SZVBB v Minister for Immigration
[2015] FCCA 2305
•25 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVBB v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2305 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious protection in India – applicant not believed – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 353, 361, 420, 425A, 426, 429, 441C |
| CZBH v Minister for Immigration [2014] FCA 1023 SZCSC v Minister for Immigration [2007] FCA 418 |
| Applicant: | SZVBB |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2524 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 25 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 25 August 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr M Smith |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The name of the second respondent is amended to the Administrative Appeals Tribunal.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2524 of 2014
| SZVBB |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant’s protection claims and the decision of the Tribunal on them are summarised in the Minister’s outline of legal submissions filed on 18 August 2015.
The applicant applied for a protection visa on 25 June 2013, which was refused by the Delegate on 24 January 2014. He sought review of the Delegate’s decision in the Tribunal. The applicant’s central claim was that Muslims in his area in India would harm him because of activities he and his father had carried out for certain political parties and because they were Hindu priests[1].
[1] Court Book (CB) 85 at [2]
The Tribunal concluded that the applicant was not credible in relation to his claims.
It noted that the applicant had failed to mention in his protection visa application that he had lived in the United Kingdom from 2007 to 2012 and that he had failed to inform the Tribunal that he had lived in Saudi Arabia from 1990 to 1998[2]. The Tribunal noted that the applicant’s claim that he opened a shop upon his return from Saudi Arabia in 1998 but was forced to close the shop in 2006 before fleeing to Great Britain in 2007 was inconsistent with his earlier evidence to the effect that the only the difficulties he had during the period 1992 to 2007 were those that led the applicant to close his shop in 1992 and work as a priest, during which time he also undertook political activities[3].
[2] CB 86 at [11]
[3] CB 87 at [12] and 86 at [8]
The Tribunal also noted that the applicant had given inconsistent evidence about what occurred after he had approached a Muslim man to tell him to leave a woman alone. When asked whether his temple was set on fire, the applicant said he could not remember, yet in his statement lodged with his visa application the applicant had said that a mob had set fire to his temple and there was communal violence[4].
[4] CB 87 at [13]-[14]
The Tribunal also noted that the applicant had given inconsistent evidence about how his father had been killed, and in particular what occurred following the incident. In his written statement, the applicant had said that the incident triggered communal rioting, whereas at the Tribunal hearing the applicant claimed that he could not recall anything happening after the incident[5].
[5] CB 88 at [17]
The Tribunal also did not accept the applicant’s evidence about why he did not take steps to seek protection while he was living in Great Britain[6].
[6] CB 88-89 at [19]
For the foregoing reasons, the Tribunal did not accept that the applicant was credible in his claims. In light of the credibility findings it made, the Tribunal did not place weight on certain documents that purported to corroborate his claims.
In the result, the Tribunal did not accept the applicant had a well-founded fear of persecution, concluding as follows[7]:
The Tribunal finds credible no more than that the applicant is a Hindu man from a district in Kerala where his wife and children live. While in his written statement the applicant referred to disturbances between Hindus and Moslems in his local area, there is no credible evidence that this applicant or any member of his family have ever been harmed in India. He told the Tribunal that there was a Moslem Jihadi group which would harm him on return to India but, when asked, why that was so, he said it was related to the events he claims occurred before he came to Australia. For the reasons given above, the Tribunal finds that those claims are false and there is not a real chance this applicant will suffer serious harm in India. He does not hold a well-founded fear of persecution based on any convention ground.
[7] CB 90 at [24]
The Tribunal also found, for similar reasons, that the applicant did not meet the complementary protection criterion in s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act).
These proceedings began with a show cause application filed on 11 September 2014. There are two grounds in that application upon which the applicant continues to rely:
1.The first respondent committed jurisdictional error when determining whether it could hear from witnesses overseas, as requested by the applicant and did not give genuine consideration to his request, failing to perform the statutory duty required of it by s.426(3) of the Migration Act 1958:
Particulars
a. The applicant requested evidence be taken from his wife and brother in India and provided their telephone numbers to the Tribunal. At paragraph [22] the Tribunal determined that it would not contact them as they could not ascertain their identity and that ‘proceedings before the Tribunal are in private and the Tribunal told the applicant at the hearing if it was to telephone his wife and brother those calls could be intercepted and the privacy of the hearing would be breached.’
b. The Tribunal’s reasoning for refusing to take evidence from overseas witnesses was not a proper concern, and therefore, they failed to give genuine consideration to the request: see SZCSC v Minister for Immigration and Multicultural Affairs [2007] FCA 418.
2. Relying on the above particulars, the first respondent committed jurisdictional error as it failed to perform the statutory duty required of it by s.420 of the Migration Act 1958.
I have before me as evidence the court book filed on 10 October 2014 as well as the short affidavit by the applicant which accompanied the application.
I gave directions in this matter on 16 October 2014. At that time I dispensed with the need for any preliminary hearing and listed the matter for a final hearing today. I directed the filing of pre-hearing submissions. In the event, only the Minister filed written submissions. Counsel for the Minister also made oral submissions.
The applicant unfortunately was at a disadvantage due to a lack of legal training. Although the grounds in the application are clearly expressed and probably were prepared with legal assistance, the applicant was not in a position to advance oral arguments to support the grounds. Counsel for the Minister properly made detailed oral submissions which addressed authorities which on their face might appear adverse to the Minister’s position.
The focus of the Minister’s submissions was properly on the first ground. There is in my view no real substance in the second ground for the reasons advanced by the Minister at [32] and [33] of his submissions which I adopt.
The applicant contends that the Tribunal’s failure to call the applicant’s wife and brother meant that the Tribunal failed to perform the statutory duty require of it under s.420 of the Migration Act.
In Minister for Immigration v Li[8] at 343 [12], French CJ, drawing upon the High Court’s earlier observations in Minister for Immigration v Eshetu[9], concluded that the requirements set out in s.420 (or s.353) of the Migration Act are not “expressed in terms or in a context which would support a claim of jurisdictional error based on the non-observance of any of them”. The applicant’s challenge to the Tribunal’s decision based on s.420 of the Migration Act must therefore fail.
[8] (2013) 249 CLR 332
[9] (1999) 197 CLR 611
In his first ground of review, the applicant contends that the Tribunal fell into jurisdictional error because, contrary to s.426(3) of the Migration Act, it did not give genuine consideration to a written request made by the applicant that evidence be obtained from the applicant’s wife and brother.
In contrast, the first ground raises an issue of significance. The Tribunal dealt with the issue at [22] and [23] of its reasons[10]:
In addition, in his response to the hearing invitation, the applicant gave the name of his wife and brother in India and their telephone numbers for the Tribunal to contact them and receive evidence from them over the telephone. The Tribunal is cautious in taking evidence from witnesses over the telephone from other countries without the benefit of having those persons before the Tribunal in person to be able to certain their identity and that they are giving an independent account of events. Further, proceedings before the Tribunal in person to be able to be certain of their identity and that they are giving an independent account of events. Further, proceedings before the Tribunal are in private and the Tribunal told the applicant at the hearing that if it was to telephone his wife and brother those calls could be intercepted and the privacy of the hearing would be breached.
The applicant said that his wife and brother would tell the Tribunal that he had to leave India because of the difficulties he had with Moslems due to his political activities. The Tribunal decided not to telephone the applicant’s wife and his brother because it could not see that this would benefit the applicant in the assessment of his credibility. The concerns about his credibility set out above so significantly discredit him as a witness that claims made by witnesses in other countries purporting to corroborate what he said would not persuade the Tribunal that this applicant has given a truthful account. In the Tribunal’s view, they would only be attempting to corroborate what is a false account.
[10] CB at [89] and [90]
Essentially, the Tribunal advanced three reasons for declining to telephone the applicant’s wife and brother in India. The first was that the Tribunal was concerned about the need to be certain of the identity of the persons giving evidence and their capacity to give an independent account of events. The significance of that concern will vary from case to case. In cases such as the present where the witnesses are close relatives the question of identity may be less significant than in cases where the proffered witness is claimed to be a public figure. In any event, as it is conceded by counsel for the Minister, identity can be established through the process of questioning.
Secondly, the Tribunal stated that Tribunal proceedings are in private[11]. The Tribunal apparently told the applicant at the hearing that if it was to telephone his wife and brother those calls could be intercepted and the privacy of the hearing would be breached. To my mind, that would not be a persuasive reason for the Tribunal to decline to contact a witness by telephone or other electronic means. The Tribunal regularly conducts hearings by telephone or video-link. I would be surprised if the phone or video-link facilities in India were any more prone to interception than in Australia.
[11] See s.429 of the Migration Act
Significantly, and as was pointed out by counsel for the Minister, the Tribunal merely stated at [22] its caution about taking evidence by telephone for those reasons. I accept the Minister’s submission that the real reason why the Tribunal did not contact the proffered witnesses was that set out at [23] of the Tribunal’s statement of reasons.
It is plain that the Tribunal had formed a completely adverse view about the applicant’s credibility. The Tribunal’s adverse credibility findings were both emphatic and comprehensive. At [24], the Tribunal states that[12]:
[It] finds credible no more than that the applicant is a Hindu man from a district in Kerala where his wife and children live.
[12] CB at [90]
This was, in my view, a case where the applicant’s credibility had been destroyed beyond redemption. It can properly be described as a poisoned well case. It has long been accepted that the where a Tribunal has made findings adverse to the credibility of an applicant before it, there is no error in giving what appears to be corroborative documents no weight as they had been undermined by the adverse credibility finding[13].
[13] Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 70 [49]
In the circumstances some analogy can be drawn from cases where the Tribunal properly declined to give weight to documentary evidence that could not alter a credibility outcome. Counsel for the Minister took me to three decisions bearing upon this issue. The first is Minister for Immigration v Maltsin & Anor[14]. The relevant principle is set out at [38] of that decision:
The question is whether the Tribunal did genuinely apply its mind to the notice given by the applicant within time.
[14] [2005] FCAFC 118; (2005) 88 ALD 304
The second decision is that of CZBH v Minister for Immigration[15], in particular, at [58]:
As pointed out in that paragraph, there will be cases like the present where an applicant’s credibility is so compromised that hearing further oral evidence of a corroborating witness could not affect the outcome.
[15] [2014] FCA 1023
The third case is W360/01A v Minister for Immigration[16] which on its face weighs in favour of the applicant. Counsel for the Minister submits, however, that on an analysis of the Full Federal Court’s reasons at [3] and [26], the present case can be distinguished on its facts. I accept that submission. I otherwise agree with the Minister’s written submissions.
[16] [2002] FCAFC 211
Section 426, the central provision in these proceedings, provides as follows:
Applicant may request Refugee Review Tribunal to call witnesses
(1) In the notice under section 425A, the Tribunal must notify the applicant:
(a) that he or she is invited to appear before the Tribunal to give evidence; and
(b) of the effect of subsection (2) of this section.
(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.
In the present case, the applicant was sent a hearing invitation dated 25 June 2014 pursuant to s.425A[17] and is taken to have received it on 4 July 2015[18]. On 7 July 2014, (that is, within seven days of the date of notification of hearing) the applicant responded, indicating that he requested that the Tribunal take evidence from his wife and brother and that they could be contacted on the telephone numbers provided[19].
[17] CB at [68]
[18] By virtue of s.441C(4), if the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document (a) if the document was dispatched from a place in Australia to an address in Australia--7 working days (in the place of that address) after the date of the document; or (b) in any other case--21 days after the date of the document. Given that the hearing invitation was sent on 25 June 2014, the applicant is deemed to have received it on 4 July 2014
[19] CB at [71]
There is no doubt that the conditions for the exercise of the Tribunal’s discretion under s.426(3) had arisen. The effect of s.426(3) is that the Tribunal is obliged to have regard to any notice given by an applicant under sub-ss 361(2) or (2A) of the Migration Act. Thus[20]:
… [T]he Tribunal must genuinely apply its mind to the contents of the notice and, in particular, to the question whether it should take the oral evidence of the nominated individuals in accordance with the applicant’s wishes. The Tribunal must not merely go through the motions of considering the applicant’s wishes as expressed in the notice. … It follows that the consideration that the Tribunal gives to the wishes of the applicant concerning the evidence to be taken at the hearing must also be genuine. The Tribunal must not decline to comply with the applicant’s wishes capriciously, but must take account of such relevant matters as the relevance and potential importance to the outcome of the review of the evidence that could be given by a nominated witness … the sufficiency of any written evidence that has already been given by a witness, and the length of time that would afford the applicant a fair opportunity to put his or her case before the Tribunal. These considerations flow from the nature of the Tribunal’s overarching objective, which is to provide a review that is “fair, just, economical, informal and quick”: see s 353(1). The Tribunal must bear in mind this statutory objective when considering the weight to be given these matters.
[20] C.f. the situation in Haidari v Minister for Immigration & Anor [2009] FMCA 1178 at [70]
To similar effect are the comments of Rangiah J in CZBH v Minister for Immigration, where his Honour noted that[21]:
[a] myriad of factors may influence a Tribunal’s decision to obtain oral evidence or its decision not to do so. These factors include the relevance and importance of the proposed evidence, whether written evidence is sufficient for the Tribunal’s purposes, whether taking the evidence would cause undue delay, the ease or difficulty of contacting the proposed witness and the availability of a suitable interpreter. In an appropriate case, the Tribunal might decide that the evidence of an applicant is so compromised that hearing the oral evidence of a corroborating witness could not affect the outcome: cf Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002[2003] HCA 30; (2003) 77 ALJR 1165 at [49] per McHugh and Gummow JJ.
[21] [2014] FCA 1023 at [58]
A number of points should made about the Tribunal’s findings.
The first is that it is plain that the Tribunal[22] (to use the language of Kenny and Lander JJ in Maltsin at [38] did not act “capriciously” and did not “merely go through the motions of considering the applicant’s wishes as expressed in the notice”. It gave active consideration to the critical factors identified in Maltsin, including most significantly, “the relevance and potential importance to the outcome of the review of the evidence that could be given by a nominated witness”.
[22] C.f. the situation in Haidari at [70]
Secondly, in SZCSC v Minister for Immigration[23], the Tribunal refused the visa claimant’s request to take evidence from certain witness orally by telephone because it “would have no guarantee about who was at the other end of the line”. Mansfield J doubted whether that constituted a sufficient reason, although his Honour was of the view that the Tribunal was permitted to have regard to privacy issues. In the present case, and unlike in SZCSC, the Tribunal only expressed concerns about such matters, and the critical factor was the importance of any evidence to be given by the applicant’s wife or brother.
[23] [2007] FCA 418
Thirdly, it is apparent from the structure of the Tribunal’s reasons that the Tribunal decided not to call the applicant’s wife or brother after it had heard the applicant’s evidence, being evidence which led the Tribunal to conclude that the applicant’s credibility had been damaged beyond repair. As such, no suggestion that the Tribunal had prejudged the issues arises and there exists no principle that prevents a decision-maker from indicating his or her views relating to the credibility of an applicant having heard all the evidence in the matter. The situation is akin to a decision-maker refusing to consider what appeared to be corroborative documents[24].
[24] Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 70 [49]
It is also important to note that the circumstances of the present case are different to those in either W360/01A or CZBH.
In W360/01A, the Tribunal did not allow the appellant to call a witness to testify that the appellant had left Iran illegally. The Tribunal had said that even if the appellant established this asserted fact, it would not assist his claim because of other problems with his evidence. That the appellant had left Iran illegally, however, only formed part of the factual basis for the appellant’s claims. The key plank in the appellant’s claim to fear persecution was that he said various things at a job interview, although the appellant’s account of what he had said at the interview changed during the course of the visa-application process.
The Tribunal found that the appellant’s claim concerning what happened at the job interview was “inherently implausible” and did not accept the appellant’s claim that he was of interest to the Iranian authorities. It was in this context that the Tribunal said as follows about the appellant’s request that the Tribunal take evidence from a Mr Ramezani about whether the appellant had escaped Iran illegally:
I have considered whether the evidence of this witness would assist me. In my view evidence from a witness that the applicant had left Iran [illegally] would not overcome the problems with the applicant’s evidence identified above. I have therefore decided that taking evidence from the applicant’s witness would not be of assistance to me. In relation to this, I note that the applicant did not suggest that the witness would give evidence about any aspect of his claims other than that to do with his alleged illegal departure[25].
[25] See at (2002) 124 FCR 449 at 455-456
The Full Federal Court held that the Tribunal’s decision to refuse to contact Mr Ramezani meant it had fallen into jurisdictional error. As Finkelstein and Lee JJ said:
Here the Tribunal did not accede to the appellant's request to call a witness who would testify that the appellant had left Iran illegally. The Tribunal said that even if the appellant were to establish this asserted fact, it would not assist his claim because of other “problems” with his evidence. We think that in taking this view the Tribunal misunderstood its responsibilities. The appellant asserted a number of facts which he asked the Tribunal to accept. … [I]f the appellant was telling the truth about asserted fact A that might suggest that he was also telling the truth about asserted facts B and C. On the other hand, if it were shown that the appellant was dishonestly asserting the existence of asserted fact D, that would be taken into account when the Tribunal decided whether it should be satisfied that other asserted facts were true, or might be true. So, for example, if the Tribunal accepted the appellant's assertion that he had left Iran illegally, the Tribunal would be obliged to take that into account when considering whether it should accept as true, or as possibly true, the balance of the appellant's claims. Moreover, a finding that the appellant had left Iran illegally would also require the Tribunal to consider why the appellant had done so. There may be a variety of explanations. One explanation might be that the appellant feared for his safety. If the Tribunal formed the view that this was the reason why the appellant left Iran illegally, it would necessarily take that into account in deciding how to deal with the appellant's account of past events. Accordingly, for the Tribunal to say that it would be unassisted by the evidence of the witness whom the appellant wished to call, shows that the Tribunal had a false appreciation of its task[26].
[26] (2002) 124 FCR 449 at 450-451 at [3]
To similar effect are the comments of Carr J, where his Honour said:
Its reasons disclose, in my opinion, that the Tribunal, having reached credibility findings against the appellant on other matters, sought to reconstruct what might have been the evidence given by Mr Ramezani and has stated that that evidence would not overcome the problem with the appellant's evidence which it had earlier identified.
In my opinion, in doing so the Tribunal so misconducted itself as to have fallen into jurisdictional error. It deprived itself of the opportunity to consider relevant evidence having the capacity to corroborate the appellant's claims in a material respect …
The Tribunal should have heard the evidence from Mr Ramezani about the appellant's illegal departure from Iran. It should have decided whether it was going to believe that evidence or not. If it did accept that the appellant had left Iran illegally, it would have had to have considered why he would have done that.
The significance of the illegal departure was not simply that the most likely penalty that the appellant would face would be a fine. His illegal departure was an inherent part of the appellant's claims to have been persecuted and to have left Iran clandestinely for that reason[27].
[27] (2002) 124 FCR 449 at 456 [29]-[32]
Properly understood, what their Honours were saying is that the Tribunal ought to have taken evidence from Mr Ramezani in relation to whether the appellant had left Iran illegally because, if the evidence from Mr Ramezani had been accepted, that might have the effect of burnishing the credibility of the appellant’s claims generally.
In the present case, the applicant had told the Tribunal that his wife and brother “would tell the Tribunal that he had to leave India because of the difficulties he had with Moslems due to his political activities”[28] Critically, and unlike the visa-claimant in W360/01A, the applicant did not point to any additional asserted fact (about which his wife and brother could give evidence) which, if accepted, could be said to have burnished the appellant’s credibility which, by the stage, had been damaged beyond repair. The circumstances are therefore different from those in W360/01A, which does not govern the present case. To adopt the language of Rangiah J in CZBH, the Tribunal had legitimately decided that “the evidence of an applicant [was] so compromised that hearing the oral evidence of a corroborating witness could not affect the outcome”.
[28] CB 89 at [23]
The facts of the present case also different from those in CZBH. In CZBH, the Tribunal did not provide any reason explaining why it chose not to take evidence from the appellants’ fathers. In the absence of reasons, Rangiah J was unable to discern an evident and intelligible justification for its decision. Moreover, unlike in CZBH, the Tribunal in the present case had formed the view that obtaining the oral evidence of the applicant’s wife and brother could not have affected its view of the credibility of the applicant, which Rangiah J accepted was a factor to which a decision-maker may legitimately have regard in determining how to exercise the power under s.426(3).
I conclude that the applicant has failed to demonstrate that the Tribunal fell into jurisdictional error in the exercise of its power under s.426(3) of the Migration Act. Further, there was no jurisdictional error arising from s.420 of the Migration Act.
The decision of the Tribunal is therefore a privative clause decision and the application must be dismissed. I so order.
I order that the name of the second respondent be amended to the Administrative Appeals Tribunal.
In consequence of the dismissal of the application the Minister seeks an order for costs. The applicant did not wish to be heard on costs. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 31 August 2015
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