant’s case. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Gleeson CJ stated at [5]:
The Tribunal is required, in setting out its reasons for decision, to set out “the findings on any material questions of fact”. If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter…
Further at [10] his Honour stated:
By setting out its findings, and thereby exposing its views on materiality, the Tribunal may disclose a failure to exercise jurisdiction, or error of a kind falling within a ground in s 476(1) other than s 476(1)(a) or may provide some other ground for judicial review. There may be cases where it is proper to conclude that the Tribunal has not set out all its findings. The consequences that might follow are not presently in issue. No one suggests that the present are such cases. But all the Tribunal is obliged to set out is such findings as it has made.
In Applicant WAEE v Minister for Immigration and Citizenship (2003) 75 ALD 630 the Full Court stated at [47]:
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…
The fact that the Tribunal did not consider the influence of the sister’s statements before the Tribunal on the appellant’s credibility shows that the Tribunal did not consider the issue to be part of a reason for affirming the decision made in the appellant’s application. Accordingly the obligation under s 424A was not enlivened and there was no obligation to put those statements to the appellant. It follows that the submission of the appellant must be dismissed.
For the above reasons the Court dismisses the appeal.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate:
Dated: 13 September 2012
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