SZSEI v Minister for Immigration - [2017] FCCA 1820

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSEI & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1820

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (Tribunal) affirming decision of a delegate of the first respondent (Minister) not to grant the applicants a protection visa – whether Tribunal considered second applicant’s claim solely or substantially by reference to its adverse assessment of the first applicant’s credibility; whether the Tribunal, when assessing the credibility of the first applicant, considered the corroborating evidence of the second applicant – whether the matters on which the Tribunal relied for making an adverse assessment of the credibility of the first applicant was “information” for the purposes of s.424A of the Migration Act 1958 (Cth)(Act) – whether the Tribunal made a jurisdictional error by not disclosing to the applicants a certificate purportedly issued under s.438 of the Act – jurisdictional error found.

Legislation:

Migration Act 1958 (Cth), ss.424A, 438

AVO15 v Minister for Immigration and Border Protection [2017] FCA 566

BEG15 v Minister for Immigration and Border Protection [2016] FCCA 2778
Cambridge v Makin [2011] EWHC 12 (QB)

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Border Protection v Singh [2016] FCAFC 183
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081
R v Whitehead [1929] 1 KB 99

Ridley v Whipp (1916) 22 CLR 381
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123
Vo v Minister for Immigration and Border Protection [2017] FCCA 1170
WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74

First Applicant:

SZSEI

Second Applicant:

SZSEJ

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3159 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

4 March 2016

Date of Last Submission:

24 July 2017

Delivered at:

Sydney

Delivered on:

4 August 2017

REPRESENTATION

Counsel for the Applicants:

Mr P Bodisco

Solicitors for the Applicants:

Michaela Byers, Solicitor

Solicitors for the First Respondents:

Ms M Stone
of DLA Piper

ORDERS

The decision of the Refugee Review Tribunal made on 31 October 2014 affirming the decision of the delegate of the first respondent made on 2 May 2012 not to grant the applicants a Protection (Class XA) visa (Protection visa) is quashed.
Pursuant to Item 15AG of Schedule 9 to the Tribunals Amalgamation Act 2015 (Cth) the Administrative Appeals Tribunal determine according to law the application made to the Refugee Review Tribunal to review the decision of a delegate of the first respondent made on 2 May 2012 not to grant the applicants a Protection visa.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 1820
Decision Date: 4 August 2017

CaseChat Overview and Summary

This matter concerned an application for a Protection visa. The applicant, SZSEI, appealed a decision of the Refugee Review Tribunal (RRT) to the Federal Court of Australia. The dispute centred on the RRT's assessment of evidence presented by the applicant in support of their claim for protection.

The legal issues before the Court were whether the RRT had made a jurisdictional error by failing to properly consider evidence that purportedly corroborated the applicant's claims, and the proper approach to assessing corroborating evidence in the context of Protection visa applications. Specifically, the Court considered whether the RRT could disregard corroborating evidence solely because it had made adverse credibility findings against the applicant, or if it was bound to consider such evidence regardless of its own assessment of the applicant's credibility.

The Court reasoned that "corroborate" means to strengthen. Corroborating evidence is that which tends to strengthen the evidence given by an applicant. While corroboration is not a technical term, case law indicates that corroborating evidence must typically be independent of the evidence it seeks to corroborate. The Court held that a tribunal commits jurisdictional error if it fails to consider corroborative material simply because it considers the applicant's claims unlikely, or because it has made adverse credibility findings. Such material must be considered, and its weight assessed in light of the applicant's credibility, unless there are cogent grounds to conclude the applicant has lied, or the corroborating material itself is found to be worthless. The Court referred to *WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs* and *Minister for Immigration and Citizenship v SZNSP* in support of this reasoning.

The Court found that the RRT had made a jurisdictional error by failing to consider the second applicant's evidence. The matter was remitted to the RRT for redetermination according to law.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I begin with the meaning of the word “corroborate”. To “corroborate” means “to strengthen”.[33] When used in connection with “evidence”, “corroborate” denotes the tendering or presenting of evidence (corroborating evidence) that has a tendency to strengthen the tendency of other evidence (evidence to be corroborated) that has been tendered or presented, or which is to be tendered or presented, to prove the existence of a fact. In the context of an application for a Protection visa, corroborating evidence is evidence which has a tendency to strengthen the evidence the applicant gives in support of his or her application for a Protection visa. The most common type of corroborating evidence is where it and the evidence to be corroborated “report the occurrence of the same event”.[34][33] Oxford English Dictionary[34] D A Schum Evidential Foundations of Probabilistic Reasoning, John Wiley & Sons, Inc. 1994, page 124 Although “corroboration” is not a technical term, there is a substantial body of case law which deals with what evidence may constitute “corroboration” in the context of statutes that require or have required corroboration before particular offences can or could legally be proved;[35] and rules of practice have developed about giving warnings in particular classes of case where corroboration is absent.[36] In that context, useful statements can be found in the cases about the nature of corroboration and the different types of evidence that is capable or not capable of corroborating other evidence. Thus, for example, it has been held that “corroboration of whatever statement requires corroboration must be by independent testimony”;[37] that “[i]n order that evidence may amount to corroboration it must be extraneous to the witness who is to be corroborated”;[38] and that circumstantial evidence may amount to corroboration.[39] I do not, of course, refer to these cases because they represent legal rules that a tribunal must or should follow. They do, however, illustrate the types of evidence that has been held to be capable of constituting or not constituting corroborating evidence, and the reasons why that is so.[35] See J D Heydon Cross on Evidence Tenth Australian Edition, LexisNexis Butterworths 2015 at [15010]-[15065][36] See J D Heydon Cross on Evidence Tenth Australian Edition, LexisNexis Butterworths 2015 at [15070] – [15160][37] Ridley v Whipp (1916) 22 CLR 381 at page 392 [38] R v Whitehead [1929] 1 KB 99 at page 102[39] See J D Heydon Cross on Evidence Tenth Australian Edition, LexisNexis Butterworths 2015 at [15175] When corroborating evidence is tendered one matter the fact finder must usually consider is whether it is independent of the evidence to be corroborated. Where, for example, the corroborating evidence and evidence to be corroborated is testimony, it may be necessary to consider whether the persons giving the testimony have colluded to give identical evidence or whether one person influenced the other in some way to have the same but incorrect recollection of the matters to which their testimony relates. Where the corroborating evidence is a document (which may and often does contain testimonial assertions), it will usually be necessary for the fact finder to ascertain the origins of the document. In particular, it will usually be necessary to consider whether the document was created independently of the person who has given the (testimonial) evidence to be corroborated. That will usually require an investigation into the circumstances in which the document came into the hands of the person who gives the (testimonial) evidence to be corroborated.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It could also be said that by failing to consider the second applicant’s evidence, the Tribunal made a jurisdictional error of the sort the Full Federal Court found the Tribunal made in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs.[28] In that case, the Tribunal said it gave no or little weight to documents on which the visa applicant relied because the documents did not overcome the problems the Tribunal had with the visa applicant’s evidence. Lee and Moore JJ said:[26] The Tribunal determined the matter adversely to the appellant by disregarding the documents it had been directed to consider by the order made by consent in this Court, stating that the documents “do not overcome the problems I have with the applicant’s evidence”.[27] Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material: see [Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59] at [49] per McHugh and Gummow JJ. Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error. (See Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82[-[85]).[28] [2004] FCAFC 74 This part of the Full Federal Court’s judgment must be read with the Full Federal Court’s judgment in Minister for Immigration and Citizenship v SZNSP.[29] There, the Tribunal found the applicant had fabricated her claim of fear of persecution and, because of the adverse credibility findings it made against the applicant, the Tribunal decided not to give any weight to a witness statement that apparently corroborated the applicant’s claims. The words the Tribunal used were: “Given the adverse credibility finding, the Tribunal does not give weight to the document”.[30] The Full Federal Court said:[31]Thus, consistently with Applicant S20/2002 [2003] HCA 30; 198 ALR 59 it was open to the RRT to assess the credit of the first respondent and then, in the light of that assessment, consider what weight should be given to the witness statement. This was the process followed by the RRT which it described in the sentence “Given the adverse credibility finding, the Tribunal does not give weight to the document”. Although expressed in the most cryptic terms, this statement shows that the RRT made an assessment of the value of the witness statement and then considered its effect in the light of the view it had formed to that point about the credibility of the first respondent.[29] [2010] FCAFC 50; (2010) 184 FCR 485 (North, Lander and Katzmann JJ)[30] [2010] FCAFC 50; (2010) 184 FCR 485 at [13][31] [2010] FCAFC 50; (2010) 184 FCR 485 at [33] (North and Lander JJ; Katzmann J agreeing at [42])