SZVZV v Minister for Immigration

[2016] FCCA 2337

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVZV & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2337

Catchwords:
MIGRATION – Application for review of former Refugee Review Tribunal decision – whether the Tribunal breached s.425 – whether the Tribunal breached s.424AA – whether the Tribunal was biased – whether there was no evidence upon which the Tribunal could make certain findings – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal’s exercise of power was unreasonable – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001 (Cth), rr.1.06, 13.03C, 44.12, 44.13

Cases cited:

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219
Xie v The Immigration Department [1999] FCA 365

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; 124 ALR 265

First Applicant: SZVZV

Second Applicant: SZVZW

Third Applicant: SZVZX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 124 of 2015

Judgment of: Judge Nicholls

Hearing date: 8 August 2016

Date of Last Submission: 8 August 2016

Delivered at: Sydney

Delivered on: 7 September 2016

REPRESENTATION

Applicants: The second applicant appeared in person and on behalf of the third applicant.

Solicitors for the Respondents: Ms A Wong of Mills Oakley

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. The application made on 19 January 2015 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The second applicant pay the first respondent’s costs set in the amount of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 124 of 2015

SZVZV

First Applicant

SZVZW

Second Applicant

SZVZX

Third 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”) on 19 January 2015 seeking review of the decision of the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”), made on 18 December 2014, affirming the decision of the Minister’s delegate to refuse Protection (Class XA) visas to the applicants.

2. The evidence before the Court is a bundle of relevant documents, filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”), and the affidavit of Mr Toufic Laba Sarkis, “accredited interpreter”, made on 26 May 2015, attaching a transcript of the Tribunal hearing.

Background

1. The applicants are citizens of Lebanon who arrived in Australia as visitors on 12 March 2013. The applicants applied for protection visas on 13 June 2013 (CB 1 to CB 64). They were assisted by a registered migration agent (CB 49). Only the first applicant (“the applicant”) made claims to fear harm. The second applicant (“the applicant’s wife”) and the third applicant (“the applicant’s son”) applied as members of the applicant’s family unit (CB 35 to CB 48).

2. The applicant set out his claims to protection in a Statutory Declaration made on 10 May 2013, provided with the application (CB 52 to CB 55). He claimed to fear harm on the grounds of political opinion and that he would be subjected to “torture, or cruel inhuman treatment or punishment, or degrading treatment or punishment” ([2] – [3] at CB 52).

3. The applicant claimed he was a Sunni Muslim who had lived in a village “approximately 5km from the Lebanese-Syrian border” (“Qabaait”) where young men were “targeted” by both “Hezbollah and radical Sunni elements, such as Wahabi and Al Salafienne” ([10] – [12] at CB 53). He claimed that he “vehemently oppose[d] the violence in neighbouring Syria and in [his] own country and [had] been a vocal critical of Jihad and radicalism” ([14] at CB 53).

4. Further that he had informed “Lebanese intelligence” of the increasing radicalism in his village ([15] at CB 54). Due to this he had been threatened by “both sides”, “threatened with violent retribution for such actions”, and “driven out” out of his home village in September 2012 ([16] at CB 54).

5. The applicant claimed that he continued to be threatened after he relocated by “Hezbollah agents and Salafiene”, and that radicals threatened to rape his daughters if he did not reconsider his position and support them ([17] – [18] at CB 54). Due to these threats he left Lebanon and came to Australia ([20] at CB 54). He claimed that he could not receive protection from Lebanese authorities because radicals dominated north Lebanon and Hezbollah dominated south Lebanon and the Bekaa regions ([19] at CB 54).

6. The delegate refused the grant of the visas on 12 March 2014 (CB 82 to CB 99). The delegate found that the applicant’s claim to have been threatened by extremist Islamic groups was “not credible”, that his claim to have reported extremist groups in his village was “unconvincing”, and found that the applicant did not have a “political profile in Lebanon where he received adverse attention from extremist Sunni or Hezbollah” (CB 92).

7. The applicants applied for review to the Tribunal on 11 April 2014 (CB 100 to CB 106). They were again assisted by a registered migration agent (CB 102). By letter dated 16 October 2014, the applicants were advised that their representative’s registration as a migration agent “was cancelled on 10 October 2014” by the Office of Migration Agents Registration Authority (CB 121). An “Appointment of Representative” form was received by the Tribunal appointing another registered migration agent as the applicants’ representative on 9 December 2014 (employed by the same firm) (CB 135).

8. The applicants attended a hearing before the Tribunal on 10 December 2014. The applicants’ representative had provided written submissions on 9 December 2014 (CB 136 to CB 139), which also attached various country information in the form of media reports about recent attacks in Lebanon (CB 140 to CB 187). The applicants’ previous representative had also provided a “supporting letter from Mayor” of the applicant’s village on 3 November 2014 (CB 123 to CB 124). The applicants’ representative provided further letters of support on 8 December 2014 (CB 204 to CB 209).

9. The Tribunal affirmed the delegate’s decision on 18 December 2014 (CB 213 to CB 221). The Tribunal “did not find the applicant to be a credible and truthful witness” ([18] at CB 216 to [31] at CB 220). It had a number of concerns about the applicant’s claims, the applicant’s and applicant’s wife’s evidence to it, and the documentary evidence provided in support.

10. The Minister has filed written submissions in this matter that include a summary of the Tribunal’s credibility concerns, and its concerns about the genuineness of the documentary evidence provided. I find that this is an accurate summary of the Tribunal’s credibility concerns and adopt them for the purposes of this judgment ([6] – [10] of the Minister’s written submissions):

    “[6] The Tribunal found that the applicant was not a credible, truthful or reliable witness and found that his evidence showed a propensity to manufacture, shift and tailor evidence to achieve his own purpose (CB 216, [18] - CB 220, [31]). On the basis of adverse credibility findings, the Tribunal did not accept that the applicant had interfered with, or antagonised, any extremist group or individual in his village: CB 220, [32]. It did not accept that he was pursued, targeted, threatened or harmed by any group or individual.

    [7] The Tribunal found that the applicant had not presented persuasive evidence of any genuine threat to his safety. His evidence as to why extremist groups were intent on harming him was ‘general, vague, unconvincing and lacked credibility’ and he did not provide any ‘convincing or cohesive evidence’ as to exactly who had targeted him in his village: CB 217, [19]. The Tribunal found that the applicant had not presented convincing evidence as to why he was pursued and singled out for harm. The Tribunal found that it did not appear that he had taken a unique stance by opposing their activities (CB 217, [20]) and country information indicated it was only senior leaders of the Future Movement who were targeted by Hezbollah in northern Lebanon: CB 217, [21].

    [8] The Tribunal also found that the applicant’s own evidence about why he was pursued and targeted was inconsistent with other evidence he had submitted. Specifically, a letter purportedly from the Mayor of Qabaait stated that the applicant was targeted by extremist groups because he had been asked to join them ‘politically’ but had refused. The Tribunal noted that the applicant had never claimed that he was targeted for recruitment and the letter did not refer to the applicant's claim of having interfered with their recruitment attempts: CB 217, [22]. The Tribunal also found that another letter purportedly from the Mayor of Qabaait submitted by the applicant after the Tribunal hearing was a ‘disingenuous attempt’ at addressing the problems in the applicant's evidence. Although the letter pre­dated the Tribunal hearing the applicant had offered no explanation for not providing it earlier or mentioning it at the Tribunal hearing. Further, no explanation was provided for the inconsistencies between the two letters or why the first letter failed to mention the applicant's central claims: CB 218, [23].

    [9] Similarly, the Tribunal had significant concerns about the genuineness of a letter purportedly from the Minister of Justice dated 15 October 2014, which the applicant also submitted after the Tribunal hearing. The Tribunal considered that if the Lebanese Minister of Justice had written a letter in October 2014 in support of the applicant's claims it was reasonable to expect the applicant to provide it at the Tribunal hearing or at least mention its existence. Given the ‘fundamental’ lack of credibility in the applicant's evidence, the Tribunal gave this letter no weight: CB 220, [30].

    [10] The Tribunal found that the applicant's wife's evidence was ‘evasive, vague and unpersuasive’ and inconsistent with the applicant's own evidence in relation to their family's circumstances: CB 218, [24]. It found their evidence was improvised, unconvincing and self-serving which casted serious doubts on their reliability and the credibility of their evidence: CB 219, [27].”

11. Further, the Tribunal found, with reference to country information, that the instability in the relevant region, “lack of general security” or “sporadic terrorist acts” would not “expose the applicant to a real chance of persecution” or “significant harm” ([34] at CB 220 to CB 221 and [36] at CB 221).

Application Before the Court

1. The application before the Court contains numerous paragraphs, often renumbering or changing sequence at different stages. The initial paragraphs appear to be a “summary” of the Tribunal’s findings. The “Grounds of Review” under that heading, are in the following terms:

   “Ground 1: Natural Justice – The Fair Hearing Rules

   20. The Second Respondent breached the rules of natural justice and procedural fairness in connection with the making of the decision by violating the fair hearing rule.

   Particulars

   (a) No Prior Warning of Adverse Credibility Finding in violation of the Migration Act 1958 (Cth) s 425(1)

   21. The second respondent failed to accord the applicant natural justice and procedural fairness as the second respondent based its decision upon a series of adverse credibility findings, particularized at [6]-[20], (a)-(m) above, which rejected out of hand, almost all of the applicant's claims on the basis of credibility, without giving the applicant adequate opportunity to give evidence and present arguments relating to the issues relating to the decision under review, in violation of the Migration Act 1958 (Cth) s 425(1).

   (b) No Opportunity to produce information and no invitation given orally by the Second defendant whilst the applicant was appearing in violation of Migration Act 1958 (Cth) s 424AA(a)(b)

   22. The second respondent failed to accord the applicant natural justice and procedural fairness in violation of the Migration Act 1958 (Cth) s 424AA as the Second Respondent:

   a. did not give the applicant clear particulars of information that the Second Respondent considered was the reason or part of the reason for affirming the decision;

   b. did not ensure the applicant understood why the information was relevant;

   c. did not invite the applicant to comment or respond to the information;

   d. did not advise the applicant that they may seek additional time to comment or respond to the information;

   e. did not adjourn the review so that the applicant has additional time to comment on or respond to the information.

   23. At no point in the Decision Record was section 9IR(3) put to the applicant. Once the second respondent raised and made adverse credibility findings regarding the applicant, the second respondent was required to squarely raise section 91R(3) with the applicant and give the applicant an opportunity to respond to it.

   (c) Failure to Review the Decision in violation of Migration Act 1958 (Cth) s 414

   24. The second respondent failed to properly review the decision by the delegate as it did not accord the applicant natural justice and procedural fairness which in effect deprived the applicant of a fair hearing and the right to give evidence and present arguments in violation of Migration Act 1958 (Cth) s 414.

   Ground 2: Natural Justice – The Bias Rule

   25. The second respondent made a series of adverse findings regarding the credibility of the applicant, particularized at [6] – [20], (a)-(m) above, rejecting out of hand, almost all of the applicant’s claims, on the basis of credibility, which constituted a reasonable apprehension of bias.

   Ground 3: No Evidence

   26. There was no evidence or other material to justify the making of the series of adverse credibility findings by the second respondent, particularized at [6]-[20], (a)-(m) above, which rejected out of hand, almost all of the applicant's claims on the basis of credibility or the second respondent relied on facts, which did not exist.

   Ground 4: Relevant considerations

   27. The second respondent failed to take into account relevant considerations, particularized at [6]-[20], (a)-(m) above, in the exercise of power.

   Particulars

   (a) Adverse Credibility Findings

   28. There were in total 14 adverse credibility findings made by the second respondent as particularised at [6]-[20], (a)-(m) above.

   29. The individual and cumulative effect of those findings meant that the second respondent did not take into account the claims and evidence of the applicant, which the second respondent was required to do.

   Ground 5: Unreasonableness

   20. The second respondent exercise power in a manner that is so unreasonable that no reasonable person could have so exercised the power. Alternatively, the second respondent reasoned illogically or irrationally and the findings lack evident or intelligible justification.

   Particulars

   a) At [19], the second respondent found that ‘the applicant has not ‘presented persuasive evidence of any genuine threat to his safety.’

   b) At [20], the second respondent found the applicant was ‘unable to present convincing evidence as to why he was pursued and singled out for harm by the extremist groups he has referred to.’

   c) At [21], the second respondent found the 'applicant's evidence in relation to Hezbollah's interest in him to be inconsistent with the country information before it and lacking in credibility.’

   d) The findings by the second respondent at [19]; [20] or [21] that the applicant had not presented 'persuasive' or 'convincing' evidence was unreasonable and irrational and lacked intelligent and evident justification.

   e) The applicant presented probative evidence to the second respondent from the Minister of Justice and former General Director of the Interior Forces and from the Mayor of Qabaait, in particular:

   i. A letter from the Minister of Justice, Ashraf Rifi, dated 15 October 2014, who was the former General Director of the Interior Security Forces, which confirmed that the applicant attended the 'secret service branch' in Lebanon on 1 August 2012 and provided information about the existence of terrorist cells and groups in Qabaait. The letter stated ‘we are aware’ that the applicant's life 'was put in danger by these groups';

   ii. A letter by the mayor of Qabaait, dated 1 December 2014; stating that in his previous letter he 'intended’ to indicate that 'the terrorist groups' are placing pressure on Sunnis in his area to support them. The applicant refused to do so. He has also been working against the terrorists by dissuading the youth in the village from joining them, which has placed his life in danger. He has also reported them to the security apparatus in Lebanon, increasing the risk to his life;

   f) At [22], second respondent found 'the applicant's own evidence in relation to why he was pursued and targeted by extremist groups was inconsistent with other evidence he submitted in support of his claims.' The applicant explained that he had refused to follow the extremists' orders and adhere to what they believed. The second respondent [found] 'this explanation unsatisfactory' without any logical, rational or probative basis.

   g) At [23], second respondent 'had a number of concerns regarding the Mayor's letter' for the reason that the letter is dated 1 December 2014 and it predates both the hearing and the representative's submission of 9 December 2014. Rather than being 'a disingenuous attempt at addressing the problematic nature of the applicant's evidence', the predated authorship would suggest that its authenticity value of the letter was high and not contrived, especially considering it the author was the Mayor. The chain of reasoning was unreasonable and illogical or lacked intelligent or evident justification.

   h) At [24], second respondent found 'the applicant wife's evidence at the hearing to be evasive, vague and unpersuasive. Her evidence was also inconsistent with the applicant's own evidence in relation to his and his family's circumstances. The applicant gave evidence that he has two wives and 12 children, that some years ago he took a second wife and had four children with the second wife, but later divorced his second wife. As such, his four daughters reside with his second wife. The second respondent failed to understand the complexities of this relationship and conflated that with the credibility of the applicant's wife. Similarly, the second respondent questions the living arrangements of the applicant's wife before coming to Australia and why she did not have ongoing communications with the applicant. The applicant's explanation was that extremist had visited his house and he did not contact her because he was worried the phone was monitored. This was a reasonable explanation, rejected by the second respondent.

   i) At [28], the second respondent observed that the applicant's visitor visa was issued on 31 January 2013. However, he did not leave Lebanon until 23 March 2013. The applicant explained that his delay was due to the threats by the extremists to rape his daughters and he had made arrangements for them to live in Tripoli. This was an entirely reasonable explanation yet the second respondent did 'not find this explanation satisfactory.'

   j) At [30], second respondent had significant concerns about the genuineness of the letter from the Minister of Justice, Ashraf Rifi, dated 15 October 2014. There was no intelligent or evident justification for this concern, especially considering it came from the Minister for Justice and former General Director of the Interior Security Forces.

   k) At [33], the second respondent states 'it has considered the country information submitted by the applicant's representative and references in his submission to the prevalence and escalating activities of Sunni militant groups, including IS in Lebanon.' However, the second respondent had 'already rejected the applicant's claims that he had cooperated with the authorities against militant or extremist groups.'

   l) At [51], the second respondent reasoned illogically or irrationally that the applicant does not have a well-founded fear of persecution for any Convention reason now or in the reasonable foreseeable future.

   m) At [52], the second respondent reasoned illogically that that there are any substantial grounds for believing that there is a real risk of significant harm.”

   [Errors in the original.]

1. A Registrar of the Court set the matter down for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) on 8 August 2016. At the hearing, the first applicant did not appear. The second applicant appeared in person, and on behalf of the third applicant, with the assistance of an interpreter in the Arabic language. The second applicant’s daughter-in-law was granted leave to speak on the second applicant’s (and by extension, the third applicant’s) behalf.

2. At the hearing the daughter-in-law informed the Court that the first applicant was aware of the Court event, but was no longer in Australia, and that he had not taken any steps to have anyone appear on his behalf. She emphasised that she was not present to speak for or on behalf of the first applicant and had no authority to do so. I was satisfied the first applicant had notice of the hearing. As the first applicant’s absence remained relevantly unexplained, an order was made pursuant to r.13.03C(1)(e) of the FCC Rules, to proceed with the hearing of the application in the absence of the first applicant.

3. The second applicant’s daughter-in-law also attempted to file written submissions on behalf of the second and third applicants at the hearing.  The document was not signed or dated, and it was not clear as to who was the author of the submission.  The Minister opposed the filing of the submissions on the basis that the author was unknown, and on the basis that the submissions did not address the grounds as set out in the application to the Court.

4. Initially from the Bar Table the second applicant’s daughter-in-law (Ms Samya Assaad) stated that she had been advised by the applicants’ “migration agent” Mr Toufic Laba Sarkis to appear on their behalf and “hand up this bit of paper”. No prior notice had been given to the Minister’s solicitors [Mr Laba Sarkis is not on the list of registered migration agents].

5. Ms Assaad’s subsequent account of the drafting and provenance of this document was not clear. At best it appeared that the submissions were in a “plastic sleeve” with a bundle of other documents relevant to the applicants’ case, which she obtained from the letter box from her previous residence.

6. She stated the material was not addressed to anyone and did not appear to be in an envelope. She said she did not know how they “ended up” at the post box of her previous address, nor who drafted the submissions which were undated and without reference to the author.

7. The submissions make reference to receipt of the Minister’s submissions “by email recently” (see at [2]). Given that the Minister’s submissions were filed on 26 July 2016, the submissions must have been drafted at some time after that date and by a person who knew that the submissions had been sent by email from the Minister’s solicitors to Ms Assaad.

8. As is obvious there were a number of difficulties with what Ms Assaad was saying. I did not want to deprive the second and third applicants of every opportunity to put forward their case. I invited Ms Assaad to give evidence about the provenance and status of the written submissions.

9. In evidence her account changed in a material particular. She stated on oath that she had drafted some, but not all of the paragraphs in the submissions based on the bundle of documents which she found with the written submissions (or at least a portion of them). These were [1], [2], [5] and [10]. She did not know who drafted the other paragraphs.

10. What is immediately apparent is that the written submissions appear to have been written in the same font and do not present as having been drafted by two different authors. At [7] the submissions make reference to “[t]he Member of the Tribunal, on page 19 of the Transcript, commented that I waited two months before I left Lebanon”.

11. Plainly, in context this purports to have been drafted by the first applicant or someone on his behalf. She gave evidence that her

    
    

    father-in-law, the first applicant, would not have been able to draft these submissions, as he “doesn’t speak a word of English”.

12. Ms Assaad gave evidence that Mr Laba Sarkis whom she described as the applicants’ migration agent (it was not clear whether he purported to “represent” the applicant or all three applicants) did not draft the submissions. She thought it may have been Mr Sam Issa, who previously represented the applicants before the Tribunal but she did not know. Why Mr Issa would have drafted this document (at least a part of it) some few days before the hearing before the Court at a time when he had not been representing them for some time and was not on the record before the Court, remained unexplained. As did the question of why if he had partially drafted the submissions, he would leave them in a “plastic sleeve” in a post box at Ms Assaad’s former residence.

13. In any event, I granted leave for [1], [2], [5] and [10] to be filed in Court as written submissions on behalf of the second and third respondents ([3], [4], [6] – [9] were not the subject of leave as their authorship and provenance remained unknown).

14. I also note, given its relevance to what is set out immediately below, that Ms Assaad also gave the following evidence. At [5], which she stated in evidence she drafted, the assertion is made that the evidence given by the applicants (including in context the first applicant) to the Tribunal as revealed in the transcript of the Tribunal hearing “indicates that what happened in Lebanon is genuine and the fear of harm is genuine”.

15. When it was put to Ms Assaad that this appeared to be inconsistent with her evidence to the Court that the first applicant had returned to Lebanon, the country in which he claimed to fear harm, she gave evidence that he returned to Lebanon because of his “daughter under 18 who has epilepsy”. It appears that the first applicant has another wife, and a family with her in Lebanon.

16. The second applicant submitted that she thought that her husband’s plan was to bring her, and her son, to Australia and to leave her here “alone”. She said that her children live “in misery” in Lebanon and wanted to remain in Australia for the sake of her son.

17. The second applicant’s oral submissions to the Court plainly were a plea for the Court to allow her and the third applicant to remain in Australia. At best this can only be understood as a request for the Court to engage in impermissible merits review.

18. The paragraphs of the written submissions filed in Court similarly do nothing more than take issue with some of the Tribunal’s factual findings and conclusion. They also seek impermissible merits review and do not assist in revealing jurisdictional error in the Tribunal’s decision.

19. As stated above, the application to the Court also has a long narrative introduction. I have also treated this as submissions, and directed attention to the stated “Grounds of Review”.

Issue Before the Court

1. The issue before the Court is whether the grounds of the application raise an arguable case for the relief sought. I note in this regard that the applicant seeks orders that the Tribunal’s decision be quashed and returned to it for reconsideration.

2. If the Court cannot be satisfied that an arguable case is raised against the respondent the application will be dismissed. It is the case that the Court’s power should be exercised with great caution. Given the summary nature of any such dismissal the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3]– [6] and Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219) or it is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).

Consideration

1. Ground one makes three broad assertions. First, a breach of s.425(1) of the Act because the Tribunal did not give the applicant the opportunity to comment on its subsequent adverse credibility finding.

2. Section 425(1) of the Act requires the Tribunal to invite an applicant to a hearing which should be a meaningful opportunity for the applicant to give his evidence and make his arguments in relation to the issues in the review. The Tribunal is required to ensure that such issues that are not live issues as a result of the delegate’s decision are raised, and that the applicant be given an opportunity to address them (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152).

3. There can be no doubt following the delegate’s decision that the applicant and the second applicant would have been on notice that the matters relevant to the credibility of the applicant’s central claims was at issue (see CB 91 to CB 92).

4. In any event, the transcript of the Tribunal hearing provided by the applicants to the Court makes clear that the Tribunal’s concerns as to the credibility of his claims were raised.  The Tribunal expressed concerns during the hearing, and then ultimately summarised its concerns at the end of the hearing (see T28.19 to T28.33).  The applicant responded (see T28.34 to T28.44) and was given the opportunity to make further submissions (T29).  No arguable case is raised for the relief sought.

5. Second, the ground asserts a failure to accord procedural fairness because of a breach of s.424AA of the Act. At best it appears the complaint is that the Tribunal failed to comply with s.424AA of the Act because once it made adverse credibility findings, it was required to squarely raise s.91R(3) of the Act with the applicant.

6. This particular of ground one is not one where it can just simply be said that no arguable case is raised.  As pleaded, the particular is entirely devoid of merit.  The following stands in explanation of that finding.

7. One, the operation and engagement of s.424AA of the Act is dependent on identifying some obligation pursuant to s.424A(1) of the Act. Section 424AA is a mechanism available to the Tribunal to orally discharge at a hearing any obligation under s.424A(1) of the Act (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46). No attempt has been made here to invoke s.424A of the Act. As such, s.424AA of the Act does not apply.

8. Two, if understood correctly, the information that the particular says should have been raised squarely with the applicant was “s.91R(3)”. A section of the Act is not, and cannot be, said to be “information” for the purposes of s.424A(1) of the Act.

9. Three, in any event, on the evidence before the Court, there is nothing to say that the applicant claimed to have engaged in conduct in Australia relevant to his fear of persecution such as to have been relevant to s.91R(3) of the Act. Nor did the Tribunal make any such finding in respect of s.91R(3) of the Act.

10. Four, when this particular is read in the context of the applicant’s “submissions” it is clear that the real complaint is that the Tribunal did not put to the applicant for comment the adverse findings it made. In the context of s.425 of the Act, this is addressed above. In the context of s.424AA and s.424A of the Act, the Tribunal’s subjective appraisal of the evidence is not “information” for the purposes of these sections (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 at [18] and VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 at 476 – 477).

11. The third complaint in ground one is that the Tribunal failed to properly review the delegate’s decision in violation of s.414 of the Act.

12. Section 414 of the Act provided, at the relevant time, that the Tribunal must review an “RRT-reviewable” decision validly made to it. The Tribunal did do that. It may be that the applicants’ complaint is that the Tribunal did not properly conduct the review, which it was required to conduct pursuant to s.414 of the Act, because it did not put to the applicant its concerns about the credibility of his claims. If that is the argument, then it does not raise any arguable case for the reasons set out above.

13. Ground two asserts that the Tribunal’s decision exhibited a reasonable apprehension of bias because it rejected out of hand almost all of the applicant’s grounds on the basis of credibility.  This ground lacks merit. 

14. One, the applicant relies on the Tribunal’s adverse findings as to credibility.  The mere fact of adverse findings in the Tribunal’s decision record is not sufficient of itself to say that an inference of bias or prejudgment can be drawn (VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [21], SCAA v Minister for Immigration [2002] FCA 668 at [38] and WABC of 2002 v Minister for Immigration [2002] FCAFC 286 at [3]).

15. Two, there is nothing in the transcript of the hearing, nor have the applicants pointed to anything to say that the Tribunal exhibited prejudgment or a closed mind such that a well-informed lay observer might apprehend that it did not bring an open mind to the proceedings (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).

16. On the evidence before the Court, the Tribunal’s findings, including findings on credibility, were all reasonably open to it on what was before it, and for which it gave cogent reasons.  The Tribunal’s findings were within jurisdiction. The ground merely seeks impermissible merits review and no arguable case is raised.

17. Ground three asserts that there was no evidence to justify the Tribunal’s series of adverse credibility findings.

18. The ground has misunderstood the basis for the Tribunal’s findings.  For the most part, the Tribunal’s adverse findings as to credibility were based on its assessment of the applicant’s own evidence.  In this light, the ground again seeks impermissible merits review.

19. Ground four asserts that in making the series of adverse credibility findings, the Tribunal failed to take into account relevant considerations.  The ground is explained by the assertion that by making these findings, the Tribunal failed to take into account the applicant’s claims. Presumably these are the “relevant considerations” which the Tribunal should have taken into account.

20. That explanation reveals the lack of merit in the ground.  The Tribunal did consider all of the applicant’s claims.  Its rejection of a large part of these claims should not be confused, as the applicants’ grounds and submissions do, with a failure to consider the claims.  The Tribunal did not have to uncritically accept the claims (Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; 124 ALR 265). No arguable case is raised by this ground.

21. Ground five asserts that the series of adverse credibility findings made by the Tribunal were unreasonable, illogical or irrational.

22. In the circumstances, I cannot see this complaint as being anything more than yet another attempt to cavil with the Tribunal’s factual findings on credibility.  The Tribunal’s findings were reasonably open to it on what was before it.  The charges of illogicality or irrationality are not available simply because the applicants are aggrieved, that the Tribunal did not believe the applicant. The Tribunal gave cogent reasons for the disbelief.  No arguable case is raised by ground five.

23. It is the case that at a hearing of an application to show cause pursuant to r.44.12 of the FCC Rules, the applicants are confined to the grounds mentioned in the application (see r.44.13(1) of the FCC Rules). I have addressed those grounds above.

24. I did consider whether it was in the interests of justice to dispense with compliance with this rule pursuant to r.1.06(1) of the FCC Rules. However, there is nothing in the evidence before the Court or in what the second applicant submitted, or Ms Assaad submitted on her behalf, to cause me to dispense with this rule.

Conclusion

1. None of the grounds raised in the application to the Court raise any arguable case for the relief sought. The application should be dismissed pursuant to r.44.12 of the FCC Rules. I will make an order accordingly.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 7 September 2016