WZAQC v Minister for Immigration
[2013] FCCA 100
•3 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZAQC v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 100 |
| Catchwords: MIGRATION – Judicial review – Refugee Review Tribunal decision – whether jurisdictional error – denial of procedural fairness – non-provision of information required to be provided – duty to inquire. |
| Legislation: Migration Act 1958 (Cth), ss.411, 412, 415, 424A, 424AA, 425, 475, 476, 477 |
| Cases cited: SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294; [2005] HCA 24 Saeed v Minister for Immigration & Citizenship (2010) 241 CLR 252; [2010] HCA 23 Selvadurai v Minister for Immigration & Ethnic Affairs & Anor (1994) 34 ALD 347 SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272; [2008] FCAFC 108 |
| Applicant: | WZAQC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 403 of 2011 |
| Judgment of: | Judge Lucev |
| Hearing date: | 24 July 2012 |
| Date of Last Submission: | 24 July 2012 |
| Delivered at: | Perth |
| Delivered on: | 3 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms T McAulay (pro bono) |
| Counsel for the Respondents: | Mr A Gerrard |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 403 of 2011
| WZAQC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 7 December 2011 the second respondent, the Refugee Review Tribunal,[1] made a decision[2] in which it affirmed the earlier decision of a delegate[3] of the first respondent, the Minister for Immigration and Citizenship[4] not to grant the applicant a Protection (Class XA) visa[5] because the applicant did not satisfy the criterion in s.36(2) of the Migration Act 1958 (Cth)[6] for the grant of such a visa.
[1] “Tribunal”.
[2] “Tribunal Decision”.
[3] “Delegate’s Decision”. The Delegate’s Decision is at Court Book (“CB”) 122-131.
[4] “Minister”.
[5] “Protection Visa”.
[6] “Migration Act”.
The applicant now applies to this Court alleging jurisdictional error in the Tribunal Decision, and for a writ of certiorari to quash the Tribunal Decision, and a writ of mandamus to direct the Tribunal to review the Delegate’s Decision according to law. The applicant also seeks costs.
The Minister argues that the Tribunal Decision does not involve jurisdictional error, and that the application should be dismissed with costs.
Grounds for review
The basis for the application is that the Tribunal made a jurisdictional error by denying the applicant procedural fairness with respect to providing further information under s.424AA or s.425 of the Migration Act. The single ground and its extensive particulars are as follows:
The Second Respondent (“the Tribunal”) made a jurisdictional error in its decision dated 1 December 2011 in that the Tribunal’s conduct of the Applicant’s application denied the Applicant a full or proper hearing under the Act by denying him the opportunity to put before the Tribunal further evidence or information which was material to his application, in contravention of sections 424AA and/or 425 of the Migration Act 1958 (Cth).
Particulars
a) The Applicant contended that the documents he had supplied and which supported his claims were genuine and he invited the Tribunal during the hearing to make further enquiries and carry out an investigation if it had any doubts as to the authenticity of the documents.
b) These documents included:
i) Letter entitled “Testimony of […the applicant]” from … [a senior South Cameroons National Council[7] official] dated 10 February 2011 …;[8] and
[7] “SCNC”.
[8] CB 108 (also at CB 146).
ii) The affidavit of [the applicant’s lawyer in Cameroon] sworn 2 February 2011 ….[9]
[9] CB 109-110 (also at CB 147-148).
c) One of the Applicant’s claims related to him holding the office of “chief whip” in the SCNC.
d) At the hearing, in the context of asking the Applicant about the genuineness of his documents and the evidence he had provided, the Tribunal asked if the SCNC had a website. The Applicant provided the website address for the SCNC ….
e) In the context, the request communicated to the Applicant, and would have to a reasonable person, that if the Tribunal wanted to verify or test the applicant’s evidence as to his holding of the office of chief whip in the SCNC it would make enquiries of the SCNC.
f) In the circumstances, the Applicant reasonably expected that the Tribunal would either accept his evidence, or carry out further investigation into the Applicant’s holding office in the SCNC as chief whip.
g) In its letter to the Applicant of 28 October 2011, inviting the Applicant to comment on information, the Tribunal did not request the Applicant to provide further material or information to prove the extent of his involvement as chief whip with the SCNC. Instead, relevantly the Tribunal invited the Applicant to comment only on the country information available on the SCNC.
h) The Tribunal made a finding[10] … that it rejected the Applicant’s claim he was a chief whip or that he otherwise held a leadership or high profile role in the SCNC without making any further enquiries.
i) If the Tribunal had asked the Applicant to provide further information on his office as chief whip or his leadership or high profile role in the SCNC, the Applicant would himself have contacted the relevant people in the SCNC and would have provided further material or documents to the Tribunal.
j) At the hearing and again, in the context of the Tribunal asking the Applicant about the genuineness of his documents provided, and whether the Affidavit provided by … (the Applicant’s lawyer in Cameroon) was objective or independent, the Applicant asked the Tribunal to carry out an investigation on all of his documents (to prove their genuineness) ….
k) The Tribunal stated that if it wanted to contact … [the Applicant’s lawyer in Cameroon] that it did not have his contact details. The Applicant said he would provide the telephone number and/or address for his Southern Cameroonian lawyer, …. The Tribunal told the Applicant he could provide those details to it after the hearing ….
l) The Applicant understood, and a reasonable person in the position of the Applicant would have understood, the request by the Tribunal for the contact details of … [the Applicant’s lawyer in Cameroon] was for the purpose of contacting him to verify the genuineness of the contents of his Affidavit if the Tribunal had doubts about that or needed further information from him.
m) The Tribunal did not ask for the contact details of … [the Applicant’s lawyer in Cameroon] in its letter to the Applicant of 28 October 2011.
n) In the circumstances, the Applicant assumed, and a reasonable person would also have done so, that the Tribunal no longer had concerns about the genuineness of the Affidavit or its contents and so did not need to contact … [the Applicant’s lawyer in Cameroon].
o) The Tribunal made a finding[11] … that it did not place any weight on the Affidavit without further contacting … [the Applicant’s lawyer in Cameroon].
p) If the Tribunal had asked the Applicant to provide further information concerning the genuineness of the Affidavit or its contents, then the Applicant would have contacted … [the Applicant’s lawyer in Cameroon] and would have requested from him further information and evidence concerning matters deposed to in his original Affidavit.
q) The Applicant would then have taken steps to provide any additional relevant material to the Tribunal.
[10] CB 252-253 at para.117.
[11] CB 252 at para.114.
Legislation
Sections 424AA, 424A and 425 of the Migration Act provide as follows:
424AA If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
424A (1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
425 (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Background
Personal details and movements
The applicant was born in Cameroon on 20 April 1983.[12] The applicant studied at a university in Korea between March 2008 and June 2010.[13] Whilst in Korea the applicant applied for, and was granted, a student visa for Australia. He first arrived in Australia on 15 July 2010 as the holder of a student visa.[14] The applicant departed Australia on 21 January 2011 and returned to Cameroon for one week, returning to Australia on 30 January 2011.
[12] CB 11 and 51.
[13] CB 226 at para.22.
[14] CB 40.
Protection Visa claims
On 2 February 2011 the applicant applied for a Protection Visa, making the following claims:
a)he joined the South Cameroon Youth League[15] of the SCNC on 21 May 2005, along with his late younger brother, as his father had been active in the SCNC since 2000;[16]
[15] “SCYL”.
[16] CB 52-53.
b)he was the chief whip for the organisation between 2005 and 2006, where he was involved with educating youth and distributing fliers;
c)on 1 October 2005, during celebrations for the 44th Independence Day of Southern Cameroon, Cameroon government security forces arrested the claimant and his younger brother, and they were detained and tortured but were able to be released under pressure from human rights groups and lawyers. The SCNC leaders were taken to Bamenda Prison without trial;[17]
[17] CB 53.
d)he was detained for a second time in May 2006 for 3 months and sustained injuries to his left leg and his head was punctured with the edge of a gun;[18]
[18] CB 53.
e)in September 2006, he was amongst those arrested and tortured by the police after attending a preparatory meeting to mark South Cameroon Independence Day on 1 October 2006;[19]
[19] CB 53.
f)in August 2007, during a SCNC meeting, he and other members were attacked by security forces, documents were seized and injuries were sustained while escaping;[20]
g)his “family compound has been a place of constant search and harassment and extortation [sic] of money” by the authorities;[21]
h)on 16 October 2007, his younger brother was shot and killed by the police force during a peaceful demonstration and the applicant narrowly escaped being shot;[22]
i)he had been detained in October 2007 for four months;[23]
j)he left Cameroon in March 2008 because of “fear, physical and moral torture from the security agents” of Cameroon, and as a member of the SCNC he was seen as an enemy by the Cameroon government and he had become a target of the government along with his father and family;[24]
k)his father was arrested in January 2011 as presidential elections in Cameroon were approaching and SCNC members were being targeted to stop their campaigning against the government;[25]
l)he came to the attention of the authorities in gaining the release of his father in 2011 as he was on the government’s wanted list because he was on the SCNC member list, and he went into hiding and managed to escape the country;
m)he had to pay a bribe of $US900 to officers at the airport to depart Cameroon;[26]
n)he does not have the right of residence in Korea and is unable to secure protection in Korea;[27] and
o)he fears that if he were to return to Cameroon, he will be imprisoned and tortured or be killed by the government like his brother because he is a SCNC activist.[28]
[20] CB 53.
[21] CB 53.
[22] CB 53.
[23] CB 17. Cf. CB 231 at para.33 [4 months in 2006.]
[24] CB 17 and 54.
[25] CB 54.
[26] CB 54 and 56.
[27] CB 229 at para.30.
[28] CB 19 and 227 at para.26.
Delegate’s Decision
The Protection Visa application was refused in the Delegate’s Decision on 21 July 2011.
Tribunal application and claims
On 11 August 2011 the applicant sought review of the Delegate’s Decision in the Tribunal.[29] The applicant attended a hearing on 24 October 2011.[30] In addition to the claims made previously the applicant made the following claims before the Tribunal:
a)he never returned to Cameroon whilst residing in Korea, but he did travel to Cameroon from Australia in January 2011 for the purpose of raising tuition fees by selling part of his family’s estate. He claimed he had to go into hiding again when he arrived in Cameroon and had to leave again after only one week;
b)he applied for his passport in Cameroon in May 2007 but it was not issued until 26 October 2007 and he collected it in November 2007;
c)he narrowly escaped death in October 2007 at a demonstration at which his brother was shot dead;
d)he was not detained between October 2007 and February 2008 as found in the Delegate’s Decision, but rather it was for four months from May 2006 to August 2006; and
e)with regard to relocation within Cameroon, the applicant claimed that it is “absolutely dangerous” to do so because his political opinion is not welcome, and there is no rule of law, no justice, no respect for human rights, and equality and democratic principles are not practised, anywhere in Cameroon.[31]
[29] CB 132-135.
[30] CB 171, 180 and 190.
[31] CB 230-231 at para.33.
During the Tribunal Hearing on 24 October 2011,[32] the Tribunal advised the applicant he has to separate the genuine cases from the non-genuine cases. The applicant in response, asked the Tribunal to carry out an investigation on all his documents.[33]
[32] “Tribunal Hearing”.
[33] Selected Transcript – Exhibit 1 p 17 (“Transcript”).
During the Tribunal Hearing the Tribunal invited the applicant to:
a)provide the contact details of his lawyer[34] after the Tribunal Hearing;[35] and
b)provide the website details for the SCNC, which was done at the Tribunal Hearing.[36]
[34] “Applicant’s Cameroon Lawyer”.
[35] Transcript, p 18.
[36] Transcript, pp 19-20.
Section 424A letter
On 28 October 2011 the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act[37] inviting him to comment on the following information:[38]
[37] “424A Letter”.
[38] CB 190-194.
a)independent country information which indicated that while active members of the SCNC are routinely arrested, most are detained for no more than a few hours, with only high ranking members of the SCNC being charged and sentenced to long prison terms. The Tribunal advised that it would determine whether the applicant was a high ranking member or not, but that if it concluded the applicant was not a high ranking member of the SCNC then it might conclude in light of the country information that the applicant was not detained for a period of three to four months as he claimed;
b)a 2009 UK Home Office Operational Guidance Note concluded that there was no evidence:
i)that the treatment applied to ordinary members of the SCNC and the SCYL generally amounted to persecution, and
ii)to suggest that mere membership of, involvement with, or perceived involvement in the SCNC or the SCYL would in itself lead to persecution;
c)country information suggested that the clash with police which resulted in the death of the applicant’s brother was not political in nature;
d)the “Testimony of [the applicant]”,[39] which is in fact the Testimony of a very senior official of the SCNC, did not state that the applicant was a whip for the SCNC or the SCYL, but rather that the applicant was “a very active participant during sensitization and educational meetings”. The Tribunal advised that the absence of a reference in the Testimony to the applicant being elected as chief whip or to him holding such a position might lead the Tribunal to conclude that the applicant did not hold the position of chief whip, or a position of significant rank or profile with the SCNC;
e)the Tribunal drew the applicant’s attention to the inconsistencies in his evidence relating to the bribe he claimed to have paid leaving the airport, and his later claim that his money was stolen. The Tribunal advised that this might lead the Tribunal to find that the applicant had misrepresented the incident or exaggerated the incident for the purposes of bolstering his claim for protection;
f)independent country information indicated that the present government of Cameroon does not regard the SCNC as a real threat to the ongoing rule of the present government of Cameroon; and
g)the Tribunal also invited the applicant to provide a copy of the DVD he referred to at the hearing and any other information he considered to be relevant and would like the Tribunal to take into account.
[39] “Testimony”.
424A Letter response
On 21 November 2011 the applicant provided detailed submissions and further evidence in response to the 424A Letter.[40] The details of the 424A Response were as follows:
a)that active members of the SCNC and SCYL “are routinely arrested and detained” and that the applicant had been “a victim of such arbitrary arrest and detention on several different occasions”;[41]
b)the intervention of human rights activists would result in the release of “top officials”, but “most of the members are still being held in deplorable detention conditions for longer periods”;[42] and
c)“[y]oung aspiring, enthusiastic, promising and active SCNC Youths like me and others face even much longer and deplorable detention conditions than the top officials … because when arrested, the authorities get us tortured and detained under harsh conditions in a bit [sic-bid] to discourage us and intimidate us to give up on the SCNC at an earlier stage.”[43]
[40] CB 195-218 (“424A Response”).
[41] CB 195.
[42] CB 195.
[43] CB 195.
The applicant then contradicts the above submissions by saying:
Not only are the top officials as such detained for a longer period as reported by Amnesty International. Every SCNC member faces such routine arrest and detention and some of our SCNC members languish and die in the cells in prison.[44]
[44] CB 196.
In relation to the UK Home Office Operational Guidance Note the applicant asked the Tribunal “to permit me to differ”.[45] The applicant then goes on to assert that there is ongoing persecution of, and crackdowns on, SCNC members since January 2011. The applicant asks the Tribunal to consider a report entitled “Every Morning, Just Like Coffee. Torture in Cameroon”,[46] prepared by the Medical Foundation for the Care of Victims of Torture and published on 26 June 2002.[47]
[45] CB 196.
[46] “Torture in Cameroon Report”.
[47] CB 196, the Torture in Cameroon Report appears at CB 200-209, but was not submitted in its totality, consisting of only nine pages of a report which is obviously much longer, the last extracted page being numbered 26.
In relation to the demonstration in which the applicant’s younger brother was shot the applicant affirms that it “was not political as the SCNC Organisation is in itself non-political. The SCNC lead demonstration was only to secure their release of innocent members and citizens who were arbitrary [sic – arbitrarily] arrested and detained.”[48]
[48] CB 197.
In relation to his role in the SCNC the applicant asserts that the Testimony was a testimonial letter and that the reference to his being “a very active participant during sensitization and educational meetings” was “in my capacity as the chief whip”.[49]
[49] CB 197.
The applicant also said that he attached a letter from the Head of the Law Department at the University of Buea, which was unsigned, providing evidence of his leadership as Deputy Secretary-General of the Law Society in the Department of Law, whilst a student in the University of Buea,[50] and an attestation of service as the Public Relations Officer of the Mankon Students Association Buea branch. The latter document attests only to membership of the association, and not the capacity in which the applicant is said to have served.[51]
[50] CB 210.
[51] CB 210-211.
In relation to inconsistencies in the applicant’s evidence about an official taking a bribe from the applicant when the applicant was leaving Cameroon, the applicant essentially asserted that such conduct was normal in Cameroon, and had the relevant official not seen and taken the money from him on that day, he would not have made his way through the airport.[52] The applicant again refers to the Torture in Cameroon Report as support for his argument that bribes are taken by public officers as a matter of routine.[53]
[52] CB 198.
[53] CB 198.
The applicant pointed to:
a)the presentation of two framed distinct maps of the Republic of Cameroon and the Southern Cameroons during the 50th Anniversary celebrations of Cameroonian independence in 2010; and
b)the election of a senior official of the SCNC to the presidency of the Unrepresented Nations and Peoples Organisation, and the unification of opposition leaders behind the SCNC following the October 2011 elections,
as indicating that there was international recognition of the legitimate struggle of the SCNC, and that the SCNC did pose a threat to the present government in Cameroon.[54]
[54] CB 198-199.
Affirmation of Delegate’s Decision
On 1 December 2011 the Tribunal affirmed the Delegate’s Decision to refuse to grant a Protection Visa to the applicant.[55]
[55] CB 258 at para.139.
Applicant’s submissions
The applicant’s submissions that a jurisdictional error was made by the Tribunal in affirming the Delegate’s Decision, were put, in summary, on five broad bases, as follows:
a)failing to ensure, as far as was reasonably practicable, that the applicant understood why the Requested Information was relevant to the review, and the consequences of the information or lack of proof of genuineness of the information being relied on in affirming the Delegate’s Decision, the Tribunal breached s.424AA(b)(i) of the Migration Act;
b)failing to advise the applicant that he may seek additional time to comment on or respond to the Requested Information, in breach of s.424AA(b)(iii) of the Migration Act;
c)failing to provide particulars of the Requested Information in the 424A Letter;[56]
d)failing to explain to the applicant, in the 424A Letter, why the Requested Information was relevant to the review, and the consequences of the Requested Information being relied on in affirming the Delegate’s Decision; and
e)failing to provide the applicant an opportunity to give further evidence, in breach of s.425 of the Migration Act.
[56] Citing SZMAR v Minister for Immigration & Citizenship & Anor (2009) 112 ALD 524 at 547 per Barker J; [2009] FCA 1530 at para.121 per Barker J.
The applicant’s submissions also adverted to a failure to comply with s.424A of the Migration Act, and thus went further than the substance and particulars of the ground of review which did not advert to non-compliance with s.424A of the Migration Act. It may have been necessary for the applicant to do so because, for reasons otherwise set out below,[57] non-compliance with s.424AA of the Migration Act does not, of itself, constitute jurisdictional error.
[57] See paras.57-59 below.
Relevance of information to review
The applicant submitted that procedural fairness was denied because the Tribunal:
a)invited the applicant during the Tribunal Hearing to:
i)provide the contact details of the Applicant’s Cameroon Lawyer after the hearing; and
ii)provide the SCNC website details;[58]
b)failed under s.424AA(b)(i) of the Migration Act to ensure the applicant understood why the Requested Information was relevant to the review, and the consequences of the information being relied on in affirming the Delegate’s Decision; and
c)the Tribunal did not ensure the applicant understood:
i)the significance of the Requested Information to the review; and
ii)that any further information provided by the applicant, or absence of information, would be relied upon by the Tribunal to affirm the Delegate’s Decision.
[58] Transcript, pp 18-20 (together, the “Requested Information”).
Ability to seek additional information
The applicant submitted that the Tribunal also failed under s.424AA(b)(iii) of the Migration Act to advise the applicant that he may seek additional time to comment on or respond to the Requested Information.
Clear particulars of information
The applicant submitted that:
a)procedural fairness was denied by the Tribunal to the applicant in circumstances where the Tribunal, in the 424A Letter, failed to give the applicant clear particulars of the information which was the reason or part of the reason for affirming the Delegate’s Decision;[59]
[59] Citing SZMKR v Minister for Immigration & Citizenship [2010] FCA 340 at paras.39-41 per Gray J.
b)the Tribunal is not obliged to give the applicant clear particulars of any information that is the reason or part of the reason for affirming the decision under review pursuant to s.424A(1)(a) of the Migration Act, other than information that was provided orally by the applicant to the Department;
c)the Tribunal, pursuant to s.424A(2A) of the Migration Act is not obliged to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information. Under s.424AA of the Migration Act, the Tribunal did, however, in the 424A Letter, invite the applicant to respond to information and provide further information;
d)the information the applicant provided falls within the exception captured by s.424A(3)(ba) of the Migration Act. That is, it does not apply to information the applicant gave during the process that led to the decision that is under review and the applicant did not provide the information orally to the Department. The applicant gave:
i)the Applicant’s Cameroon Lawyer’s affidavit, sworn 2 February 2011;[60] and
ii)the Testimony,
to the Department prior to the Protection Visa being refused in the Delegate’s Decision on 21 July 2011.
e)the Tribunal, however, asked new questions of the applicant at the Tribunal Hearing on information contained in those documents;
f)the 424A Letter did not particularise the oral requests the Tribunal made at the Tribunal Hearing in relation to this information;
g)as a result of the 424A Letter, the Tribunal was required to particularise all information it sought to rely upon in the 424A Letter; and
h)alternatively, if the applicant was not to be misled, then the 424A Letter needed to clearly indicate that the requests made by the Tribunal were in addition to whatever had been requested at the Tribunal Hearing.
[60] CB 147-148 (“Applicant’s Cameroon Lawyer’s Affidavit”).
Omission of Requested Information
The applicant submitted that:
a)as the Tribunal omitted the Requested Information from the 424A Letter, the applicant did not understand the Requested Information was relevant to the review;
b)a reasonable person in the position of the applicant would have expected the Tribunal to make a proper request for the Requested Information in the 424A Letter, if the Tribunal continued to consider it relevant to the review of the Delegate’s Decision;
c)as a result of the Tribunal not particularising the information it required in the 424A Letter, and the applicant not understanding (both during the Tribunal Hearing and after receipt of the 424A Letter) why the information was relevant and the consequences of the information, the applicant failed to:
i)provide to the Tribunal the contact details of the Applicant’s Cameroon Lawyer or information as to the genuineness of the Applicant’s Cameroon Lawyer’s Affidavit; and
ii)provide further information to verify or test the applicant’s evidence as to his holding of the office of chief whip in the SCNC;
d)the applicant would have provided further information as to the genuineness of the things deposed to in the Applicant’s Cameroon Lawyer’s Affidavit, and further information to verify or test the applicant’s evidence as to his holding of the office of chief whip in the SCNC, had the Tribunal made known to him in the 424A Letter that it was part of the reason for affirming the Delegate’s Decision;[61] and
e)the Tribunal must put in writing to the applicant, all the information or request comment by the applicant of all the information relevant to the review. This obligation is mandatory, even if the Tribunal puts that information to the applicant orally.[62]
[61] Affidavit of the applicant, sworn 12 July 2012, paras.9 and 16 and attachment “PNT 3” p 19 (“Applicant’s Affidavit”).
[62] Citing SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at 318-319 per McHugh J; [2005] HCA 24 per McHugh J at paras.70-71 per McHugh J (“SAAP”), citing with approval VEAJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 132 FCR 291 at 301-302 per Gray J; [2003] FCA 678 at para.34 per Gray J.
Opportunity to present argument
The applicant submits that:
a)section 425 of the Migration Act imposes a mandatory obligation on the Tribunal to afford the applicant an opportunity to appear before it to give evidence and present arguments relating to issues arising in relation to the Delegate’s Decision which was under review;
b)the Tribunal is required to identify any critical issue on which the Tribunal Decision may turn and allow the applicant the opportunity to comment on that issue;[63]
c)the obligation imposed by s.425 of the Migration Act must be satisfied as a matter of substance. The applicant must have a real opportunity to present his case. In these circumstances, the applicant lost an opportunity to fully present all the evidence and material in support of his case;
d)the applicant in this case lost the opportunity to provide further information in respect of the matters outlined above. The applicant lost the opportunity because of the way the Tribunal conducted the hearing and communicated to him as set out above; and
e)pursuant to s.425 of the Migration Act, the Tribunal effectively caused the applicant to lose the opportunity to put forward the further evidence it required to determine the matter according to law. In the context of what passed at the Tribunal Hearing, the applicant was misled by the 424A Letter. The absence of a request for the Requested Information, after the Tribunal Hearing, either by the 424A Letter, or without further being heard, led the applicant to believe that the Requested Information was no longer an issue the Tribunal considered relevant to determine the matter according to law.
[63] Citing Saeed v Minister for Immigration & Citizenship (2010) 241 CLR 252; [2010] HCA 23; SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”).
Applicant’s submissions – summary of conclusions
As a result of failing to comply with any or all of ss.424AA(b)(i) and (iii), 424A(1)(a) and (b) and s.425 of the Migration Act in the Tribunal Decision, the Tribunal:
a)rejected the applicant’s claim he was a chief whip or that he otherwise had a leadership or high profile role in the SCNC;[64] and
b)did not place any weight on the Applicant’s Cameroon Lawyer’s Affidavit,[65]
without making any further enquiries or contacting the Applicant’s Cameroon Lawyer or the SCNC. This denied the applicant procedural fairness within Part 7 of the Migration Act.
[64] CB 252-253 at para.117.
[65] CB 147-148; 252 at para.114.
Further:
a)it appears that the Tribunal’s purpose in making the invitation to the applicant was:
i)to investigate the genuineness of the Applicant’s Cameroon Lawyer’s Affidavit, which the applicant relied upon in his application; and
ii)to verify or test the applicant’s evidence as to his holding of the office of chief whip in the SCNC;
b)the 424A Letter did not contain a request for the contact details of the Applicant’s Cameroon Lawyer, nor did it set out any request or notice to contact the Applicant’s Cameroon Lawyer, as indicated to the applicant by the Tribunal at the Tribunal Hearing. The 424A Letter made no reference to the SCNC website;[66]
c)the 424A Letter effectively communicated to the applicant (in the context of the Tribunal Hearing) that either the Tribunal accepted his evidence with respect to the things deposed to in the Applicant’s Cameroon Lawyer’s Affidavit and the applicant’s position as SCNC chief whip, or that the Tribunal no longer regarded those matters as relevant in reviewing the Delegate’s Decision. It was reasonable for the applicant to have that understanding in circumstances where at the Tribunal Hearing, the Tribunal asked the applicant to provide to it, a DVD relating to his brother’s death. That DVD was then specifically referred to in the 424A Letter and the applicant provided that DVD to the Tribunal;
d)the applicant understood the request for the DVD to be important to the review of the Delegate’s Decision as it was referred to in the 424A Letter. Therefore a reasonable person would conclude that the Tribunal would include in the 424A Letter, all requests for further information or comments about further information relevant to its review of the Delegate’s Decision;
e)the Tribunal did determine that the Applicant’s Cameroon Lawyer’s Affidavit and the applicant’s position as SCNC chief whip were relevant to review of the Delegate’s Decision as it formed part of the Tribunal Decision; and
f)the Tribunal found against the applicant in rejecting the applicant’s claim that he was SCNC chief whip, or that he otherwise held a leadership or high profile role in the SCNC, and did not place any weight on the Applicant’s Cameroon Lawyer’s Affidavit.[67]
Minister’s submissions
[66] Transcript, pp 19-20.
[67] CB 252-253 at paras.114 and 117.
The applicant’s credibility and claims
The Minister submits that:
a)the Tribunal found that the applicant was not a reliable witness. In relation to this, the Tribunal found that several essential elements of the applicant’s evidence were unreliable and not credible as relevant statements were either implausible or ran counter to generally known facts. Furthermore, the Tribunal found that the applicant appeared to be prepared to embellish and misrepresent the evidence to support his claims;[68]
[68] CB 251 at para.111.
b)the Tribunal found that the applicant supported the opposition movement in Cameroon, however, the Tribunal found that this fact, without more, was not sufficient to ground the applicant’s claim that he faced a real chance of serious harm if he returned to Cameroon;[69]
[69] CB 252 at para.113.
c)the Tribunal noted with concern the country information relating to widespread document fraud in Cameroon. The Tribunal was prepared to proceed on the basis that the applicant has been a member of the SCNC since 2005, but did so based on the applicant’s sworn evidence and placed less weight on the documentary evidence the applicant provided;[70]
[70] CB 252 and 253 at paras.114 and 117.
d)the Tribunal was prepared to accept that the applicant was a participant in the SCNC, but on the evidence before it rejected the claim that the applicant was the chief whip or that he otherwise held a leadership or high profile role in the SCNC;[71]
[71] CB 252-253 at para.117.
e)in relation to the applicant’s claim that he had been arrested, detained and tortured by the police the Tribunal relied on country information which indicated that there was a distinction between the treatment of high ranking members of the SCNC, who were charged and sentenced to long periods of imprisonment, and ordinary members who are arrested and detained for no more than a few hours. The Tribunal noted that the applicant had been neither charged nor sentenced and that this was further evidence that he was not a high ranking member of the SCNC;[72]
[72] CB 253 at para.118.
f)the Tribunal accepted that the applicant had been detained in the past but, based on its assessment of the applicant’s “doubtful credibility”, did not accept that the applicant was detained for a period of up to four months;[73]
g)the Tribunal also did not accept the applicant’s claim that he was injured or scarred as a result of his treatment at the hands of the Cameroonian police. The Tribunal found that based on his unreliable evidence it was not satisfied that the scarring the applicant displayed at the Tribunal Hearing was linked with his past detentions or his SCNC activities;[74]
h)the Tribunal, with reference to specific country information that the applicant had been invited to comment on, found that there was no evidence that low profile members of the SCNC would be targeted for serious harm. Furthermore, in response to the applicant’s claim that there has been a crackdown since January 2011, the Tribunal found that independent country information did not disclose the sort of persecution claimed by the applicant, or any heightened activity by the government towards the SCNC. The Tribunal concluded that the applicant fabricated this aspect of his claim for the purpose of strengthening his Protection Visa application;[75]
i)the Tribunal accepted that the applicant’s brother was shot and killed in 2007 at a commercial bike rider’s demonstration. By reference to country information which the applicant had been invited to comment on, the Tribunal found, however, that the violence directed at the applicant’s brother which lead to his death was not for political reasons associated with the SCNC;
j)in relation to the applicant’s return to Cameroon in January 2011, the Tribunal rejected the applicant’s explanation that he needed to be present so that part of the family estate could be sold to finance his studies in Australia. The Tribunal noted the applicant’s significant qualifications and considered that if the applicant was genuinely fearful about returning to Cameroon and was in need of funds to continue his studies he would have been able to find an alternative form of funding his studies, including a loan. The Tribunal also rejected the applicant’s explanation as to why he would not advise his father to take a loan as implausible. Accordingly, the Tribunal rejected the applicant’s claim that he had no option but to return to Cameroon in January 2011, so as to be able to organise funds for his studies. Having rejected this claim the Tribunal found that the applicant’s travel to Cameroon in January 2011 indicated that he did not hold a subjective fear of serious harm;[76]
k)the Tribunal rejected the applicant’s claim that he had to pay a bribe to leave Douala airport and found that he had fabricated this claim for the purposes of his protection claim;[77]
l)the Tribunal noted that the applicant lived in South Korea for an extended period and did not make a claim for protection there. The Tribunal rejected the applicant’s claim that he was unaware that he could seek protection there noting that the applicant is well educated, holding a law degree. The Tribunal inferred that the applicant did not apply for protection whilst in South Korea because he did not hold a subjective fear of harm of returning to Cameroon;[78]
m)the Tribunal also considered that, while not determinative in itself, the applicant’s delay in submitting an application for protection after his arrival in Australia pointed to the applicant not having a genuine or deep fear of persecution;[79]
n)the Tribunal found that as a failed asylum seeker the applicant would not be targeted on his return to Cameroon;[80] and
o)the Tribunal also considered the likely role the applicant might play in the SCNC upon return to Cameroon, but was satisfied that the applicant’s level of political or SCNC activism would not be any more significant or of a higher profile than it had been in the past, and that the country information indicated that he would therefore not face a real chance of serious harm should he return to Cameroon now or in the reasonably foreseeable future, because he is not a high ranking member of the SCNC.[81]
[73] CB 253 at para.119.
[74] CB 253 at para.120.
[75] CB 253-254 at para.121.
[76] Cb 255-256 at paras.127-128.
[77] CB 256 at paras.130-131.
[78] CB 256 at para.132.
[79] CB 257 at para.133.
[80] CB 257 at para.134.
[81] CB 257 at para.135.
Tribunal’s decision did not involve any jurisdictional error
The Minister submits that:
a)a decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error;[82]
[82] Citing Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gleeson, Gaudron, McHugh, Gummow, Kirby and Hayne JJ; (2003) HCA 2 at para.76 per Gleeson, Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
b)an error by an administrative tribunal, such as the Tribunal, will only constitute jurisdictional error if the Tribunal:
i)identifies a wrong issue;
ii)asks the wrong question;
iii)ignores relevant material; or
iv)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute;[83]
c)the Tribunal Decision does not display any jurisdictional error;
d)the Tribunal’s approach to the assessment of the applicant’s evidence was one it was fairly entitled to undertake. The Tribunal’s findings in relation to the credibility of the applicant was a fact-finding task within its jurisdiction. Findings of fact, including findings in relation to credibility, are a matter for the Tribunal;[84]
e)the allocation of the appropriate weight to be given to evidence and material is pre-eminently the prerogative of the Tribunal;[85]
f)the onus was on the applicant to make out the factual basis of his application.[86] The Tribunal was not obliged to make the applicant’s case for him;[87] and
g)the proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor.[88]
[83] Citing Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ.
[84] Citing NADR v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167; SZHZD v Minister for Immigration & Multicultural Affairs & Anor [2008] FMCA 4.
[85] Citing Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 280-282 per Brennan, Toohey, McHugh and Gummow JJ; SZGNJv Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] FMCA 91 at para.85 per Lloyd-Jones FM.
[86] Citing Selvadurai v Minister for Immigration & Ethnic Affairs& Anor (1994) 34 ALD 347 at 348 per Heerey J.
[87] Citing Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-170 per Wilcox J (“Prasad”).
[88] Citing SZBEL CLR at 165-166 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; HCA at para.47 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
The requirements of ss.424AA and 424A of the Migration Act
The Minister submits that:
a)sections 424AA and 424A of the Migration Act are to be read together. A failure to comply with s.424AA of the Migration Act does not constitute a jurisdictional error.[89] Thus the breaches of ss424AA(b)(i) and (ii) of the Migration Act alleged[90] could not, in isolation, constitute jurisdictional error;
[89] Citing SZMEK v Minister for Immigration & Citizenship& Anor [2008] FMCA 1068 and SZMCD v Minister for Immigration & Citizenship & Anor (2009) 174 FCR 415; [2009] FCAFC 46 (“SZMCD”).
[90] Applicant’s submissions, paras.50.1 and 50.2.
b)section 424A of the Migration Act does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. The obligation is limited to the written provision of “particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”;[91]
[91] Citing SZBYR (2007) 81 ALJR 1190 at 1195 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; [2007] HCA 26 at para.15 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ (“SZBYR”).
c)in the context of ss.424AA and 424A of the Migration Act the word “information” does not encompass the Tribunal’s subjective appraisals of the evidence, thought processes, or require the Tribunal to identify gaps, defects or lack of detail or specificity in evidence.[92] The High Court in SZBYR further stated:
[92] Citing VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at 476-477 per Finn and Stone JJ; [2004] FCAFC 123 at para.24 per Finn and Stone JJ (“VAF”), cited with approval in SZBYR ALJR at 1196 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; HCA at para.18 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.[93]
[93] SZBYR ALJR at 1196 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; HCA at para.18 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
d)section 424A(2A) of the Migration Act makes it clear that the Tribunal is not obliged to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant and invited the applicant to comment on or respond to the information under section 424AA of the Migration Act;
e)section 424A(3)(b) and (ba) of the Migration Act provides that the section does not apply to information that the applicant gave for the purposes of the application of review or that the applicant gave during the process that led to the decision under review other than such information that was provided orally by the applicant;
f)the applicant’s submissions identify the relevant “information” in the following terms:
10. The Tribunal invited the applicant during the hearing on 24 October 2011 to:
10.1 provide the contact details of … [the Applicant’s Cameroon Lawyer] after the hearing; and
10.2 to provide the website details for the SCNC.
11. It appears that the Tribunal's purpose in making the invitation to the applicant was first, to investigate the genuineness of the [Lawyer’s Affidavit] which the applicant relied upon in his application; and second to verify or test the applicant's evidence as to his holding of the office of chief whip in the SCNC.[94]
That is, the “information” seems to be that having asked for the contact details of the Applicant’s Cameroon Lawyer, which were not provided, and the website for the SCNC, which was provided, the Tribunal had doubts about the genuineness of the Applicant’s Cameroon Lawyer’s Affidavit and the applicant’s claim to have been chief whip of the SCNC. In light of the High Court’s findings in SZBYR it is difficult to ascertain anything in the above paragraphs of the applicant’s submissions which would properly constitute “information” for the purpose of ss.424AA or 424A of the Migration Act. Rather, it would more aptly be described as the absence of evidence or existence of doubts referred to by the High Court in SZBYR cited above.[95] Neither ss.424AA nor 424A of the Migration Act were engaged in the way contended by the applicant; and
g)even if the matters claimed by the applicant could somehow be construed as information, both the applicant’s evidence that he had held the position of chief whip and the Applicant’s Cameroon Lawyer’s Affidavit constituted information which was provided by the applicant during the process that led to the Delegate’s Decision which was under review. It is also clear, at least in respect of the contact details of the Applicant’s Cameroon Lawyer, that this was raised during the Tribunal Hearing itself. The applicant’s submission that the fact that the Tribunal asked the applicant “new questions on information contained in those documents”, which the applicant then transmogrifies into new information, has a clear artificiality to it, and as the High Court observed in SZBYR such an approach could lead to an undesirable inextricable circularity.[96]
[94] Applicant’s submissions, paras.10 and 11.
[95] See also VAF.
[96] A “circulus inextricabilis” as it was described: SZBYR ALJR at 1196 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; HCA at para.20 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
Duty to inquire
The Minister submits that:
a)although cast as breaches of ss.424AA and 424A of the Migration Act, the crux of the applicant’s case is really that the Tribunal fell into jurisdictional error by failing to make certain inquiries. Those inquiries being:
i)further investigation into the applicant’s holding of the office of chief whip of the SCNC; and
ii)to contact the Applicant’s Cameroon Lawyer, if the Tribunal had doubts about the genuineness of the Applicant’s Cameroon Lawyer’s Affidavit;
b)it is well established that the power of the Tribunal to make inquiries does not impose upon it any duty or obligation to do so;[97]
c)the issue has been considered by the High Court in Minister for Immigration & Citizenship v SZIAI[98] which found that the Tribunal’s only obligation was to conduct a review of the Delegate’s Decision. In SZIAI the plurality Justices stated:
The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI's solicitors to the Tribunal's letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer's letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal's decision was infected by jurisdictional error.[99]
d)in a separate judgment in SZIAI a single Justice said:
The question of whether the Tribunal should have made further inquiries must be assessed bearing in mind that it was for the respondent to demonstrate that his claims were genuine; it was not for the Tribunal to try to achieve a demonstration that he had failed to achieve. The respondent had procured the certificates in the first place. Those certificates purported to be from gentlemen who knew the respondent. The respondent, it could be assumed, would know whether Mr Nuruzzaman or Mr Hossain could provide any useful information in relation to the letter of 8 January 2008. The respondent was in at least as good a position to contact those gentlemen.[100]
[97] Citing Minister for Immigration & Citizenship v SZGUR & Anor (2011) 241 CLR 594 at 602 per French CJ and Kiefel J; [2011] HCA 1 at para.20 per French CJ and Kiefel J and Minister for Immigration & Citizenship v SZNVW & Anor (2010) 183 FCR 575 at 582 and 583 per Keane CJ; [2010] FCAFC 41 at paras.20 and 22 per Keane CJ.
[98] (2009) 83 ALJR 1123; [2009] HCA 39 (“SZIAI”).
[99] SZIAI ALJR at 1129 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; HCA at paras.25-26 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
[100] SZIAI ALJR at 1133 per Heydon J; HCA at para.52 per Heydon J.
The applicant’s position in the SCNC
The Minister submits that:
a)the issue of whether the applicant held the position of chief whip or another high-ranking position in the SCNC was one which had clearly been put to the applicant;
b)the 424A Letter from the Tribunal raised the issue in a number of ways:
i)first, with reference to country information about the different treatment of ordinary and high-ranking members of the SCNC the Tribunal stated:
At the Tribunal hearing you advised that you have been arrested and detained for period[s] of 3 to 4 months, once without being charged, and another time being charged with disturbing the peace or similar. The Tribunal is considering all the evidence you have given and will make a determination on whether you are a high ranking member of the SCNC, however, if the Tribunal determines that you were not and are not, then in light of the country information above, the Tribunal may conclude that [you] may not have been detained as claim[ed] or for the periods as claimed.[101]
[101] CB 191; Minister’s Outline of Submissions, para.42 [Minister’s emphasis].
ii)second, other adverse information put to the applicant was in the following terms:
A 2009 UK Home Office Operational Guidance Note concludes that "[w]hile some leaders, members, and supporters of the SCNC have been arrested and held in temporary detention, there is no evidence that the treatment applied to ordinary members of the SCNC and SCYL generally amounts to persecution. There is no evidence to suggest that mere membership of, involvement with, or perceived involvement in the SCNC or the SCYL would in itself lead to persecution.[102]
[102] CB 191; Minister’s Outline of Submissions, para.43 [Minister’s emphasis].
iii)the Tribunal referred to the Testimony, and the fact that it did not state that the applicant was a whip for the SCNC. The Tribunal stated:
At the Tribunal hearing, and also previously as part of your application for the protection visa, you claimed that you were elected chief whip of the SCNC in 2006. The absence of a reference in the Testimony to you being elected as chief whip or to you holding such a position might lead the Tribunal to conclude that you did not hold such a position. This in turn might lead the Tribunal to conclude that you did not hold a position of significant rank or profile with the SCNC.[103]
c)the Tribunal could not have been more explicit that there was a real risk that it might find that the applicant had not held the position of chief whip. The applicant was invited to comment on this in respect of:
i)the general country information;
ii)the fact that he had not been charged; and
iii)the fact that the documentary evidence he relied upon did not support his claim;
d)the onus was on the applicant to satisfy the Tribunal that he held the position that he did. The Tribunal clearly put to the applicant that there were reasons why it might not be persuaded that the applicant did hold that position. The Tribunal is not in the position of a contradictor; and
e)the applicant has not advised what easily ascertainable inquiry the Tribunal should have made other than a general insistence that further inquiries should have been made and a somewhat oblique reference to the fact that he had provided the general website of the SCNC. This is not consistent with the High Court’s reasoning in SZIAI cited above.[104]
[103] CB 192; Minister’s Outline of Submissions, para.44 [Minister’s emphasis].
[104] See para.34(c) and (d) above.
Applicant’s Cameroon Lawyer’s Affidavit
The Minister submits that:
a)the request made by the applicant for the Tribunal to carry out an investigation to prove the genuineness of the documents submitted by the applicant is a reversal of the onus of proof. It was for the applicant to provide any necessary evidence as to the genuineness of the documents he had submitted. The applicant was fully apprised that this was a live issue as the Delegate had previously raised concerns about the existence of widespread document fraud in Cameroon and for that reason was not convinced that the documents provided by the applicant were genuine. Furthermore, this was an issue the Tribunal member specifically invited the applicant to comment on;
b)the Tribunal had in fact invited the applicant to provide the contact details of the Applicant’s Cameroon Lawyer at the Tribunal Hearing. The applicant did not act on that invitation. The fact that it was not raised again in the 424A Letter is of no consequence. The issue had been squarely put to the applicant, the invitation to provide the information had been made and there was no denial of procedural fairness by not issuing a second invitation;
c)the applicant’s assertion that the 424A Letter indicated that either the Tribunal accepted the applicant’s evidence with respect to the Applicant’s Cameroon Lawyer’s Affidavit or that the Tribunal no longer regarded those matters as relevant is denied. Furthermore, it is doubtful that the applicant interpreted the correspondence in the manner alleged. Another issue raised during the Tribunal Hearing but not referred to in the 424A Letter related to the absence of documentary evidence of any position held by the applicant at the University of Buea. Nevertheless, in the 424A Response the applicant addressed this with specific reference to the fact that the Tribunal had raised this with him.[105] It is therefore inconsistent for the applicant to contend that he appreciated that this query remained in issue but that the query in relation to the Applicant’s Cameroon Lawyer did not;
d)it was not just the concern over document fraud which caused the Tribunal to place little weight on the Applicant’s Cameroon Lawyer’s Affidavit. The Tribunal also found that apart from declaring that the Applicant’s Cameroon Lawyer had been so since 2005, and providing basic biographical detail about the applicant, the Applicant’s Cameroon Lawyer’s Affidavit only repeated the claims made by the applicant without adding any significant additional information. Furthermore, the Applicant’s Cameroon Lawyer’s Affidavit made no reference to the source of the information declared or whether the information was provided by the applicant, or whether it was otherwise known to the Applicant’s Cameroon Lawyer. In short, the evidence simply took the matter no further;
e)it was not the Tribunal’s task to try to achieve a demonstration that the applicant had failed to achieve. It was the applicant who had submitted the Applicant’s Cameroon Lawyer’s Affidavit, and thus only the applicant would know whether the Applicant’s Cameroon Lawyer could provide any further useful information. The applicant was in at least as good a position to contact the Applicant’s Cameroon Lawyer as the Tribunal was; and
f)it is apparent from the Applicant’s Affidavit that there would have been no utility in approaching the Applicant’s Cameroon Lawyer. The applicant attests that the Applicant’s Cameroon Lawyer refused to provide the applicant with the information he had requested unless he was paid the sum of $2,000.00.[106] Thus, on the applicant’s own evidence, any inquiry made of the Applicant’s Cameroon Lawyer by either the Tribunal or the applicant would not have yielded a useful result.
Consideration
[105] CB 198.
[106] Applicant’s Affidavit at para.19.
Two broad areas of complaint
The applicant’s case raises two broad areas of complaint:
a)the alleged failure of the Tribunal to make inquiries with respect to:
i)whether the applicant held the office of chief whip of the SCNC in 2005-2006, or otherwise held a leadership or high profile role in the SCNC (as asserted in particulars (c)-(i) of the single ground of review); and
ii)the genuineness, independence and objectivity of the Applicant’s Cameroon Lawyer’s Affidavit (as to which see particulars (j)-(q) of the single ground of review); and
b)a failure by the Tribunal to comply with ss.424AA(b)(i) and (iii), 424A(1)(a) and (b) and 425 of the Migration Act, thereby leading to:
i)rejection of the applicant’s claims to have been chief whip of the SCNC during 2005-2006; and
ii)the failure to place any weight on the Applicant’s Cameroon Lawyer’s Affidavit.
Duty to inquire
SZIAI was on appeal from the Federal Court,[107] and dealt with whether or not jurisdictional error occurred where an administrative decision-maker failed to undertake its own inquiries to ascertain relevant facts.
[107] SZIAIv Minister for Immigration and Citizenship (2008) 104 ALD 22; [2008] FCA 1372 (“SZIAI-Federal Court”).
In SZIAI the visa applicant had submitted documents received from Bangladesh concerning his membership of an Ahmadiyya Muslim organisation for consideration by the Tribunal. The Tribunal contacted a local branch of the Ahmadiyya Muslim Association in Australia. That association said that the certificates obtained in Bangladesh were forgeries and annexed a letter from the National Ameer of the Bangladeshi Ahmadiyya Muslim Organisation indicating that there was no record of the visa applicant’s membership. The Tribunal used this information to draw conclusions about the visa applicant’s credibility: in short it found that he was not a witness of truth and that his evidence was not to be accepted. The visa applicant’s application for review was dismissed.[108]
[108] SZIAI ALJR at 1125-1126 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; HCA at paras.3-8 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
In SZIAI – Federal Court, before a single Judge of the Federal Court on appeal from the Federal Magistrates Court, the Tribunal decision was quashed because it was said that the facts gave rise to a duty for the Tribunal to make further inquiries of the authors of the Bangladeshi documents.[109] In relation to those documents the Tribunal had been provided with telephone numbers for the authors.[110]
[109] SZIAI-Federal Court ALD at 27-28 per Flick J; FCA at para.25 per Flick J.
[110] SZIAI-Federal Court ALD at 26-27 per Flick J; FCA at paras.20-21 per Flick J.
In SZIAI the High Court recognised that failure to make obvious inquiries about a critical fact, the existence of which is easily ascertained, might affect a decision in some way such as to constitute jurisdictional error.[111] The High Court held that no duty arose. This was because further inquiries concerning the authenticity of the certificates would not have yielded any useful result. If the authors of the certificates were contacted, and said that the documents were forged, there were stronger grounds for the Tribunal’s decision. If not, then nothing was added to the statements effectively conveyed by the certificates themselves.[112] Also, it was noted that neither the applicant nor his solicitors were able to add anything beyond the bare denial of the allegation in the National Ameer’s letter that the certificates were forgeries. For those reasons, there was no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review, or that it was otherwise so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error.[113]
[111] SZIAI ALJR at 1129 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; HCA at para.25 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
[112] SZIAI ALJR at 1129 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; HCA at para.26 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
[113] SZIAI ALJR at 1129 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; HCA at para.26 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
The institution of independent inquiries by an administrative reviewer has been described as a “relatively rare case”,[114] and “strictly limited”,[115] and is therefore the exception, and not the rule. Additionally, it is relevant to note that it is a repeatedly recognised feature of administrative decision-making that it is no part of the task of the decision-maker to make out an applicant’s case.[116]
[114] Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 at 417 per Wilcox J; [2000] FCA 589 at para.214 per Wilcox J.
[115] Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272 at 298 per Greenwood J; [2008] FCAFC 108 at para.109 per Greenwood J.
[116] See, for example, Prasad at 170 per Wilcox J; Luu & Anor v Renevier (1989) 91 ALR 39 at 45 per Davies, Wilcox and Pincus JJ.
The existence of a “critical fact” which is “easily ascertainable” is the purpose of any further inquiry, and it must be a fact which relates to the particular circumstances of the individual case under review.
An example of a critical fact which is easily ascertainable occurred in WZANF v Minister for Immigration & Citizenship & Anor.[117] In WZANF a critical question arose, both as to the facts and the credibility of the applicant, as to whether or not the applicant had been named and pictured in a regional Turkish newspaper as attending a demonstration. The Tribunal, despite receiving a photocopy of the alleged article, based on issues of credibility, refused to make further inquiries as to the authenticity of the newspaper account. There was evidence that the newspaper was archived, and this Court found that because it was a critical document, and because it would have been corroborative of a number of the integers of the applicant’s claim, the Tribunal committed a jurisdictional error by failing to require the secretary of the Department to arrange for the making of inquiries as to the existence of the newspaper, the publication of the newspaper article, and the possibility of obtaining a copy, not necessarily the original, of the newspaper article from the newspaper’s archives in Turkey.[118]
[117] [2010] FMCA 110 (“WZANF”).
[118] WZANF at paras.106-107 per Lucev FM.
In this case what “critical fact” is “easily ascertainable” by further inquiry? With whom would the Tribunal have made inquiry as to whether this particular applicant was at risk of persecution?
The Tribunal did not bear the onus of proving the applicant’s case: that onus fell on the applicant. That is a matter of singular relevance in this case in circumstances where the Delegate’s Decision which was under review expressly found that there was widespread document fraud and falsification in Cameroon, and that the Delegate was therefore “not fully convinced that the SCNC documents provided by the applicant are genuine”.[119] In those circumstances, it is particularly unusual that the applicant did not provide to the Tribunal any “easily ascertainable” documents that went to proof of his holding the position of chief whip with the SCNC, or any other senior leadership position within the SCNC. In fact, if such proof was “easily ascertainable” it is surprising that no document proving the applicant’s position as chief whip with the SCNC was produced to the Delegate, let alone the Tribunal. That is particularly so when regard is had to the nature of the documents which were produced, namely, birth and marriage certificates, SCNC membership cards, the Testimony and the Applicant’s Cameroon Lawyer’s Affidavit, plus various documents related to the SCNC and its activities procured from the internet by the applicant. It is thus all the easier to infer that there were no “easily ascertainable” facts which inquiry by the Tribunal might have revealed.
[119] CB 129.
The fact that the SCNC is an illegal organisation in Cameroon would also make it more difficult for the Tribunal to properly establish contact with the SCNC. The prospect of an Australian administrative tribunal directly contacting an illegal organisation in a sovereign foreign country is not one which sits easily with normal means of diplomatic and government communication. Furthermore, the easy ascertainment of the truth from such an organisation, in circumstances where the Tribunal was aware of credible country information that indicated that the SCNC was involved in document fraud, including the production of false membership cards for persons seeking asylum abroad, makes it less likely that the truth would be easily ascertainable.[120]
[120] Delegate’s Decision, CB 129. The Tribunal had regard to the material referred to in the Delegate’s Decision: CB 226 at para.20.
The Court is also not persuaded that the question of whether the applicant was chief whip more than seven years ago is a critical fact in relation to his application. Since sometime toward the end of 2006 on the applicant’s evidence he has been an ordinary member of the SCNC. Credible country information, upon which the Tribunal relied, indicates that there is no real risk of persecution of a person who is no more than an ordinary member of the SCNC. Membership alone of the SCNC does not render a person liable to persecution, and given the factual findings about the low level of the applicant’s profile (factual findings which were open on the evidence to the Tribunal) the question of whether or not the applicant was the chief whip of the SCNC, or held some other leadership position at that time, in 2005-2006, is not now a critical fact in relation to whether there is a future risk of serious harm giving rise to a well-founded fear of persecution if the applicant were to return to Cameroon.
To impose a duty on the Tribunal to inquire, in this case, as to the position held by the applicant in the SCNC, if any, other than mere membership in 2005-2006, is to effectively impose a duty on the Tribunal to inquire so as to make good the applicant’s own case.
Any inquiries as to the genuineness of the Applicant’s Cameroon Lawyer’s Affidavit would have likely been fruitless. The applicant’s own evidence indicated that the Applicant’s Cameroon Lawyer was not prepared to give further information without payment of the sum of $2,000. In those circumstances it cannot properly be said that any fact related to the Applicant’s Cameroon Lawyer’s Affidavit would be “easily ascertainable” by the Tribunal. The Tribunal did of course have regard to both the content of the Applicant’s Cameroon Lawyer’s Affidavit, and the incidence of document fraud in Cameroon, in determining to attribute no weight to the Applicant’s Cameroon Lawyer’s Affidavit. Even if the Tribunal had gone to the extent of contacting the Applicant’s Cameroon Lawyer, the Applicant’s Cameroon Lawyer’s Affidavit was so lacking in its content, particularly as to the detail of the source of the information set out therein, that the facts would not have been “easily ascertainable”, but would have required a thorough-going inquisition by the Tribunal in order to see if there was any substance to what was asserted in the Applicant’s Cameroon Lawyer’s Affidavit. That is not the role of the Tribunal in relation to such inquiries. In the Court’s view the content of the Applicant’s Cameroon Lawyer’s Affidavit is so vague, and so lacking in relation to the source of the information set out therein, that the Tribunal would have been justified, having regard to the content of the Applicant’s Cameroon Lawyer’s Affidavit alone, in deciding not to place any weight on the Applicant’s Cameroon Lawyer’s Affidavit.
In relation to both the Applicant’s Cameroon Lawyer’s Affidavit and the Testimony it is also the case that the claims made are ones in respect of which the applicant bears the onus, and the applicant procured the information in the first instance, leading to the view that the applicant would be in the best position to make further inquiries both of the Applicant’s Cameroon Lawyer and the person who gave the Testimony. It was not for the Tribunal to do so, as it is not for the Tribunal to make out the applicant’s case, or “to achieve a demonstration that … [the applicant] has failed to achieve.”[121] This a further reason why, in the circumstances, there was no duty on the Tribunal to make the inquiries which the applicant now suggests the Tribunal ought to have made.
[121] SZIAI ALJR at 1133 per Heydon; HCA at para.52 per Heydon J.
There was no positive statement from the Tribunal that it intended to make inquiries of the sort that the applicant now says it ought to have made. The mere fact that the Tribunal asked for certain contact details is insufficient to warrant the drawing of a conclusion, by implication, that the Tribunal intended to make inquiries, in circumstances where it has no duty to do so, and, where for reasons outlined above, the relevant facts were neither easily ascertainable nor critical to the outcome of the Tribunal’s considerations.
As in SZIAI, even if contact had been made, it is not possible to say what the outcome of that contact might have been. If the authors of the documents confirmed that they were fraudulent, there were stronger grounds for the Tribunal’s Decision. If not, then nothing was added to the statements contained in the documents themselves, unless the Tribunal embarked upon further inquiry, which it had no duty to do.
In the circumstances, to impose a duty to inquiry in this case with respect to the Applicant’s Cameroon Lawyer’s Affidavit and the Testimony would have effectively been to impose a duty upon the Tribunal to inquire as to detailed, and not readily ascertainable, factual matters in circumstances where the onus properly lay on the applicant to establish those facts.
Conclusion – duty to inquire
There can be no duty in inquire in such cases, for if there was, the duty to inquire would be the norm and not the exception, and that is inconsistent with the binding authority of the High Court and Federal Court cited above.
Obtaining information
The Court now turns to the claim by the applicant that there was jurisdictional error by the Tribunal by reason of non-compliance with s.424AA of the Migration Act.
Sections 424AA and 424A of the Migration Act are complementary and to achieve coherence must be read together.[122] The means of complementary operation are summarised thus in SZMCD:
(a) The Tribunal has a discretion as to whether it will go down the path of providing oral particulars as contemplated by s 424AA;
(b) Once the Tribunal invokes s 424AA, it is required to comply with the whole of the Section (both subparas (a) and (b) of s 424AA);
(c) The only consequence of non-compliance with all of the requirements of s 424AA is that the Tribunal does not get the benefit of s 424A(2A);
(d) In that event, the Tribunal must then comply with the provisions of s 424A(1), compliance with which is still subject to subs (3); and
(e) Subsection (3) exempts the Tribunal from having to comply with s 424A(1) if the relevant information is country information.[123]
[122] SZMCD FCR at 431 and 436 per Tracey and Foster JJ; FCAFC at paras.80 and 104 per Tracey and Foster JJ.
[123] SZMCD FCR at 435-436 per Tracey and Foster JJ; FCAFC at para.103 per Tracey and Foster JJ.
In SZMCD the consequences of a failure to comply with s.424AA of the Migration Act were explained as follows:
[77] The immediate effect of a failure properly to comply with s 424AA is that the Tribunal will have purported to exercise a procedural discretion but will have in fact failed to do so in the manner required by the statute. The relevant sections when read together in their context suggest that the overriding obligation to provide the applicant with clear particulars of relevant information subsists and will be required to be discharged by other means (ie through s 424A(1)).[124]
with it ultimately being observed that:
a)the Tribunal must always comply with s.424A of the Migration Act;[125]
b)whether the provisions of s.424AA of the Migration Act were invoked was a matter of choice for the Tribunal;[126] and
c)failure to comply with s.424AA of the Migration Act in every respect will not amount to jurisdictional error.[127]
[124] SZMCD FCR at 430-431 per Tracey and Foster JJ; FCAFC at para.77 per Tracey and Foster JJ.
[125] SZMCD FCR at 431 per Tracey and Foster JJ; FCAFC at para.87 per Tracey and Foster JJ.
[126] SZMCD FCR at 431 per Tracey and Foster JJ; FCAFC at para.87 per Tracey and Foster JJ.
[127] SZMCD FCR at 430 and 431 per Tracey and Foster JJ; FCAFC at paras.74, 75 and 79 per Tracey and Foster JJ.
The applicant’s claim that there is jurisdictional error as a consequence of non-compliance with s.424AA of the Migration Act cannot therefore be made out, and that aspect of the applicant’s claim must fail.
In relation to “information” it was said in SZMCD that the “‘information’ covered by each section [that is ss.424AA and 424A of the Migration Act] must be the same”.[128] Operationally, ss.424AA and 424A were said to interact in the following manner:
[88] If the information under consideration by the Tribunal is the type of information covered by subs (3) of s 424A or if the Tribunal has engaged the provisions of s 424AA and complied with the requirements of that section, it need not meet the requirements of s 424A(1). This is because s 424A(2A) relieves the Tribunal of the obligation to do so if s 424AA has been complied with and s 424A(3) relieves the Tribunal of the obligation to do so if the information is of a kind covered by that subsection.[129]
[128] SZMCD FCR at 432 per Tracey and Foster JJ; FCAFC at para.91 per Tracey and Foster JJ. That “each section” refers to both ss.424AA and 424A is apparent from a reading of the preceding paragraph: SZMCD FCR at 432 per Tracey and Foster JJ; FCAFC at para.90 per Tracey and Foster JJ.
[129] SZMCD FCR at 431-432 per Tracey and Foster JJ; FCAFC at para.88 per Tracey and Foster JJ.
The question now, therefore, must be whether there is “information” for the purposes of s.424A, in the context of the relevant phrase (which also appears in s.424AA of the Migration Act) that “any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”.[130] Ultimately, the Tribunal’s Decision rested upon the point that rank and file members of the SCNC were not persons of interest, or persons otherwise targeted for serious harm giving rise to a well-founded fear of persecution, by the government in Cameroon, and that as the applicant was such a person, if he were to return to Cameroon now or in the reasonably foreseeable future, he would not be targeted for serious harm giving rise to a well-founded fear of persecution.[131] There was credible country information which supported the Tribunal’s conclusion in that regard, and which the Tribunal preferred to the applicant’s evidence. The particulars of information of the SCNC website, and the particulars of information giving contact details of the Applicant’s Cameroon Lawyer or any SCNC officials, are not of themselves information that the Tribunal considered, or which would in any event, be the reason, or part of the reason, for affirming the Delegate’s Decision. In order for that to occur, the Tribunal would have had to have made further inquiries, to fill gaps in the applicant’s case, which gaps or “absence of evidence” were not “information” for the purposes of s.424A(1)(a) of the Migration Act,[132] and which the Tribunal was under no duty to undertake.[133] Nor, for reasons set out above, was there any positive indication, or any reason by way of implication, from which it could reasonably or confidently be said that the Tribunal intended to examine the SCNC website, or contact the Applicant’s Cameroon Lawyer or any SCNC officials, in order to obtain further information which might be the reason, or part of the reason, for affirming the Delegate’s Decision.
[130] SZBYR ALJR at 1195-1196 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; HCA at para.17 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
[131] CB 257-258 at para.136.
[132] SZBYR ALJR at 1196 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; HCA at para.18 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
[133] See paras.38-55 above.
In the circumstances, there was no contravention of s.424A(1)(a) of the Migration Act (nor of s.424AA of the Migration Act) because there was no “information” which the Tribunal considered would be the reason, or a part of the reason, for affirming the Delegate’s Decision.
Notwithstanding all of the above the applicant was, in any event, expressly put on notice for the purposes of s.424A(1)(a) of the Migration Act that he might not be found to have been the chief whip of the SCNC, and, in addition to being asked to comment upon general country information and the fact that (unlike SCNC senior leaders) he had not been charged, he was also asked to comment upon the fact that the Testimony, which he relied upon, did not support his claim.[134] In the circumstances, s.424A(1)(a) of the Migration Act was complied with by the Tribunal.
[134] CB 192.
In the above circumstances, the alleged breach of s.425 of the Migration Act simply does not arise, as the applicant was invited to appear before the Tribunal, and did give evidence and present arguments relating to the issues arising in relation to the decision under review, and there was no breach of ss.424AA or 424A of the Migration Act.
Conclusions and orders
The Court has concluded that the grounds of the application have not been made out. It follows that there will be an order dismissing the application.
The Court will hear the parties as to costs.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 3 May 2013
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