SZSEI v Minister for Immigration
[2017] FCCA 1820
•4 August 2017
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 Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 Ridley v Whipp (1916) 22 CLR 381 |
| 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 SYDNEY |
SYG 3159 of 2014
| SZSEI |
First Applicant
| SZSEJ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants, who are husband and wife, apply for judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent not to grant the applicants a Protection (Class XA) visa (Protection visa).
Claims for protection
The applicants, who are citizens of Nigeria, applied for a Protection visa on 4 November 2011. The first applicant, the husband, completed that part of the application headed “Application for an applicant who wishes to submit their own claims to be a refugee”,[1] and the second applicant, the wife, completed that part of the application that is headed “Application for a member of the family unit”.[2]
[1] CB11
[2] CB26
On 23 December 2011 the applicants provided to the Minister a document titled “Statement of [names of first and second applicants]”.[3] The statement is written in the first person, and appears to have been signed by only one person, whom I infer is the first applicant. The statement contained no claim that the second applicant feared harm if she were to return to Nigeria.
[3] CB69-72
In the statement, the applicants claimed that, before the first applicant’s father died on 1 October 2011, the father had entered into “a covenant” with the Occult Secret Society (OSS). During the “preparation for the burial ceremony”, members of the OSS approached the first applicant and said they wanted the first applicant to replace his father within their group. The first applicant refused because he is a Christian, and he did not wish to belong to the OSS. Members of the OSS mounted much pressure on the first applicant and threatened him “to expect serious consequences” if he continued to refuse to join the OSS.
After the first contact, the OSS telephoned the first applicant, and then four members of the OSS visited the first applicant’s home. They again tried to convince the first applicant to enter the OSS. After the first applicant refused, the members made threatening telephone calls. The members told the first applicant that if he did not abide by their rules they would kill him.
When the applicants returned home from the air tickets sales agent’s office, the first applicant found out that an unknown assailant had strangled to death his twin sons. That occurred while the first applicant’s mother-in-law, who was taking care of the children, was out “buying some goods”. “Moments later” the first applicant received a call from an unknown caller “supposedly a member of the fraternity claiming responsibility for the tragic event”. The caller threatened the first applicant to expect more if the first applicant continued to remain “adamant in” his decision. The applicants then fled Nigeria. The first applicant claimed he fears that if he returns to Nigeria members of the OSS would fatally attack him. He also claimed he feared his wife and unborn child would be in danger.
The first applicant and, so it appears, the second applicant, gave evidence before the delegate.[4] The applicants also gave evidence before the Tribunal. The transcript reveals the Tribunal requested the second applicant wait outside the hearing room while the first applicant gave evidence, [5] and that the second applicant gave evidence after the first applicant completed his evidence.[6]
[4] CB434, [38] where the Tribunal referred to the second applicant’s “evidence to the department”.
[5] Affidavit of M Byers, annexure “A” (Transcript), page 2.1
[6] Transcript, pages 20-21
In her evidence before the Tribunal the second applicant said she did not see people from a cult approach the first applicant; she did not recall the time of day she went with the first applicant to acquire air tickets; when she and the first applicant returned she saw the kids had been killed; she barely saw the corpse(s); she was prevented from seeing the corpses because it was culturally inappropriate; the second applicant fainted; when she woke up, the second applicant was taken away and she did not know what happened after; and the second applicant had no idea whether the children were taken to hospital.
The following exchange also took place before the Tribunal:[7]
Member:What are you afraid will happen to you if you go back to Nigeria?
Second app:It’s scary because people are looking for my husband to kill <inaudible due to background noise> and they will kill the kids and they will go to any length <inaudible due to background noise>.
Member:Is there anything else you want to say?
Second app:I don’t have anything wanted [sic] to say.
[7] Transcript, page 21
Tribunal’s decision
The Tribunal found the first applicant was not a witness of truth.[8] First, the Tribunal found the first applicant gave inconsistent accounts of his contacts with members of the OSS. Before the Tribunal the first applicant said he had met members of the OSS once, and that during the meeting the members were pleasant and not aggressive. The first applicant did not mention to the Tribunal that members of the OSS had subjected him to pressure and threats, as he had claimed in his statement.
[8] CB433, [35]
Second, there was a discrepancy between what the first applicant said in his application about the cause of death of the twins and what was stated in the purported death certificates the first applicant provided to the Tribunal. In his statement the first applicant said the children had been strangled. The purported death certificate in relation to one of the children stated the child “suffered punctured hole injury to the frontal skull scalp with massive brain haemhorage [sic]”.[9]
[9] CB151
Third, before the Tribunal the first applicant said he was unaware his father was in a secret cult until after he died and members of the OSS approached the first applicant.[10] The Tribunal found it “unconvincing” that the first applicant’s father would be in a secret cult which the first applicant was to join in the event of the applicant’s father’s death, yet the father would not say anything about that to the first applicant.[11]
[10] CB427, [9]
[11] CB432, [31]
The Tribunal also considered the evidence the second applicant gave before the delegate and the Tribunal. The Tribunal noted the second applicant “purported to corroborate the account of events related by the [husband] on which his protection claims are based”. [12] The Tribunal further said: [13]
However, the Tribunal’s concerns arise predominantly from the applicant’s account about matters which related solely to him such as his contact with the cult and his evidence about his father. While his wife also claimed to have been with him on the day the twin children died it was the applicant who was the major actor in the events they claim took place and ensued from there; the applicant’s wife having fainted. Overall, the evidence given by the applicant’s wife does not overcome the concerns the Tribunal holds about the applicant’s evidence”.
[12] CB434, [38]
[13] CB434, [38]
Grounds of review
The applicant relies on three grounds. Two were the subject of submissions made during the hearing before me on 4 March 2016; but a third was added pursuant to consent orders I made on 5 June 2017 after I reserved judgment, and after the Minister disclosed to the applicants that a certificate purportedly pursuant to s.438 of the Migration Act 1958 (Cth) (Act) had been issued in relation to the applicants’ application for review. The third ground relies principally on the decision and reasoning of Beach J in MZAFZ v Minister for Immigration and Border Protection.[14]
[14] [2016] FCA 1081
Ground 1
The first ground of review is as follows:
The Tribunal breached section 425 of the Migration Act.
Particular
a. That the Tribunal breached section 425 of the Act by failing to give the separate and independent consideration to the claims for protection by the Second Applicant.
In his written submissions counsel for the applicants reproduced the passage from the Tribunal’s reasons for decision I have reproduced at paragraph 13 of these reasons, and then submitted the Tribunal “failed to give the Second Applicant a hearing in respect of her evidence, anchoring the findings with respect to her evidence by reference to the evidence given by the First Applicant”.[15] At the hearing before me counsel submitted the second applicant “was not given an opportunity to be able to lead an alternative account even if she could in the circumstances”.[16] Counsel further submitted that the second applicant was not treated as a separate applicant.
[15] Outline of Submissions on Behalf of the Applicant, [27]
[16] T10.15
The Minister submits the Tribunal understood the second applicant claimed she would be harmed in Nigeria, and that the Tribunal’s conclusions “were drawn with respect to both applicants, reflecting an understanding by the Tribunal that the second applicant also claimed to fear harm in Nigeria”.[17] The Minister further submits that the second applicant’s claims “were dependent upon those of the first applicant”.[18]
[17] First respondent’s outline of submissions, [15.1]
[18] First respondent’s outline of submissions, [15.2]
It may be accepted, as the Minister submits, that the Tribunal was aware the second applicant claimed that she feared harm. It may also be accepted that the second applicant’s claim was based on the same asserted facts on which the applicant’s claims for protection were based. That is evident from the evidence the second applicant gave to the Tribunal, which I have set out earlier in these reasons. The Minister’s submissions, however, do not answer the substance of the second applicant’s complaint. The essence of the second applicant’s complaint is that the Tribunal assessed her claim solely by reference to the Tribunal’s adverse assessment of the first applicant’s evidence. Two issues, therefore, arise. Did the Tribunal assess the second applicant’s claim solely or, at least, substantially by reference to its adverse assessment of the first applicant’s evidence? If so, did the Tribunal consequently make a jurisdictional error?
Assessment of second applicant’s claim
In my opinion the Tribunal assessed the second applicant’s claim, substantially, if not entirely, on the basis of its adverse credibility assessment of the first applicant. That is apparent from what the Tribunal said. It said its concerns about the second applicant’s evidence – and hence her claims based on that evidence - “arise predominantly from the [first] applicant’s account about matters which related solely to him such as his contact with the cult and his evidence about his father” (emphasis added).[19] It is also apparent from what the Tribunal did not do. The Tribunal did not make any finding about the second applicant’s credibility. The Tribunal only concluded that “the evidence given by the [first] applicant’s wife does not overcome the concerns the Tribunal holds about the [first] applicant’s evidence” (emphasis added).[20]
[19] CB434, [38]
[20] CB434, [38]
Did the Tribunal make a jurisdictional error?
When considering whether the Tribunal made a jurisdictional error it is relevant to bring to mind the nature of the Tribunal’s duties when undertaking a review of a decision of a delegate. Here it will be sufficient to refer to two authorities. The first is the judgment of the Full Federal Court in Minister for Immigration and Border Protection v MZYTS.[21] Speaking of the Tribunal, the Full Federal Court said that a “failure to consider the claim advanced by a visa applicant is plainly and uncontroversially a failure to perform the statutory task imposed on the Tribunal”;[22] and the Tribunal will be held not to have performed that task if “the Tribunal did not assess in any real or active way” the applicant’s claims,[23] or if the Tribunal did not disclose any “consciousness of the contents” of materials “as opposed to their existence”,[24] and if the Tribunal did not disclose “any evaluation”[25] of the materials or any “process of weighing evidence and preferring some over the other”. [26]
[21] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (Kenny, Griffiths and Mortimer JJ)
[22] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (Kenny, Griffiths and Mortimer JJ) at [62]
[23] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (Kenny, Griffiths and Mortimer JJ) at [39]
[24] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (Kenny, Griffiths and Mortimer JJ) at [41]
[25] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (Kenny, Griffiths and Mortimer JJ) at [45]
[26] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (Kenny, Griffiths and Mortimer JJ) at [50]
The second authority is the decision of Robertson J in Minister for Immigration and Citizenship v SZRKT where his Honour said:[27]
In my opinion there is no clear distinction in each case between claims and evidence . . . . The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
[27] [2013] FCA 317; (2013) 212 FCR 99; [at 111]
In my opinion, the Tribunal did not consider the second applicant’s claim. The second applicant’s claim consisted entirely of the evidence she gave about what she heard and observed, namely, people at her house and her being informed that her children had been killed; and of evidence of what she feared, namely, that people would be looking for the first applicant. Although the Tribunal said the second applicant’s evidence did not overcome its concerns with the first applicant’s evidence, there is nothing in the Tribunal’s reasons which shows that this finding was based on any active or real assessment of the second applicant’s evidence, or of any evaluation of the second applicant’s evidence, or of any process of weighing the second applicant’s evidence with that of the first applicant’s evidence or with that of any other evidence.
My conclusion that the Tribunal did not consider the second applicant’s claim has consequences for the Tribunal’s consideration of the first applicant’s claims as well. The second applicant’s evidence was obviously relevant and significant to the first applicant’s claims because, if accepted, it would have supported the first applicant’s claims. By not considering that evidence when considering the claims made by the first applicant, the Tribunal made a jurisdictional error of the sort Robertson J found the Tribunal made in SZRKT.
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])
Burley J recently reviewed these and other cases in SZVHO v Minister for Immigration and Border Protection.[32]
[32] [2016] FCA 1499
Given my findings that the Tribunal undertook no active or real assessment of the second applicant’s evidence, or any evaluation of the second applicant’s evidence, or any process of weighing the second applicant’s evidence with that of the first applicant’s evidence or any other evidence, it follows the Tribunal made a similar error to the one the Tribunal was found to have made in WAIJ. That is, the Tribunal did not consider evidence that corroborated the first applicant’s evidence.
For these reasons, the applicants succeed on ground 1.
Other matters - observations on corroboration
Before I leave this part of my reasons, it may be useful to offer some observations about the nature of evidence that is offered to corroborate an applicant’s or part of an applicant’s evidence given in support of his or her claims, and what may be involved when assessing whether what purports to be corroborating evidence in fact corroborates an applicant’s evidence. That is so because, at least in my experience as a Judge of this Court, it is common for the Tribunal to deal with evidence that purports to corroborate an applicant’s claim by making general statements to the effect that the corroborating evidence does not overcome concerns the Tribunal has about the credibility of the applicant.
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.
Assuming the fact finder has no reason to suspect or conclude the corroborating testimonial evidence is the product of collusion or undue or improper suggestion, or, where the corroborating evidence is a document, the fact finder has no reason to suspect or find the document is not what it purports to be or that any testimonial assertions recorded in the document are the product of collusion or undue or improper suggestion, it will be necessary for the fact finder to assess the credibility of the testimony. The fact finder will need to consider in relation to each person who gives or has given the corroborating testimony matters that are relevant to assessing his or her credibility. Here, “credibility” is “the quality or power of inspiring belief”;[40] and, when applied to testimony, “credibility” means the quality or power of the testimony to inspire belief. As I have noted elsewhere,[41] the credibility of a witness depends on a number of matters. These include not only the witness’s willingness to tell the truth, but also the extent to which the witness had the opportunity and capacity to perceive the events to which the witness’s testimony relates; the extent to which the witness has the capacity to remember, recall, and communicate the matters to which the testimony relates; the extent to which the witness’s evidence is internally consistent and consistent with other objective evidence; and the extent to which the witness’s conduct is consistent with the witness’s evidence. Thus, for example, it has been said that the “most important tests of credibility are the consistency of a witness’s evidence with what can be shown to have occurred, and with what he has said or done previously”.[42] Also relevant is the inherent plausibility of the matters asserted by the testimony.
[40] Indiana Metal Products v National Labor Relations Board [1971] USCA7 173; 442 F.2d 46 at 51 (1971) (Seventh Circuit), quoting Webster’s Third New International Dictionary 1966
[41] Island Helicopters Pty Ltd v Central (Qld) Aviation Pty Ltd & Anor [2017] FCCA 1665 at [37]
[42] Cambridge v Makin [2011] EWHC 12 (QB) at [211]. I owe my becoming aware of this case to the article by Master Bell “An introduction to judicial fact-finding”, Commonwealth Law Bulletin, (2013) Vol. 39, No.3, 519 at page 528
It will be seen that the Tribunal in the case before me did none of these things in relation to the corroborating evidence of the second applicant.
Ground 2
Ground 2 is as follows:
The Tribunal breached section 424A of the Migration Act.
Particular
a. That the Tribunal breached section 424A of the Act by failing to put to the Second Applicant the evidence of the First Applicant in the manner as required under the statutory provisions.
The proper construction of the word “information” has been determined by the High Court in SZBYR v Minister for Immigration and Citizenship.[43] I considered the High Court’s construction in Vo v Minister for Immigration and Border Protection,[44] and I will not repeat here what I said there.
[43] [2007] HCA 26
[44] [2017] FCCA 1170 at [27]-[38]
Counsel for the applicants submitted or, at least, appears to have submitted, that the following matters constituted “information” within the meaning of s.424A of the Act:
a)the first applicant’s evidence;
b)the Tribunal’s not accepting, or the possibility of the Tribunal not accepting, that the first applicant was a credible witness; and
c)the matters the Tribunal put to the first applicant on which the Tribunal relied for not accepting the first applicant’s evidence to be credible.
In my opinion, none of these matters constituted “information” for the purposes of s.424A of the Act:
a)The first applicant’s evidence, if accepted, was incapable of constituting the reason or a part of the reason for affirming the decision under review. The first applicant’s evidence, if accepted, would have supported the second applicant’s claim because the second applicant’s claims depended entirely on the asserted facts on which the first applicant’s claims relied.
b)The Tribunal’s not accepting, or the possibility of the Tribunal not accepting, that the first applicant was a credible witness, was not “information” because it is not “evidentiary material or documentation”.[45] It formed part of “the Tribunal’s subjective appraisals, thought processes or determinations”.[46]
c)The matters on which the Tribunal relied for not accepting the first applicant was a credible witness did not “contain in their terms a rejection, denial or undermining of the”[47] second applicant’s claims; and none of the matters served “as the immediate premise, or one of the immediate premises, on which the Tribunal”[48] intended to rely for affirming the delegate’s decision.
[45] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]
[46] VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24]
[47] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, at [18]
[48] Vo v Minister for Immigration and Border Protection [2017] FCCA 1170 at [31]
Counsel for the applicants also relied on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[49] for submitting the Tribunal was obliged to put to the second applicant the matters on which the Tribunal relied for not accepting the first applicant’s evidence. Nothing the High Court said or decided in SZBEL supports the contention that the Tribunal was obliged to put these matters to the second applicant. SZBEL was concerned with the obligation of the Tribunal to give an applicant reasonable notice of the issues the Tribunal considered relevant. That is apparent from the following passage:[50]
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
[49] [2006] HCA 63; (2006) 228 CLR 152
[50] [2006] HCA 63; (2006) 228 CLR 152 at [35]
The delegate in the case before me concluded the first applicant had fabricated his claims to convince the Department of Immigration and Citizenship (as the Department for Immigration and Border Protection was then known) (Department) to grant him a Protection visa.[51] The applicants, therefore, were on notice that the first applicant’s credibility would be an issue before the Tribunal.
[51] CB95
Ground 2, therefore, fails.
Ground 3
The facts out of which this ground arises are as follows. On or shortly after 2 June 2014 a delegate of the Minister issued a document (438 certificate) addressed to the District Registrar of the Tribunal and titled “Notification regarding the disclosure of certain information under s 438 of the Migration Act”. The 438 certificate stated that the documents it identified as folios 31 and 112-130 of a particular file should not be disclosed “to the applicant or the applicant’s representative because folios 31 and 112-130 contain information relating to an internal working document”. The documents covered by the 438 certificate are identified in an affidavit made by Ms Hillary, a solicitor employed by the solicitors for the Minister. I will treat Ms Hillary’s affidavit as having been read. The documents covered by the 438 certificate which Ms Hillary identifies in her affidavit have been exhibited to her affidavit and placed in a sealed envelope in accordance with the suggestion given by the Full Federal Court in Minister for Immigration and Border Protection v Singh.[52] The Minister does not claim any privilege over the documents covered by the 438 certificate. I will, therefore, treat the documents covered by the 438 certificate that are exhibited to Ms Hillary’s affidavit as having been admitted into evidence.
[52] [2016] FCAFC 183 at [67]
I next turn to the documents covered by the 438 certificate. Folio 31 is a pro forma document titled “Protection visa application validity check” which contains information that identifies the applicants by “client ID”, and a checklist of matters necessary for a valid application for a Protection visa. Folios 112-130 are a number of documents each titled “Identity Resolution Centre Five Country Conference - Fingerprint Referral Form” and some emails. These relate to searches of fingerprints in relation to persons bearing the names of the applicants.
On 7 September 2016 Beach J handed down judgment in MZAFZ v Minister for Immigration.[53] In that case the Tribunal received a certificate purportedly issued under s.438 of the Act which was invalid and which the Tribunal did not disclose to the applicant. Beach J found the Tribunal in the circumstances of that case made two jurisdictional errors. The first is that the Tribunal proceeded or acted on an invalid certificate and, therefore, did not follow a “process according to law”; and the second is that the Tribunal failed to accord the applicant procedural fairness by not disclosing the certificate to the applicant.
[53] [2016] FCA 1081
The third ground of review, which relies on the decision and reasoning of Beach J in MZAFZ, may now be set out, and it is as follows (particulars omitted):
The decision of the AAT [sic] was affected by jurisdictional error as the AAT [sic] denied the applicant procedural fairness and a real and meaningful opportunity to be heard under s425 of the Act by not disclosing to the applicant that a delegate of the Department of Immigration and Border Protection had issued a certificate under section 438 of the Migration Act to the AAT [sic].
The particulars to this ground refer to the 438 certificate having been issued on 2 June 2014 under s.438 of the Act in relation folios 31 and 112-130 of the Department’s file. The particulars then state that the 438 certificate was similar to the certificate considered in MZAFZ; the Minister does not claim any privilege over, or any confidentiality in relation to, the documents covered by the 438 certificate; the Tribunal “made a decision not to exercise its discretion to disclose the certificate to the applicants for comment”; and it was “difficult to speculate what influence the certificate had on the [Tribunal’s] findings, nevertheless the [Tribunal] has denied the applicant procedural fairness and a real and meaningful opportunity to be heard under s425 of the Act”.
In written submissions filed on behalf of the applicants, it is submitted the 438 certificate is invalid, because, as was said by Beach J in MZAFZ in relation to the certificates issued in that case, “its issue infected the process or procedure adopted by the Tribunal in relation to such document” (presumably the documents covered by the 438 certificate),[54] and that the applicant’s participation in the review was, again in the words of Beach J in MZAFZ, “circumscribed by the existence of the certificate which, even with particulars, denies access to relevant material”.[55] The Minister, on the other hand, while accepting the 438 certificate is invalid, submits that the documents covered by it could not reasonably have been considered by the Tribunal to be relevant to the applicants’ claims.[56] Relying on a number of decisions, including AVO15 v Minister for Immigration and Border Protection[57] and BEG15 v Minister for Immigration and Border Protection,[58] the Minister submits no injustice was occasioned to the applicants by the Tribunal’s failing to disclose the 438 certificate, or the documents covered by it, because, even if the Tribunal did act on the 438 certificate in some way, the applicants are not entitled to relief because the disclosure of the documents covered by the 438 certificate could not have impacted the outcome of the review.[59]
[54] Applicant’s [sic] Supplementary Outline of Submissions, [8]
[55] Applicant’s [sic] Supplementary Outline of Submissions, [9]
[56] First Respondent’s supplementary submissions, [9]
[57] [2017] FCA 566 at [91]
[58] [2016] FCCA 2778 at [40]-[68]
[59] First Respondent’s supplementary submissions, [9]-[11]
The form of the 438 certificate is indistinguishable from the form of the certificate Beach J in MZAFZ held was invalid. The 438 certificate, therefore, is invalid for the reasons Beach J found the certificate in MZAFZ was invalid. The documents covered by the 438 certificate, however, could not reasonably have been considered by the Tribunal to be relevant to the review of the applicants’ claims. On the basis of the patent irrelevance of the documents, therefore, I infer that the Tribunal, unlike the Tribunal in MZAFZ, did not act on the 438 certificate or the documents covered by the 438 certificate. I also infer that the Tribunal did not do or fail to do anything it would otherwise not have done or done with those documents because of the 438 certificate. For that reason, the issue of the 438 certificate did not infect the process or procedure adopted by the Tribunal in relation to the documents it covered; nor did the issue of the 438 certificate circumscribe in any way the applicants’ participation in the review before the Tribunal.
Ground 3, therefore, fails.
Disposition
Given the applicants have succeeded on ground 1, I propose to order that the Tribunal’s decision be quashed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent, and that the applicants’ application for review be considered by the Administrative Appeals Tribunal according to law.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 4 August 2017
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