SZUYL v Minister for Immigration

[2016] FCCA 405

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUYL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 405

Catchwords:
MIGRATION – Application for review of the Tribunal decision – whether Tribunal breached s.425 of the Migration Act 1958 (Cth) – whether Tribunal’s finding was illogical or unreasonable – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R, 422B, 424A, 425, 476, Pt. 7

SZRHL v Minister for Immigration [2013] FCA 1093
SZSNW v Minister for Immigration & Anor [2014] FCCA 134
Minister for Immigration v Singh [2014] FCAFC 1; (2014) 308 ALR 280
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592
SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486
SZIMM v Minister for Immigration & Anor [2008] FMCA 34
SZQSP v Minister for Immigration & Anor [2012] FMCA 890
SZRRX v Minister for Immigration & Anor [2013] FMCA 84
SZTQS v Minister for Immigration & Border Protection & Anor [2015] FCCA 978
Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069
SZTPL v Minister for Immigration & Anor [2016] FCCA 361
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
SCAN v Minister for Immigration & Anor [2002] FMCA 129
NBDY v Minister for Immigration & Anor [2004] FMCA 658
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505
Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147; (2012) 207 FCR 211
Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265

Applicant: SZUYL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2357 of 2014

Judgment of: Judge Nicholls

Hearing date: 12 November 2015

Date of Last Submission: 12 November 2015

Delivered at: Sydney

Delivered on: 4 March 2016

REPRESENTATION

Counsel for the Applicant: Mr P W Bodisco

Solicitors for the Applicant: Australian Business Underwriter

Counsel for the Respondents: Mr B O’Donnell

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application made on 22 August 2014 and amended on 4 November 2015 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $6646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2357 of 2014

SZUYL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) made on 22 August 2014 and amended on 4 November 2015 seeking review of the decision of the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”), made on 21 July 2014 which affirmed the decision of the Minister’s delegate to refuse a Protection (Class XA) visa to the applicant.

Before the Court

1. In evidence before the Court is the bundle of relevant documents filed by the Minister (“the Court Book” – “CB”) and the affidavit of Laiyi Li, clerk, made on 30 October 2015 annexing a copy of the transcript of the Tribunal hearing (“T”) (see further below). Both parties have also filed written submissions which are before the Court.

Background

1. The applicant arrived in Australia on 1 May 2013 as a visitor (CB 14). He applied for a protection visa on 23 July 2013 (CB 1 to CB 59, including annexures). He was assisted in his application by a registered migration agent (CB 27). He claimed to be a citizen of India who had been born in Bangladesh (CB 12 to CB 13).

2. Included with his application was a statement outlining his claims to fear harm (CB 57 to CB 59). He claimed that in June 1986 his family was targeted by a “local political leader”, “Mr Ajgar”, who demanded that his father sell their land to him for a “lot less” than the market rate because the applicant’s family was part of the Hindu minority (CB 57.6). Mr Ajgar threatened that if the applicant’s father did not comply, he would make their life “miserable in every possible way”.

3. The applicant claimed that three months later, Mr Ajgar again threatened his father, “slapped” him in front of the applicant, and told him that if he did not transfer the property he would “lose” the applicant (CB 58.2). That night the applicant’s father asked him to leave and stay with relatives in a different village.

4. The applicant left for India on his father’s urging in January 1987. In his application, he noted that he acquired Indian citizenship in 1988 (item 21 at CB 13 and CB 58.5). In India he joined the “Communist Party of India Marxist” (“CPI(M)”). He returned to Bangladesh in 1990 to visit his family with an “Indian travel pass” that he obtained with the assistance of the local “CPI(M) leaders”. He claimed that he was forced to “flee” Bangladesh in 1992, after a riot “among Muslim majority and Hindu minority”. He claimed that before he could flee, he was “captured” by Mr Ajgar who asked for a ransom, in the form of land being registered in Mr Ajgar’s name, from his father. After his father paid the ransom, the applicant left Bangladesh “with no hope of return”, and his family moved to a relative’s house (CB 58.7).

5. When the applicant returned to India he continued his involvement with the CPI(M). He claimed that the CPI(M) were targeted by “Trinomool activists”, and in December 2012 he was assaulted by a group of 6 people whom he believed where Trinomool activists (CB 58.9). He claimed that one of them said “you little pig, you have caused us stri[f]e in the election” and then continued to hit him (CB 59.1). After this, the applicant did not feel safe in India, and wished to leave India. Therefore, in March 2013 he, and his wife, applied for “Australian Tourist visa”, which were granted. Relevant to the application before the Court, the applicant claimed that he used his Indian passport as his “formal identity” (CB 59.5).

6. The delegate refused the grant of the visa on 28 March 2014 (CB 65 to CB 84). The delegate had concerns about the “credibility and veracity of the applicant’s claims” (CB 74). The delegate did not accept that the applicant was attacked because of his membership of the CPI(M) for a number of reasons, including inconsistencies between his written statement and his statements at the interview with the delegate (CB 75 to CB 76). Further, that the applicant had delayed in leaving India and delayed in the lodgement of his visa application. Relevant to the application before the Court, the delegate accepted that the applicant had a “valid” Indian passport.

7. The applicant applied to the Tribunal for review of the delegate’s decision on 23 April 2014 (CB 85 to CB 111). He was again assisted by a registered migration agent (CB 87). The applicant and his representative attended a hearing before the Tribunal on 17 July 2014 (CB 122).

8. The Tribunal affirmed the delegate’s decision on 21 July 2014. The Tribunal noted that the “issues” in the matter before it were the credibility of the applicant, his purported Indian citizenship and, following any findings made on these, his claims to fear harm on return to India.

9. The Tribunal noted that the applicant’s passport stated that he was born in New Barrackpur, West Bengal, in India, not in Bangladesh ([18] at CB 142). It noted that it discussed with the applicant whether he was a citizen of India or Bangladesh and his responses were as follows ([32] at CB 145 to [33] at CB 146):

   “[32] The Tribunal discussed with the applicant whether he was in fact a citizen of India. He said his first passport was obtained for him by an agent and with the help of ‘the party’. He ‘paid some money’ and they arranged a passport for him. It was put to him it had obvious false information on the face of the document, in that he was not born in New Barrackpur in West Bengal. He said he had no other documentation to prove he was an Indian citizen. It was put to him that it seemed it may not be genuine and the Tribunal considered this, of itself, didn’t evidence citizenship. He said he paid money for it and an agent obtained the first one for him in 1988. He was asked to comment on the Tribunal considering it was fraudulent and said ‘whatever you think’. The Tribunal asked the applicant why, if he had a problem in his local area, he couldn’t go and live elsewhere in India. He said this was as he only spoke Bengali and didn’t know the language in other places, further he would ‘need a lot of money’ to settle elsewhere. He said his sons attended school, but spoke only Bengali. He claimed that the language of instruction at school was only Bengali. The Tribunal put to him it was of the understanding the language of instruction at schools in India was Hindi and English.

   [33] The Tribunal put to the applicant that if he had citizenship of both India and Bangladesh then his application for a protection visa was invalid (referring to section 91M of the Act). He commented ‘I don't know’.”

10. The Tribunal accepted “little” of what the applicant had claimed as true, and found that he was not a credible witness ([34] at CB 146). In particular, the Tribunal did not accept that the applicant had been associated with the CPI(M), that he was assaulted by a group of men in December 2012, and his claim before it that he had travelled overseas frequently.

11. Further, the Tribunal considered the applicant’s claim to be a citizen of India in the context of its credibility findings and found ([35] at CB 146 to [37] at CB 147):

    “[35] I have considered the applicant’s claim of being an Indian citizen in the context of the above findings and also my observations as put to the applicant at hearing as to the apparent false information evident on the passport. That false information is that the applicant was not born in New Barrackpur in West Bengal. A further examination of the document also shows that the wet stamp of the passport office in Kolkata is on the face of it almost certainly faked. The issuing office is said to be ‘MINISTRY OF EXTERNAL AFFAIRES’. The Ministry official website spells Affairs correctly, that is without an ‘e’. I do not accept as reasonable to believe that an official government agency in India would spell their name incorrectly on an official stamp. I find that the passport is fraudulent. I do not accept that it evidences citizenship of India. I find it has been obtained by the applicant through an agent by corrupt means.

    [36] I am prepared to accept that the applicant has been living in India for many years illegally. I am also prepared to accept that this has been facilitated by his obtaining falsified Indian documentation. I do not accept that he is a citizen of India. I do not accept that he has renounced or lost his Bangladesh citizenship. I do not accept that the obtaining of a falsified Indian passport in any way renounces such Bangladesh citizenship. I find he is a citizen of Bangladesh.

    [37] I will accordingly access the applicant’s claims against Bangladesh. In doing so I note my findings and consider that the applicant’s claims as against India of being assaulted there or harmed by anyone are not true. I consider his claims relating to India as opportunistic and have been made for the purpose of advancing his clams for a protection visa.”

12. The Tribunal noted that the applicant had “concerns” about what he would do and how he would earn money if he were to return to Bangladesh. It considered his previous fear of harm in Bangladesh, those stemming from Mr Ajgar, but found that on the applicant’s own evidence he had returned to Bangladesh on a number of occasions since ([38] at CB 147). It did not find these concerns to be of a type of harm that would rise to serious or significant harm within the definitions in the Act (see s.36(2)(a) and (aa), s.36(2A) and s.91R of the Act).

Application Before the Court

1. The application before the Court, as amended on 4 November 2015, contains the following grounds:

   “GROUND ONE:

   The RRT has made a finding so illogical and unreasonable that no reasonable person would have made it.

   Particulars

   a. The RRT has made a decision that the Applicant produced a fraudulent Passport at paragraph [35] of the decision on the basis that the document was said to be issued by the ‘Ministry of External Affaires’ and that the Ministry official web site spells Affairs ‘correctly, without an ‘e’’.

   b. The proposition that the name of the issuing office was misspelt was not put to the Applicant.

   c. The word ‘affaires’ is the French spelling of the word - as used on international Passports since 1920.

   GROUND TWO:

   The Applicant had been denied procedural fairness and/or the Tribunal breached section 425 of the Migration Act.

   Particulars

   The Applicant was denied  a  meaningful  opportunity  to  give  evidence  and  present arguments and/or the RRT has failed to act in a manner ‘fair and just’ towards the Applicant in circumstances where:

   a. The Applicant was not put on notice as to his credit being in issue regarding his passport - thereby denying him the opportunity to lead further evidence on the point;

   b. The Tribunal did not put the Applicant on notice as to research conducted on the web site regarding the spelling there used by the Ministry of External Affairs.

   GROUND THREE

   The RRT has failed to apply the test in Briginshaw v Briginshaw (1938) 60 CLR 336 to the findings that the Passport issued to him was ‘almost certainly faked’

   Particulars

   a. The Tribunal erred in making a finding of fraud against the applicant in that it did not apply the proper test at law in doing so, taking into account the gravity of the allegation and the need for strict or cogent proof when doing so.”

Consideration

1. A number of preliminary matters require note. First, the applicant was represented by a firm of solicitors before the Court who filed a notice submitting to the orders of the Court save as to costs. This was subsequently explained as having been filed in “error”.

2. Second, before the Court, the applicant, through his counsel, sought to read the affidavit of Laiyi Li, clerk, made on 30 October 2015 and to which was annexed a document said to be a transcript (“T”) of the Tribunal hearing.

3. Mr Li states in his affidavit that he “prepped the transcript” after listening to, presumably a recording of, the hearing. No evidence is given as to what Mr Li actually listened to.

4. The transcript cannot be said to have been professionally, or even competently, prepared. For example, at one part relied on by the applicant before the Court (T13.5), it is clear that what is attributed to the Tribunal member, was actually an answer given by the applicant. This is but one of a large number of “errors” in the transcript.

5. The Minister did not formally object to the reading of the affidavit. The Minister took the practical, and fair, view, that the deficiencies of the transcript could be addressed and dealt with in the hearing before the Court to the extent that the transcript was relevant to any of the applicant’s grounds.

6. It is to be noted that the Minister submitted that the errors in the transcript were not of a “biased or partisan” type, they were errors arising from a lack of competence and care.

7. It is understandable that solicitors representing applicants before the Court may wish to keep costs at a minimum. However, it does not serve the interests of the administration of justice, or those of their client, to present a transcript of poor quality to the Court.

8. Third, the applicant sought to tender a bundle of documents, which appeared to be “downloaded” from the internet, said to go to the proposition that passports “are drawn up in at least two languages… the natural language [of the issuing country] and in French”.

9. The documents were provisionally admitted to allow the applicant to explain their relevance in the context of the ground to which the question of passports was said to relate (ground one).

Ground One

1. Ground one of the amended application asserts that the Tribunal made a finding that was so illogical and unreasonable that no “reasonable person” would have made it.

2. The particulars direct attention to the Tribunal’s finding that the applicant provided a “fraudulent” passport. The Tribunal’s relevant statement is set out at [35] at CB 146 (see above at [13]).

3. While ground one is pleaded as one of illogicality and unreasonableness, the particulars also assert a failure of procedural fairness. For convenience, I have addressed that aspect of ground one under the consideration of ground two which asserts a breach of s.425 of the Act.

4. Before the Court, the applicant, ultimately, directed attention to the copy of the relevant part of the passport (at CB 50) and the copy of the stamp that appears on one page of the passport containing the words “Ministry of External Affaires Kolkata”.

5. The applicant asked the Court to take note that the word “Affaires” was in the “French spelling”. I understood the argument to be that an inference arises that the word is compatible with the French spelling of the English word “Affairs”.

6. The copy of the passport in the applicant’s name (at CB 50) was, given the notation on the face of that reproduction, a copy of the original presented to the Minister’s department on 29 July 2013. The applicant also referred to what appears to be a copy of the same page of the same passport received by the Minister’s department on 14 March 2014 (CB 62).

7. These references to the passport pages were part of lengthy submissions by the applicant referring to various parts of the processes involved in the applicant’s application for the protection visa including various claims made by the applicant. It must be said the relevance of this entire exposition was not satisfactorily explained in the context of the ground as pleaded.

8. At best, it appeared the argument was that the applicant was not put on notice by the Minister’s department at any time as to any concerns regarding the “fraudulent nature of this document”. How this was said to reveal jurisdictional error in the Tribunal’s decision was also not satisfactorily explained. In any event, the matter of “notice” to the applicant is dealt with in ground two below.

9. As I understood ground one, the applicant’s argument was that the Tribunal’s finding that the passport was fraudulent was illogical and unreasonable. This was said to be because the Tribunal did not take into account that what it found to be a “spelling error”, may in fact not have been an error, because the spelling of “Affaires” as it appears on the stamp on the passport may be attributable to the French language.

10. The applicant asked the Court to note that French was the language of “the diplomatic corps” following a 1920 resolution of the League of Nations which resulted in passports been issued in two languages, French and the language of the country of origin.

11. At best, I also understood the applicant’s submissions to attempt to link this particular finding to the entirety of the Tribunal’s decision in the following way.

12. The Tribunal found the passport to be a fraudulent document. This finding arose from its illogical and unreasonable conduct in not taking into account that the word “Affaires” represented a French spelling of the word “Affairs”. This led to the “damning” of the applicant’s credit arising from a “false premise”. The Tribunal’s entire decision arose from its adverse conclusion as to the applicant’s credibility. Thus, the Tribunal’s error infected its entire decision.

1. The applicant’s written submissions made reference to a number of authorities concerning illogicality and unreasonableness (SZRHL v Minister for Immigration [2013] FCA 1093, SZSNW v Minister for Immigration & Anor [2014] FCCA 134 and Minister for Immigration v Singh [2014] FCAFC 1; (2014) 308 ALR 280). However, in his oral submissions the applicant did not satisfactorily explain the nature of the legal test on which he sought to rely to make out his ground. The references to authorities that were made in relation to ground one appeared to properly relate to ground two.

2. In any event, as the Minister submitted, the relevant test, in light of the ground as pleaded, and to the extent that ground one was explained before the Court, is whether the Tribunal’s decision was so illogical or unreasonable that no logical or reasonable decision maker could have come to it (see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 and SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1).

3. There are a number of answers to the applicant’s ground.

4. First, the applicant’s proposition that his credibility was “damned” simply because of the “misspelling” of “Affaires” must be rejected. The Tribunal found that the applicant was not a credible witness. This was based on a number of findings none of which had anything to do with the stamp on the passport or the “misspelling” of “Affaires”. See, for example, the three dot points set out at [34] of its decision record (at CB 146).

5. Second, the “misspelling” of the word “Affaires” on the stamp was only one of a number of factors and findings that led the Tribunal to find that the Indian passport was fraudulent.

6. As the Tribunal made clear, it considered the applicant’s claim to be an Indian citizen “in the context” of its earlier adverse findings as to his credibility ([35] at CB 146). None of those findings had anything to do with the stamp in the passport. In the circumstances, the Tribunal was entitled to proceed, and consider, his claim to be an Indian citizen in light of the earlier finding that he was not a credible witness.

7. Further, the Tribunal’s conclusion was influenced by what it observed at the hearing with the applicant to be the “false information” on the passport as to the applicant’s place of birth. This was reasonably open to the Tribunal. Again, the Tribunal’s analysis here did not relate to the stamp on the passport.

8. The applicant’s argument now that the Court can take judicial note of the fact that in the 1920’s some countries adopted the practice of using the French language in addition to their own language on the passport, can equally be met by the Court taking judicial note that Australian passports, and for that matter the passports of many other countries, have not used the French language for many years.

9. In any event, and ultimately, such an argument does not assist the applicant in making out his ground of unreasonableness or illogicality. Simply, having regard to the relevant test, it was reasonably open to the Tribunal to find that “Affaires” was a misspelling on the stamp in the passport in the circumstances presented in this case.

10. Further, there was no evidence before the Tribunal that the passport itself contained any French spelling of words. On what is now before the Court the passport was in the English language and in the Hindi language. That some international practice existed in the 1920s that included the use of the French language on passports of non-French speaking countries, must be seen in light of the evidence before the Tribunal that this passport (presented by the applicant) contained words only in the English and Hindi languages.

11. Further, there was no evidence from the applicant, or explanation given to the Tribunal when the matter was raised by it, as to why a department of State in India, in 2011, would identify itself (on the stamp) using the French language and to do so with regard to one word. It is also of relevance to note that the word “Affaires” appeared on a stamp in a passport, neither of which contained any other French words.

12. In these circumstances, the Tribunal’s finding that “Affaires” was a misspelling (and not a French word) was entirely open and reasonable and not so illogical or so unreasonable that no reasonable decision maker could have made it. As the Minister submitted, even if a different decision maker may have given different weight to the matter of the misspelling this does not, in the circumstances, make the Tribunal’s finding illogical or unreasonable. Ground one is not made out.

Ground Two

1. Ground two asserts a denial of procedural fairness because of a breach of s.425 of the Act. The explanation for the ground was that the applicant was not put on notice by the Tribunal that his credit in relation to the passport was in issue. He was thereby denied the opportunity to put relevant evidence to the Tribunal on this point. Further, the Tribunal did not put the applicant on notice as to the research conducted in relation to the spelling used by the Indian Ministry of Foreign Affairs in relation to the stamp on the passport.

2. In oral submissions, the applicant sought to develop an argument that he had used this passport on a number of occasions to travel, and had also submitted this passport to the Minister’s department. However, the Tribunal did not raise any concerns with the applicant that the document could not have been used for travel.

3. Given the applicant’s pleading of a denial of procedural fairness by the Tribunal in relation to its obligation under s.425 of the Act, attention must be given to the explanation and direction provided by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 (“SZBEL”). In particular, SZBEL at [36] is of relevance:

   “It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.”

4. In essence, the Minister’s position was that the “mischief” that the High Court sought to address, and avoid, is that an applicant may not give evidence or present arguments about an issue in the review because he or she was “misled” by the delegate’s decision into thinking that his or her arguments had been accepted in relation to that issue, or was not aware that the issue was in the Tribunal’s consideration an issue in the review.

5. In the current circumstances, the relevant question raised by the applicant’s ground is whether the applicant was an Indian citizen, or not, and whether this needed to have been raised with the applicant at the hearing with the Tribunal and, if so, whether the Tribunal properly did so. There can be no doubt that the applicant’s citizenship was an issue in the review. Within this context, the question also arises as to whether the genuineness, or otherwise, of the Indian passport, which was one of the factors that led the Tribunal to find that the applicant was not an Indian citizen, was also an issue in the review, or a part of the issue relating to nationality.

6. There is some authority to say that there is a distinction between what is an issue in the review and the substratum of facts to that issue (SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 per Bennett J, SZIMM v Minister for Immigration & Anor [2008] FMCA 34 at [41] – [72] per Judge Barnes, SZQSP v Minister for Immigration & Anor [2012] FMCA 890 and SZRRX v Minister for Immigration & Anor [2013] FMCA 84).

7. However, that must now be further understood in light of SZTQS v Minister for Immigration & Border Protection & Anor [2015] FCCA 978, which the Federal Court upheld on appeal (Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069.

8. As I said in SZTPL v Minister for Immigration & Anor [2016] FCCA 361 at [52] – [53] and [61] – [64]:

   “[52] In SZTQS, the Court explained the direction given by SZBEL to the degree of particularity required in the task of identifying ‘the issue’ in a review for the purposes of s.425(1) of the Act. Noting, of course, that the language of s.425(1) of the Act directs attention to what the Tribunal ‘considers’ to be the issue, or issues, on the review (SZTQS at [48] – [57]).

   [53] The Federal Court, in applying this to the circumstances in SZTQS, stated (SZTQS at [58]):

   ‘That is not the case here. As the primary judge found, the Tribunal made a factual conclusion, which was a necessary link in the Tribunal’s chain of reasoning in rejecting SZTQS’s claim, without any notice to SZTQS that the conclusion might be made or that the factual question was in issue. That factual conclusion was to the effect that the applicant would only be detained for a short period because a member of his family would provide surety and he would be granted bail.’

   …

   [61] There is authority that distinguishes between an issue (that is caught by the obligation in s.425 of the Act) and the substratum of facts to that issue (which is not so caught) (SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 per Bennett J,  SZIMM  v Minister for Immigration & Anor [2008] FMCA 34 at [41] – [72] per Judge Barnes, SZQSP v Minister for Immigration & Anor [2012] FMCA 890 and SZRRX v Minister for Immigration & Anor [2013] FMCA 84).

   [62] That, however, in my respectful view, must now be understood in light of the analysis and direction provided by the appellate Court in SZTQS. That is, in each case it is necessary to identify the issue with sufficient particularity and (SZTQS at [52]):

   ‘…In doing so, it should be recalled that what is, and what is not, an issue for the purposes of s 425(1) of the Act may be affected by what matters the Tribunal considers may be important to its decision (SZBEL at [47]). The matters identified as issues in SZBEL were matters that had led the Tribunal to reject SZBEL’s claim (see at [20]).’

   [Emphasis added.]

   [63] Further, in addition to [58] (set out above [53] above), and in particular, I respectfully note [59] of SZTQS:

   ‘Nor does SZMUF assist the Minister’s case. As Flick J stated there at [22]:

   Wherever the line may be drawn in individual cases, a party must be sufficiently put on notice of those matters which place him in a position where he can meaningfully avail himself of an opportunity to be heard.’

   [64] In my respectful view, the Court in SZTQS made clear that the determination (arising from what the Tribunal considers) of what is an issue requires a degree of specificity appropriate to, and relevant to, the particular circumstances presented in any one case. That degree of specificity is also informed by having regard to the concepts of procedural fairness.”

9. In any event, it is not necessary in the current matter to resolve the exact nature of the passport matter in relation to the review. That is, whether it is an issue, a part of an issue, or part of the substratum of facts to an issue. It is clear on any plain reading of the transcript of the Tribunal hearing, put before the Court by the applicant, that the issue of the applicant’s nationality and the Tribunal’s doubts that he was an Indian citizen were put to him at the hearing (see T7, T8 and T13).

10. Further, and importantly, even if the genuineness of the passport was to be characterised as a separate issue, the Tribunal also raised its concerns about the genuineness of the passport with the applicant at the hearing (as above, see T7, T8 and T13).

11. The applicant could have been in no doubt following the hearing that the question of his claimed Indian nationality, and the genuineness of the Indian passport were at issue. Nor could he have been in any doubt that the Tribunal had concerns about his credibility about these matters. Therefore, in the circumstances, although the Tribunal did not raise the “misspelling” of “Affaires” with the applicant, this did not constitute, in the circumstances, a denial of procedural fairness. Particular (a) to ground two is not made out.

12. Particular (b) to ground two complains that the Tribunal did not put the applicant on notice as to research done by it on the internet regarding the spelling of “Ministry of Foreign Affairs”. The applicant’s written submissions made no specific reference to this matter. Similarly, no explanation of the particular was provided before the Court.

13. The applicant’s written submissions did assert that the failure to put specific “allegations” set out at [35] of the Tribunal’s decision record (at CB 146) “enlivens” natural justice obligations outside of the codified obligations imposed by s.422B of the Act (see applicant’s submissions at [21]). The relevance of this, if any, to the circumstances of this case was also not satisfactorily explained in oral submissions.

14. The Tribunal’s procedural fairness obligations in relation to information which it considers would be the reason, or a part of the reason, for affirming the delegate’s decision is a matter dealt with in Division 4 of Part 7 of the Act. Namely, s.424A of the Act. This means that in relation to such information, s.424A of the Act is the exhaustive statement of the natural justice hearing rule (Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252).

15. The information obtained by the Tribunal from the website concerning the spelling of the Indian “Ministry of External Affairs” is information caught by s.424A(3)(a) of the Act, and, therefore, excluded from the obligation in s.424A(1) of the Act. In the absence of any further explanation of this particular by the applicant, it cannot, in the circumstances, assist in making out ground two. In all, ground two is not made out.

16. Ground three asserts that the Tribunal failed to apply the test in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (“Briginshaw”) to the finding that the passport issued to him was “almost certainly faked”.

17. It was not clear from submissions if the applicant’s complaint in ground three related to the Tribunal’s adverse finding about the Indian passport or more broadly to the Tribunal’s adverse findings about the applicant’s credibility.

18. A further difficulty with the applicant’s submissions is that while he appeared to assert some role for the principle explained in Briginshaw, he did not satisfactorily explain how the Briginshaw test applied to matters of this type, or let alone to this specific matter.

19. At best, what emerged from his submissions was that the Tribunal made a comprehensive finding as to the applicant’s lack of credibility. Given the seriousness of this finding, and the findings that informed it, the Tribunal should have applied a greater level of “tolerance” to the applicant’s evidence before finding adversely to his credit.

20. As the Minister submitted, there is no role for the Briginshaw principles in the Tribunal’s analysis in relation to an applicant’s credibility (SCAN v Minister for Immigration & Anor [2002] FMCA 129 and NBDY v Minister for Immigration & Anor [2004] FMCA 658). Of course, an adverse credibility finding in a protection visa matter is serious. However, the Tribunal’s statutory task, and the “proceedings” before it are not adversarial, which was the context in which the Briginshaw principle emerged.

21. The Act requires the Tribunal to reach a requisite level of satisfaction that the criteria for the grant of the visa be met before the visa can be granted (in fact “must” be granted). The relevant tests in relation to the assessment of an applicant’s circumstances in the context of the criteria for the protection visa, as set out ss.36(2)(a) and (aa) of the Act, are the “real chance” and “real risk” tests (Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505, Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147; (2012) 207 FCR 211, Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 and Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559).

22. In this assessment, it is entirely within the exercise of the Tribunal’s jurisdiction to make findings of fact, including findings on credibility (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). In the current case the Tribunal made findings reasonably open to it on what was before it, and for which it gave cogent reasons. The Tribunal explained why it did not believe the applicant’s evidence in critical elements of his claims.

23. The Tribunal is not a Court exercising criminal, or relevant to Briginshaw, matrimonial jurisdiction. It is a Tribunal created by statute and tasked with assessing and evaluating an applicant’s claims, in this case, to protection in Australia.

24. The applicant’s submissions, as indeed the particulars to the ground, appear to assert that an “allegation” was made of particular “gravity” against the applicant. This is a misleading characterisation of what occurred before the Tribunal.

25. On the evidence before the Court, the Tribunal gave the applicant the opportunity to give his evidence and explain his claims to protection. The Tribunal had concerns with central parts of the applicant’s evidence. It put these concerns to him. The Tribunal is not required to uncritically accept the applicant’s evidence (Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265).

26. The Tribunal did not make a grave “allegation” in the sense contemplated by the Court in Briginshaw. Rather, the Tribunal made a finding adverse to the applicant’s credibility. There is no jurisdictional error in these circumstances. Ground three is not made out.

Conclusion

1. No jurisdictional error arises from the grounds of the application. It is appropriate to, therefore, dismiss the application. I will make an order accordingly.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 4 March 2016