SZRKF v Minister for Immigration
[2018] FCCA 1403
•5 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRKF & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1403 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – claim that the Administrative Appeals Tribunal committed jurisdictional error in not giving to the Applicant clear particulars of “information” for the purposes of s.424A or s.424AA of the Migration Act 1958 – no such “information” identified – none of the grounds asserted by the Applicants established – no jurisdictional error committed by Administrative Appeals Tribunal – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424AA, 424A Evidence Act 1995 (Cth), s.43 |
| Cases cited: AWA15 v Minister for Immigration [2018] FCA 604 |
| First Applicant: | SZRKG |
| Second Applicant: | SZRKH |
| Third Applicant: | SZRKF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1595 of 2015 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 29 June 2017 |
| Judgment Reserved: | 21 July 2017 |
| Delivered at: | Sydney |
| Delivered on: | 5 June 2018 |
REPRESENTATION
| The First Applicant appeared in person on behalf of himself and the Second and Third Applicants. |
| Counsel for the First Respondent: | Mr L. Leerdam |
| Solicitors for the First Respondent: | DLA Piper |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 12 June 2015 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1595 of 2015
| SZRKG |
First Applicant
SZRKH
Second Applicant
SZRKF
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The First Applicant in this proceeding is a male citizen of India aged 32 years, having been born on 27 March 1986.
The Second Applicant in this proceeding is a female citizen of India aged 31 years, having been born on 3 November 1986, and is the wife of the First Applicant.
The Third Applicant in this proceeding is a female citizen of India aged eight years, having been born on 3 December 2009 in Australia, and is the daughter of the First and Second Applicants (collectively the Applicants).
The First Applicant lodged the application for a Protection (Class XA) visa (Protection visa) on 6 January 2014. The Second and Third Applicants were included in the Protection visa application as members of the same family unit, respectively as spouse and dependant child who did not make any independent claims for protection in their own right.
By Application filed in this Court on 12 June 2016 the Applicants seek to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (at the time of decision Refugee Review Tribunal) (Tribunal), dated 22 May 2015, which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 16 May 2014, refusing to grant Protection visas to the Applicants.
Background
The First Applicant had arrived in Australia on 3 August 2008 as the holder of a Tourist (Class TR) (Subclass 676) visa, which expired on 3 November 2008. He lodged an application for a Protection visa on 8 September 2008 (first Protection visa application). His wife was included as a family dependant without independent claims and he attended an interview with a Delegate of the Minister in connection with this application on 14 November 2008 (the first Delegate interview). The first Protection visa application was refused by a Delegate of the Minister on 6 December 2008. The First Applicant then applied to the Tribunal on 30 December 2008 for merits review of the Delegate’s decision and he attended a hearing on 10 March 2009 (first Tribunal hearing). On 26 March 2009 the Tribunal affirmed the Delegate’s decision not to grant Protection visas to the First and Second Applicants. On 13 August 2009 the First Applicant made a request under s.417 of the Act for Ministerial intervention but that request was not considered.
On 1 April 2011 the Third Applicant applied for a Protection visa (daughter’s Protection visa application). The First Applicant attended an interview with an officer of the Department of the Minister on 11 August 2011 to discuss his daughter’s claims (daughter’s Delegate interview). The daughter’s Protection visa application was refused by a Delegate of the Minister on 12 August 2011 and on 26 August 2011 the Third Applicant sought merits review of the refusal by the Tribunal. The First Applicant appeared before the Tribunal on 12 January 2012 to give evidence and present arguments on behalf of his daughter (daughter’s Tribunal hearing) and on 21 March 2012 the Tribunal affirmed the Delegate’s decision not to grant a Protection visa to the Third Applicant. This refusal was subsequently the subject of judicial review in the Federal Court of Australia, the Full Court of the Federal Court of Australia and the High Court of Australia.
Following the introduction of the complementary protection criterion under s.36(2)(aa) of the Migration Act 1958 (Cth) (the Act) and the decision of the Full Court of the Federal Court of Australia on 3 July 2013 in SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235, which found that s.48A of the Act as it then stood did not prevent a person from making another Protection visa application on complementary protection grounds when the earlier application had been determined only on Refugees Convention grounds, the Applicants on 6 January 2014 again applied for a Protection visa (present Protection visa application) and at that time became the holders of a new Bridging visa Class E in association with this present Protection visa application, the subject of this proceeding.
Claims for Protection Made in Present Protection Visa Application
As I have earlier noted, neither the Second nor the Third Applicant made any claims of their own for protection.
The First Applicant claimed to fear harm in India by reason of his political activities, particularly in relation to his position as a member of the Indian National Congress Party (INC). He feared harm and persecution from members of the other major opposition political party in India, namely the Bharatiya Janata Party (BJP). His claims to protection as made in section 43 of his present Protection visa application, corrected for ease of reading, were as follows:
I left India on 2 August 2008 because of fear of persecution. In 2006 I joined the Congress Party as my father and grandfather were members of the Congress Party. Soon I became a block president at the beginning of 2007 just prior to state election. The BJP leader asked me to join with them but I refused their request. A week prior to the election me and my wife were kidnapped and released after the election. My wife was sexually assaulted and police did not take any action against those culprits. We reported the matter to the central government but no action had been taken against them because of their affiliation with political party. They constantly threatened us and attempted to kill us many times. We had no option but to leave the country. We did not withdraw the case against them and if we go back to India they will kill us. We will not have any protection from police.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5]The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7] Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Decision of Delegate
The First Applicant attended a telephone interview with the Delegate on either 12 or 14 May 2014 (third Delegate interview).
I note that the Delegate only had jurisdiction to consider the Protection visa application under the complementary protection criterion: Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366 (SZVCH). However, in the result the Delegate considered the Applicant’s present Protection visa applications on both the Refugees Convention criterion and the complementary protection criterion but was not satisfied that Australia had protection obligations to the Applicants under either criteria and he refused to grant a Protection visa to the Applicants.
In his Decision Record the Delegate noted that the First Applicant’s claims to protection were basically the same as made by him in his first Protection visa application and in his daughter’s Protection visa application, but were now very much shorter and less detailed and that no additional information or supporting documentation had been provided.
In the result the Delegate was not satisfied that the First Applicant or his wife had been threatened, attacked or kidnapped in 2007 because of the First Applicant’s alleged membership of the INC and that the First Applicant had no genuine fears of persecution in India and his claims were not credible. Accordingly, the Delegate refused to grant Protection visas to the Applicants.
Decision of Tribunal
The Applicants lodged with the Tribunal an application for merits review of the Delegate’s decision on 13 June 2014. The First Applicant appeared at a Tribunal hearing on 13 May 2015 to give evidence and present arguments (present Tribunal hearing).
In short the Tribunal found that the First Applicant was not a credible witness due to significant inconsistencies in his evidence.
At [17] – [34] of its Decision Record the Tribunal recorded its consideration and analysis of the First Applicant’s claims by reference to the evidence given by the First Applicant since the lodging of his first Protection visa Application on 8 September 2008 in relation to three topics which were:
a)the First Applicant’s evidence concerning events surrounding the State election in 2007 (first topic);
b)the date of the First and Second Applicant’s marriage in connection with the State election in 2007 and the claimed kidnapping and sexual assault of the Second Applicant (second topic); and
c)events in the life of the First and Second Applicants after the State election in 2007 (third topic).
The Tribunal proceeded in relation to these topics by considering and evaluating the First Applicant’s evidence, which it found to be inconsistent, given by him at various interviews and hearings at which he had been a participant since September 2008. For example, in relation to the first topic the Tribunal sequentially considered and compared evidence given by the First Applicant at the first Delegate interview, the daughter’s Tribunal hearing, the present Tribunal hearing, and his first Protection visa application. The Tribunal then at [21] recorded that it had put the information provided by the First Applicant in the first Delegate interview and the daughter’s Tribunal hearing, as well as country information in relation to the INC candidate at the State election in 2007, to the First Applicant under s.424AA. At [29] and [34] of its Decision Record the Tribunal recorded that it had put similar information under s.424AAof the Act to the First Applicant in connection with the second and third topics.
I note at this point that the fact that the Tribunal purports to give information under ss.424A or 424AA of the Act to an applicant in the apparent belief or assumption that it is required to do so is immaterial, if in fact such information is exempted from the operation of those sections: SZTGV v Minister for Immigration (2015) 229 FCR 90 at 109 [53] per Perram, Jagot and Griffiths JJ ; SZMDS v Minister for Immigration (2009) 107 ALD 361 at 366 [14] per Moore J; SZTNL v Minister for Immigration (2015) 231 FCR 204 at 219 [49] per Griffiths J.
At [35] of its Decision Record the Tribunal then recorded that the First Applicant’s Indian passport was issued in April 2007 but he did not depart India until August 2008 and expressed the view that if the First Applicant genuinely feared harm from his political opponents or anyone else he would not have waited as long as he did before departing India to come to Australia.
At [36] of its Decision Record the Tribunal found that the First Applicant was not a credible, truthful or reliable witness and that his “evidence shows a propensity to manufacture, shift and tailor evidence in a manner which achieves his own purpose” and that he had fabricated and concocted his evidence to achieve an immigration outcome.
At [37] of its Decision Record the Tribunal completely rejected all of the First Applicant’s claims. The Tribunal did not accept that he was a supporter or member of the INC. It did not accept his claim that his wife had been kidnapped and sexually assaulted, molested or mistreated or threatened with rape. Accordingly, at [38] the Tribunal did not accept that there were substantial grounds for believing that there was a real risk that the first Applicant would suffer significant harm arising from his real or perceived political opinion, his religion or any other factor.
In these circumstances the Tribunal was not satisfied that Australia had protection obligations to the Applicants under the complementary protection criterion and it affirmed the Delegate’s decision not to grant Protection visas to the Applicants.
Grounds of Attack on Tribunal Decision in this Court
The Grounds relied upon by the Applicants are as follows:
1. The second respondent failed to comply with the mandatory requirement under section 424A(read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicants understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.
Particular:
The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.
2. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.
3.The applicants satisfy the key elements of the Convention definition as detailed in the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
At the hearing in this Court the First Applicant made no oral submissions in support of the Grounds but rather chose to rely on the written Grounds appearing in the Application.
Consideration
Ground 1
The first problem with this Ground is that it does not identify the “information”, of which it is asserted that the Tribunal failed to give clear particulars under s.424A of the Act.
Nevertheless, assuming that the intent of this Ground is to attack the Tribunal’s reliance in assessing the credibility of the Applicant by reference to prior inconsistent evidence of the First Applicant concerning the first, second, and third topics and failed to give clear particulars of such inconsistencies under either s.424A or s.424AA of the Act (see [18] above), this Ground must fail for the following reasons.
First, it is entirely conventional for the purposes of criminal and civil litigation for there to be consideration and comparison of any prior inconsistent statements or evidence of a party (or witness) in the course of the assessment of the trustworthiness and veracity of that party (e.g. see s.43 of the Evidence Act 1995 (Cth)). If the party has earlier said one thing and then subsequently says another thing about the same subject matter, this may, if not minor or trivial, throw suspicion on the accuracy or credibility of the party’s evidence. Nevertheless, such inconsistencies in the various versions of events which the First Applicant had given since September 2008 did not constitute “information” for the purposes of s.424A of the Act. As Griffiths J said in SZTNL v Minister for Immigration (2015) 231 FCR 204 at 220 [53]:
[53]The relevant two pieces of information became material only because the Tribunal relied upon them in finding inconsistencies in the appellant’s evidence, which lead to the conclusion that he was not a truthful witness. I accept the Minister’s submission that it was these inconsistencies (or the process of comparison between the appellant’s evidence and the factual statements with which the evidence was compared) that counted against him, however, neither inconsistency nor such a comparative process constitutes “information” for the purposes of s 424A(1) (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (SZBYR) at [18] and SZJBD v Minister for Immigration and Citizenship [2009] FCAFC 106; (2009) 179 FCR 109 at [104] per Buchanan J, with whom Perram J agreed).
At 616 [18] of SZBYR Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ had stated:
[18]…However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.
In other words, the obligation of the Tribunal to give information under ss.424A and 424AA of the Act only applied to “information” that contained a rejection, denial or undermining of the First Applicant's claims: SZBYR at 615 [17]. In this case the body of evidence given by the First Applicant, which was considered by the Tribunal to be in various respects inconsistent, was all evidence which the First Applicant had given in support of the claims of the Third Applicant and himself for Protection visas, and not evidence rejecting, denying, or undermining those claims for protection.
Insofar as this Ground also asserts that the Tribunal was under an obligation “… to ensure the applicants understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information”, the Tribunal was under no such obligation.
The role of the Tribunal was as stated by Hayne J in Muin v Refugee Review Tribunal (2002) 190 ALR 601 at 661 – 662 [265] – [266] and [268]:
[265]………….The tribunal was not obliged to tell Mr Muin that it was minded to reach a view about that question, which was contrary to the view he sought to have it form, and then ask him whether he wished to contradict that view. That he had to make out his claim about this matter was apparent from the outset of the tribunal's review. Indeed, it was apparent from the moment he made his claim to a protection visa. This was not some issue that emerged only in the course of the tribunal's proceedings.
[266] Nor was the tribunal bound to draw attention to the material which it considered to be persuasive of the view that he was not a refugee and then ask him whether he wanted to contradict it. Of course he wanted to put the opposite view. Again, so much was clear from the moment he made his claim for a protection visa. But it is fundamentally wrong to speak, in this context, in terms of “contradiction” if that is to suggest some competition between cases put by adversaries. Here there was no adversary to Mr Muin's claim. It was for him to make good his claim that he was entitled to Australia's protection.
[268] Yet in essence the plaintiff's case in relation to adverse material was, first, that he could legitimately expect the tribunal to tell him that it was minded to find against him and, secondly, that he could legitimately expect the tribunal to tell him what material, adverse to his claim, the tribunal either was minded to accept or was considering accepting and, before concluding the matter, seek his comment about that predisposition and that material. Procedural fairness does not go so far. To accept these contentions would amount to casting the tribunal in the role of an adversary to a claimant's claim to refugee status. Not only were the procedures prescribed by the Act not adversarial proceedings, the tribunal is not to be cast in the role of contradictor.
Further, as Graham J said of proceedings before the Tribunal in SZMDB v Minister for Immigration and Citizenship (2008) 105 ALD 499 at 505 – 506 [36] – [37]:
[36] Proceedings before the tribunal are not adversarial, but inquisitorial. The tribunal is not in the position of a contradictor of the case being advanced by an applicant. A tribunal member conducting an inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair. In an application for a review before the tribunal, it is for the applicant to advance whatever evidence or argument he wishes to advance, and for the tribunal to decide whether his claim has been made out; it is not part of the function of the tribunal to seek to damage the credibility of an applicant’s story in a manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation. The tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on. See per Gummow and Heydon JJ in Re Minister for Immigration and Multicultural Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437 ; 75 ALD 1 ; [2003] HCA 60 at [57]–[58] ; see also SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 ; 231 ALR 592 ; 93 ALD 300 ; [2006] HCA 63 at [47] and Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 ; 231 ALR 340 ; 92 ALD 513 ; [2006] HCA 53 at [40] .
[37] The Act does not require that the tribunal actively assist an applicant in putting his case nor does it require the tribunal to carry out an inquiry in order to identify what that case might be: see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; 198 ALR 293; 75 ALD 151; [2003] FCAFC 126 at [36].
In any event it is clear from the Decision Record of the Tribunal that it did give clear particulars to the First Applicant of the inconsistencies with which it was concerned. For completeness I note that at [21], [28], [29] and [34] of its Decision Record the Tribunal recorded the responses of the First Applicant when inconsistencies were put to him by the Tribunal. In relation to the first topic the Tribunal recorded at [21] that the First Applicant had responded that when he had made his first Protection visa application “… he was in a rush and just lodged an application. He just wrote things down. He was depressed and did not know much about these things. The situation was bad at that time and his brain was not working properly and whatever came to his mind he just said it”. Nevertheless, the Tribunal found that these explanations did not satisfactorily address what it considered to be the inaccuracies and shifts in the First Applicant’s evidence. In relation to the second topic, at [28] of its Decision Record the Tribunal recorded that the First Applicant responded that “… what he was telling the Tribunal ‘today’ was the truth”. At [29] the Tribunal recorded that the First Applicant stated that he did not wish to further comment on or respond to what the Tribunal saw as inconsistent evidence in relation to the second topic. In relation to the third topic the Tribunal recorded at [34] that the First Applicant stated that he did not have any comments in response to the inconsistencies put to him.
In my view Ground 1 fails to establish that the decision of the Tribunal is affected by jurisdictional error.
Ground 2
This Ground is unparticularized and fails to identify in any meaningful or coherent way why or how it is said that the Tribunal had no jurisdiction to make the decision which it did in this case. Failure to properly particularize a ground of review is sufficient basis for it to be dismissed: WZAVW v Minister for Immigration [2016] FCA 760 per Gilmour J at [35]. I for myself have been unable to discern or identify any basis for a finding that the Tribunal lacked jurisdiction.
Ground 3
Ground 3 also fails to establish jurisdictional error. The Refugees Convention criterion was irrelevant. I noted at [13] above that the Delegate for his decision of 16 May 2014 only had jurisdiction to consider the present Protection visa application under the complementary protection criterion and made reference to SZVCH. The Tribunal was in like position. Its jurisdiction was limited to the complementary protection criterion and it had no jurisdiction to consider the Refugees Convention criterion in s.36(2)(a) of the Act: SZVCH at [44] per Kenny, Siopis and Besanko JJ and [113] – [114] per Mortimer J.
A Final Matter
The Minister as a model litigant disclosed that a Delegate of the Minister had issued Certificates dated 16 May 2014, 12 August 2011 and 8 December 2008 purportedly pursuant to s.438 of the Act, each addressed to the District Registrar of the Tribunal (s.438 Certificates). The s.438 Certificates state that they apply to information in folios 34, 35, 43, 53, 59, 61 and 62 in three separate Departmental files relating to the First Applicant. All of those folios relate to the provision and booking of interpreters in the Punjabi language.
The Minister concedes that the s.438 Certificates are invalid on their face for the reasons given by Beach J in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1. However, the Minister further submitted that the non-disclosure by the Tribunal to the Applicants of the existence of the s.438 Certificates (which was the case) did not give rise to a denial of procedural fairness constituting jurisdictional error.
I agree with the Minister’s submission. In my view the s.438 Certificates are invalid but no relevant non-disclosure has occasioned procedural unfairness to the Applicants. The Tribunal did not mention or rely upon the s.438 Certificates and did not act upon or have regard to any of the folios which were subject to the s.438 Certificates in reaching its decision. They were entirely irrelevant and immaterial to the Tribunal’s review of the Delegate’s decision and neither the existence of the s.438 Certificates or the documents subject to it could have had any conceivable impact on the outcome of the review and there was no practical unfairness caused thereby: see BZV15 v Minister for Immigration and Border Protection [2017] FCA 1522 at [2] – [4] per Robertson J.
I note that at the hearing in this Court the First Applicant sought an opportunity to comment on a number of legal authorities referred to in the Minister’s Written Submissions in relation to the s.438 Certificates. Accordingly at the conclusion of the hearing I gave the Applicants 21 days in which to file and serve any written submissions they might be minded to make in relation to either the s.438 Certificates or the legal authorities in relation to them relied upon by the Minister. In the event no written submissions were received from the Applicants.
Conclusion
The Applicants have failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application in this Court is to be dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 5 June 2018
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