SZUON v Minister for Immigration
[2016] FCCA 2462
•23 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUON v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2462 |
| Catchwords: MIGRATION – Application for review of former Refugee Review Tribunal decision – whether Tribunal failed to accord procedural fairness – whether Tribunal asked itself the correct question – whether Tribunal failed to take into account relevant considerations – whether Tribunal’s finding was illogical – merits review – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.46A, 476 Migration Regulations 1994 (Cth), reg.1.12 |
| Cases cited: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802 |
| Applicant: | SZUON |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1723 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 10 May 2016 |
| Date of Last Submission: | 10 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 23 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Williams |
| Solicitors for the Respondents: | Ms L Buchanan of Australian Government Solicitor |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 24 June 2014 and ultimately amended on 27 April 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1723 of 2014
| SZUON |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 24 June 2014 and ultimately further amended on 27 April 2016 seeking review of the decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), of 19 May 2014, which affirmed the decision of the Minister’s delegate to refuse a Protection (Class XA) visa to the applicant.
In evidence before the Court is the bundle of relevant documents filed by the Minister (“the Court Book” – “CB”).
Background
The applicant is a citizen of Iran who arrived in Australia as an “unauthorised maritime arrival” on 5 July 2012. The Minister exercised his discretion pursuant to s.46A(2) of the Act to “lift the bar” and the applicant made an application for a protection visa on 25 August 2012 (CB 31 and CB 32 to CB 92). He was assisted by a registered migration agent (CB 57).
The applicant’s claims to fear harm were contained in a statement attached to his application (CB 93 to CB 95). They can be summarised as follows:
1)
He claimed that in 2009, he was detained and harmed by Iranian authorities after attending a party held by his sister and
brother-in-law where alcohol was present (“the party”) (CB 94). He was sentenced to “a fine and 20 lashes”, however had the sentence “postponed”.
2)He commenced work at a “satellite installation business”. He claimed that he “knew in the government eyes this was not allowed”, however he “had no other choice”. He claimed that on 9 April 2012 the police came and “locked and sealed” the building (“the satellite business”).
3)The applicant then “fled Iran” on 13 April 2012, because he would face the sentence that had been pending from the previous “offence”. Further, that “if they [knew he was] connected to a satellite installation business” he would be “beaten and detained for a long time” (CB 94 to CB 95).
4)Further, that he feared harm because the government believed him to have “acted in an un-Islamic way” and that he would not be able “express” his beliefs if he returned to Iran (CB 95).
The applicant’s representative provided submissions on 25 September 2012 (CB 101 to CB 104). In particular, the representative submitted that the applicant would face harm as a member of particular social groups, “Iranian youth generation” or “post revolution generation with a modern western outlook” and as a “failed asylum seeker”.
The delegate refused the application on 25 January 2013 (CB 106 to CB 129).
The applicant applied for review of the delegate’s decision on 31 January 2013. He was again assisted by a registered migration agent (CB 133). The applicant’s migration agent provided submissions to the Tribunal on 20 March 2013 (CB 147 to CB 158). The representative also attached a translated “copy of court document relating” to the applicant’s “sentencing following the party at his sister’s place” (CB 159 to CB 162).
The applicant attended a hearing before the Tribunal on 25 March 2013. The applicant’s representative provided further submissions on 8 April 2013 (CB 169 to CB 175), and a copy of a Court document, translation provided on 22 April 2013, which “apparently concerns the matter involving the selling of satellite dishes” requiring the applicant to appear in person to authorities on 9 June 2012 (CB 176 to CB 177 and CB 182).
By letter dated 19 April 2013, the Tribunal noted the following (CB 180):
“In your statement of claims, you stated that you travelled to Australia with your sister…brother-in-law…and your nephew… The Tribunal understands that each of these people has sought protection in Australia. You may wish to consider – if you are in contact with your relatives and they are willing to assist you with any relevant material – whether you wish the Tribunal to also take into account their statements of claims, any Department decision, etc.
This is not a request or invitation. The Tribunal will allow another fourteen days for any submissions, and will not proceed to a decision before 3 May 2013.”
By facsimile correspondence on 26 April 2013, the applicant’s representative confirmed that the applicant “wishes the Tribunal to also take into account” his sister, brother-in-law and nephew’s statements of claims (CB 184).
By facsimile correspondence dated 30 April 2013, the Tribunal stated the following (CB 189):
“Thank you for your advice dated 26 April 2013, in which you state that [the applicant’s] relatives are [willing] to assist him.
[The applicant] may wish to consider whether his relatives’ protection claims are relevant to his case.
To avoid any misunderstanding, the Member wishes to confirm that it will be up to [the applicant] to provide any further submissions by 3 May 2013, including any material relating to his relatives’ protection claims. The Tribunal will not be undertaking further enquiries in this regard. The Member will have regard to all the material before him when finalising the matter.”
On 3 May 2013, by facsimile correspondence, the applicant’s representative provided a copy of the applicant’s brother-in-law’s statement of claims, which they submitted was “consistent with and supports” the applicant’s claims (CB 190 to CB 193). On 22 May 2013, by facsimile, the applicant’s representative advised that the applicant’s brother-in-law had “been found to be a Refugee by the DIAC delegate” (CB 194).
By facsimile dated 23 May 2013, in response to the information as to the applicant’s brother-in-law’s visa, the Tribunal noted that the material before it did not indicate the reason why his brother-in-law was granted protection and if the applicant wished the Tribunal to consider any further materials he should submit them promptly (CB 196). The applicant’s representative responded to this letter indicating that no reasons have been provided for the positive decision of the delegate (CB 197).
On 28 January 2014, the Tribunal wrote to the applicant drawing to his attention country information from the Department of Foreign Affairs and Trade for comment (CB 199 to CB 200). The applicant’s agent responded, noting the applicant continued to rely upon his earlier submissions and the country information referred to in those submissions (CB 201).
The Tribunal affirmed the delegate’s decision on 19 May 2014.
The Tribunal considered the applicant’s assertion that his brother-in-law’s claims were “consistent” with, and supported his claims to protection. It noted that it was “unclear” if the brother-in-law had relied on any further claims and evidence prior to being granted the protection visa. It accepted that the claims were “closed linked” and “appear consistent”. However, it found that the brother-in-law’s roles in the incidents, as host of the party and owner of the satellite dish business, gave him a “higher profile” than the applicant. Therefore, the Tribunal found that the applicant’s brother-in-law’s, and his immediate family’s, protection in Australia was of “limited probative value” ([16] at CB 208).
The Tribunal had “significant concerns about the applicant’s account” and his evidence as to the “party” in 2009. The Tribunal found that the applicant was “very vague” when asked about the party and the Tribunal had “difficulty eliciting meaningful details” from him ([24] at CB 210). Further, that there were a number of inconsistencies in the applicant’s oral and written evidence which “all cast doubt about the credibility of his claims” ([25] at CB 210 to CB 211).
The Tribunal considered the Court document provided in support of the claim. It “doubt[ed]” the genuineness of the document. Further, that “even if the Tribunal were to take the court verdict at face value, it suggests that the suspended sentence was no longer in force” ([26] at CB 211). The Tribunal did not accept that the applicant was convicted of an offence that resulted in any fine or lashes.
The Tribunal considered the applicant’s claims in relation to the “satellite dish business”. The Tribunal placed “very little weight” on the document that purported to support the applicant’s claimed Court summons in 2012 ([31] at CB 212 to CB 213). The Tribunal took into account the “generally consistent” nature of the applicant’s claims in this regard, and the applicant’s brother-in-law’s supporting evidence. However, it was “troubled” by the applicant’s conduct in the provision of the Court document, the inconsistencies and anomalies in his evidence, and that “at best” the applicant only had a “peripheral role” in the business ([32] at CB 213).
The Tribunal also considered the applicant’s travel to Australia, and found that the applicant’s ability, on his evidence, to leave Tehran airport on a passport in his own name, indicated that the applicant “did not have a subjective fear of serious harm (or significant harm)” ([34] at CB 213).
The Tribunal further considered the applicant’s claim that he would be harmed because of his political opinion, or his imputed political opinion. The Tribunal accepted that the applicant disagreed with the “Islamic regime’s policies, practices and priorities”. However it was not satisfied that the applicant’s activities of drinking alcohol or selling satellite dishes would be “perceived” as being political in nature. Nor that the applicant’s age or preference for a “modern” lifestyle would be “perceived as un-Islamic” ([37] at CB 214).
The Tribunal considered the applicant’s claimed membership of claimed particular social groups and found that it was “not satisfied” that the Iranian authorities would persecute the applicant as a “young Iranian” or a “modern young Iranian”. Further, with reference to country information, that the applicant was not “of adverse interest to the Iranian authorities”, and as such would not face harm either as a failed asylum seeker or a young failed asylum seeker ([44] at CB 216 to [54] at CB 217). The Tribunal was also not satisfied that the applicant’s relatives’ status would bring the applicant to the adverse attention of the authorities on his return.
The Tribunal also considered the applicant’s claims in light of the complementary protection criterion. It referred to its findings of fact in relation to his claims to fear harm on return to Iran and found that it was not satisfied that he would face significant harm on return to Iran. Finally, it found, with reference to his relatives’ protection visas, that the applicant was not “a member of the same family unit as the holder of a protection visa” within the meaning of r.1.12(1)(e) of the Migration Regulations 1994 (Cth) (“the Regulations”) ([55] at CB 218 to [58] at CB 219).
Application before the Court
The application before the Court as amended on 27 April 2016 is in the following terms:
“Ground 1: Jurisdiction Error – Procedural Fairness
1. With regard to ground one, the Tribunal failed to make a finding on substantial, clearly articulated arguments relying upon established facts and that failure amounted to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.
2. Alternatively, the Tribunal committed jurisdictional error by failing to complete the statutory task required of it to examine and deal with the applicant’s claims, or an integer of his claims.
a) Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 ; 73 ALD 321 ; [2003] HCA 26 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95].
b) NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63];
c) Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42].
(a) The Failure of the Tribunal to Respond to the former agent’s letter regarding further information
3. At [15], the applicant advised the Tribunal that his brother-in-law, [name removed], his sister and their child were granted protection as refugees based on the same incident involving the applicant.
4. The applicant’s former representative, Kevin Ford, from Playfair Visa Migration Services, submitted at the hearing that the statement ‘is consistent with and supports the applicants claims and requested that Tribunal to take this into account in its decision.’ At [16], The Tribunal accepted that [the applicant’s brother-in-law] and the applicant's initial statements are closely linked to those of the applicant's, and appear consistent.’
5. On 29 May 2013, Kevin Ford sent by facsimile a letter to Ms Alicia Powell, the Tribunal Officer of the Refugee Review Tribunal. In that letter, Kevin Ford advised the Tribunal that DIAC did not provide clients with reasons for the delegates positive decision and expressly asked the member whether the member ‘wishes’ the former representative to ‘lodge an FOI Application to obtain the reasons for the decision.’
There was no response to this question by the Tribunal. This facsimile is annexed to the affidavit of Farnam Razzaghipour, affirmed 23 June 2014.
6. At [15], the Tribunal acknowledged that ‘[t]he representative wrote on 29 May 2013 that he would seek a copy of the Department's reasons, through an FOI application, but the Tribunal has not received any further material.’ This was false. Kevin Ford wrote to the member asking whether the member required further information via FOI. The Tribunal failed to respond to the letter by Kevin Ford, thereby denying the applicant an opportunity to provide the further documents by way of FOI. The Tribunal formed a negative review of the applicant’s protection claims without the benefit of the further information and without notifying the applicant that this information was required, thereby denying the applicant procedural fairness.
Ground 2: Misapplication of law or failure to ask the correct question
7. The second respondent erred by, misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question, relying on the authority in Craig v State of South Australia (1995) 131 ALR 595 at 602 per curiam, Brennan, Deane, Toohey, Gaudron and Mc Hugh JJ.
(a) The ‘Higher’ Profile of [the applicant’s brother-in-law] (the brother-in-law) v the ‘Peripheral’ Role of the Applicant
8. At [16], whilst accepting that ‘[the applicant]s brother-in-law] and the applicant's initial statements are closely linked to those of the applicant's, and appear consistent’ the Tribunal asked itself, incorrectly, whether the role of [the applicant’s brother-in-law] (the brother-in-law), as the host of the party in October 2009 and the operator of the satellite dish installation business that was raided in April 20212, gave him a higher profile than the applicant?
9. The correct question before the Tribunal was whether the applicant faced serious or significant harm due to his sentence of twenty lashes for drinking alcohol and operating an illegal satellite business with his brother-in-law, and not whether the applicant had a peripheral role in the alleged illegalities with his brother-in-law.
10. The Tribunal erred by finding that ‘[e]ven at face value, the applicant appears to have played a peripheral role in these activities and that the ‘fact of [the applicant’s brother-in-law] and his immediate family having received protection in Australia to be of limited probative value in assessing the veracity of the applicant's claims or his eligibility for protection.’ The Tribunal therefore misapplied, misunderstood, misinterpreted the applicable law.
Ground 3: Relevant Considerations
20. With regard to ground three, the second respondent failed to take into account relevant considerations, in the exercise of power, relying on the authority in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24.
21. In Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291, Gummow J said that the decision-maker ‘was required to give proper, genuine and realistic consideration to the merits of the case.’ Tab 11
(a) The 2009 Conviction of the Applicant regarding drinking alcohol
22. At [19], the Tribunal failed to give genuine, proper or realistic consideration to the submission received on 19 March 2013, attached to which was a court document containing the verdicts against the applicant and 19 other people, including his brother-in-law and sister, and their sentences.
23. At bullet one, the applicant, defendant number 17 of the document, was found guilty of 'injuring public chastity and illegitimate relation and drinking alcohol'. He was fined Rials 1,500,000 (ca. $A65), and sentenced to receive 20 lashes. Seventeen other partygoers received the same treatment.
24. At bullet point two, the applicant's brother-in-law and sister were found guilty of multiple charges. They were sentenced to six months imprisonment, 40 lashes and a fine of Rials 10,000,000 (ca. $A430) for the illegal purchase and storage of alcohol, and provision of facilities for corruption and prostitution; a fine of Rials 500,000 (ca. $A21) for keeping gambling equipment; and a fine of Rials 2,000,000 (ca. $A85) for keeping satellite receiving equipment.
25. At [26], whilst the Tribunal found that ‘the document states that the Criminal Court of Karaj found the applicant guilty of injuring public chastity and illegitimate relationship and drinking alcohol’, the Tribunal did not accept at [27] that the applicant was convicted in late 2009 of an offence that resulted in a fine and critically, a sentence of 20 lashes that was suspended.
b) The Karaj Court Summons regarding the satellite business
26. At [31], bullet three, The Tribunal received evidence on 22 April 2013 in the form of a summons by the Karaj Court, which required the applicant to appear in person on 9 June 2012 regarding his charges pertaining to the satellite business. There was an insufficient logical or evidentiary basis for the Tribunal to place ‘very little weight’ on this document, given it was corroborated by way of an email dated 29 March 2014 by a person named Moh Khad.
c) Membership of the same family unit as the holder of a protection visa
27. At [57], the Tribunal observed that ‘the applicant's sister and his brother-in-law [the applicant’s brother-in-law] are holders of protection visas… The applicant did not claim to satisfy either s.36(2)(b) or s.36(2)(c).’ However, this was an essential integer of his claims. The Tribunal failed to take this into consideration.
28. At [58], the Tribunal ‘is satisfied that the applicant is a relative (that is, a 'close relative', the brother) of his sister, and that she is the spouse of [the applicant’s brother-in-law]. [the applicant’s brother-in-law] spoke of the applicant as being like a 'kid brother', and the Tribmia1 is satisfied that they have a close relationship.’ However, the Tribunal erred by finding that the ‘applicant is in his late twenties, and lived in his parents' home and is not usually resident in [the applicant’s brother-in-law]'s household, pursuant to rule 1.12(1)(e). the Tribunal was therefore not satisfied that he is a member of the same family unit as the holder of a protection visa and erred.
Ground 4: No Evidence – Insufficient connection between the decision and the materials relied upon to make the decision
20. With regard to ground four, there was an insufficient logical or evidentiary basis between the reasons for the decision and the material relied upon for the decision, Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; 266 ALR 367 ; 115 ALD 248 ; [2010] HCA 16 at [130]–[131]; [133].
20. As Mason CJ observed in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, [355]-[356], the law has always recognized that the existence or otherwise of evidence to support a factual conclusion is a question of law. So the making of findings and the drawing of inferences in the absence of evidence will constitute an error of law.
21. It may also be accepted that the failure by the Tribunal to consider corroborative evidence might constitute jurisdictional error, Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99.
a) The Credibility of the Applicant
11. At [16], the Tribunal observed that ‘[the applicant’s brother-in-law]'s and the applicant's initial statements are closely linked to those of the applicant's, and appear consistent.’
12. At [32], the Tribunal conceded that ‘the applicant has been generally consistent in the broad outlines of this claim over time, namely that the authorities have discovered his role in his brother-in-law's satellite dish business. The Tribunal also took into account [the applicant’s brother-in-law]'s supporting evidence and ‘the advice that this may have formed the basis for him and his family to obtain protection in Australia.’
13. There was an insufficient logical or evidentiary connection between these findings on the one hand and the Tribunal finding on the other hand at [24], of ‘significant concerns about the applicant's account and his evidence as a whole.’ In particular,
a) The occasion of the party, whether there had been previous events, the guests (apart from Mr Khadivar) and the way in which the alcohol was served.
b) Whether plain clothes officials raided the party, armed with handguns or whether other men also entered the room and turned the lights on were in police uniforms.
c) Whether they were 'detained for one night in the detention centre and taken to a detention centre on the second night, or whether they were detained in just the one location, for two nights.
d) Whether the applicant had very little peripheral information about the amount of the fine, or the punishment received by others.
e) Whether interpreter problems, or any other factors, did not play a role in the alleged shortcomings of the applicant's evidence.
f) Besides being irrelevant, there was an insufficient logical or evidentiary basis for the Tribunal to conclude at [25] that the ‘applicant's age, his personality or his deference to his brother-in-law could not adequately explain these problems.’
b) The Credibility [the applicant’s brother-in-law] (Brother in Law)
14. At [23], the Tribunal observed that ‘in his oral evidence, [the applicant’s brother-in-law] described the same incidents’ and ‘took into account [the applicant’s brother-in-law]'s support for this application and the fact that his and the applicant’s claims are broadly consistent.’ However, the Tribunal found that ‘there was little scope… to compare the details of the claims, as the applicant tended to defer to [the applicant’s brother-in-law]'s evidence as host of the party, and this in tum remained quite general.’ As a result, the Tribunal placed ‘some limited weight on [the applicant’s brother-in-law]'s evidence as support for the applicant's claims.’There was an insufficient logical or evidentiary basis for the Tribunal to make such a finding regarding the credibility of [the applicant’s brother-in-law], given he has already been .”
[Errors in the original.]
I note that the particular titled “The Credibility [the applicant’s brother-in-law] (Brother in Law)” appears to have been “cut off” on the further amended application. In his written submissions, the applicant provided the following (at [24]):
“At [23], the Tribunal observed that ‘in his oral evidence, [the applicant’s brother-in-law] described the same incidents’ and ‘took into account [the applicant’s brother-in-law]'s support for this application and the fact that his and the applicant’s claims are broadly consistent.’ However, the Tribunal found that ‘there was little scope… to compare the details of the claims, as the applicant tended to defer to [the applicant’s brother-in-law]'s evidence as host of the party, and this in tum remained quite general.’ As a result, the Tribunal only placed ‘some limited weight on [the applicant’s brother-in-law]'s evidence as support for the applicant's claims.’ There was an insufficient logical or evidentiary basis for the Tribunal to make such a finding regarding the credibility of [the applicant’s brother-in-law].”
Before the Court
The applicant was represented by counsel at the final hearing of the further amended application. The Minister was represented by a solicitor. Both parties filed written submissions.
The applicant had the benefit of leave to proceed on a further amended application and had sought to explain the basis of each of his four grounds in an outline of written submissions.
It must be said that the grounds as pleaded, and for that matter as “explained” in the written submissions did not provide a clear articulation of the exact legal error, or errors, on the part of the Tribunal that the applicant sought to press. Nor, it must also be said, did oral submissions at the hearing provide a clear or concise articulation.
The oral submissions appeared to seek to add further elements to the grounds. For this reason I granted leave for the applicant and respondent to file subsequent written submissions (18 and 25 May 2016 respectively). No written submissions were received. Nonetheless, the matter became reserved following the date for the filing of submissions.
Consideration
Ground one as pleaded asserts that the Tribunal failed to make a finding on a substantial, clearly articulated argument, relying on established facts. That failure is said to amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction. In the alternative, the legal error is said to be a failure to deal with an integer of the applicant’s claims.
The particulars to the ground focus attention on certain submissions made by the applicant’s migration agent to the Tribunal at the hearing, and correspondence between the agent and the Tribunal after the hearing in relation to the protection visa claims made by the applicant’s brother-in-law. As stated above, the assertion of legal error is said to be a failure by the Tribunal to accord procedural fairness in this regard. The applicant relied on NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2)[2004] FCAFC 263 (“NABE (No 2)”), Htun v Minister for Immigration & Multicultural Affairs[2001] FCA 1802 (“Htun”) and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 (“Dranichnikov”).
The applicant’s oral submissions to the Court in relation to ground one described the legal error as follows.
At [15] (at CB 207 to CB 208) the Tribunal stated:
“The applicant advised the Tribunal that his brother-in-law, [the applicant’s brother-in-law], his sister and their child have been granted protection as refugees. He provided a copy of [the applicant’s brother-in-law]’s original statement of claims, a brief two-page description of the incidents in October 2009 and April 2012. The applicant’s representative noted that the statement ‘is consistent with and support’s [the applicant’s] claims’, and requested the Tribunal to take this into account in its decision. It is unclear from [the applicant’s brother-in-law]’s statement, or from his oral evidence to the Tribunal, whether he relied on any further claims and evidence, although the representative wrote on 29 March 2013 that he was not aware of any. The Department’s reasons for granting [the applicant’s brother-in-law] and his family protection are also unclear. The representative wrote on 29 May 2011 that he would seek a copy of the Department’s reasons, through an FOI application, but the Tribunal has not received any further material.”
As stated above, the applicant submitted that this contained a factual error. I understood this to be that the Tribunal’s reference to (at [15] at CB 207 to CB 208) to not having received any further material from the applicant, which the applicant submitted was “factually incorrect” because the “letter” from the representative did not state that further material was being sent, but rather asked the Tribunal if it wanted further material.
The representative’s letter dated 29 May 2013 stated (CB 197):
“Would you please inform the Member that we have spoken to Craddock Murray Neumann, Lawyers, who represented [the applicant’s brother-in-law] and [the applicant’s sister] on their refugee claims, have advised us that DIAC did not provide their Clients with reasons for the Delegates positive decision. We are aware that this is standard practice. Reasons are only given when there is a negative decision. Accordingly, we will now lodge an FOI Application with DIAC to obtain the reasons for the decision if the Members wishes us to do so.
We should mention that in discussion with [the applicant’s brother-in-law] he has not mentioned any subsequent claims.”
[Emphasis added.]
In short, the Tribunal was in error in characterising the representative’s question as a statement. That is the Tribunal stated that the representative would produce further material and did not do so. Yet the representative had asked the Tribunal if it wanted him to pursue the matter of the Department of Immigration’s reasons for approving the brother-in-law’s protection visa application and to provide reasons for this to the Tribunal.
The applicant’s submission was that this material (the departmental decision record) was “absolutely critical” to the applicant’s case, as it related to his claims to fear harm because of his involvement in the satellite business, and the party.
I further understood the applicant’s explanation of the legal error to be that the Tribunal failed to deal with the applicant’s claim in the Dranichnikov or NABE (No 2) “sense” (see [30] to [31] above). This was said to arise because the decision record (it is not known if any record existed) in relation to the applicant’s brother-in-law, may have contained a further explanation of the applicant’s claims, which the Tribunal accepted was closely linked to the brother-in-law’s claims, and the two sets of claims appeared consistent.
Further, that the Tribunal’s mischaracterisation of what the applicant’s representative said in his letter, its failure to properly understand that a question was being asked of it, and its failure to respond to that question, was a breach of procedural fairness, which left the applicant in a “position of disadvantage”.
It is convenient to deal with the procedural fairness claim first. The representative’s letter (at CB 197) does state that the mechanism (FOI) to obtain the statement of reasons in the brother-in-law’s case would be lodged “if the Member wishes us to do so” (CB 197.8).
At [15] (at CB 207 to CB 208) the Tribunal does make reference to the representative’s letter and relevantly, the Tribunal stated that the “representative wrote on 29 May 2011 [in context this should be read as 2013] that he would seek a copy of the Department’s reasons, through an FOI application”.
On its face, the Tribunal’s characterisation of the representative’s question as a statement was not an accurate reflection of what the representative actually wrote.
The question posed by ground one however, requires a focus on whether any breach of procedural fairness occurred as a result of this. This requires, as the Minister submitted, consideration of the entirety of the relevant circumstances in evidence before the Court.
The applicant applied for review of the delegate’s decision on 31 January 2013 (CB 130). He was represented by a registered migration agent.
The Tribunal acknowledged the application in a letter sent to the applicant, through his representative, on 1 February 2013 (CB 138). Amongst other things, the letter stated (at CB 139):
“If you wish to provide material or written arguments for the tribunal to consider, you should do so as soon as possible. Submissions and future correspondence can be provided to the tribunal by email to ‘[email protected]’”
In its letter of invitation to a hearing before it, dated 12 February 2013, the Tribunal also noted (CB 143):
“Please use this form or attach additional information if you have any requests or any new information which you wish the tribunal to consider”
The applicant’s representative made written submissions to the Tribunal on 20 March 2013. Other than a mere reference to his having left Iran with his brother-in-law (CB 148.8) there was nothing in these submissions about any consistency with the brother-in-law’s claims, or that they were accepted by the delegate who considered the brother-in-law’s application (CB 148 to CB 158).
The Tribunal hearing was held on 25 March 2013 (CB 163). Following the hearing the applicant’s representative made further submissions on 8 April 2013 (CB 169 to CB 175). Apart from a broad, and in context, unexplained reference to “his sister’s and brother-in-law’s claims for refugee status” there is nothing about any additional claims to be found in the delegate’s decision concerning the applicant’s brother-in-law.
On 9 April 2013, the applicant’s representative sent an “untranslated” copy of an Iranian Court document to the Tribunal with the advice that he had arranged to have it translated into English (CB 176).
Importantly, and of direct relevance to the applicant’s argument now, on 19 April 2013 a Tribunal officer wrote to the applicant’s representative confirming that the Tribunal was still awaiting the translated version of the Court document. The Tribunal officer also wrote (at CB 180):
“In your statement of claims, you stated that you travelled to Australia with your sister … UDU014), brother-in-law (… UDU121) and your nephew, … UDU019). The Tribunal understands that each of these people has sought protection in Australia. You may wish to consider – if you are in contact with your relatives and they are willing to assist you with any relevant material – whether you wish the Tribunal to also take into account their statements of claims, any Department decision, etc.
This is not a request or invitation. The Tribunal will allow another fourteen days for any submissions, and will not proceed to a decision before 3 May 2013.”
[Emphasis in the original.]
The applicant’s representative responded (at CB 181):
“We refer to your message dated 19th April 2013. Would you please forward the attached accredited translation to the Member …
We have also requested advice from our Client on the matters raised in your message and will forward a response to you as soon as possible.”
[Emphasis added.]
The applicant’s representative further wrote to the Tribunal on 26 April 2013 (at CB 184):
“We refer again to your fax dated 19th April 2013 and attach a copy of the email dated 29th March2013 and a copy of the attached court document. The original email had been deleted by our Client’s brother. He asked the sender to resend it.
Also, would you please advise the Member that [the applicant’s sister], [the applicant’s brother-in-law] and [the applicant’s nephew] are willing to assist [the applicant] with any relevant material. Accordingly, [the applicant] wishes the Tribunal to also take into account their statements of claims etc. when assessing his claims.”
On 30 April 2013 the Tribunal officer wrote to the applicant’s representative in the following terms (CB 189):
“To avoid any misunderstanding, the Member wishes to confirm that it will be up to [the applicant] to provide any further submissions by 3 May 2013, including any material relating to his relatives’ protection claims. The Tribunal will not be undertaking further enquiries in this regard. The Member will have regard to all the material before him when finalising the matter.”
[Emphasis added.]
As stated above, on 3 May 2013 the applicant’s representative sent a copy of the brother-in-law’s claims to protection to the Tribunal with the submission that “the Statement is consistent with and supports our Client’s claims” (at CB 190 and see the statement at CB 191 to CB 193). Further, on 22 May 2013 the applicant’s representative advised the Tribunal that the brother-in-law had “been found to be a Refugee by the DIAC delegate” (CB 194).
The Tribunal officer responded on 23 May 2013. Relevantly, she stated (CB 196):
“Thank you for the written advice that [the applicant’s] brother-in-law has been found to be a refugee. The Tribunal received a copy of his original statement of claims.
The Member advises that the material before him indicates that [the applicant’s] brother-in-law originally presented similar claims to those of [the applicant], but it does not indicate the basis on which he was ultimately given protection (for instance, whethere there were any subsequent claims or on what reasoning he obtained protection). If [the applicant] wishes the Tribunal to consider any further materials, he should submit them promptly.”
[Emphasis added.] [Errors in the original.]
It is in this context that the applicant’s representative sent his letter dated 29 May 2013, the terms of which are reproduced above (at [35]).
What is immediately apparent is that throughout this correspondence the Tribunal emphasised that it was for the applicant to submit whatever material he wanted the Tribunal to consider in support of his claims. There was no suggestion that the Tribunal was seeking any information or would provide any advice as to what information he should submit. This approach is consistent with the proposition that it is up to the applicant to make out his case (Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575, SZNOX v Minister for Immigration and Citizenship [2009] FCA 1233 and Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155).
At no point did the Tribunal ask the applicant’s representative or the applicant to obtain any documents. For example, as the Tribunal made clear in its letter of 19 April 2013 (CB 180 and see [50] above) it was not requesting or inviting the submissions of any document from the applicant. What he chose to submit was a matter for him.
It must be said that, in the circumstances, the representative’s “question” to the Tribunal can only be seen as disingenuous. The applicant’s representative, as a registered migration agent, would be expected to have a certain level of competence in these matters. Why in the circumstances he asked the Tribunal’s view as to whether it wanted the applicant to obtain the delegate’s decision record, relating to the applicant’s brother-in-law, remains unexplained. Ultimately, in the circumstances, it was reasonably open to the Tribunal, given the clear and repeated advice to the applicant and to his representative, to take the view that in reality, the representative was seeking to say he was considering whether or not to press the FOI application.
It must also be said, in all the circumstances set out above, that the applicant’s argument now based solely on the words “if the Member wishes us to do so” is selective in its presentation. As the applicant’s representative went on to say in the same letter he had spoken to the brother-in-law who had “not mentioned any subsequent claims” (CB 197).
If the delegate’s decision record did not contain any further claims, that may or may not have also applied to the applicant, then what remained unexplained is why the decision record was of any relevance to this Tribunal’s consideration such that the Tribunal member should be invited to indicate whether he wished the applicant’s representative to obtain it.
What is not expressly made clear in the applicant’s representative’s correspondence, but which remains as a clear inference to be drawn from his letters of 22 and 29 May 2013 and from the applicant’s submissions now, is the seeming inconsistency between a delegate in the brother-in-law’s case finding, on claims that were “closely linked” and “appear consistent”, that the brother-in-law was a refugee, yet the delegate and subsequently the Tribunal found the applicant not to be a refugee.
In that light, the applicant’s representative’s “request” of the Tribunal in his letter of 29 May 2013 achieves some meaning otherwise not apparent given the Tribunal’s very clear and emphatic statement that it was not asking for anything from the applicant.
That is, the applicant’s representative sought to direct the Tribunal’s attention to the “inconsistency” that would arise if it did not find the applicant to be a refugee when another delegate had found the brother-in-law to be a refugee. The short answer to this is that the Tribunal was not “bound” in the applicant’s case to take a similar view of the, albeit, “consistent” claims, as that taken by the delegate in the brother-in-law’s application.
Given the Tribunal’s repeated, clearly stated position, and given that the applicant’s representative should have known that it was for the applicant to make out his case, and also in circumstances where the Tribunal had not given any indication that it wanted the delegate’s decision record, it was, in my view, reasonably open to the Tribunal to proceed on the basis that the applicant’s representative was going to pursue the FOI request for the delegate’s decision and that, subsequently, no further material was submitted.
It is also important to note again that the legal errors, as pleaded in ground one are a breach of procedural fairness and a failure to deal with an integer of the applicant’s claims.
There was no pleading or even argument that the Tribunal’s conduct, even if it were to be said that it had misrepresented what the applicant’s representative stated, was legally unreasonable.
In terms of procedural fairness the applicant had ample and reasonable opportunity to present his case. On the applicant’s representative’s submission (at CB 197.7), the brother-in-law had not mentioned “any subsequent claims”. That is, the Tribunal had before it all of the applicant’s claims, including those to be derived from his close, and consistent link, with the brother-in-law’s claims. However, even if the Tribunal can be said to have made some factual error in reporting the applicant’s representative’s question as a statement, it is the case that not all factual errors reveal jurisdictional error.
On the evidence before the Court, the Tribunal considered all of the applicant’s claims and each integer of those claims. It was reasonably open to the Tribunal to find that, notwithstanding the close connection between the applicant’s claims and the brother-in-law’s claims, there were distinguishing features which meant it could not be satisfied that the applicant satisfied either of the criteria for the protection visa.
The applicant has not made any submission, nor has he identified before the Court, or provided any evidence to say, that there was some claim in the brother-in-law’s case to be found in “his” delegate’s decision which may have applied to the applicant. To the contrary, the evidence before the Court is that there were no “subsequent claims” at least none “mentioned” by the brother-in-law. In all, ground one is not made out.
Ground two asserts that the Tribunal misapplied the law, or in the alternative failed to ask the correct question. Again the explanation before the Court of these alleged legal errors did not align with the ground as pleaded.
The focus of the applicant’s argument before the Court appeared to be the Tribunal’s finding (at [16] at CB 208) that the brother-in-law had a “higher profile than the applicant”.
The applicant’s submission was that the “correct” question for the Tribunal was not whether the brother-in-law had a higher profile than the applicant, but rather, the Tribunal should have “asked”, that is, considered, the “consequences” or the impact of the charges made against the applicant by the Iranian authorities arising from “the party”.
Although the applicant’s submissions before the Court made repeated assertions of what he said was the correct question that the Tribunal should have asked, this was no more than an attempt to cavil with the Tribunal’s findings.
On a fair, if not a plain reading, of the Tribunal’s analysis, the Tribunal understood, and subsequently addressed, the relevant questions (see [6] at CB 206):
“The issues before the Tribunal are:
Does the applicant have a well-founded fear of Convention-related persecution?
·The 2009 alcohol arrest and conviction;
·The applicant’s involvement in the satellite dish business;
·The applicant’s political opinion, actual and imputed;
·Potential particular social groups;
·The applicant’s passport and travel arrangements;
·The treatment in Iran of failed asylum seekers; and
·Refugee protection: summary.
(If the applicant is not a refugee) is he eligible for complementary protection?
Is the applicant a member of the same family unit as the holder of a protection visa?”
It is to be remembered that it was the applicant himself, and his representative, who, as part of his claims, raised the issue of having travelled to Australia with his sister, brother-in-law and their son. He made references to them in his statement of his claims that revealed some connection between them, to both the matter of the party, and the satellite business which were important elements in the applicant’s claims.
In these circumstances, it was appropriate for the Tribunal to write to the applicant to confirm whether he wanted the Tribunal to take their statements of claims and Departmental decisions into account. The Tribunal did this in its letter of 19 April 2013 (CB 180).
The Tribunal did have regard to their claims and the outcome of their claims following the applicant’s response and the submissions made by his representative. Given that this issue had become part of the applicant’s case, the Tribunal was obliged to do so.
In this context, the Tribunal found points of distinction between the applicant’s circumstances and those of, relevantly, his brother-in-law. These findings were all reasonably open to the Tribunal on what was before it. The Tribunal gave cogent reasons for these findings probative of what had been put before it.
The applicant’s attempt now to argue that the Tribunal asked the wrong question in this regard is, in the circumstances, selective in its attempt to mischaracterise what the Tribunal has done.
In short, the totality of the Tribunal’s decision record shows that it asked the correct questions required by the statute. It considered the applicant’s argument as to why he said he satisfied the relevant criteria, as that argument arose from his statement that his claims had a close link to his brother-in-law’s claims. Ground two is not made out. It is no more than an attempt to cavil with the Tribunal’s relevant findings of fact.
Ground three asserts that the Tribunal failed to take into account certain relevant considerations. These were as follows. One, the applicant had been convicted in 2009 of drinking alcohol. Two, the applicant gave to the Tribunal a copy of an Iranian Court summons in relation to the satellite business. Three, that the applicant was a member of the family unit of a person who was the holder of a protection visa.
In submissions before the Court, it became clear that the complaint was not that the Tribunal failed to take into account a relevant consideration which it was obliged to consider as explained in such authorities as Minister for Aboriginal Affairs v Peko Wallsend [1986] HCA 40; (1986) 162 CLR 24 (“Peko Wallsend”).
Rather, as foreshadowed with his reliance on Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291 (“Khan”), the complaint was that the Tribunal was required to give “proper, genuine and realistic consideration to the merits of the case” (per Gummow J (Fed Court) at [25]).
More recently, the High Court in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [30] stated that care must be taken with this concept given the danger of the Court falling into impermissible merits review. Given the evidence before the Court, that is precisely what the applicant’s argument before the Court invited the Court to do.
Contrary to the applicant’s ground as pleaded, there is no doubt, on a plain reading of the Tribunal’s decision record, that it did consider each of these claims. Further, it did give proper, genuine and realistic consideration to each of the matters identified in the applicant’s ground three in the sense that I respectfully understood the Court in Khan to require.
First, in submissions to the Tribunal, received by it on 20 March 2013 (CB 147 to CB 158), the applicant’s representative made reference to a Court document concerning the applicant relating to his being “sentenced” as a result of the party at his sister’s house in 2009 (CB 148.9). A copy of the document was attached (CB 159 and CB 161), as was a translation (CB 160 and CB 162).
The Tribunal acknowledged receipt of the submission and the attached document in its decision record ([19] at CB 208 to CB 209). Further, the Tribunal noted what it said was the “relevant information” in the document ([19] at CB 209).
In essence the applicant sought to explain his ground in relation to this particular as follows. The Court document set out that the applicant had been found guilty of “injuring public chastity and illegitimate relationship and drinking alcohol”. He was fined, and a sentence of 20 lashes was suspended.
The applicant’s brother-in-law and sister were also found guilty of “multiple charges”. They were sentenced to six months imprisonment, 40 lashes, and a fine was imposed.
The applicant’s argument is that in essence the applicant was to receive 20 lashes, the brother-in-law 40. The question of a higher or lower profile is irrelevant because, in essence, whether the punishment is 20 or 40 lashes, 20 lashes is still serious and significant. The Tribunal, therefore, did not take into account a relevant consideration being the seriousness of being sentenced to 20 lashes. The matter of being sentenced to lashing was accepted by the Minister’s delegate as constituting serious harm. In all, the argument was that in this circumstance the Tribunal failed to give proper genuine consideration to the applicant’s claim in light of the Iranian Court document, particularly in circumstances where the same Court document was used in the brother-in-law’s case to obtain a protection visa.
What is immediately apparent from the Tribunal’s decision record is that it did give consideration to the Court document. The Tribunal referred to the document and set out its relevant and essential features ([19] at CB 208). It considered the applicant’s evidence at the hearing relevant to the party ([20] – [21] at CB 209). It took into account the brother-in-law’s evidence about the party ([23] at CB 209 to CB 210).
However, the Tribunal set out, extensively, its concerns about the applicant’s evidence (at [24] at CB 210). It found that the inconsistencies in the applicant’s evidence, “his inability to provide further details about his claims” and his “lack of apparent enquiry about matters directly involving himself, family and friends, all cast doubt about the credibility of his claims” ([25] at CB 210 to CB 211).
The Tribunal gave specific consideration to the Court document. It found for reasons open to it on what was before it, that “there are questions about what weight and meaning to attach to the document”, and set these out at [26] of its decision record (at CB 211).
In light of the entirety of its antecedent findings in relation to the party, which included the Court document, the Tribunal found that the applicant was not convicted of an offence in 2009 that resulted in the sentence the applicant claimed.
This was reasonably open to the Tribunal. In essence, the applicant is aggrieved by the Tribunal’s conclusions in relation to the party and the antecedent findings that informed it. The applicant’s ground in this regard seeks impermissible merits review.
Second, the applicant says that the Tribunal committed a similar error, as above, in relation to a copy of a Court document summoning the applicant to appear in person before an Iranian court on 9 June 2012 in relation to the claimed satellite business charges.
Although the ground as pleaded refers to the legal error as a failure to take into account a relevant consideration, and as generally explained in submissions, referred to a failure to give proper consideration, the specific complaint in relation to this document was that there was an insufficient logical or evidentiary basis for the Tribunal to place “very little weight” on this document.
The Tribunal did consider the Court summons document (see [31] at CB 212 to CB 213, at dot point 3). The ground, as pleaded in relation to this particular, fails. The Tribunal did give proper, genuine and realistic consideration to the document (see [31] at CB 212 to CB 213, at dot point 3). The ground, as “expanded” in argument also fails.
Although not pleaded, the applicant also sought to impugn the Tribunal’s finding in this regard by asserting either illogicality, or to rely on a “no evidence” charge.
The Tribunal’s analysis was that it had put to the applicant at the hearing country information about the availability of fraudulent documents in Iran, and that there was a need for “details”, such as the provenance of the document, in determining what weight should be given to the summons (see [31] at CB 212 to CB 213, at dot point 3).
The Tribunal found there was “very little information” about the provenance of the document and how it was “transmitted” to Australia. The Tribunal did take the document into account. It did give it proper, genuine and realistic consideration. The Tribunal’s assignment of weight is of course a matter within jurisdiction for the Tribunal (Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510). The Tribunal’s finding cannot be said to be illogical. In any event, the applicant’s charge was that there was “insufficient” logic. That submission was never satisfactorily explained.
The allegation that there was “insufficient” evidentiary basis to place very little weight on the document misunderstands the Tribunal’s relevant task and mischaracterises the Tribunal’s reasoning.
The Tribunal’s assignment of very little weight arose from a variety of elements in the evidence presented. This was the applicant’s oral evidence itself, including what he failed to mention, and would have been expected to mention, the availability of fraudulent documents, and the absence of any satisfactory evidence as to the provenance of the document. In all, again, the applicant seeks impermissible merits review.
The third particular at ground three was explained by directing attention to the Tribunal’s decision record at [57] (at CB 218) to [58] (at CB 219):
“[57] The applicant’s sister and his brother-in-law [the applicant’s brother-in-law] are holders of protection visas, although it is unclear whether they have obtained these on the basis that they meet s.36(2)(a) or s.36(2)(aa) of the Act. The applicant did not claim to satisfy either s.36(2)(b) or s.36(2)(c) on the basis that he is a member of the same family unit as his sister or brother-in-law.
[58] The Tribunal is satisfied that the applicant is a relative (that is, a ‘close relative’, the brother) of his sister, and that she is the spouse of [the applicant’s brother-in-law]. [the applicant’s brother-in-law] spoke of the applicant as being like a ‘kid brother’, and the Tribunal is satisfied that they have a close relationship. However, the applicant is in his late twenties, and lived in his parents’ home and is not usually resident in [the applicant’s brother-in-law]’s household: r.1.12(1)(e). The Tribunal is not satisfied that he is a member of the same family unit as the holder of a protection visa.”
The applicant argued before the Court that the applicant “most definitely was a part of the family unit”. The argument appeared to be that the Tribunal accepted he was a “close relative” of his sister, and by extension her husband, his brother-in-law and, therefore, was a member of their family unit.
As set out above, the Tribunal had regard to the relevant definition of “same family unit” as it appears at r.1.12(1) of the Regulations:
“(1) For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head ) if the person is:
(a) a spouse or de facto partner of the family head; or
(b) a dependent child of the family head or of a spouse or de facto partner of the family head; or
(c) a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or
(e) a relative of the family head or of a spouse or de facto partner of the family head who:
(i) does not have a spouse or de facto partner; and
(ii) is usually resident in the family head's household; and
(iii) is dependent on the family head.”
Before the Court, the applicant’s counsel assumed that the Tribunal’s finding that he was a close relative was sufficient to meet the definition, and the Tribunal’s subsequent finding that he was not a member of the same family unit as the holder of a protection visa was, therefore, not reasonably open to it. Given what transpired at the hearing before the Court it was clear that the applicant’s counsel had not looked at, let alone considered, the relevant regulatory definition. Given the terms of r.1.12(1)(e) of the Regulations, and the relevant evidence before the Court, the Tribunal’s finding was reasonably open to it. The applicant’s particular merely seeks to cavil with this finding.
The ground as pleaded is not made out. Even if this ground was to be understood as a failure to consider claims then the Tribunal did take into account the three matters set out in the particulars. As set out above, the various attempts in submissions to assert some other jurisdictional error in relation to the three particulars are also not made out.
Ground four asserts that there was an insufficient connection between the decision and the “materials” relied upon to make that decision.
The particulars to the ground assert that the legal error was that there was an insufficient logical or evidentiary basis for the Tribunal’s decision and the material before it (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130] – [131] and [133]), and that the Tribunal failed to consider corroborative evidence (Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99).
The submissions before the Court proceeded in a similar fashion as with the other grounds. That is, based on an imprecise pleading of an allegation of legal error, the submissions then proceeded to attempt to “broaden” the scope of legal errors asserted.
Ultimately, I understood the applicant’s position to be as follows. At [16] (at CB 208), the Tribunal made findings that the applicant’s initial statements in support of his claims to protection were closely linked to the brother-in-law’s statements and that the two sets of statements appeared consistent.
At [32] (at CB 213), the Tribunal found that the applicant had been generally consistent in the broad outlines of his claims over time. Further, the Tribunal said it took into account the brother-in-law’s evidence and the “advice” given by the applicant’s representative that what was given in evidence by him may have formed the basis for him and his family to obtain protection in Australia. However, at [24] (at CB 210) the Tribunal found it had significant concerns about the applicant’s account and his evidence as a whole.
The applicant’s complaint before the Court was that this was not logical. That is, it was illogical of the Tribunal to find on the one hand, that the applicant’s claims were consistent over time with his brother-in-law’s claims, claims that led to his being given protection and which corroborated the applicant’s claims, yet on the other hand impugn the credibility of the applicant and to find he was not owed protection.
The applicant’s ground is misconceived and it must be said selective in its focus. It is certainly the case that the Tribunal made the findings on which the applicant now relies. That is, in essence, the connection between the applicant’s claims and the brother-in-law’s claims.
However, as is also clear on any plain, let alone a fair, reading of the Tribunal’s analysis, its concerns arose from the applicant’s own evidence, notwithstanding the brother-in-law’s corroborative evidence.
The Tribunal’s concerns about the applicant’s evidence are set out and explained in detail at [24] (at CB 210) to [26] (at CB 211). These led it to reject the factual basis of the applicant’s claims as they were said to arise from the consequences of “the party”, the “satellite business” and his return as a failed asylum seeker (see [27] at CB 211).
There is no lack of logic in the Tribunal’s approach. As the Minister correctly submits, as Crennan and Bell JJ stated in SZMDS (at [133]) the correct approach is “to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it”.
The applicant also said in submissions that he relied on SZMDS at [130] – [131] and [133]. However, the applicant appears not to have understood that the fact that he is aggrieved by the Tribunal’s findings and could come to a different conclusion, does not make the Tribunal’s decision illogical.
What sits at the heart of the applicant’s complaint and, it must be said, underlying all his grounds, including ground four, is the notion that in effect the Tribunal, and for that matter the delegate in the applicant’s case, found adversely to the applicant in relation to claims which were broadly consistent with claims made by the applicant’s brother-in-law and in respect of which another delegate found differently.
That does not make this Tribunal’s decision illogical. First, the Tribunal is not bound by a decision made by a delegate in relation to another person, no matter how closely the claims to protection may be aligned. As Justice Heydon said in SZMDS “[w]hether or not all minds would share that thinking, it is not thinking which is illogical” (at [84]).
Second, the applicant’s ground ignores the entirety of the analysis made by the Tribunal. As the Tribunal made clear the appearance of consistency between the claims made by the applicant and his brother-in-law was limited to “the applicant’s initial statements” (see [16] at CB 208).
The Tribunal’s concerns about the applicant’s claims emerged at the hearing with the nature and character of the applicant’s own evidence (see [24] at CB 210 in relation to the 2009 party). The applicant has not brought any evidence to the Court to challenge the Tribunal’s account of what was said at the Tribunal hearing. The Tribunal’s various findings that it had “difficulty eliciting meaningful details” from the applicant, inconsistencies between his initial statement and his oral evidence, the “very little peripheral information” and the other “numerous inconsistencies” in his evidence were all findings, on the evidence before the Tribunal, which were reasonably open to it.
The Tribunal then proceeded to express in its decision record that it found “gaps and anomalies” in the applicants evidence about the satellite business ([31] at CB 213). While the applicant’s account in this regard was said to be generally consistent over time in its broad outlines, and even in light of the corroborating evidence from the brother-in-law, the Tribunal was still “troubled” by the applicant’s claimed conduct and the “inconsistencies and anomalies” in his evidence. Ultimately there was no evidence before the Court to contradict the basis for Tribunal’s finding that it was the applicant’s own evidence that “he had only a peripheral role in his brother-in-law’s activities” ([32] at CB 213).
The Tribunal proceeded to a similar analysis of the applicant’s claims in relation to his passport and travel arrangements, political opinion, particular social groups and treatment of failed asylum seekers.
Even if there was some initial consistency between the applicant’s and brother-in-law’s claims in certain parts of their accounts, and even if there was some consistency over time in other parts, the Tribunal’s findings in relation to this application arose from an analysis of all of the material and evidence before it. Including the applicant’s own evidence. All these findings were reasonably open to it on the material before it.
The allegation of “no evidence” must be rejected. The evidence, in great part, on which the Tribunal relied for its adverse findings was the applicant’s own evidence.
A second element in the applicant’s submissions in relation to ground four (although not pleaded) was that the Tribunal failed to consider the corroborative evidence of the brother-in-law (with reference to SZRKT).
This submission appeared to take issue with the Tribunal’s analysis at [23] (at CB 209 to CB 210). At [23] the Tribunal did consider the brother-in-law’s evidence relating to the 2009 incident, the party. That submission cannot succeed in light of what is set out there. The Tribunal did consider the corroborative evidence.
However, it is clear that the applicant’s complaint here and his reliance on SZRKT is misplaced. The real complaint is with the Tribunal’s finding that it could only place “some limited weight on the [brother-in-law’s] evidence as support for the applicant’s claims” ([23] at CB 210).
Again this merely seeks to take issue with factual findings made by the Tribunal which were reasonably open to it on what was before it. The Tribunal explained why it assigned limited weight to this evidence. This explanation was cogent. The finding arose reasonably from the evidence. In all ground four is not made out.
Conclusion
Nor is there is anything in the submissions to indicate jurisdictional error in the Tribunal’s decision. In all, the grounds do not reveal jurisdictional error. The application should be dismissed. I will make an order accordingly.
I certify that the preceding one hundred and thirty-three (133) are a true copy of the reasons for judgment of Judge Nicholls
Date: 23 September 2016
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Procedural Fairness
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Judicial Review
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Natural Justice
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Statutory Construction
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