WZATH v Minister for Immigration and Border Protection
[2014] FCCA 612
•28 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZATH v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 612 |
| Catchwords: MIGRATION – Judicial review – Refugee Review Tribunal – credibility of applicant – weight to be given to applicant’s evidence before Tribunal – whether failure to properly consider claims – whether actual or apprehended bias – whether denial of procedural fairness – whether reasoning illogical or unbalanced – whether irrelevant consideration taken into account – whether jurisdictional error. |
| Legislation: Evidence Act 1995 (Cth), s.60(1) |
| Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62 Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 Craig v South Australia (1995) 184 CLR 163 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 124 ALR 265 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 SZDFZ v Minister for Immigration & Citizenship & Anor (2008) 168 FCR 1; [2008] FCA 390 |
| Applicant: | WZATH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 261 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 27 March 2014 |
| Date of Last Submission: | 27 March 2014 |
| Delivered at: | Perth |
| Delivered on: | 28 May 2014 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Ms L Gallagher |
| Solicitors for the First Respondent: | Sparke Helmore |
| For the Second Respondent: | Submitting appearance, save as to costs |
ORDERS
Pursuant to s.477(2) of the Migration Act 1958 (Cth), time be extended for the filing of the application, to the time of actual filing.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 261 of 2013
| WZATH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed on 27 September 2013, the applicant seeks judicial review under s.476 of the Migration Act 1958 (Cth),[1] of a decision of the second respondent, the Refugee Review Tribunal,[2] made on 22 August 2013. The Tribunal affirmed a decision of a delegate of the first respondent[3] dated 21 November 2012 to refuse to grant a Protection (Class XA) visa[4] to the applicant.
[1] “Migration Act”.
[2] “Tribunal” and “Tribunal Decision” respectively. The Tribunal Decision is at Court Book (“CB”) 112-128.
[3] “Delegate” and “Delegate’s Decision” respectively. The Delegate’s Decision is at CB 81-90.
[4] “Protection Visa”.
At hearing an oral application was made for an extension of time in which to file the application for judicial review.
Applicant’s claims
The applicant is a citizen of Nepal. She arrived in Australia on 28 July 2009 on a Student (Class TU 572) visa,[5] and lodged the Protection Visa application on 23 May 2012.[6]
[5] “Student Visa”.
[6] CB 1-26.
In her Protection Visa application the applicant claimed:
a)to fear harm from her husband who she claims she was pressured to marry by her family on 9 July 1997;
b)that her husband:
i)was violent towards her and assaulted her physically and verbally;
ii)gambled and drank heavily;
iii)had an affair with another woman; and
iv)said he would kill her if she tried to obtain a divorce.[7]
[7] CB 18.
Proceedings before the Delegate
By letter dated 3 August 2012, the applicant was invited to attend an interview with the Delegate on 29 August 2012.[8] That interview proceeded on 29 August 2012.[9] The Delegate’s Decision made on 21 November 2012 was to refuse to grant the applicant a Protection Visa.[10]
[8] CB 35-36.
[9] CB 84.
[10] CB 77-90.
Tribunal proceedings
On 6 December 2012 the applicant lodged an application for review to the Tribunal.[11] On 14 June 2013 the applicant was invited to attend a hearing before the Tribunal scheduled for 13 August 2013 to give evidence and present arguments relating to the issues under review.[12]
[11] CB 91-96.
[12] CB 101-102.
On 13 August 2013, the applicant attended the Tribunal hearing at which she had the assistance of a Nepalese interpreter.[13]
[13] CB 105-107.
The Tribunal Decision affirming the Delegate’s Decision not to grant the applicant a Protection Visa was dated 22 August 2013.
Tribunal Decision
The Tribunal Decision runs to some 16 pages consisting of:
a)an assessment of the applicant’s claims, having regard to the relevant factual background in the first 10 pages; and
b)two attachments:
i)Attachment A being the relevant law set out over four pages; and
ii)Attachment B being independent country information of just over one page in relation to document fraud in Nepal.
The Tribunal found that the applicant was a citizen of Nepal and assessed her claims against Nepal as her country of nationality and receiving country.[14]
[14] CB 113 at para.4.
The Tribunal sets out:
a)that the basis for the Protection Visa application is the applicant’s marriage to a man 15 years older than her with whom she has had three children (now 16, 13 and 10 years old), and in relation to which she was the subject of family violence before leaving Nepal; and
b)the fact that the applicant alleges that the husband’s family are wealthy and have good connections with the police, and that in Nepal family violence is tolerated, and she would be killed if she reported the abuse to the authorities.[15]
[15] CB 113 at para.5.
The Tribunal noted that the applicant’s sister and brother-in-law assisted her to make the application by paying an agent to make all the travel and visa arrangements with respect to her Student Visa. The applicant claimed that it was that agent who included amongst the documents a false marriage certificate.[16]
[16] CB 113 at para.5.
The Tribunal noted that in the Delegate’s Decision:
a)the applicant was found not to be a credible witness;
b)the applicant was found to have provided fraudulent documents to support the Protection Visa application;
c)the applicant had claimed that the Student Visa she used to enter Australia was acquired with false documentation, but that this was organised through an agent who “took care of everything”;
d)it was noted that the applicant’s documents were checked by the Australian diplomatic post in New Delhi and verified as being evidence of the relationship between the applicant and another person at the time the Student Visa was granted;[17] and
e)it was noted that the applicant had subsequently applied for another visa whilst in Australia and had used fraudulent documents in support of that application, which she said had also been prepared by an agent, and that all she did was to pay the money and provide documents.[18]
[17] See para.20 below.
[18] CB 113-114 at paras.6-7.
The Tribunal set out in some detail the substance of the Tribunal Hearing. In the absence of any contrary evidence from the applicant, or anyone else, the Court is obliged to accept what is contained in the Tribunal Decision as an accurate record of what occurred at the Tribunal Hearing.[19]
[19] Evidence Act 1995 (Cth), s.60(1); SZNTL v Minister for Immigration & Anor [2009] FMCA 1153 at para.45 per Scarlett FM; SZRRY v Minister for Immigration & Anor [2013] FMCA 189 at para.48 per Emmett FM; Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1 at 19 per Kirby J; [2004] HCA 62 at para.63 per Kirby J; NOAO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at para.21 per Beaumont, Merkel and Hely JJ; SZGJY v Minister for Immigration & Multicultural Affairs [2007] FCA 380 at para.13 per Collier J; Minister for Immigration & Citizenship v SZNVW & Anor (2010) 183 FCR 575 at 590-591 per Perram J; [2010] FCAFC 41 at para.59 per Perram J.
Given that the grounds of review contained allegations of a lack of good faith and actual apprehended bias on the part of the Tribunal, it is necessary to set out in some detail what occurred at the Tribunal Hearing.
What the applicant told the Tribunal
After the Tribunal had begun by explaining to the applicant the criteria for the Protection Visa, and in particular the definition of a refugee as set out in the Convention, and Australia’s complementary protection obligations, the applicant told the Tribunal that:
a)she had read the Delegate’s Decision but did not understand it (and the Tribunal explained that her application for a Protection Visa had been refused by the Delegate, who had found that she was not a credible witness and did not believe her claims);
b)her husband had threatened to kill her if she left him, and had told that to the children;
c)hers was an arranged marriage when she was 18 years old, to a rich man who did nothing but live off the sale of his family’s land;
d)the marriage deteriorated after four or five years when the husband started drinking and having girlfriends, and coming home and beating the applicant when he was drunk;
e)her parents and sisters did not believe that the husband did these things as he put on a different face at home to the face that he put on to her parents and sisters;
f)her husband was not supporting the three children, who were living with her parents, with whom she left them when she left Nepal, and her concern was not for herself but for her children as she did not know who would care for her children if the husband killed her;
g)she has never enrolled in or completed any educational course in Australia and has worked as a cleaner since her arrival in Australia;
h)she did not make any of the visa or travel arrangements for herself, but rather arranged for them to be made through an agent to whom she provided passport photographs and to whom she provided money;
i)she knew nothing about the Student Visa application until her interview with the Delegate, and the person to whom she was purported to be married went to Adelaide on arrival in Australia while she travelled to Perth;
j)her Student Visa expired in August 2011 and she only found out that it had expired through a call from work to tell her that her Student Visa had expired and she could not work anymore;
k)she is not educated and if she returns it will be hard for her to find a job to be able to support her children and it is expensive to provide them with an education, whereas if she stays in Australia, she can continue working and send money home;
l)her husband did not love her and made her work like a slave, and when he came home he just wanted sex, and the children are a result;
m)she is unable to relocate anywhere as her husband has connections and is wealthy and she cannot seek the protection of the authorities as her husband drinks with the police;
n)she cannot live with her in-laws and her father is too old and frail to protect her;
o)it took the husband six or seven months to notice that she had left, because he drove a truck around and when he returned he just dropped in to change, did not talk to his parents (with whom she lived at the time) and then left again; and
p)when she was living in Kathmandu her husband did not chase her as he was scared of her brother-in-law who was a police officer.[20]
[20] CB 114-116 at paras.8-21.
The Tribunal’s queries and information put to the applicant
The Tribunal asked the applicant about:
a)why she could not get protection from her sister-in-law and brother-in-law, particularly as the latter was a policeman, and was told that her brother-in-law could not protect her 24 hours a day;
b)violence that she experienced from her husband, in relation to which she told the Tribunal that:
i)no hospitalisation was required;
ii)on one occasion the husband poured boiling water over the applicant’s arm which left a red mark and nothing else; and
iii)he wanted her to work as a prostitute but she refused and as a result he beat her, forced her to have sexual intercourse and threatened to kill her if she left; and
c)why she did not seek protection when she first arrived in Australia on 28 July 2009. The applicant responded that “she had no idea” that she could apply for protection and only found out from a friend when she was in Sydney. The Tribunal asked why she then applied for a temporary visa if she was fearful of returning to Nepal and the applicant responded that the person who was advising her helped her.[21]
[21] CB 116-117 at para.24.
In relation to fraudulent documentation the Tribunal put to the applicant that:
a)she arrived on a Student Visa obtained through fraudulent documentation;
b)she subsequently applied for another visa (a temporary skilled visa) using fraudulent documentation; and
c)has now applied for the Protection Visa giving a different version of her family membership, including providing supporting documents.[22]
[22] CB 177 at para.25.
The Tribunal said that the applicant appeared to be willing to obtain a visa through fraudulent means, and queried as to how the Tribunal could know whether the version in the Protection Visa application was the truth. The Tribunal referred to a photograph which the applicant said was of her wedding and another of her three children taken about two years ago, and queried whether it could be sure that these were photographs of her husband and children as attached to her Student Visa application was another photograph that was claimed to be her husband and child. The applicant responded that the child in the other photograph was the child of Mr Goutam to whom the applicant had purported to be married in the Student Visa documentation.[23]
[23] CB 177 at para.25.
The Tribunal put to the applicant that independent country information indicated that it was easy to obtain fraudulent documents in Nepal, including identity documents such as passports and birth certificates, and queried how the Tribunal was to know whether the documents provided by the applicant in support of the Protection Visa application were genuine documents. The applicant indicated she could obtain verification from her village committee as to her true family composition. The Tribunal then referred to the Delegate’s Decision where a document from a village development committee to verify her relationship to support her Student Visa application had been provided, but which the applicant now claimed was false in relation to the alleged marital relationship there claimed. The applicant indicated that that particular document came from Mr Goutam’s village development committee, and she could obtain one from her village development committee. The Tribunal referred to the Delegate’s Decision which indicated that the documents in relation to her Student Visa application had been verified as correct by Australia’s diplomatic post in New Delhi, and as those documents were now claimed to be false, how could the Tribunal be satisfied that any documents that the applicant provided were true and correct. To this, the applicant responded that it was currently a religious festival, and for those reasons she was telling the truth.[24]
[24] CB 117 at para.27.
For the purposes of s.424AA of the Migration Act the Tribunal put information to the applicant to enable the applicant to have an opportunity to respond to information the Tribunal considered would be the reason or part of the reason for affirming the Delegate’s Decision, and advised the applicant that she could have additional time to respond if that was needed.[25] The Tribunal also explained the possible adverse effect of the information on the Tribunal’s assessment of the applicant’s credibility as a witness, and ensured that she understood the particulars of information sought, and why it was being sought, in that it may lead the Tribunal to conclude that her claims for protection were not genuine and were aimed at simply remaining in Australia.[26] The information put to the applicant for the purposes of s.424AA of the Migration Act was as follows:
·Information as to the inconsistencies between the evidence in relation to her family membership/structure in the Student Visa application lodged in New Delhi, the Skilled Visa application subsequently lodged in Australia and that contained in her application for protection. Particularly, her husband and children are listed as being different in the Student Visa application to the Protection Visa application and that the name of her husband in the Protection Visa application is the same as her father in the previous visa applications.
·The provision of fraudulent documents for the previous applications to enter and remain in Australia.[27]
[25] CB 117 at para.28.
[26] CB 117 at para.28.
[27] CB 117-118 at para.28.
The applicant responded immediately and said that “she had told the Tribunal everything and it was the truth”[28] and that the main reason she needed protection was for her children’s security.[29]
[28] CB 118 at para.29.
[29] CB 118 at para.30.
The Tribunal’s findings on credibility
The Tribunal found that the applicant was not a credible witness and that she fabricated her claims to enhance her Protection Visa application,[30] and referred to:
a)inconsistencies in her evidence about her family membership and structure, for example: the name of the applicant’s father in a temporary skilled visa application refused on 10 April 2012 was the name provided for her husband in her Protection Visa application;[31]
b)the applicant being complicit in the provision of false documentation to obtain her Student Visa; and
c)the significance of the fabricated information together with the provision of fraudulent documentation and the ongoing nature of the fabrication and omissions, which were only admitted when confronted by the information, indicated that the applicant was prepared to tailor her evidence to suit her purpose, and was “not a credible witness”.[32]
[30] CB 118 at para.34.
[31] CB 113 and 118 at paras.6, 35 and 40-41.
[32] CB 119 at paras.38 and 40-41.
The Tribunal therefore:
a)did not accept the documents lodged in support of the Protection Visa application were genuine; and
b)was not satisfied that photographs provided at the Tribunal hearing were photographs of the applicant’s husband or children.[33]
[33] CB 119-120 at para.40.
The Tribunal’s findings on a well-founded fear of persecution
With respect to the applicant’s claim of a well-founded fear of persecution the Tribunal:
a)found that the applicant’s delay in seeking protection cast doubt on the genuineness of her alleged fears of persecution in Nepal. The applicant arrived in Australia in July 2009 but did not lodge any claim for protection until 23 May 2012, nearly three years after her arrival.[34] The Tribunal did not accept that a person genuinely fearing harm upon return to their home country would not take steps to seek advice about their immigration status in Australia at an earlier stage;[35]
b)did not accept the applicant’s claims to fear harm from her husband, that he had ever threatened her with harm or that she was married to the husband to whom she claimed to be married;[36]
c)concluded, on the basis of omissions and inconsistencies in the applicant’s evidence including provision of fraudulent documentation, and the delay in making her Protection Visa application, that the applicant had not provided a truthful account of her circumstances in Nepal;[37] and
d)was not satisfied that the applicant had a well-founded fear of persecution for any Convention reason or that there was a real risk that she would face significant harm if she returned to Nepal.[38]
Application for judicial review
[34] CB 119 at para.39.
[35] CB 119 at para.39.
[36] CB 120 at para.42.
[37] CB 120 at para.43.
[38] CB 120-121 at paras.45 and 49.
Extension of time to lodge application for judicial review
The Tribunal Decision is dated 22 August 2013. The application for judicial review was lodged on 27 September 2013. For the application for judicial review to have been lodged within the 35 days prescribed by s.477(1) of the Migration Act, it was required to be lodged by 26 September 2013. It was not lodged until 27 September 2013. It was, therefore, one day out of time.
The applicant did not seek an extension of time in her application for judicial review. At hearing, the applicant made an oral application for an extension of time in which to lodge her application. The Minister did not object to the applicant being granted an extension of time in which to file the application for judicial review. In the circumstances, there will be an order pursuant to s.477(2) of the Migration Act for an extension of time to the applicant in which to file the application for judicial review.
Grounds of review
By way of an amended application for judicial review filed 5 December 2013 the applicant filed amended grounds of review. The Court notes that there are six grounds of review, all of which, except the first, are mis-numbered in the amended application for judicial review.
Each of the grounds of review is set out and considered hereunder.
Ground 1
Ground 1 is as follows:
1.It is argued that the Tribunal member displays a lack of good faith on me because the Member has alleged me that I am not a credible witness despite I told the truth regarding my delay in making a protection visa application, my marriage, my family members, my suffering as a result of domestic violence and pathway of coming to Australia as the Tribunal Member failed to examine my evidence from the point of view the circumstances in which it occurred rather than from the point of her own worldview. According to the Tribunal’s comments at the hearing, a reasonable observer would gain the impression that the Tribunal had already made up her mind and that anything else would be a waste of time.
Ground 1 raises issues as to:
a)the Tribunal’s assessment of the applicant as a credible witness, based on a lack of good faith;
b)a failure to examine the applicant’s evidence; and
c)actual and apprehended bias.
In relation to the applicant’s credit the alleged lack of good faith in the applicant by the Tribunal is said to arise from the Tribunal’s finding that the applicant is not a credible witness.
The Tribunal is entitled to assess the applicant’s credibility, and the assessment of credibility is a matter for the administrative decision-maker par excellence.[39] A credibility finding is a finding of fact, and a reviewing body must not set it aside simply because it thinks that the probabilities of the case are against, or even strongly against, the finding.[40]
[39] Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J; [2000] HCA 1 at para.67 per McHugh J, and see, further, SZKHV & Anor v Minister for Immigration & Anor [2009] FMCA 264 at para.56 per Emmett FM; SZONA v Minister for Immigration & Anor [2011] FMCA 99 at para.31 per Lloyd-Jones FM; SZONR v Minister for Immigration & Anor [2011] FMCA 89 at para.49 per Nicholls FM.
[40] W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 at 716 per Tamberlin and RD Nicholson JJ; [2001] FCA 679 at para.64 per Tamberlin and RD Nicholson JJ.
In this case:
a)the applicant has entered Australia on a Student Visa obtained, at least in part, on the basis of fraudulent documentation, namely a false marriage certificate, a matter which she now admits, it having been brought to her attention;
b)the applicant has named the same person as her husband and her father in the Skilled Visa application and the Protection Visa application;
c)independent country information indicates that it is easy to obtain fraudulent documents in Nepal; and
d)documents verified by a Village Committee (the status of such committee not being clear to the Court, or seemingly made clear to the Tribunal either) verified a relationship to support the applicant’s Student Visa application which she now claims was false, and she now seeks to have a different Village Committee verify other documents as true.
On the basis of the above issues, the Tribunal was entitled to take an adverse view of the applicant’s credibility. Indeed, the Tribunal might have, but has not expressly, pointed out that the applicant’s credibility could be doubted on other grounds, for example:
a)the fact that she entered Australia on a Student Visa, but has never enrolled in, let alone completed, any educational course in Australia, but rather has worked as a cleaner since her arrival in Australia; and
b)despite claiming that she could not seek protection in Nepal because her husband “drinks with the police”,[41] she, on the other hand, asserted that her husband did not “chase her” when she left and went to live in Kathmandu because “he was scared of her brother-in-law who was a police officer”.[42]
[41] CB 116 at para.20.
[42] CB 116 at para.21.
In the circumstances, there is no error, let alone jurisdictional error, disclosed by the manner in which the Tribunal has dealt with the applicant’s credibility.
In relation to the allegation that the Tribunal failed to examine the evidence, and more particularly, that it failed to do so “from the point of view that the circumstances in which it occurred rather from the point of her own world view”, the Court observes that the Tribunal, as set out by the Court in some detail above, dealt with each aspect of the evidence raised by the applicant’s submissions. It did so having regard to the relevant law, which was set out in the Tribunal Decision,[43] and independent country information concerning document fraud.[44] Furthermore, in relation to the provision of fraudulent documents, there was no significant dispute as to the fraudulent nature of the documents found to be fraudulent, with the applicant simply saying that she was unaware of these matters until they were raised with her because the relevant applications were all made by agents to whom she paid money. For reasons set out above, the Tribunal was entitled, in the circumstances, to find that the applicant’s evidence lacked credibility, and in that regard to disbelieve her in relation to other evidence she gave as to the facts concerning her allegations that she was married, had children, or feared persecution for the reasons that she claimed. In so doing, the Tribunal canvassed the evidence thoroughly, and did not fail to examine any relevant evidence. The Tribunal was cognisant of the stress and difficulty the applicant may have had in giving evidence, including that caused by trauma, and that this may have affected the consistency, precision and detail of that evidence.[45] The Tribunal found that the applicant was from Nepal, and accepted that asylum seekers who are generally credible ought to be given the benefit of the doubt in relation to substantiation of their claims.[46] In the above circumstances, to the extent that it may have been relevant, the claim that the Tribunal did not have regard to the applicant’s “world view” cannot be sustained. The Tribunal also examined the evidence in a relatively orthodox manner having regard to the law, independent country information and its findings in relation to the applicant’s credibility. In those circumstances there can be no basis, for reasons set out immediately below, for the Court to intervene or revise the findings of fact made, which have been made on a proper examination of all of the evidence. No jurisdictional error is established on this basis.
[43] CB 123-126.
[44] CB 127-128.
[45] CB 118 at para.33.
[46] CB 118 at para.34.
All of the findings of the Tribunal are findings of fact. Findings of fact are not to be interfered with by a Court upon judicial review if the findings of fact were open to the administrative decision-maker, and otherwise made in accordance with the law.[47] Having regard to the Tribunal’s findings on credibility, and actual findings of fact on the issues, all of which were open to the Tribunal on the available evidence, this Court cannot, on judicial review, revise those findings. Consideration of the factual material, including the various inconsistencies arising from the applicant’s evidence and a consideration of the country information, meant that there was probative material from which the Tribunal could logically or rationally arrive at the conclusions in the Tribunal Decision, and in particular, the ultimate conclusion that the applicant was not a person who met the criteria for the Protection Visa, that criteria being set out in s.36(2) of the Migration Act. It is not for the Court to interfere when all of the evidence has been sifted and weighed by the Tribunal. Were the Court to do so in these circumstances it would cross the “vigorously policed” line between merits and judicial review.[48] The Tribunal was under no obligation to uncritically accept any and all allegations made by the applicant.[49] The Tribunal’s findings of fact, including its assessment of the applicant’s credibility and the credibility of her claims, and its expression of its inability to be satisfied of the applicant’s claims, were open to it on the evidence before it and for the reasons that it gave.[50] The weight to be given to the applicant’s claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function.[51] Those findings reveal no error.
[47] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
[48] Zentai v Honourable Brendan O’Connor & Ors (No. 3) (2010) 187 FCR 495 at 589 per McKerracher J; [2010] FCA 691 at para.367 per McKerracher J.
[49] Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 124 ALR 265 at 278 per Beaumont J.
[50] Wu Shan Liang at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
[51] Wu Shan Liang at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
As to the allegation of bias it appears to incorporate elements of both actual bias and apprehended bias. To prove actual bias on the part of the Tribunal requires evidence of a state of mind such that the Tribunal is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.[52] The party asserting actual bias bears a heavy onus and the allegation must be clearly made and proved. Similarly, a reasonable apprehension of bias requires a reasonable apprehension of such prejudgment.[53]
[52] Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 per Gleeson CJ and Gummow J; [2001] HCA 17 at para.72 per Gleeson CJ and Gummow J (“Jia Legeng”).
[53] Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425 at 434 per Gleeson CJ, Gaudron and Gummow JJ; [2001] HCA 28 at para.27 per Gleeson CJ, Gaudron and Gummow JJ.
There is no particularisation of the alleged bias. Regardless of whether it alleged to be apprehended or actual it is a rare and serious finding that a decision was biased,[54] particularly where the only evidence is the decision record, here the Tribunal Decision.[55] The applicant has made no attempt to comply with the requirement that this serious allegation be firmly and distinctly made and clearly proven.[56] Ordinarily a party would need to show some conduct on the part of the decision-maker, apart from the decision-maker’s expression of the decision-maker’s reasons, which would indicate that the decision-maker has been guilty of pre-judgment or was in any way biased.[57]
[54] SCAA v Minister for Immigration & Multicultural Affairs [2002] FCA 668 at paras.36-38 per von Doussa J.
[55] SZRDD v Minister for Immigration & Citizenship [2012] FMCA 543 at para.48 per Nicholls FM.
[56] Jia Legeng CLR at 531 per Gleeson CJ and Gummow J; HCA at para.69 per Gleeson CJ and Gummow J.
[57] SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at 756 per Tamberlin, Mansfield and Jacobson JJ; [2002] FCAFC 361 at para.44 per Tamberlin, Mansfield and Jacobson JJ; Minister for Immigration & Citizenship v SZNPG & Anor (2010) 115 ALD 303 at 307 per North and Lander JJ; [2010] FCAFC 51 at para.18 per North and Lander JJ.
In this case, there is no demonstrated prejudgment, nor any reasonable apprehension of prejudgment. Rather, the Tribunal’s detailed questioning of the applicant demonstrates that the Tribunal gave the applicant every opportunity to persuade the Tribunal, to the requisite degree of satisfaction, that the applicant had a well-founded fear of persecution for a Convention reason. Likewise, the Tribunal’s careful exposition of the relevant law, country information, and, most particularly, the applicant’s claim and relevant facts, and its careful and thorough fact-finding, preclude any assertion of bias, actual or apprehended. The applicant’s allegation of bias has not been made out, and there is no jurisdictional error in the Tribunal Decision on this basis.
For all of the above reasons, ground 1 is not made out.
Second ground 1
The second ground 1 is as follows:
1.I argue that the Tribunal member’s decision in relation to my case was taken in breach of natural justice as the Member established that an initial disbelief of my credibility on one matter and failed to look at my entire claim with fairness. In the context of the Tribunal’s reasoning for rejecting my claims as fabrications that its failure genuinely to assess the evidence favourable to me and a propensity to adopt illogical or unbalanced reasons.
The second ground 1 gives rise to the following issues:
a)an alleged denial of procedural fairness, by reason of a failure to look fairly at the entire claim;
b)a failure to genuinely assess the evidence favourable to the applicant; and
c)the adoption of illogical or unbalanced reasons.
The Tribunal complied with its obligations under s.425 of the Migration Act by validly inviting the applicant to a hearing, which she attended on 13 August 2013, and in which she gave evidence in support of her claims.[58] The Tribunal specifically raised with the applicant during the hearing the concerns that it had with her claims and evidence, specifically the provision of fraudulent information and documentation, and her delay in seeking protection.[59] The applicant was also on notice of the determinative issues arising on the review from the Delegate’s Decision.[60] Accordingly, no breach of s.425(1) of the Migration Act is apparent.[61]
[58] CB 114 at para.8.
[59] CB 116-117 at paras.24-48.
[60] CB 113 at para.6.
[61] SZBEL v Minister for Immigration & Multicultural Affairs & Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63.
“Information”, for the purposes of s.424A(1) of the Migration Act, does not include the existence of doubts and inconsistencies or the Tribunal’s preliminary conclusions in weighing up the evidence by reference to those gaps. It is apparent from the Tribunal Decision that the Tribunal explained to the applicant why the information was relevant, as it affected the Tribunal’s assessment of her credibility as a witness, and the consequences of it being relied upon, namely, that it might cause the Tribunal to conclude that her claims for protection were not genuine and were aimed at remaining in Australia.[62] It is also apparent that the Tribunal was prepared to allow the applicant time to respond, but that she chose to respond immediately.[63] No error is revealed from the Tribunal adopting this cautious approach,[64] as it complied with its obligations under s.424AA of the Migration Act, and no breach of s.424A of the Migration Act had occurred.
[62] CB 117-118 at para.28.
[63] CB 118 at para.29.
[64] SZGIY v Minister for Immigration & Citizenship [2008] FCAFC 68 at para.30 per Dowsett, Bennett and Edmonds JJ.
For the above reasons, there was no jurisdictional error by reason of a denial of procedural fairness (or natural justice) to the applicant by the Tribunal. The Tribunal complied with the limited procedural fairness obligations arising from the application of s.422B of the Migration Act.
For reasons otherwise set out above, the Tribunal did not fail to genuinely assess the evidence favourable to the applicant. The Tribunal looked at all of the evidence, made credibility findings adverse to the applicant on important aspects of that evidence, and did not therefore believe the applicant with respect to other aspects of her evidence. The assessment of credibility, and the subsequent findings of fact, were matters solely for the Tribunal, and not susceptible to judicial review by this Court in the circumstances of this case.[65]
[65] See paras.33 and 38 above.
The applicant also suggests that there was jurisdictional error by reason of the Tribunal’s reasoning being illogical or unbalanced, or, put differently, irrational, illogical and not based on findings or inferences of fact supported by logical grounds.[66]
[66] The formulation is taken from Minister for Immigration & Multicultural & Indigenous Affairsv SGLB (2004) 78 ALJR 992 at 998 per Gummow and Hayne JJ; [2004] HCA 32 at para.38 per Gummow and Hayne JJ (“SGLB”).
In the High Court in Minister for Immigration and Citizenship v SZMDS & Anor[67] the plurality majority Justices accepted a submission that:
…not every instance of illogicality or irrationality in reasoning could give rise to jurisdictional error, … if illogicality or irrationality occurs at the point of satisfaction (for the purposes of s 65 of the [Migration] Act) then this is a jurisdictional fact and a jurisdictional error is established.[68]
[67] (2010) 240 CLR 611; [2010] HCA 16 (“SZMDS”).
[68] SZMDS CLR at 643 per Crennan and Bell JJ; HCA at para.119 per Crennan and Bell JJ.
Those plurality Justices went on to say that:
…illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.[69]
[69] SZMDS CLR at 647-648 per Crennan and Bell JJ; HCA at para.130 per Crennan and Bell JJ.
Importantly, the above observations were caveated by the following observation of the same plurality Justices:
…a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision-maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision-maker does not come to that conclusion, or if the decision to which the decision-maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.[70]
[70] SZMDS CLR at 649-650 per Crennan and Bell JJ; HCA at para.135 per Crennan and Bell JJ.
The High Court’s decision in SZMDS establishes that illogicality or irrationality in the reasoning of an administrative decision-maker may constitute a basis for judicial review, however, this ground may only succeed in a limited range of cases.
In SZOOR v Minister for Immigration & Citizenship & Anor[71] it was observed that:
The approach to irrationality or illogicality dictated by the authorities in the High Court appears to be that even if the decision-maker’s articulation of how and why he or she went from the facts to the decision is not rational or logical, if someone else could have done so on the evidence, the decision is not one that will be set aside. It is only if no decision-maker could have followed that path, and despite the reasons given by the actual decision-maker, that the decision will be found to have been made by reason of a jurisdictional error.[72]
and further that:
… Illogicality such as to amount to jurisdictional error will not be shown where the point is merely one upon which reasonable minds may differ or where it cannot be said that there is no evidence before the Tribunal upon which the decision could be based. Illogicality will not amount to jurisdictional error in every case. It must be such as to affect the decision….[73]
[71] (2012) 202 FCR 1; [2012] FCAFC 58 (“SZOOR”).
[72] SZOOR FCR at 7 per Rares J; FCAFC at para.15 per Rares J.
[73] SZOOR FCR at 23 per McKerracher J; FCAFC at para.85 per McKerracher J.
In this case the findings made by the Tribunal were all findings which were open on the factual material before the Tribunal, for reasons set out otherwise in relation to the other grounds of review. Likewise, those findings have a logic and rationale discernible from and on that same factual material. The Tribunal arrived at factual conclusions which were within the reasonable range of factual conclusions open to an administrative decision-maker. Indeed, such is the strength of the evidence and the fraudulent documents in this case, it is arguably not a case where a different administrative decision-maker might have made different findings on these materials, but if different findings had been made by a different administrative decision-maker those differences would only be the result of reasonable minds differing in their interpretation of the factual material, or the weight to be attributed to various aspects of the factual material before the Tribunal. In the above circumstances, there is no irrationality, illogicality or failure to make findings or inferences of fact supported by logical grounds.
For the above reasons, the assertion that the Tribunal adopted illogical or unbalanced reasons is not made out, and no jurisdictional error is established on this basis.
For all of the above reasons the second ground 1 is not made out.
Grounds 2 and 3
Ground 2 is as follows:
2.I believe the Tribunal Member took an irrelevant consideration into account to cast a shadow on my credibility. I believe that as a result, the procedure had not been satisfactory because it had not been wholly fair to me.
Ground 2 gives rise to the following issues:
a)that an irrelevant consideration was taken into account; and
b)that consideration of an irrelevant consideration resulted in a breach of procedural fairness.
Ground 2 is not properly particularised. The failure to particularise a ground of review is sufficient basis for it to be dismissed.[74] The Court has, however, given consideration to the grounds for review as best it can in the absence of particulars.
[74] SZLEX v Minister for Immigration & Anor [2007] FMCA 209.
A decision-maker falls into jurisdictional error if they take into account an irrelevant consideration or fail to consider a relevant consideration.[75] A relevant consideration is one the Tribunal was bound to consider, and an irrelevant consideration is one the Tribunal was not empowered to consider. Relevant or irrelevant considerations are determined by any express provisions in the relevant Act, and can be implied by the subject matter, scope and purpose of the relevant Act.[76] If a factor is so insignificant that it could not have materially affected the decision, then taking it into account, or failing to take it into account, will not justify setting aside an impugned decision, and ordering that the decision be quashed and remade according to law.[77]
[75] Craig v South Australia (1995) 184 CLR 163 at 179 as per Brennan, Deane, Toohey, Gaudron and McHugh JJ.
[76] Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 19-41 per Mason J (“Peko-Wallsend”).
[77] Peko-Wallsend at 40 as per Mason J.
Neither construction of ground 2 set out above establishes jurisdictional error. The Tribunal Decision took no irrelevant considerations into account in reaching its credibility finding. There is nothing in in the Tribunal Decision that gives rise to any inference that any of the factors considered by the Tribunal were irrelevant. None of the factors, and in particular the applicant’s credibility, could be said to be irrelevant with reference to any express provision of the Migration Act, or by any implication with reference to its subject matter, scope and purpose. If there was no irrelevant consideration taken into account then there cannot be a breach of procedural fairness as a result. This is because the procedural fairness ground is logically dependent on the irrelevant consideration being taken into account. Even if an irrelevant consideration had been found it would not have automatically resulted in a breach of procedural fairness. The procedural fairness requirements are set out exhaustively in s.422B of the Migration Act, and as found above the Tribunal dealt with all evidence raised by the applicant’s submissions; raised any concerns it had with her claims and evidence; took a cautious overall approach to the evidence and the conduct of the hearing; and complied with the relevant procedural fairness provisions of the Migration Act. For those reasons nothing in the Tribunal Decision gives rise to any breach of procedural fairness.
For all of the above reasons ground 2 is not made out.
Ground 3
Ground 3 is as follows:
3.The Tribunal gave no consideration at all as to whether I have a well-founded fear of persecution for a Convention reason, as it was obliged to do. My evidence before the Tribunal was adversely construed against my claims.
Ground 3 gives rise to the following issues:
a)an alleged failure to consider a relevant consideration; and
b)whether the applicant’s evidence before the Tribunal was adversely construed against her claims.
Ground 3, like ground 2, is not particularised, but the Court has, again, given consideration to the grounds as best it can in the absence of particulars.
The allegation that the Tribunal failed to consider its obligations under s.36(2) of the Migration Act cannot be sustained. The Tribunal clearly undertook its review of the applicant’s claim with reference to s.36(2) of the Migration Act. This is evident because the Tribunal:
a)explained both the Protection Visa criteria, in particular the definition of a refugee as set out in the United Nations Convention, and also Australia’s complimentary protection obligations;[78]
b)set out the relevant law in detail in attachment A to the Tribunal Decision;[79] and
c)gave consideration to the applicant’s claims with further direct reference to s.36(2) of the Migration Act and reached a conclusion on that basis,[80] observing that the applicant:
i)“does not satisfy the requirements of s 36(2)(a) of the [Migration] Act”;[81] and
ii)“does not satisfy the criterion set out in s 36(2)(aa) [of the Migration Act].”[82]
[78] CB 114 at para.8.
[79] CB 123-126 at paras 54-73.
[80] CB 118 and 120 at paras.32, 42-45 and 49.
[81] CB 120 at para.45.
[82] CB 121 at para.49.
The conclusion that the applicant did not satisfy the requirements of s.36(2) of the Migration Act was founded on the Tribunal’s finding that the applicant was not a credible witness and that it did not accept the truth of any of her claims. The Tribunal, as stated above, is entitled to assess and make findings on an applicant’s credibility.[83]
[83] See paras.33 and 38 above.
The second part of Ground 3 is mere disagreement with the Tribunal Decision and does not disclose any real ground of review. Alternatively, it could be construed to assert that the Tribunal failed to consider any of the claims, or any integers of the claim made, being the type of ground of review to which the principles in Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs[84] apply. Even construed this way the ground of review does not give rise to jurisdictional error. This is because the Tribunal:
[84] (2003) 77 ALJR 1088; [2003] HCA 26 (“Dranichnikov”).
a)properly set out the applicant’s claim as she made it in full;[85]
b)properly dealt with that claim at hearing; and[86]
c)properly assessed that claim[87] and concluded that:
The Tribunal does not accept the applicant’s claims to fear her husband will kill her or to fear any other harm from him or that he has ever threatened her with harm.[88]
and
The Tribunal does not accept that there is a real chance that the applicant will be threatened harmed or otherwise persecuted by any person if she returns to her home in Nepal now or in the reasonably foreseeable future.[89]
[85] CB 113 at para.5.
[86] CB114-118 at paras.8-30.
[87] CB118-120 at paras.31-45.
[88] CB 120 at para.42.
[89] CB 120 at para.45.
The Tribunal did not, therefore, fail to consider the applicant’s claim or any integer of the applicant’s claim as made. Therefore, the Tribunal did not commit a Dranichnikov type error, and no jurisdictional error is made out.
For the above reasons ground 3 is not made out.
Second ground 2
The second ground 2 is as follows:
2.I contend that, based on the Tribunal’s conduct at the hearing and from the terms of the reasons, the decision in my case was affected by apprehended bias. The Tribunal’s decision failed to give me procedural fairness as apprehended bias was established. The Tribunal mixed up many facts with this decision which also affected the decision. These included my knowledge of documentation, all of which caused doubts as to the fairness of what took place at the hearing. I believe the Tribunal Member has deprived me of the natural justice.
The second ground 2 gives rise to the following issues:
a)an allegation of apprehended bias;
b)a failure to afford procedural fairness; and
c)the making of factual errors as to the applicant’s knowledge of documentation which denied the applicant procedural fairness.
An allegation of actual and apprehended bias was made by the applicant in ground 1. That allegation was considered and dismissed above.[90] For the same reasons the allegation of apprehended bias in this ground cannot succeed and does not establish jurisdictional error. A claim of a denial of procedural fairness was made by the applicant in the second ground 1. That claim was considered and dismissed above.[91] For the same reasons the claim of denial of procedural fairness in this ground cannot succeed and does not establish jurisdictional error. As to the allegation that the Tribunal made factual errors as to the applicant’s knowledge of documentation thereby denying the applicant procedural fairness, the Tribunal’s factual conclusions with respect to the applicant’s documentation was considered above by the Court,[92] and for those same reasons the allegation in this ground cannot succeed and does not establish jurisdictional error.
[90] See paras.39-42 above.
[91] See paras.45-47 above.
[92] See paras.36-38 above.
For all of the above reasons, the second ground 2 is not made out.
Second ground 3
The second ground 3 is as follows:
3.The Tribunal Member’s decision in my case has involved an error of law.
The second ground 3 simply asserts that the Tribunal Decision was affected by an error of law. This bare assertion is not particularised, and in those circumstances cannot succeed. In any event, an error of law is insufficient to set aside a Tribunal Decision. Only a jurisdictional error will allow this Court to make that order.[93] The Tribunal Decision does not, for reasons otherwise set out above, disclose jurisdictional error, and the second ground 3 is not made out.
[93] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ; [2003] HCA 2 at para.76 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ.
Conclusion on grounds of review
As there is no jurisdictional error in the Tribunal Decision, it is a privative clause decision within the meaning of s.474 of the Migration Act. It follows that the application must be dismissed, and there will be an order to that effect.
Conclusions and orders
The Court has concluded that there will be:
a)an order under s.477(2) of the Migration Act extending time for filing of the application to the time of actual filing; and
b)an order dismissing the application because there is no jurisdictional error in the Tribunal Decision, and it is a privative clause decision within the meaning of s.474 of the Migration Act.
The Court will hear the parties as to costs.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 28 May 2014
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