SZRHL v Minister for Immigration
[2012] FMCA 826
•30 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRHL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 826 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming political persecution in Bangladesh – first applicant not believed –whether the Tribunal overlooked relevant material or otherwise fell into error considered – Tribunal overlooked statement in the applicant’s protection visa application about a false case but this was an error within jurisdiction. PRACTICE AND PROCEDURE – Observations on the role of counsel and of migration agents who are not legal practitioners in proceedings before courts. |
| Migration Act 1958 (Cth), ss.48, 424A |
| Attorney-General (NSW) v Quin (1990) 170 CLR 1 SZKMX v Minister for Immigration [2009] FCA 842 |
| First Applicant: | SZRHL |
| Second Applicant: | SZRHM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 673 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 10 September 2012 |
| Date of Last Submission: | 26 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 30 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms K Longin |
| Counsel for the Respondents: | Ms R Graycar |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application as amended by leave on 10 September 2012 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 673 of 2012
| SZRHL |
First Applicant
SZRHM
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (the Tribunal). The decision is dated 28 February 2012 on its face and was certified on behalf of the Tribunal’s District Registrar the following day. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicants protection visas. There are two applicants, a husband and wife. The relevant protection visa claims were made by the first applicant, the applicant husband. References in this judgment to “the applicant” are references to him.
The following statement of background facts is derived from the Minister’s written submissions filed on 3 September 2012.
The first and second applicants, husband and wife, are citizens of Bangladesh[1]. They arrived in Australia on 4 March 2007 as holders of a student subclass 572 visa. A further student visa was granted on 14 May 2009. On 17 June 2010, the first applicant’s student visa was cancelled and he and the second applicant became unlawful non-citizens in Australia[2]. The applicants subsequently applied for a further student visa on 25 October 2010, but this application was considered invalid as a consequence of s.48 of the Migration Act 1958 (Cth) (the Migration Act).
[1] see copies of passports, Court Book (CB) at 39-47
[2] CB 86
On 12 January 2011, the applicants applied for protection visas and after that application was determined to be invalid on 11 February 2011, they lodged a further application for protection visas on 28 February 2011. It is that latter application (and its rejection by the delegate on 25 May 2011) that was the subject of the decision of the Tribunal of which the applicants now seek judicial review.
On 19 June 2011, the applicants sought review by the Tribunal of the delegate’s decision not to grant them protection visas. They were represented by a registered migration agent[3]. As the Tribunal was unable to make a favourable decision on the papers, they were invited to give evidence and present arguments relating to the issues arising in their case on 22 September 2011. They accepted that invitation and attended at the hearing where they were assisted by their representative and also had assistance from a Bengali speaking interpreter. Following the hearing, on 23 September 2011, the Tribunal wrote to the applicants seeking responses to “information which the Tribunal consider[ed] would … be the reason, or a part of the reason, for affirming the decision under review” (s.424A letter). That letter was responded to by the applicants’ representative on 30 September 2011.
[3] CB 95-97
On 29 February, 2012, the Tribunal notified the applicants that by a decision dated 28 February, the Tribunal had affirmed the decision to reject their claims for protection visas. The applicants then sought judicial review in this Court by an application dated 27 March 2012.
The applicants’ claims
In his original application the first applicant made the following claims in support of his application for a protection visa (the second applicant applied in her capacity as wife of the first applicant and did not make an independent claim to fear persecution).
a)the applicant fears persecution based on his involvement in political activities via his membership of the Bangladesh Nationalist Party (BNP). He claims to have been the subject of persecution by the Awami League;
b)after he finished his Bachelor of Mathematics degree in 1997, the applicant joined the BNP and in the following year became an executive member of the Birol Thana branch[4];
c)in 1999, he was arrested and held in custody for two days and while in custody, he was beaten and tortured “inhumanely”. He was later released on bail[5];
d)in 2004, he was elected as the joint secretary of the Birol Thana BNP and then in 2006, was elected an executive member of the Dinajpur district BNP[6];
e)following the political events of January 2007, a number of BNP leaders and activists were arrested and at that time, the applicant’s house was ransacked. As he felt insecure, he arranged a student visa and left Bangladesh on 4 March 2007[7].
[4] CB at 49
[5] CB 49, [8]
[6] CB 49, [11]
[7] CB 50, [15]
When the applicant was interviewed by the delegate, the delegate did not consider that the applicant had demonstrated an “active political profile or political activism” such as would result in a “real chance of persecution in the reasonably foreseeable future if he returns to Bangladesh”[8]. The delegate also considered it reasonable for the applicant to relocate in Bangladesh if he continues to fear harm from the Awami League members in his previous locality and district[9]. On this basis, the delegate found that the applicant did not have a genuine fear of harm and there was not a real chance of persecution, and thus was not satisfied that he was a person to whom Australia owed protection obligations[10].
[8] CB at 92
[9] CB 92
[10] CB 93
The Tribunal decision
The Tribunal affirmed the decision of the delegate. After outlining the applicant’s claims and evidence in his original application and before the delegate[11], the Tribunal set out the claims made before the Tribunal as follows:
[11] CB 247-249; [20]-[28]
a)The applicant began his political activities for the BNP in 1991 while undertaking his Higher School Certificate and in 1992, he became the general secretary for the BNP at the college[12].
[12] CB 249; [36]
b)During that period, the Awami League also had a student branch and the two groups would have fights when holding rallies or meetings[13].
[13] CB 250; [38]
c)The applicant continued his involvement with the BNP and in 1994 became joint secretary of the union at the university[14].
[14] CB 250; [39]
d)In 1996 he campaigned for the BNP while attending the Jagonath University College[15].
e)During this period, his difficulties with the opposing Awami League continued and on one occasion, following a fight at one of their rallies, the applicant was injured and was hospitalized for one week[16].
f)While the applicant was at University, the Awami League came to power and members of that group came looking for him whilst armed on three separate occasions. He regarded those incidents as attempts on his life[17].
g)The applicant ceased his studies in 1997 as a consequence of these attempts on his life and the harassment from the Awami League. Subsequently, he became fully involved with politics and in 2004 he was elected as joint secretary for the party in his area[18]. He had also canvassed for the BNP candidate in 2001 (the BNP won the election in 2001).
h)The applicant indicated that he spent most of his time on BNP activities and did not have a job and had not worked in the ten years between finishing university and coming to Australia, other than as a tutor for other students for about six hours per week[19].
i)The applicant also explained that he was arrested in 1999 for two days[20].
j)When questioned about the period after the caretaker government took over power in October 2006, the applicant claimed that he avoided arrest by going into hiding. In any event, as the leaders and workers had been arrested, there were no party activities and at that time he did not meet with other party members[21].
k)The Tribunal also recorded the applicant as having said that while the situation deteriorated after the caretaker government took over, he had no difficulties and was not attacked[22]. Nor were the homes of friends he stayed with attacked during that period[23]. The applicant noted however that “government officials in disguise” went to the home of his in-laws looking for him and asking about him[24]. He said they also subsequently went to his parents’ home[25] where they searched the house and destroyed a television set in the process, and threatened his parents that they were looking for him. He also told the Tribunal that his parents had advised him not to return to Bangladesh as “the situation would start again like it did in the past”[26].
l)The applicant told the Tribunal that it was after the Awami League came to power in 2008 that people had gone to the homes of his parents and his parents-in-law making inquiries about him[27]. When asked what would happen to him at the hands of the Awami League, the applicant told the Tribunal that they would “apprehend and kill him”[28].
m)The Tribunal asked the applicant about the references to the case taken against him by the Awami League in the two letters the applicant submitted from the BNP officials[29]. The applicant indicated that in 2000, a case was taken against him by the Awami League relating to arms and bombing[30] and it could be reopened if he returned to Bangladesh. It was not progressed once the BNP came to power in 2001, but the applicant stated that his brother had told him, since he arrived in Australia, that it was still on foot[31].
[15] CB 250; [41]
[16] CB 250; [42]
[17] CB 250; [43]
[18] CB 251, [47]
[19] CB 251-252; [50]-[55]
[20] CB 252; [57]-[59]
[21] CB 253; [60]-[62]
[22] CB 253; [64]
[23] [65]
[24] [65]
[25] [66]
[26] CB 254; [67]
[27] CB 254; [69]
[28] [72]
[29] at CB 61 and 62
[30] CB 254-255; [74] and [77]
[31] CB 254-255; [74]
The second applicant confirmed at the hearing that she had no refugee claim of her own but was seeking a protection visa as a member of her husband’s family[32].
[32] CB 255; [79]
Prior to setting out its findings, the Tribunal referred at some length[33] to concerns it had (and had put to the applicant) about his credibility. These related to the following issues:
a)The Tribunal noted that the applicant had not mentioned the case against him when he had been asked at the hearing about trouble he had experienced in the period between his arrest (1999) and the coming into power of the BNP[34], including when he had been asked specifically about news he had received from his family. The applicant stated that he had not mentioned it because he thought the Department and the Tribunal would not believe him[35]. He also stated that it had not caused him problems while he was living in Bangladesh[36].
b)The Tribunal also put to the applicant that he had not previously mentioned the visits to his in-laws and parents’ homes; the applicant’s response was that he had mentioned in his statement only what had happened to him when he was still in Bangladesh[37].
c)The Tribunal also sent the applicant a s.424A letter after the hearing, pointing out inconsistencies between the evidence given on the protection visa application, and the information contained in his earlier application for a student visa[38]. In the latter, the applicant had given details of being employed from November 1997 to October 2006 at Aim Garments Exports Ltd in Dhaka. In response, the applicant had stated that he had not been paid for this work, which was for his cousin, other than an allowance for travel expenses[39].
d)A further issue raised with the applicant by the Tribunal concerned the delay (four years) in lodging his protection visa application[40] which might give rise to an inference that he did not genuinely fear persecution. The applicant indicated that he had not travelled back to Bangladesh since arriving in Australia, and had not known about applying for a protection visa, but had instead been advised that he could obtain permanent residence via his student visa[41].
[33] at CB 255-259
[34] CB 255; [80]
[35] CB 256; [82]
[36] [84]
[37] CB 256; [85]-[86]
[38] see CB 122-123
[39] see CB 128-129
[40] CB 258-259; [99]-[104]
[41] at CB 259; [104]
The applicant’s representative reiterated that the applicant was unaware of the means of applying for refugee status when he was first in Australia, and also raised with the Tribunal the fate of a returned unsuccessful asylum seeker from Germany[42]. He referred to country information about the harm being experienced by BNP members and workers and submitted that the applicant had been in a life threatening situation in Bangladesh.
[42] at CB 259-260; [107]
The Tribunal’s findings on credibility
The Tribunal found that the applicants had not established that they were persons to whom Australia owed protection obligations. In particular, the Tribunal found:
a)the applicants are nationals of Bangladesh, but the Tribunal had no jurisdiction to make a decision about their child who was born after the delegate’s decision on 25 May 2012[43];
[43] CB 260; [110]-[112]
b)the Tribunal expressed a number of concerns about the applicant’s credibility:
i)it did not accept the applicant’s explanation for not mentioning the case taken against him by the Awami League until asked, finding it inconceivable that the applicant would not have mentioned it at the hearing[44], nor included reference to it in his statement[45];
ii)the Tribunal did not accept the applicant’s explanation for not mentioning the searches of his parents’ and in-laws’ homes after he left Bangladesh, nor for the failure to mention the destruction of his brother’s nursery business[46];
iii)the Tribunal found the information contained in the applicant’s student visa application was inconsistent with his claim to have worked virtually full time for the BNP after graduation[47];
iv)the Tribunal regarded the first applicant’s delay of nearly four years before making an application for a protection visa as indicating that he did not genuinely fear persecution and did not accept his explanation for that delay[48].
c)the Tribunal concluded that the matters listed above, and reiterated at [140] of the Tribunal’s reasons for decision, “reflect[ed] poorly on the applicant’s credibility and, when considered cumulatively, … lead the Tribunal to find that the applicant is not a witness of truth and the account of events on which his protection visa application is based … is false”[49];
d)in fact, the Tribunal stated that of the applicant’s evidence, it accepted as credible “no more than that the applicant comes from Bangladesh where his family live and he attended school and university there”. It also found that he worked in a garment company in Dhaka after 1997, as he claimed in his student visa application[50] and disbelieved his evidence that this was part time and voluntary[51];
e)the Tribunal found that the applicant’s claim of being politically active in Bangladesh was false and that he would not be denied employment on return on any convention ground[52], nor did it consider there to be any credible evidence that there was a real chance of the applicant suffering persecution on a Convention ground were he to return to Bangladesh[53];
f)the Tribunal also found that the country information submitted by the applicant had no relevance to the application because of its finding that his claims of being politically active were not credible[54];
g)the Tribunal also noted that the second applicant had confirmed that she did not a have a claim for a protection visa in her own right, but was applying as a member of the applicant’s family[55].
[44] CB 260-261; [116]
[45] [117]
[46] CB 261-262; [120]-[124]
[47] CB 262-263; [125]-[130]
[48] CB 263; [131]-[135]
[49] CB 264; [139]
[50] CB 264, [141]
[51] [142]
[52] [146]
[53] ([150]
[54] CB 267; [151]-[152]
[55] [157]-[158]
For these reasons, the Tribunal affirmed the decision not to grant the applicants protection (Class XA) visas.
The judicial review application
These proceedings began with a show cause application filed on 27 March 2012. The applicants now rely upon an amended application filed in court by leave on 10 September 2012. The grounds in that amended application (as amended further during argument) are:
Oral evidence concerning searches and destruction of his family’s property
1. The Tribunal acted ultra vires in making an adverse finding of the First Applicant’s credibility on the grounds that the First Applicant omitted evidence in his Statutory Declaration of searches and destruction of material – namely searches at his parent’s home when a television was destroyed, searches for the First Applicant at his father-in-law’s premises and the destruction of his brother’s nursery business; in doing so, and thereby having regard to an irrelevant consideration giving rise to jurisdictional error.
2. In the alternative, the Tribunal failed to apply the natural justice hearing rule as it applies in s.424A(1)(a) of the Migration Act and provide notice to the Applicant of the Tribunal’s adverse inference as to credibility arising from omissions in the Applicant’s statement.
3. In the alternative, the Tribunal’s adverse finding of the omission in the First Applicant’s statutory declaration was irrational and not based on logical probative material, or no evidence, or not based on findings or inferences of fact supported by logical grounds.
Oral evidence concerning a false case relating to arms and bombing
4. The Tribunal acted ultra vires in making an adverse finding of the First Applicant’s credibility on the grounds that the First Applicant omitted evidence in his Statutory Declaration of a false charge against him; and thereby having regard to an irrelevant consideration giving rise to jurisdictional error.
5. In the alternative, the Tribunal’s adverse finding of the omission in the First Applicant’s statutory declaration; and/or until specifically asked by the Tribunal during the hearing; was irrational and not based on logical probative material, or no evidence, or not based on finding or inferences of fact supported by logical grounds.
6. In addition, or in the alternative, the Tribunal failed to take into account relevant considerations when determining to reject the First Applicant’s evidence of a false case, including the First Applicant’s ‘Application for an Applicant who wishes to submit their own claims to be a refugee’; and, the corroborative statements of MD Mizanur Rahman of the Birol Upa-zila, Dinajpur of the BNT and, MD Mukur Choudhury, General Secretary of the BNP, Dinajpur, constituting jurisdictional error.
7. In the alternative, the Tribunal failed to apply the natural justice hearing rule as it applies in s.424A(1)(a) of the Migration Act and provide notice to the Applicant of the Tribunal’s adverse inference as to credibility arising from omissions in the Applicant’s statement; and/or to provide notice to the Applicant of the Tribunal’s rejection of witness statements by MD Mizanur Rahman of the Birol Upa-zila, Dinajpur of the BNT and, MK Mukur Choudhury, General Secretary of the BNP, Dinajpur.
Grounds 2 and 7 were not pressed.
The applicant’s principal contention is that the Tribunal fell into error by basing an adverse credibility finding on the mistaken belief that the applicant had not referred to a “false case” being raised against him in Bangladesh in his protection visa application. The Minister, while conceding that the Tribunal appears to have made an error in this regard, denies that the error has any jurisdictional significance.
I have before me as evidence the court book filed on 18 May 2012. In view of the late presentation of the amended application, and the course of argument at trial, I invited post hearing submissions from the parties. The Minister filed further submissions on 17 September 2012. The applicant filed submissions in reply on 26 September 2012.
Consideration
This matter came before me for first court date directions on 9 May 2012 at which time Ms Longin appeared on behalf of the applicants on a direct access brief. I made procedural orders, including orders for the filing of any amended application and written submissions. Unfortunately, the applicant did not comply with those orders. Ms Longin appeared at the trial of this matter on 10 September 2012, again on a direct access brief, and sought the Court’s indulgence to file in court the amended application and written submissions. Counsel for the Minister did not oppose the granting of leave but did oppose an adjournment. It quickly became apparent that there were some problems in the amended application and submissions. The amended application was further amended by Ms Longin during the course of argument and, as noted above, two grounds were not pressed.
It appeared to me from the explanation proffered by Ms Longin for the delay in producing the amended application and submissions that part of the problem lay in the fact that the applicant is being represented by a migration agent (Mr Sirajul Haque). Mr Haque is apparently not a legal practitioner. It is apparent from the court book that Mr Haque has acted for the applicants from the time they lodged their protection visa application with the Minister’s Department. It appears that Mr Haque played some part in the preparation of the original show cause application in this Court. There is no reason in principle why migration agents who are not legal practitioners should not assist applicants in pursuing court proceedings, provided that they not do attempt to do work which can only be undertaken by an admitted legal practitioner. It would be better if that involvement were disclosed. It is particularly important that counsel appearing on a direct access brief is instructed by her client rather than a migration agent. The roles and responsibilities of agents assisting applicants in court proceedings and counsel appearing on a direct access brief must be clear and must be kept distinct. There is a risk in such arrangements that migration agents who are not legal practitioners may stray into the province of an instructing solicitor, which is impermissible. In the present case, while it appears that as a matter of practicality, Ms Longin found it necessary to deal with Mr Haque in order to locate and take instructions from the applicant, I draw no adverse conclusion against either of them.
I turn now to deal with the grounds raised in the amended application.
Grounds 4, 5 and 6 – did the Tribunal err in making an adverse finding concerning the applicant’s credibility on the grounds that the applicant omitted reference in his protection visa claims to a false case being raised against him?
The Tribunal dealt with this issue at [114]-[119] of its reasons[56]:
In letters from BNP members submitted to the department, as mentioned above in this decision, it was claimed that a false case was taken out against the applicant by the Awami League. Although closely questioned by the Tribunal as to what harm or difficulties he had with the Awami League when he was in Bangladesh and although asked what news he had been given by his family since his arrival in Australia that would cause him to fear returning to Bangladesh, the applicant made no mention of the case being taken out against him.
It was not until a later stage of his evidence and when specifically asked if any cases had been taken out against him that he finally made that claim. His explanation for not mentioning this important matter earlier in his evidence (when asked what harm he suffered in Bangladesh and what news he received since his arrival in Australia), was that he did not mention the case in the statement he lodged with his protection visa application.
The Tribunal does not accept that explanation as, whether or not he mentioned the existence of the case in his statement, the fact a case was taken out against him and, according to the news he received from family, the fact that it is still active, are important matters; the applicant himself indicating to the Tribunal that the existence of the case was a reason he could not return to Bangladesh. Accordingly, it is inconceivable that the applicant would not have mentioned this to the Tribunal until specifically asked if cases had been taken out against him.
Further, it is also inconceivable that the applicant would actually make no mention of this matter in his statement. The Tribunal rejects his explanation that he chose only to mention in his statement the difficulties he faced when he was in Bangladesh. The case was taken out against the applicant when he lived in Bangladesh. While he claims that it did not cause any problems for him when he was there, because in 2001 his own party came to power, he nevertheless claims to have gone into hiding in Bangladesh once the caretaker government took over and the existence of the case could have increased the risk of harm for him at that time.
Further, since his arrival, he has been told that the case is still active (the Awami League having come to power since he left Bangladesh) and were that claim true, the Tribunal does not believe the applicant would choose to omit that claim from his statement and, instead, only mention certain incidents that occurred when he was in Bangladesh.
The Tribunal also does not accept his claim that he did not mention the case in his statement because he thought the department and the Tribunal would not believe him if he did. The applicant mentioned other incidents of harm which he claims to have occurred in Bangladesh which the department and the Tribunal also may not have believed and he has advanced no satisfactory reason why he would mention those matters and not also the important matter of the case being taken out against him.
[56] CB 260-261
The applicants’ protection visa application appears at pages 3–51 of the court book. The application discloses that it was prepared with the assistance of Mr Haque. The applicants’ particular protection visa claims are contained in a statutory declaration which appears at pages 48-51 of the court book. There is no mention in that declaration of a false case being raised against the applicant. It was raised in subsequent correspondence from Mr Haque to the Minister’s Department dated 3 May 2011[57].
[57] CB 59-69
The Tribunal appears to have been in error in believing that there was no mention in the applicants’ protection visa application of the asserted false case. Part C, Schedule A of the protection visa application form completed by the applicant at question 64[58] required the applicant to disclose details of any convictions, charges, investigations or crimes committed. Under the heading, “Criminal Charges Pending” the words “a false case” and “Bangladesh” appear. No details were provided. It is unfortunate that the Tribunal appears to have overlooked that reference. While the Tribunal was correct in finding that there was no reference to the false case in the statutory declaration forming part of the protection visa application which set out the applicants’ claims, it was incorrect in assuming that there was no reference to the false case anywhere in the protection visa application.
[58] CB 15
It appears to me that the manner in which the false case was disclosed in the protection visa application was not intended by the applicant (or Mr Haque) to support the applicant’s protection visa claims but was, rather, intended to support the proposition that the applicant was not a person of bad character by reason of the fact that criminal charges were pending against him. It is apparent from the terms of question 64 in the form that the information sought bears on an assessment of an applicant’s character, rather than on their claims for protection.
Further, the applicant confirmed at the hearing before the Tribunal that he had not originally included the false case in his claims for protection because he thought he would not be believed and because it only assumed significance later on on the basis of further information received from his family in Bangladesh. The Tribunal placed significance on the fact that the applicant did not mention the false case at the hearing before the Tribunal until prompted and did not accept the applicant’s explanation for his reticence.
I prefer the Minister’s post hearing submissions on this issue to those of the applicant. In VAAD v Minister for Immigration[59] the Full Federal Court found that a jurisdictional error had been committed in circumstances where the Tribunal had overlooked the fact that a document provided by the applicant (a document in Sinhalese that was not translated) had actually been provided. There was no reference to the document during the Tribunal hearing and following the hearing, a s.424A letter sent to the applicants elicited in response, among other things, a translated copy of the letter that had already been provided (but had not been read by the Tribunal). The Tribunal found that the letter sent post-hearing in response to the s.424A letter was fabricated. In fact, the letter would have corroborated the applicant’s claim had the Tribunal not considered it a recent invention and not overlooked the fact that the same letter was in the file, albeit in Sinhalese.
[59] [2005] FCAFC 117 (VAAD)
The Full Federal Court found that in these circumstances, the Tribunal had committed jurisdictional error by ignoring relevant material in the sense referred to by McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) in Minister for Immigration v Yusuf[60]. The Court found that the letter was an important element of the applicants’ claim to have a political profile that would single out the first applicant for persecution and also establish that the second applicant had suffered persecution[61]. At [77] the Full Court said, after referring again to Yusuf:
[w]hether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In this case the Tribunal failed to consider a document … which was not only particular to the first appellant but arguably of critical importance to the claims of all the appellants. This is not a situation of the kind to which Mason J referred in Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24 at 40, where the factor was so ‘insignificant that failure to take it into account could not have materially affected the decision’. The failure to do so led the Tribunal into error and that error had an adverse effect on the Tribunal’s assessment of the first appellant’s credibility. The Tribunal failed to have regard to material evidence and, as the Tribunal’s own comments show, that initial error was not corrected by the Tribunal’s subsequent consideration of the UNP Letter and the UNP Translation. On the contrary, the initial error tainted the later consideration of this evidence and compounded the Tribunal’s error. The Tribunal’s conclusion that the UNP Letter was fabricated was greatly influenced by the Tribunal’s mistake in thinking that the UNP Letter had not been provided to the Delegate or been sent to the Tribunal only after the Tribunal’s letter of 5 September 2001, the s 424A letter. The fact that, as originally provided, the UNP Letter was in Singhalese language and no translation was provided does not alter the fact that the Tribunal erred.
[60] (2001) 206 CLR 323 at [82]
[61] VAAD at [72]
The Full Court acknowledged that it was possible that even having considered the letter, the Tribunal may have rejected the applicant’s claim but the assessment of credibility was significantly based on the Tribunal’s finding that the (post hearing English translation of the) letter was fabricated, and thus, it was not possible to say that the error could not have affected the outcome[62].
[62] VAAD, at [78]-[79]
The decision in VAAD was distinguished in WALN v Minister for Immigration[63] where Nicholson J considered the effect of an error made by the Tribunal in its findings in relation to the applicant’s visa status but held that the conclusion of the Tribunal was not solely based on the issue about the visa and concluded that “while the Tribunal made a mistake of fact, it was not of such materiality as to occasion irrationality in the decision”[64].
[63] [2005] FCA 1704
[64] at [20]
Further, in MZWKU v Minister for Immigration[65] Sundberg J also dismissed an appeal where the Tribunal was said to have erred by not considering letters that had been placed before it by failing to have them translated. His Honour held that the Tribunal had not in fact failed to take the letters into account as the appellant “accurately explained their content” at the hearing[66]. Nor did his Honour consider that VAAD assisted the applicant as that case was distinguishable because the letter in question in VAAD was not taken into account: whereas nothing in the letters in issue in the case before the Court was not already before the Tribunal[67].
[65] [2006] FCA 996
[66] at [19]
[67] at [20]-[21]
Recently, in SZQRW v Minister for Immigration & Anor[68], Cameron FM summarised the principles that apply to consideration of whether a failure to consider evidence that might have a bearing on the case constitutes jurisdictional error as follows[69]:
If the [Tribunal] fails to consider evidence which might have a bearing on the outcome of the review, in that the evidence is not “so insignificant that the failure to take it into account could not have materially affected the decision”, and where such failure could possibly have deprived the applicant of a successful outcome to his or her application for review, then that amounts to a failure to conduct the review in the manner required by the Act and is properly characterised as a jurisdictional error: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Gibbs CJ at 30, Mason J at 44-45 and Dawson J at 71; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82]; Singh v Minister for Immigration & Multicultural Affairs (2001) 183 ALR 531 at 542 [49]; VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [73]-[83]; SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389 at [72]. However, an error of fact will not generally ground judicial review and, even if amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome of a review: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1 at 16 [53], 20 [63].
[68] [2012] FMCA 191
[69] at [38]
A key question of whether the omission in this case reaches the threshold identified via the test in Yusuf and adopted by the Full Federal Court in VAAD is whether, had the factual error in issue not occurred, there might have been a different result. I accept, in that regard, the applicant’s submission that the Court’s attention should be focussed on possibility, not probability. One way to test the possibility of a different outcome is to ask whether, had the Tribunal asked the applicant only why he had not mentioned the false case to the Tribunal during the hearing prior to being asked about it and not asked him why reference to it was not included in the statement, it could be concluded that there was a jurisdictional error by reason of the Tribunal’s having omitted any reference in its reasons to the mention of the false case in the application. The Minister submits that in the circumstances of the detailed consideration by the Tribunal of the false case issue and in light of its findings about credibility in relation to this and a number of other aspects of the first applicant’s claim, such an omission simply could not constitute jurisdictional error. I agree.
I accept the Minister’s submission that the case before this Court is distinguishable from the cases such as VAAD where omitting consideration of evidence has been held to be jurisdictional error, not least because of the fact that the issue of the “false case” was raised by the Tribunal itself, and there is no reason to imagine that if the Tribunal had noted the response to question 64, the matter would have proceeded any differently. It seems likely that the Tribunal would still proactively have raised the matter with the applicant and asked why it was not discussed in the statement (ie, in the substantive claim) and why the applicant had not mentioned it at the hearing in response to specific questions about incidents after 1999 or news from his family (see the Tribunal’s reasons at [80]-[81]). In fact, had the applicant responded to the Tribunal by pointing out that the matter was raised in his application, there could be no suggestion of a jurisdictional error.
It follows, in my view, that while the Tribunal was strictly incorrect in assuming that there was no mention of the false case in the applicant’s protection visa application, that error has no jurisdictional significance.
In other respects, I agree with the Minister’s submissions that the applicant has failed to establish any jurisdictional error in the decision of the Tribunal.
The applicant takes issue with the Tribunal’s reasoning in grounds 1, 3, 5 and 8 in reaching its adverse credibility conclusion. There is, in my view, no substance to the applicant’s contentions. The adverse credibility findings made by the Tribunal were open to it on the material before it. There is no want of logic or rationality in the Tribunal’s reasoning. With the exception of the statement made in answer to question 64 in the visa application form, the Tribunal paid sufficient regard to the material provided by or on behalf of the applicant.
Neither did the Tribunal base its decision upon an irrelevant consideration.
In order for a matter to be an irrelevant consideration for the purposes of giving rise to jurisdictional error, it must be a matter that it is impermissible for the Tribunal to take into account in making its decision[70]. In any event, in this case, the applicant’s credibility was centrally relevant to the issues that the Tribunal had before it and it was entirely within the Tribunal’s jurisdiction to deal with the matter raised about failed asylum seekers in other countries by pointing out that in the case before it, the Tribunal had already made negative findings about the applicant’s credibility.
[70] cf Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 at 39-41 per Mason J, who emphasised that the weight to be given to a matter that may be taken into account is a matter for the decision maker
The applicant’s attack upon the Tribunal’s reasoning as unreasonable or illogical is also misplaced. That challenge is, in effect, an attempt to seek impermissible merits review, but this Court’s jurisdiction is limited to cases involving jurisdictional error. A credibility finding is the function of the primary decision-maker par excellence[71]. Thus, it has been held that a challenge to the Tribunal’s findings and conclusions will usually be considered an impermissible attempt to undertake further merits review[72]. This is the case even if the Tribunal makes a wrong decision on credibility (which the Minister does not concede and about which I express no view). There is no error of law, let alone a jurisdictional error, in the Tribunal making a simple wrong finding of fact[73].
[71] Re Minister for Immigration; Ex parte Durairajasingham (2000) 58 ALD 609 [67]
[72] SZKMX v Minister for Immigration [2009] FCA 842, [26]
[73] see Attorney-General (NSW) v Quin (1990) 170 CLR 1 (Quin) at 35-36
Nor is there any basis for any finding of unreasonableness, illogicality or irrationality such as the High Court dealt with in Minister for Immigration v SZMDS[74]. Beyond referring to the disagreement with the findings about credibility, the applicant has not particularised this aspect of the grounds.
[74] (2010) 240 CLR 611
Conclusion
The applicant has failed to demonstrate jurisdictional error in the Tribunal’s decision. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 30 October 2012
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