WZAUD v Minister for Immigration
[2019] FCCA 2750
•27 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZAUD & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2750 |
| Catchwords: MIGRATION – Judicial review – decision of former Refugee review tribunal to affirm decision of delegate not to grant Protection (Class XA) visa – whether jurisdictional error |
| Legislation: Migration Act 1958 (Cth), Pt.7, Div.4, ss.3, 36, 42, 65, 422B, 424A, 474, 476, 477 Federal Circuit Court Rules 2001 (Cth), rr.1.03, 15.04 |
| Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1; (1999) 55 ALD 1 Chandra v Webber [2010] FCA 705; (2010) 187 FLR 31; (2010) 270 ALR 393 Ejueyitsu v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 328; (2006) 151 FCR 289 DZADW v Minister for Immigration & Border Protection [2014] FCA 1338 at [19] per Mansfield J Federation Insurance Ltd v Wasson (1987) 163 CLR 303; (1987) 72 ALR 567 Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 52 Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 Makouei v Minister for Immigration & Multicultural Affairs [1998] FCA 89 Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 297 ALR 225; (2013) 87 ALJR 618 Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) ALJR 369; (2010) 266 ALR 367 Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 232; (2004) 78 ALJR 992; (2004) 207 ALR 12 Minister for Immigration & Multicultural Affairs v Al-Miahi[2001] FCA 744 Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 Minister for Immigration v Rajamonikkam [2002] HCA 32; (2002) 210 CLR 222; (2002) 76 ALJR 1048; (2002) 190 ALR 402 Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412 MZWMF v Minister for Immigration & Multicultural Affairs [2006] FCA 780 MZXLD v Minister for Immigration & Citizenship [2007] FCA 1912 MZYYU v Minister for Immigration & Citizenship [2014] FCA 98 NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10 Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155; (1985) 65 ALR 549 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 Re Minister for Immigration & Multicultural Affairs; Ex Parte ApplicantS154/2002 [2003] HCA 60; (2003) 77 ALJR 1909; (2003) 201 ALR 437 Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 84; (2000) 75 ALJR 52; (2000) 176 ALR 219 Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 SZCOS v Minister for Immigration & Citizenship [2008] FCA 570 SZNOZ v Minister for Immigration & Anor [2009] FMCA 943 SZSHV v Minister for Immigration & Border Protection [2014] FCA 253 VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186; (2003) 131 FCR 80 WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 |
| First Applicant: | WZAUD |
| Second Applicant: | WZAUE |
| Third Applicant: | WZAUF |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 105 OF 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 27 February 2015 |
| Date of Last Submission: | 27 February 2015 |
| Delivered at: | Perth (via video-link to Sydney) |
| Delivered on: | 27 September 2019 (by video-link by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicant: | Mr H Ford |
| Solicitors for the Applicant: | Hugh Ford, Solicitor |
| Counsel for the Respondents: | Mr P Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Grounds 1-15 in the application for extension of time in the Originating Application are to be struck out.
Grounds 1 and 2 in the Originating Application are to be struck out.
Leave be granted to the applicant to treat as filed the Particulars of Grounds of Review dated 25 September 2014.
The name of the first respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The name of the second respondent be amended to read “Administrative Appeals Tribunal”.
The Originating Application, as amended, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 105 OF 2014
| WZAUD |
First Applicant
| WZAUE |
Second Applicant
| WZAUF |
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants seek judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the second respondent, the then Refugee Review Tribunal (now the Administrative Appeals Tribunal) (“Tribunal” and “Tribunal Decision”). The Tribunal affirmed a decision of a delegate (“Delegate” and “Delegate’s Decision”) of the first respondent, the then Minister for Immigration & Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse to grant the applicants Protection (Class XA) visas (“Protection Visas”).
The second and third applicants are the wife and daughter respectively of the first applicant. The second and third applicants were included as members of the family unit and made no claims on their own behalf. For this reason, the Court will refer to the first named applicant as the applicant as it was his claims for protection that were considered by the Tribunal.
The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, in November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers including:
a)the Court Book (“CB”) of materials filed by the Minister, which includes a copy of the Tribunal Decision at CB 219-240;
b)the originating application filed 24 April 2014;
c)an outline of submissions filed by the Minister on 20 February 2015;
d)a “Particulars of Grounds of Review” sent to the Court, but not filed, by the applicants’ representative on 25 September 2014; and
e)a copy of transcript from the hearing on 27 February 2015 (“Transcript”).
No affidavits were sought to be tendered by the applicants. In the above circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment. These Reasons for Judgment are being delivered, by video-link, by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”).
Background
The background to the Judicial Review Application is as follows:
a)the applicant and second applicant are both citizens of Zimbabwe: CB 19-20, and the third applicant was born in Australia on 31 May 2012: CB 179;
b)the applicant arrived in Australia on 2 March 2007 as the holder of a student visa. He was joining the second applicant who was already in Australia on a valid student visa: CB 1-20 and 177;
c)the applicant departed Australia on 15 June 2009 to return to Zimbabwe: CB 176;
d)having returned to Australia on 20 July 2009, the applicant was granted a further student visa on 11 September 2009, that student visa being due to expire on 15 March 2012: CB 176;
e)on 14 March 2012 (the day before the expiry of his student visa) the applicant lodged the application for the Protection Visa making the following claims:
i)he fears he will be arrested, tortured, raped and killed by members and supporters of the ZANU-PF as he is a member of the Movement for Democratic Change (“MDC”) and his family played an active role for the MDC in the 2006-2008 elections: CB 80;
ii)from January 2006 he was an active member promoting MDC in rural areas, and he and his cousin “M”, who was a Youth Chairman of the MDC, would organise and attend rallies, “clashed ZANU-PF rallies to take information” and recruited members: CB 80-81;
iii)he fears being harassed, abused, tortured and killed by ZANU-PF thugs because there is no rule of law in Zimbabwe, the law governing boards are all ZANU-PF personnel and some members of his family had joined ZANU-PF and were trying to capture MDC supporters: CB 81;
iv)on his last visit to Zimbabwe to attend his sister’s funeral he stayed only for one month because the situation was serious, his father’s cousin was beaten, the nurses at the hospital were instructed not to assist MDC supporters, he had to pay a large sum of money to leave the country and one of “our houses” was burnt to ashes: CB 81-82;
v)in 2006 the ZANU-PF personnel came to his home looking for M and took him by force to a base where he was made to eat mud and drink vinegar, was locked in a room and was sexually abused: CB 82; and
vi)when he found out his uncle was killed by ZANU-PF early in 2012 he lodged the application for the Protection Visa because he feared returning, and he and his wife were also expecting a baby and he did not want to return to the poor health conditions in Zimbabwe: CB 84;
f)on 17 May 2012, after attending an interview with the Delegate, the applicants’ lawyer forwarded a statutory declaration he stated was the “most recent one” that should have been sent with the Protection Visa application, however, an “earlier one” was mistakenly included: CB 114. The updated statutory declaration raised the same claims, though referred more specifically to dates and times: CB 115-121;
g)on 3 September 2012 the Delegate’s Decision was to refuse to grant the applicant a Protection Visa: CB 142-156;
h)on 18 September 2012 the applicant made an application to the Tribunal for review of the Delegate’s Decision and on 28 March 2013 the applicants attended a hearing before the Tribunal where the applicant and the second applicant both gave oral evidence and provided internet materials for consideration: CB 163-167 and 203-209;
i)the applicants’ lawyer provided further internet materials to the Tribunal for consideration on 15 April 2013: CB 210-218; and
j)on 20 March 2014 the Tribunal Decision affirmed the Delegate’s Decision not to grant the applicants a Protection Visas: CB 219- 240.
Tribunal Decision
The Tribunal:
a)summarised the relevant law and the criteria to be applied when assessing the applicant’s claims to be owed protection obligations under s.36 of the Migration Act: CB 220-222 at [5]-[21];
b)gave an overview of the applicant’s claims by reference to the “most recent” statutory declaration: CB 223-224 at [22]-[30];
c)referred to the evidence the applicant provided at the Tribunal hearing including that:
i)he confirmed he was an active member of the MDC, however, he could not provide his membership card because he left it in Zimbabwe as he did not want to be found with it when leaving and he has not obtained another, or a copy of it, because it takes time and is difficult: CB 224 at [34];
ii)his activities with the MDC included attending rallies and talking at villages with M where he would distribute information, t-shirts, flyers and posters: CB 224 at [35];
iii)when asked to explain what happened in December 2006 the applicant referred to his being taken by ZANU-PF personnel, and then largely confirmed the details that were stated in the claims made in the statutory declaration, though added the beatings were made with a chamboko (a stick), and he was released after two or three days and was told he was required to attend ZANU-PF rallies: CB 224 at [36];
iv)he returned to Zimbabwe in 2009 as his baby sister had died and he had hoped that things were better in the country, he was approached by ZANU-PF when leaving the airport and had to pay someone in order to leave: CB 225 at [40]-[41]. After finding out that he had returned ZANU-PF went to his parents’ home and burnt down their food storage hut: CB 225 at [43];
v)he has a brother who lives in Mozambique and another in South Africa and both left because of the hardships in Zimbabwe: CB 225 at [42];
vi)the second applicant gave evidence that she and the applicant married in 2004 and while she was not involved in politics, they were limited in what they could do on return to Zimbabwe in 2009 because of the applicant’s political involvement: CB 226 at [48]; and
vii)the torture that the applicant was subjected to affects their marriage and the applicant suffers nightmares and was only able to tell the second applicant about his experiences when he came to Australia: CB 226 at [49];
d)explained to the applicant that it had concerns over the significant delay in applying for the Protection Visa, including that it was only after the applicant and the second applicant’s student visa was cancelled that the applicants applied, to which the applicant responded that he is not comfortable talking about what happened, particularly the sexual abuse, and he just kept telling himself that things would get better: CB 25 at [44];
e)asked how it was that he was able to get a police clearance certificate if he was an active MDC supporter, to which he responded that this occurred in October 2006 before he was well-known and when put to him that country information indicates only those MDC members with a high profile are targeted by ZANU-PF he said this is not the case: CB 226 at [45]-[46];
f)noted that when asked why he could not move to Harare he said that Harare is only safe if one is not an active supporter of the MDC and he is an activist and would be a target straight away: CB 226 at [47];
g)summarised the applicants’ representatives submissions at hearing and post-hearing that:
i)the applicant was not asked for much information at the interview with the Delegate and there are not significant inconsistencies in his claims such as to affect his credibility and the onus is not on the applicant to provide evidence: CB 226 at [50]- [52];
ii)there is no statutory provision requiring an applicant for a Protection Visa to lodge an application within a specified time: CB 226 [53];
iii)it is a common pastime of ZANU-PF to burn down houses and no weight should be placed on the failure to provide the membership cards as there is evidence of fraudulent members having genuine cards and a failure to provide evidence cannot be used to infer that the applicant is not genuine: CB 226 at [51] and [54]; and
iv)included news articles dated between 2 April 2013 and 14 April 2013: CB 226-227 at [55];
h)referred to and summarised extensive sources of country information on the “Treatment of MDC supporters”: CB 227-232 at [56]-[70];
i)mentioned information and reports it had found in respect of a person with a similar name to M, but that none of those refer to the individual as holding a position in the MDC: CB 232 at [71]; and
j)discussed the country information concerning the treatment of returnees and failed asylum seekers to Zimbabwe: CB 233-235 at [72]-[76].
The Tribunal then went on to make the following findings:
a)that, on weighing all the evidence and considering each of the applicant’s claims, he was not a credible witness and had exaggerated his claims of activism such that his evidence was not reliable: CB 236 at [83];
b)it did not accept the applicant was mistreated by ZANU-PF as he claimed and noted there were inconsistencies in the reasons for the delay in his Protection Visa application and his claims and what is reflected in the independent country information: CB 236 at [83];
c)in respect of the applicant’s claim that M was MDC youth chairman, the Tribunal was not satisfied this was true as there were no reports or country information to verify this and given the unreliability of the applicant’s evidence which the Tribunal found to be rehearsed and insincere it was not satisfied he was truthful: CB 236 at [86];
d)it was prepared to give the applicant the benefit of the doubt and accept he was a member of the MDC, though it found he was an ordinary passive member and did not partake in the activities he claimed, such that he did not develop a profile as an MDC supporter which resulted in him being targeted for serious harm in the past, and therefore it was satisfied he did not face a real chance of harm for reason of his political opinion now or in the reasonably foreseeable future: CB 237 at [86];
e)when considering the failure of the applicants to provide copies of any relevant documents that it appears could be reasonably obtained this weakened the applicant’s claims: CB 237 at [85];
f)it was not satisfied the claimed events in 2006, when the applicant was taken by the ZANU-PF, occurred as claimed. In light of the finding the applicant was not a person with an adverse political profile the Tribunal did not accept the ZANU-PF would have targeted him and subjected him to the treatment he claimed, found it was not credible that he would not attend a doctor after this alleged treatment, also rejecting his explanation that he did not do so on the basis that medical treatment would have been withheld as such did not accord with the country information: CB 238 at [86];
g)it was not satisfied the activities of the applicant’s uncle or brother give rise to a real chance of harm on the basis of country information suggesting family or associates of high profile MDC members are at a low risk of violence: CB 238 at [87];
h)it did not accept the applicant was forced to pay a bribe in order to depart Zimbabwe to return to Australia in 2009 and that if he was a person of interest he would have been detained by the authorities on his arrival, further that the ZANU-PF would have been aware of his arrival such that it rejected the claim his parents’ food barn was burned down after he departed Zimbabwe because the ZANU-PF found out he had returned and were not told: CB 238 at [88];
i)found the explanation for the delay implausible given the severity of the mistreatment he claimed to have been subjected to and found this was a relevant factor to consider in concluding that the applicant did not hold a fear of serious harm of returning to Zimbabwe: CB 238-239 at [89];
j)accepted the applicant’s sister had died and he felt compelled to return to his family at this time, however, it did not accept that he was able to avoid harm on his return because he kept a low profile, rather it found he was simply not a person of interest and that it was “rather more than less likely” that the motivation for the applicant applying for the Protection Visa was because he had exhausted all other visa options: CB 239 at [90];
k)formed the view that the second applicant was not an entirely independent witness as the outcome of the application turns on the findings relative to the applicant, and having not accepted the applicant’s claims rejected the second applicant’s evidence: CB 239 at [91];
l)having regard to all of the evidence was not satisfied there was a real chance of harm on the basis of past political activities with the MDC, associations or connections with the MDC or the security situation in Zimbabwe now or in the reasonably foreseeable future, and concluded that the applicants claimed fear of persecution should they return to Zimbabwe was therefore not well-founded and did not meet the requirements of s.36(2)(a) of the Migration Act: CB 239 at [92]; and
m)based on the findings made in respect of the refugee criterion was similarly not satisfied there were substantial grounds for believing that there was a real risk of the applicants suffering significant harm if they returned to Zimbabwe and therefore did not meet the criterion in s.36(2)(aa) of the Migration Act: CB 240 at [93].
The Tribunal affirmed the Delegate’s Decision not to grant the applicants a Protection Visa.
Judicial Review Application
On 24 April 2014 the applicants filed the Judicial Review Application. They did so on the final day before the statutory time limit expired: Migration Act, s.477. Nonetheless, the Judicial Review Application stated, correctly, that no extension of time was required, however, provided 15 grounds in support of an application for an extension of time. These grounds were then duplicated under the grounds in support of the Judicial Review Application. An extension of time was not necessary, and the applicants’ representative confirmed at hearing the duplication was a result of “computer error”. Therefore, there will be an order that the grounds 1 to 15 in the application for extension of time in the Judicial Review Application will be struck out.
The first two grounds of the Judicial Review Application were as follows:
15 The applicant reserves the right to add further grounds of review at a later point in time.
16. The applicant reserves the right to amend the existing grounds of review.
These clearly are not grounds of review and will be similarly struck out.
The remaining 13 grounds, numbered 17-29, which will be renumbered 1-13, are as follows:
1. The Refugee Review Tribunal has made an error of law which goes to its jurisdiction by failing to conduct the hearing in a manner which is fair and just. Subsection 422B(3) of the Migration Act 1958 requires the Tribunal to act in a way that is fair and just. The Tribunal hearing was not fair and just because the Tribunal made findings where there was no evidence to base such a finding, and further, the Tribunal made decisions which were not logical and/or probative. The decisions of the Tribunal were not supported by probative material.
2. The decisions of the Tribunal were so unreasonable that no reasonable Tribunal could have made such a decision.
3. At paragraph 80 Tribunal decision, the Tribunal indicated that the mere fact that a person claims persecution does not mean that the applicant has a well-founded fear of persecution. The Tribunal has made an error of law in this regard.
4. At paragraph 80 of the Tribunal decision, the Tribunal has imposed on the applicant an impermissible burden of proof.
5. At paragraph 81 of the decision, the Tribunal is required by law to give the applicant the benefit of the doubt. The Tribunal made an error of law by not giving the applicant the benefit of the doubt.
6. At paragraph 83 of the Tribunal decision, the Tribunal expressed the opinion that the applicant is not a reliable witness. The Tribunal must be able to point to some evidence upon which base such a finding. The Tribunal did not point to any evidence in order to substantiate such a claim.
7. At paragraph 83 of the Tribunal decision the Tribunal also made an illogical finding of fact that the applicant was not a credible witness. No Tribunal could make a finding about the applicant’s credibility without some evidentiary basis for such a finding. The Tribunal has throughout the decision made findings of fact without any evidence at all to base such a finding. There must be some probative material which is before the Tribunal which can base the decision of the Tribunal here there is no such probative material. The Tribunal has acted unlawfully.
8. At Paragraph 83 of the decision the Tribunal has concluded that because the applicant delayed in making the application, therefore, the applicant’s claims have been concocted. This is an illogical response. The delay in making an application is an irrelevant consideration. An applicant could have a perfectly justifiable reason for not making an early application. The fact that there has been a delay does not of itself mean that the claims have been concocted. The Tribunal has however concluded that because there has been a delay therefore the claims have been concocted. The Tribunal has no evidence for such a finding. Further, such a finding is illogical.
9. At paragraph 83, the Tribunal has taken into account an irrelevant consideration. That is, the country information.
10. At paragraph 84 the Tribunal has concluded that the applicant’s friend does not exist. There is no evidence for such a finding. Further, such a finding is not a logical response. There is no probative material which was before the Tribunal which could support such a claim. The fact that the country information does not refer to the individual concerned does not mean that the person does not exist. The country information is by definition general in nature and was not designed to deal with individuals. The Tribunal cannot rely on a negative to prove a positive. The fact that the document is silent on the individual does not mean that the individual does not exist. The Tribunal must be able to point to some positive evidence in order to base its claims.
11. At paragraph 84 the Tribunal has concluded that the applicant’s story was rehearsed and insincere. There is no evidence for such a finding.
12. The Tribunal has taken an irrelevant consideration into account at paragraphs 85, 86, 87, 88 and 90 of the Tribunal decision. It was illogical for the Tribunal to take these matters into account when arriving at its decision.
13. The Tribunal has no evidence for any of the findings that the Tribunal has made at paragraphs 86, 88 and 89 of the Tribunal decision. It was illogical for the Tribunal to take these Matters into account.
(Re-numbered, otherwise without alteration)
Filed with the Judicial Review Application was an affidavit sworn 24 April 2014 by the applicants’ lawyer, Mr Hugh Ford (“Ford Affidavit” and “Mr Ford” respectively), in which the Tribunal Decision was annexed. It should be noted that the Ford Affidavit at [1] refers to the Tribunal having “made a decision on my application for a protection visa”. This is clearly not Mr Ford’s application, but rather that of his client.
On 28 May 2014 a Registrar of the Court made orders (“Registrar’s Orders”) that the applicants file and serve:
a)any amended Judicial Review Application giving particulars of the grounds of review and any further affidavits on which the applicant intended to rely at the hearing by 24 September 2014; and
b)an outline of submissions 14 days prior to the hearing.
On 23 September 2014 the Court received a fax from the applicants’ lawyer titled “PARTICULARS OF THE GROUNDS OF REVIEW” (“Particulars”). There were a number of errors in this, including most obviously that the pseudonym was incorrect, and the Registry refused to accept the document for filing. A slightly amended document was faxed on 25 September 2014, still containing an incorrect pseudonym. By email to the Registry on 15 February 2015 it appears that the applicants’ lawyer also intended to rely upon the Particulars as the written submissions as he stated that an outline of submissions had already been provided. In response, the Registry stated that no outline of submissions had been received. It appears that the fax on 25 September 2014 was also not accepted for filing.
The Minister was served with a copy of the Particulars and insofar as it raised new arguments, was able to address those in the written submissions and therefore suffered no prejudice were the Court to have regard to them. The Court therefore has made an order that leave to file the Particulars be granted.
The requirement for jurisdictional error
The Court must determine if the Tribunal Decision is affected by jurisdictional error: Migration Act, ss.474 and 476. A jurisdictional error may exist where the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in a way that affects the Tribunal’s exercise or purported exercise of power resulting in a decision exceeding, or a failure to exercise, authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ (“Yusuf”).
In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”), so too legal unreasonableness: as to which see the summary in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J.
Procedural Fairness
Ground 1 of the Judicial Review Application argues that the Tribunal failed to undertake a review in accordance with s.422B(3) of the Migration Act, that is, the Tribunal did not act in a way that is fair and just. At hearing the applicants’ lawyer made some unfounded and ill-thought out remarks about the nature of hearings before the Tribunal that the Court need not address. The applicants’ lawyer also made a submission to the effect that none of the country information the Tribunal referred to in the Tribunal Decision was put to the applicant for comment.
The Minister responded to ground 1 of the Judicial Review Application by noting that there were no particulars, and therefore proceeded on the assumption that the applicant was suggesting that the Tribunal acted in a manner that was unfair and unjust for the reasons that were pleaded in the remaining grounds of review and therefore the submissions addressing those grounds were sufficient.
Section 422B of the Migration Act is not itself capable of being “breached”, rather it regulates the exercise of the operative parts of pt.7 Div.4 of the Migration Act: Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 297 ALR 225; (2013) 87 ALJR 618 at [58] per Hayne, Kiefel Bell JJ (“Li”). To the extent the applicant argued that the Tribunal failed to act in a way that was fair and just toward the applicant, it is indicated in the reasons below that that assertion was not founded.
During the course of the hearing the applicants’ lawyer referred to the Tribunal relying on country information that was never put to the applicant for comment: Transcript, p.20 at [41]-[47]. The Tribunal is required to put to an applicant particulars of information that the Tribunal considers would be the reason for affirming the Delegate’s Decision: Migration Act, s.424A. Expressly excluded from being put to the applicant is country information: Migration Act, s.424A(3)(a); VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186; (2003) 131 FCR 80 at [50] per Kenny J. There is no jurisdictional error in failing to put country information to the applicant, and in any event at CB 226 at [46] the Tribunal stated that it put to the applicant adverse country information that indicated ZANU-PF targeted MDC members of high profile to which he responded that some people would say things are better as there is food in the shops. The applicant had a chance to comment on the information and did so, therefore, there was no denial of procedural fairness.
The applicant was on notice that his credibility was in issue as this was a determinative factor in the Delegate refusing to grant him a Protection Visa: SZBEL at [35] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. Many of the issues the applicant raises in his grounds are based upon the premise that the credibility findings were unlawful, and the Court simply notes at the outset that the Delegate’s Decision clearly articulated that the applicant’s credibility was a determinative factor in the decision not to grant the applicant a Protection Visa.
Otherwise, there is nothing on the face of the material before the Court to indicate the applicant was denied procedural fairness before the Tribunal. It follows that ground 1 does not establish jurisdictional error in the Tribunal Decision.
Credibility findings
Grounds 6, 7, and 8 all concern credibility findings, or findings the Tribunal made that were factors considered in making the ultimate adverse credibility finding. These grounds all take issue with at CB 236 at [83] of the Tribunal Decision.
Applicant’s submissions
The applicant appeared to argue this ground on the basis that the Tribunal had made an initial adverse credibility finding at CB 236 at [83] that was unlawful as it did not take into account the necessary caution one should take in refugee cases and took into account irrelevant considerations in making the adverse finding. This finding thereby caused the Tribunal to reject all of the applicant’s claims, and it therefore fell into error.
In the Particulars the applicant submitted as follows:
a)there must be some logical basis for a finding by the Tribunal that an applicant is a person of poor credibility and the fact that a story does not sound credible does not of itself mean that the applicants are individuals of poor credibility;
b)it is to be expected that an applicant will embroider an account and that there may be a tendency to overstate or to make inconsistent comments about the alleged acts of persecution, however, in Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1; (1999) 55 ALD 1 (“Abebe”) the High Court indicated that the Tribunal should accept this state of affairs, and further, the Tribunal should not use this state of affairs in such a way as to discriminate against the applicant;
c)in this case this is what the Tribunal has done, it has concluded that an inconsistent statement means that the applicant’s claims have been concocted and that because the applicants’ story is in the opinion of the Tribunal fanciful, therefore, it must have been concocted, but simply because a story appears fanciful, does not of itself mean that the story is concocted;
d)in Minister for Immigration v Rajamonikkam [2002] HCA 32; (2002) 210 CLR 222; (2002) 76 ALJR 1048; (2002) 190 ALR 402 (“Rajamonikkam”) the High Court was critical of a Tribunal simply forming an impression without there being any factual basis for such an impression and in this case, this is exactly what the Tribunal has done;
e)there is no necessary correlation between inconsistency and credibility in such cases and the fact that an applicant may make what appears to be an inconsistent statement does not of itself mean that the applicant is a person of poor credit as there are many factors which may explain why a person has made an inconsistent statement, thus, the Tribunal should not simply automatically conclude that the applicant is a person of poor credibility because the applicant has made an inconsistent statement; and
f)the Tribunal listened to what the applicants stated and then just made a finding as to their credibility on no basis whatsoever and no evidence such that it was a finding that no logical person could have made.
In particular reference to how the Court should interpret at CB 236 at [83] of the Tribunal Decision the applicant submitted:
a)this is at the heart of this matter and the Court must “tear it apart” and examine it in great detail, in particular the sentence “... the tribunal also found inconsistencies...”;
b)everything thereafter is coloured by these findings, and if the findings are based on irrelevant considerations or illogical, then the entire Tribunal Decision falls over;
c)the last sentence is the most important sentence and the phrase “For these reasons...” should be construed as a reference to the reasons immediately above the sentence and not any others as the reasons for the decision about the applicant’s credibility is in those sentences and no others; and
d)the Tribunal has made up its mind about the applicant’s credibility and it was based upon the two issues in the sentence immediately preceding the last sentence: namely, the delay and the country information.
In supporting the applicants’ submission that the Tribunal formed the adverse credibility finding on the basis of the delay and the country information, the applicant argued that this was an error because:
a)the Tribunal made up its mind “early in the piece” that there were inconsistencies in the applicant’s story and used those inconsistencies to reject all of the claims put forward by the applicant, hence the existence of inconsistencies underpins the Tribunal’s approach to everything;
b)the applicant never made an inconsistent comment about the delay in making the application for the Protection Visa;
c)the inconsistency between the country information and the applicant’s claims was not an inconsistency of the applicant’s making because he did not write the country information, therefore there is no inconsistency and the Tribunal was wrong to find such inconsistency and use it to find the applicant unreliable;
d)there was no basis to infer the applicant was not a person of credibility because there were no inconsistent statements and therefore the adverse credibility finding should not have been made;
e)the Tribunal nevertheless believed there was an inconsistency and punished the applicant for the inconsistency which Kirby J in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 232; (2004) 78 ALJR 992; (2004) 207 ALR 12 (“SGLB”) expressly stated, and was not disagreed with on this point, was not appropriate;
f)the Tribunal did not properly examine the claims of sexual assault, rather it drew an adverse inference from the applicant’s failure to talk about it, and this was again not exercising caution and sensitivity to the applicant’s particular circumstances. The event is undoubtedly difficult, and it is not as though the person who assaulted him would have kept a record of it;
g)there is initial scepticism in the Tribunal Decision that is evident at CB 225 at [44] when the Tribunal discusses the concerns about the delay and this plagues the Tribunal Decision until the ultimate credibility finding at CB 236 at [83] which the Tribunal uses to completely reject all of the applicant’s claims;
h)the Tribunal Decision is predicated on the applicant’s evidence being unreliable and there being inconsistencies and if it is found this was an incorrect finding the whole Tribunal Decision is infected with jurisdictional error; and
i)at CB 238 at [89] the Tribunal simply restates the findings it had already made at CB 236 at [83], it does not add anything or supplement the latter findings which it makes for “these reasons”, being the reasons at CB 236 at [83], that the applicant is found to be unreliable and not credible.
Minister’s submissions
The Minister’s submissions were as follows:
a)the conclusion by the Tribunal at CB 236 at [83] that the applicant is not a reliable witness, follows the commencing words “On weighing all the evidence and after considering the applicant’s claims and oral evidence carefully” and is also qualified by the phrase “explained in the relevant paragraphs which follow” in reference to CB 236-239 at [84]-[90];
b)based upon the matters set out at CB 236-239 at [84]-[89], the Tribunal was entitled to form a conclusion that the applicant was not a reliable witness and that his evidence was not reliable, particularly as findings as to an applicant’s credibility, including adverse credibility findings, are a matter for the Tribunal: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67] per McHugh J (“Durairajasingham”);
c)the applicant’s complaint regarding the Tribunal’s assessment of his delay in making the Protection Visa application and the reasons he gave for that delay are in reality a disagreement with the Tribunal’s findings and conclusions on this issue;
d)what the Tribunal states at CB 236-237 at [84] does not disclose any error of law or jurisdictional error as findings as to credibility are a matter for the Tribunal, and the Tribunal is best placed to assess the oral evidence given by an applicant at a Tribunal hearing; and
e)the statements the applicant refers to from Abebe, Rajamanikkam and SGLB must be read in their context, and it should be noted that the reasons of Kirby J in Rajamanikkam and SGLB were dissenting reasons.
At hearing the Minister added the following matters:
a)the Tribunal was not referring to inconsistency of two conflicting explanations that were given by the applicant at CB 236 at [83] as to the delay. Rather, when one reads CB 238-239 at [89] it is clear that the Tribunal was referring to inconsistency between the delay and the applicant having a well-founded fear of persecution given the severe treatment he claimed to have received;
b)the Tribunal hearing the applicant’s evidence was best placed to make a judgment as to the sincerity and genuineness of the applicant’s evidence and a number of authorities suggest it should not be a matter a reviewing body should interfere with; and
c)the Tribunal Decision should be read as a whole, and the Court should not “tear…apart” CB 236 at [83] as the applicant submits, and when one reads at CB 236 at [83] as part of the whole, together with the “relevant paragraphs which follow”, the credibility findings and the findings of the Tribunal do not disclose jurisdictional error.
Consideration
CB 236 at [83] of the Tribunal Decision reads as follows:
On weighing all the evidence and after considering the applicant’s claims and oral evidence carefully, the Tribunal has concluded that the applicant is not a reliable witness. As will be explained in the relevant paragraphs which follow, the Tribunal found the applicant exaggerated the extent of his activism with the MDC. It also finds that it does not accept his claim that he was mistreated at the hands of ZANU-PF. The Tribunal also found inconsistencies, such as the delay in the application for a protection visa, and the inconsistency between what the applicant claims and the independent country information as to the circumstances in Zimbabwe further weaken the applicant’s claims. For these reasons, the Tribunal considers the applicant’s evidence is not reliable
The applicants’ argument is twofold: first, he argues that it was “for the reasons of the inconsistencies in the delay for applying for the Protection Visa and his claims with the country information that were the only reasons that the Tribunal found the applicant’s unreliable; and second that this was a jurisdictional error because there were no inconsistencies and in any event those two considerations were irrelevant considerations (as to Irrelevant Considerations see [67]-[76] below).
Prima facie, credibility findings are findings of fact for the Tribunal to make and with which the Court should not lightly interfere: Durairajasingham at [87] per McHugh J. Nonetheless, they are not immune from judicial review, and where it can be established the Tribunal took into account irrelevant considerations, denied the applicant procedural fairness or made findings based on a lack of probative evidence, those credibility findings may be impugned. Before determining if the Tribunal did take into account irrelevant considerations or made findings based on a lack of probative evidence or logical reasoning as the applicant contends, the Court must first consider at CB 236 at [83] of the Tribunal Decision and the interpretation of that paragraph as that will inform the reading of the balance of the Tribunal Decision.
The Court is mindful that it must read the Tribunal Decision as a whole, and not overzealously search for error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). Reading the Tribunal Decision as a whole, the balance of the reasoning is found at CB 236-239 at [84]-[92]. It cannot be accepted that the adverse credibility finding was made purely on the basis of the alleged inconsistencies between the delay and the applicant’s claim and the country information. The use of the word “also found” implies that this statement is part of the cumulative consideration of what was also found in the sentences above. The Tribunal considered the applicant’s evidence was unreliable “For these reasons…”:
a)he exaggerated the claim of his political activism with the MDC;
b)he was not mistreated at the hands of ZANU-PF; and
c)there were “inconsistencies”, which further weakened his claims including the delay and country information.
Further, the use of “As will be explained in the relevant paragraphs which follow,” implies that the explanation for why these matters led the Tribunal to find the applicant was unreliable were incorporated into the relevant paragraphs. The use of the word “inconsistencies” is at the centre of the applicants’ argument. The Tribunal did not refer to the applicant providing inconsistent statements, rather it referred to “inconsistencies”, and this denotes that the Tribunal was referring more broadly to the inconsistencies that arose between the applicant’s claims, the fact of the delay, the country information and a well-founded fear of persecution in general.
The applicants’ lawyer was incorrect to assert that there was no inconsistencies in the applicants’ delay in applying for a Protection Visa. The Delegate’s Decision indicates that the applicant claimed the reason he did not apply for a Protection Visa was that he did not know that there was such a thing, and it was not until he found a lawyer that he did so: CB 147-148.
Placing this issue aside, the Court accepts the Minister’s submission that the reference to an inconsistency in “delay” was in respect of the inconsistency of a delay and holding a well-founded fear of persecution. Indeed, the Delegate’s Decision referred to the delay and the lack of reasonable explanation as inconsistent with the applicant having a well-founded fear of persecution. This interpretation of what the Tribunal was stating at CB 236 at [83] is supported by what is stated at CB 238-239 at [89]:
The Tribunal considered the applicant’s explanation as to the delay between his arrival in Australia and the application for the protection visa. The Tribunal notes that the applicant said he hoped that things would get better and this is why he did not apply for protection on arrival in Australia, or shortly thereafter. The tribunal finds this is an implausible explanation, given the description he has given of severe mistreatment, including beating, abuse, being burned by melted plastic, and sexual assault. The Tribunal considers that if all this had indeed occurred as described, it is unlikely that the applicant would delay applying for a protection visa upon his arrival in Australia… In this case, given the significant delay in the application for a protection visa, the Tribunal concludes that the applicant did not hold a fear of serious harm at the prospect of return to Zimbabwe.
The Tribunal extracts a large portion of country information at CB 227-235 at [56]-[76] of the Tribunal Decision. Much of that country information refers to conflicting information as to the treatment of MDC supporters by ZANU-PF, though it appeared to suggest that there was some risk and vulnerability to political violence for even low-profile members. At CB 233-235 at [75]-[76], the Tribunal extracts a portion of a Department of Foreign Affairs and Trade Country Report released 25 February 2014 (“DFAT 2014 Report”), less than one month prior to the date of the Tribunal Decision. That country information indicated there had been a decline in political violence, and that which occurred was “most likely to be targeted at specific high profile individuals…”. At CB 239 at [92] the Tribunal indicated it relied in particular on the DFAT 2014 Report, the extract at CB 233-235 at [75]-[76] substantially addressing the claims made by the applicant.
The Tribunal also referred at CB 237-238 at [86] - [87] to specific inconsistencies between the applicant’s accounts and claims and what had been indicated in the country information. From this it can be gleaned that the “inconsistencies” between the country information were also in respect of the applicant having a “well-founded fear of persecution”, and more so now or in the reasonably foreseeable future. The country information indicated that the situation had been improving, persons of the profile the Tribunal found the applicant to have were at a low risk, that risk could spike during election cycles and political uncertainty, however the 2013 elections were largely peaceful and any violence was brought under control by the authorities and was largely local level disputes as opposed to centrally organised political violence. As the Tribunal noted at CB 236 at [82], it is not obliged to accept claims that are inconsistent with the independent country information: Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 (“Selvadurai”).
In the particular sentence impugned by the applicant at CB 236 at [83], the Tribunal refers only to the delay and inconsistency with the country information as weakening the claims. The use of “weakening” implies these two factors were not the single determinants of the credibility findings. Rather, as appears on a reading of at CB 236-239 at [83]-[92], there were a number of matters the Tribunal found concerning, including that the applicant’s evidence appeared “rehearsed and insincere”, “scripted” and “implausible”.
The credibility of the applicant was clearly an issue of which he was on notice. The Delegate’s Decision indicated there were “significant inconsistencies, contradicting statements and unsatisfactory explanations” provided by the applicant. The Delegate’s Decision was attached to the application for review with the Tribunal, it was provided by the applicant, and therefore formed part of the materials before the Tribunal: CB 163-167. The Tribunal’s credibility findings were a validation of those findings that had already been made by the Delegate. The Tribunal weighed “all the evidence”, that evidence will have included the Delegate’s Decision, and it was open to the Tribunal to form the view the applicant was not a reliable witness, a matter he was clearly on notice about in any event.
The applicant’s submission that the Tribunal fell into error as it made incorrect findings that there were inconsistencies and reasoned from this incorrect finding that the applicant was therefore an unreliable witness is based on an overly narrow reading of the Tribunal’s Decision. It follows that this argument does not establish jurisdictional error.
The applicant also argued that to the extent there were inconsistencies, which he did not concede, that those inconsistencies were used to punish the applicant and did not take into account the matters referred to in SGLB at [73] per Kirby J:
…Remembering the purpose of credibility: Credibility is often seen as the crucial issue in Tribunal determinations of refugee status. The references in the Refugees Convention to the existence of “fear”, and to the grounds of that emotion, necessarily imply that those deciding refugee claims will have to make highly personal evaluations of the subjective feelings and motivations of applicants. … There was some suggestion during the hearing of this appeal that inconsistent statements by asylum seekers might suggest fabrication of evidence, and might justifiably lead to negative conclusions as to credibility. While such a conclusion is sometimes justified, refugee cases involve special considerations where credibility is an issue. There is no necessary correlation between inconsistency and credibility in such cases. Many factors may explain why applicants present with the appearance of poor credibility. These include: mistrust of authority; defects in perception and memory; cultural differences; the effects of fear; the effects of physical and psychological trauma; communication and translation deficiencies; poor experience elsewhere with governmental officials; and a belief that the interests of the applicants or their children may be advanced by saying what they believe officials want to hear. The Tribunal must be firmly told – if necessary by this Court – that the process is one for arriving at the best possible understanding of the facts in an inherently imperfect environment. It is not to punish or disadvantage vulnerable people because they have made false or inconsistent statements, or are believed to have done so.
It has been noted that it is “not proper to seek to extract a binding authority from an opinion expressed in a dissenting judgment”: Federation Insurance Ltd v Wasson (1987) 163 CLR 303; (1987) 72 ALR 567 at 314 per Mason CJ, Wilson, Dawson and Toohey JJ. In SLGB there was no indication the majority agreed with Kirby J. Nonetheless, the question remains as to whether Kirby J’s observations in SGLB at [73] are applicable in the present circumstances, and whether the Tribunal failed to take a cautious approach to the assessment of the applicant’s credibility.
It cannot be said that Kirby J at [73] in SGLB was proposing that the Tribunal could never consider inconsistencies. At no time did the Tribunal refer to the applicant making an “inconsistent statement”, rather it referred to “inconsistencies”. It is one thing to provide an inconsistent statement with respect to a claim or incident, it is another where the inconsistency is with the fear of persecution as a whole. For this reason, the particular circumstances are those that fall into the “sometimes justified” conclusion that an applicant has fabricated or concocted claims.
The Tribunal at CB 236 at [81] acknowledged the need for caution and sensitivity when dealing with the applicant’s claims. What is said there is synonymous with what Kirby J has stated at [73] in SGLB, and with other judgments of the Federal Court and the High Court that express the need to give the benefit of the doubt to an applicant. Having expressly acknowledged that consideration, and indeed extended the benefit of the doubt to accept some of the applicant’s claims, the Court does not consider the Tribunal erred in this aspect of its assessment of the applicant’s credibility.
Examining the Tribunal Decision as a whole it is apparent to the Court that the findings made by the Tribunal were in some respects informed by the Tribunal’s adverse credibility finding that the applicant’s evidence was “unreliable”. The statements made at CB 236 at [83] that caused the Tribunal to find the applicant was an unreliable witness were informed by the paragraphs that follow. At CB 236-239 at [84]-[92] the Tribunal carried out its assessment of credibility in accordance with the guidance given by the Federal Court in SZCOS v Minister for Immigration & Citizenship [2008] FCA 570 at [18] per Bennett J as follows:
... The Tribunal assessed the appellant’s claims and made findings on credibility that it explained; based on its observation of the appellant, the way he presented his claims, the lack of consistency that it discerned in the claims made and what it found to be implausible. Those were findings of fact for the Tribunal.
The Tribunal did not base the finding the applicant was unreliable upon any individual inconsistency, it based it upon the totality of the applicant’s evidence and country information before it and found that the weight of evidence supported the conclusion he was not a reliable witness. The applicants’ lawyer made a submission to the effect that it is not uncommon for someone who is the victim of sexual assault or domestic violence to not tell anyone for some period of time, and suggested the Tribunal was not sensitive to this when considering the delay was an error. The Tribunal ultimately rejected that the applicant had been sexually abused (at CB 237-238 at [86]) on the basis that he did not have an adverse political profile sufficient to attract treatment of this type, that there was a lack of credibility in his claims of being an active MDC member, and to have not sought treatment from a doctor. At no time did the Tribunal refer to the delay as adversely affecting, or being considered, in the Tribunal making findings regarding the sexual assault.
The reading the applicant asks the Court to make of CB 236 at [83] is to divorce a single sentence from the context of an entire paragraph, the surrounding paragraphs, and the Tribunal Decision as a whole, and is, at best, asking the Court to concern itself with “looseness of language” and “unhappy phrasing”, a task it should not undertake. The findings the Tribunal made on the applicant’s credibility were not based on objectively minor facts nor were they used as the basis to reject the entirety of the applicant’s evidence, rather the credibility findings were made on an assessment of a number of concerns and to the extent there was any doubt in the Tribunal making a finding, it gave the applicant the benefit of that doubt and accepted the claim: SZSHV v Minister for Immigration & Border Protection [2014] FCA 253 at [31] per Flick J.
It follows that grounds 6, 7 and 8 do not establish jurisdictional error in the Tribunal Decision.
Illogical findings
Grounds 10 and 11 of the Judicial Review Application advert to the Tribunal having no probative evidence to make the findings it made. The applicant refers to a number of instances where the Tribunal has made findings without any rational or probative basis and these grounds were also relied upon when making arguments as to the assessment of the applicant’s credibility which the Court has addressed at [32]-[50] above.
Applicants’ submissions
The applicant made the following submissions in respect of findings made by the Tribunal that had no evidence and were irrational or illogical:
a)at CB 225-226 at [44] and [45] the Tribunal makes findings, notwithstanding that it was under the “Evidence provided at Tribunal Hearing” heading, that were without evidence and illogical as there is no correlation between the wife’s student visa expiring and the delay in applying for the Protection Visa nor whether or not the applicant had a police clearance and his suffering persecution;
b)the Tribunal ought to accept every claim an applicant makes without question, it is not for the applicant to provide evidence but simply facts that the Tribunal, and the “dreadful tribunal” has made thousands of unlawful decisions in not conducting itself this way;
c)the Tribunal has listened to the applicant’s claims, and then made a decision on the credibility of the applicants but did not however provide any logical reasons for its decision on the applicant’s credibility and gave no real explanation to explain the adverse finding;
d)the Tribunal concluded that because there was a delay that this reflects on the applicant’s claims for protection, however that one delays in claiming protection does not mean that the claims are concocted and the applicant gave a plausible explanation which the Tribunal just dismissed without reasons;
e)if the Tribunal found that the applicant’s evidence was rehearsed and insincere it should have raised this with the applicant, made inquiries as to why he appeared this way and looked at his particular circumstances, as opposed to just making a finding that his evidence appeared this way so it was concocted;
f)the comment that the applicant’s account was “implausible” was not supported by a “modicum of evidence” and was based upon the finding that because there was a delay that the claim was concocted; and
g)there was no inconsistent statements in the applicant’s claims and therefore the Tribunal rejecting the claims was not rationally thought out and had no evidentiary basis.
Minister’s submissions
The Minister submitted:
a)the issues taken by the applicant with CB 225-226 at [44] and [45] disclose no jurisdictional error as these are not findings of the Tribunal, but rather the Tribunal reciting what it asked the applicant and the evidence he gave in response;
b)a fair reading of the Tribunal Decision clearly demonstrates that it understood and had regard to the applicant’s claims which it explored with the applicant during the Tribunal hearing and then made findings based on the evidence and material before it, including country information which it identified in the Tribunal Decision;
c)further, and in any event, the Tribunal’s conclusions as to the applicant’s reliability as a witness and the reliability of his evidence at CB 236 at [83] were based upon several findings and the reasons for those findings as set out at CB 236-239 at [83]-[90]; and
d)the findings made by the Tribunal at CB 236-237 at [86], CB 238 at [88] and CB 238-239 at [89] were open to the Tribunal on the evidence and material before it and these grounds invites impermissible merits review.
Consideration
It is a part of the Tribunal’s fact-finding function that it is entitled to accept or reject, and give what weight it considers appropriate, to the evidence proffered: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27] per French J. When making findings of fact and determinations the Tribunal is however only empowered to do so based upon probative material and logical grounds: Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) ALJR 369; (2010) 266 ALR 367 at [37]-[42] per Crennan and Bell JJ.
In Minister for Immigration & Multicultural Affairs v Al-Miahi[2001] FCA 744 at [34] per Sundberg, Emmett and Finkelstein JJ the Federal Court observed:
…in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law. On the other hand, there is no error of law simply in making a wrong finding of fact. … Thus, at common law, want of logic is not synonymous with error of law. So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place….
The Court was referred to CB 225-226 at [44]-[45] of the Tribunal Decision and the findings allegedly there made. Those findings were alleged to have been a conclusion that because there was a delay and the second applicant’s student visa was cancelled this means the claims for protection were concocted (at CB 225 at [44]) and that because the applicant had a police certificate he was not the subject of persecution (at CB 225-226 at [45]). These were not findings and therefore cannot have been said to have been illogical or not based on probative evidence. Both paragraphs were found under the heading “Evidence provided at Tribunal hearing” and simply refer to the Tribunal asking or putting certain matters or questions to the applicant and recording his response. There is nothing that indicates error at CB 225-226 at [44]-[45] of the Tribunal Decision, rather the Tribunal is undertaking its statutory task.
At CB 239 at [90] the Tribunal stated:
Having regard to all the evidence, the Tribunal finds that it is rather more than less likely that the reason for the applicant’s application at the time it was made is because the applicant had exhausted other visa options when he was no longer able to continue his studies.
The Tribunal had put to the applicant for comment (at CB 225 at [44]) that it was concerned that the application was made five years after he arrived in Australia and only after both the applicant’s and the second applicant’s student visas were cancelled, and that this may indicate there is not a genuine fear of persecution. The applicant responded that the delay was because he kept telling himself things would get better and he was uncomfortable talking about the sexual assault. The Tribunal was required to weigh the applicant’s response with the material before it and it did so to come to the conclusion at CB 239 at[90] that it was more likely than not the applicant applied for the Protection Visa for the reason claimed. There was no error in the logic of this finding, it was ultimately a matter for the Tribunal to determine.
The Court raised some issue with the first portion of CB 236-237 at [84] of the Tribunal Decision which is as follows:
In respect of the applicant’s claim that his cousin M was an MDC youth chairman in Ruwangwe, the tribunal is not satisfied this was in fact the case, based on country information that found no reports on a person named M who was a MDC youth chairman in Ruwangwe between 2006 and 2008. Based on the general finding the Tribunal made in respect of the unreliability of the applicant’s evidence, the Tribunal is not satisfied that the applicant was truthful in his claim about his cousin or his claimed support for him. In respect of the applicant’s claim that he and his cousin M would promote the MDC in various villages, the Tribunal found the applicant’s account of this appeared to be rehearsed and insincere. On the evidence of the applicants, it is not satisfied that the first named applicant was an active member of the MDC.
(Identifiers omitted)
It appears from the first sentence of CB 236-237 at [84] that the Tribunal concluded that M was not an MDC youth chairman as claimed based on the fact the Tribunal was unable to identify or locate any reference to M in any reports from 2006-2008 in Ruwangwe. The Tribunal did locate an article identifying an individual with the same name as M from online newspaper reports dated in 2008 and 2011: CB 232 at [71] and fnn.42-47. This conflicts with applicant’s claim in his statutory declaration that M was found dead after the 2008 election: CB 117 at [9]. However, contrary to what is stated in the Judicial Review Application, the Tribunal made no finding that M did not exist. It found that M was not a youth chairman in the MDC as claimed or that the applicant engaged in the activities with M and supported him.
It would be troubling if the Tribunal did in fact reject the applicant’s claim M was an MDC youth chairman solely based on the inability to find a report identifying him. However, when reading the subsequent passages in the Tribunal Decision it becomes apparent that, the Tribunal rejected the applicant’s claims relating to M for other reasons such that even if it accepted that M may have been an MDC chairman, it was not satisfied the applicant was involved in the activities he claimed.
A finding that the applicant’s evidence appeared “rehearsed and insincere” is a matter best adjudged by the Tribunal who had the benefit of hearing the applicant’s oral testimony. Had the Tribunal rejected the applicant’s claims on the basis of his demeanour, and appearing rehearsed and insincere, the need for further explanation, such as in the Delegate’s Decision where it referred to the applicant reading off notes and that his evidence appeared to be rehearsed: CB 149, would be required. However, the Tribunal finding at CB 236-237 at [84] extracted above was a finding based on:
a)the lack of country information;
b)the unreliability of the applicant as a witness; and
c)that his evidence appeared rehearsed and insincere in respect to the claims concerning his cousin.
The findings made at CB 237-238 at [86]-[88] were made with reference to country information, and also the finding at CB 236-237 at [84] that the applicant had not developed the profile of an MDC supporter. Having made this finding, it significantly weakened the applicant’s remaining claims as it weakened the plausibility of the other claims and evidence he provided. For example, at CB 237-238 at [86] the Tribunal did not accept the events of December 2006 occurred as:
a)it had found the applicant was not a person with an adverse political profile and therefore it did not accept that ZANU-PF would target him for the treatment he claimed to receive;
b)there was a general lack of credibility in his claims to be an active member of the MDC;
c)had the applicant been subjected to the harassment and mistreatment he claimed he would have sought medical treatment; and
d)his explanation that medical treatment was not provided to MDC supporters or non-ZANU-PF was unsupported by country information.
The reference to the Tribunal referring to the applicant’s statement or explanation for his delay in applying for the Protection Visa as “implausible” is at CB 238-239 at [89]:
… The tribunal finds this is an implausible explanation, given the description he has given of severe mistreatment, including beating, abuse, being burned by melted plastic, and sexual assault. The Tribunal considers that if all this had indeed occurred as described, it is unlikely that the applicant would delay applying for a protection visa upon his arrival in Australia.
The Tribunal did not need to provide evidence for finding the applicant’s explanation as “implausible”, it simply needed to provide reasons or justification for that statement and it did so. The Court finds nothing illogical or unreasonable in the Tribunal making the finding it has come to.
While the Tribunal made numerous references to the applicant’s account not being truthful based on the general finding of the unreliability of his evidence, a lack of logic does not of itself establish jurisdictional error, and in all instances the Tribunal referred to some evidence or basis for its view, and the Court concludes that it was reasonably open to the Tribunal to find that the applicant’s claims lacked credibility in material and critical respects, namely the genuineness of his fear of persecution.
It follows from the above that grounds 10 and 11 do not establish jurisdictional error in the Tribunal Decision.
Irrelevant Considerations
The applicant contended that the Tribunal took into account irrelevant considerations in grounds 9, 12 and 13 of the Judicial Review Application.
Applicants’ submissions
The applicant submitted:
a)the Tribunal erred in taking into account the delay in applying for the Protection Visa, the second applicant’s visa expiring shortly after the Protection Visa application was lodged, the police clearance certificate, the applicant’s membership of the MDC, whether M was a member of the MDC as claimed, if the applicant went to see a doctor or not and the country information;
b)a delay in applying for a Protection Visa is irrelevant to determining if a person has a well-founded fear of persecution, and that the Tribunal took into account the second applicant’s student visa expiring shortly after the Protection Visa application was a “brick in the wall” to the adverse conclusion the Tribunal made about the delay;
c)the applicant could have obtained a police certificate and been the subject of persecution and obtaining a police certificate does not preclude one from being the subject of persecution, and that the Tribunal took into account that the applicant obtained a police certificate was irrelevant;
d)having ultimately conceded that country information is a relevant consideration, that the weight given to the country information was too much and weighed disproportionately with the applicants’ personal circumstances;
e)the Tribunal taking into consideration whether or not the applicant left Harare or stayed in Harare was irrelevant as if the Tribunal “bothered to look” it would have found persecution in Zimbabwe is everywhere and it should have instead focussed on the question of whether the applicant was attacked because of his political views;
f)only those factors that relate to an act of persecution are relevant to a finding about credibility;
g)whether a person goes to see a doctor has nothing to do with whether they were the subject of an assault and is an irrelevant consideration, and that the Tribunal placed weight on this and the country information was not reflective of how it really is in Zimbabwe and the applicant rejects that information and it caused the Tribunal to fall into an error; and
h)persecution in Zimbabwe is not limited to those who are members of the MDC and therefore it was irrelevant consideration to take that into account when determining whether the applicant is or is not the subject of persecution, so too whether or not he returned and did not suffer any adverse treatment.
Minister’s submissions
The Minister made the following submissions:
a)the Tribunal took into account country information in assessing the applicant’s claims and their credibility. The choice of country information, the weight to be given to that information, and the particular items to which regard ought to be had are all matters for the decision-maker;
b)there is no jurisdictional error disclosed by reason of the Tribunal having regard to country information and there is no substance to this argument;
c)at CB 237-239 at [85]-[90] of the Tribunal Decision do not disclose any jurisdictional error by reason of the Tribunal taking into account an irrelevant consideration or considerations; and
d)the Tribunal was entitled to take into account inconsistencies such as the delay in the application for a Protection Visa and the inconsistency between the applicant’s claims and the independent country information in assessing his evidence and claims.
At hearing the Minister submitted as follows:
a)the applicant’s membership of the MDC, his return to Zimbabwe, and the alleged bribe he paid to leave, were clearly relevant considerations as these were specific claims of the applicant, and further that an applicant has returned to the country they fear persecution in has been deemed by the courts as a relevant consideration; and
b)the finding that the applicant’s evidence was “rehearsed and insincere” was not an irrelevant consideration, it was the Tribunal’s view, and this was just one consideration it weighed at CB 236-237 at [84], also noting the lack of reports or information of the applicant’s cousin, in rejecting that particular claim.
Consideration
In Yusuf at [73]-[74] per McHugh, Gummow and Hayne JJ the High Court made the following remarks on “irrelevant considerations” as a ground of judicial review:
It is, of course, essential to begin by considering the statutory scheme as a whole. … On analysis, however, the asserted duty [of the RRT] to make findings may be simply another way of expressing the well-known duty to take account of all relevant considerations. The considerations that are, or are not, relevant to the Tribunal’s task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider…
This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.
(Citations omitted, emphasis added)
What must be shown is that the Tribunal took into account irrelevant matters or considerations when determining if the applicant met the relevant criterion for the purposes of s.36 of the Migration Act. Specifically, it was contended there were a number of matters taken into consideration in assessing the applicant’s credibility and whether he had a well-founded fear of persecution that were irrelevant.
For the following reasons, the Court does not accept that these matters were irrelevant considerations:
a)the delay in applying for a Protection Visa is a legitimate and obvious factor to take into account when assessing the genuineness or alleged fear of persecution: Selvadurai at [11] per Heerey J; DZADW v Minister for Immigration & Border Protection [2014] FCA 1338 at [19] per Mansfield J. While delay should not be determinative of a finding as the applicant’s genuineness to fear persecution: Makouei v Minister for Immigration & Multicultural Affairs [1998] FCA 89, it was not in this case, rather it was stated to have “weakened” the claims;
b)the second visa applicant’s student visa was cancelled shortly prior to the applicants’ applying for a Protection Visa. It was open to the Tribunal to take into account the circumstances and timing of an application for a Protection Visa and an expression of concern in respect of this is entirely natural and reasonable: MZYYU v Minister for Immigration & Citizenship [2014] FCA 98 at [21]-[22] per Bromberg J;
c)at CB 225-226 at [45] the Tribunal referred to the applicant being able to obtain a police clearance certificate in October 2006 and his response that he was able to because he was not “well-known” at that time. The applicant claimed in December 2006 that he was subjected to significant harm by ZANU-PF. While it is not inconsistent for a person to obtain a police certificate and also be subjected to persecution, it is also not irrelevant to the assessment of the applicant’s claims, and it was a matter for the Tribunal to determine what, if any, weight it would give to these matters. It should be noted this was the only mention of the police certificate in the entirety of the Tribunal Decision, and the Court is not satisfied that the Tribunal placed significant weight or made any finding in respect of the police certificate such that it was material to the decision or could have altered the outcome: Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 84; (2000) 75 ALJR 52; (2000) 176 ALR 219 at [103] and [121] per McHugh J (“Aala”); Yusuf at [82]-[84] per McHugh, Gummow and Hayne JJ;
d)the applicant’s membership of the MDC and M’s involvement with the MDC were clearly relevant considerations, they were the basis of the applicant’s claims to fear persecution, he stated so in his statutory declaration: CB 114, and had the Tribunal not considered them it would have fallen into jurisdictional error for failing to consider a claim, or an integer of a claim, made by the applicant: Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop J;
e)the applicant’s evidence that he did not go to see a doctor after the alleged harm he suffered in December 2006 at the hands of the ZANU-PF because they would not have treated him was directly inconsistent with country information. This was just one consideration that the Tribunal had regard to when determining if the event occurred, and it was not an irrelevant consideration as it formed a part of the applicant’s claims and the Tribunal was therefore required to address it: CB 119 at [14];
f)the applicant returning to Zimbabwe in 2009 cannot be considered irrelevant, it forms a part of the Tribunal’s assessment of the subjective element of the well-founded fear test: Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 52 at [33] per O’Connor J, while also forming a part of the objective element in that past events and experiences may provide a reliable basis for determining the probability of an occurrence in the future: Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567 at 574 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ (“Guo”); and
g)at CB 226 at [47] the Tribunal referred to asking the applicant why he could not stay in Harare, and recorded his response. Once again this was the only reference to Harare in the Tribunal Decision and while the Tribunal has mentioned the applicant’s evidence, the Court again does not consider it had any material impact on the Tribunal’s conclusions in respect of the applicant’s credibility or his claims of persecution: Aala at [103] and [121] per McHugh J.
There can be no objection to the Tribunal relying on country information, nor the weight it gives to that country information: NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ (“NAHI”). The applicant’s claims that the country information was “general information” and it was not reflective of the particular circumstances of the applicant do not warrant a finding of jurisdictional error, and even if the Tribunal made an error of fact in relying on the country information, this would not amount to jurisdictional error: NAHI at [10] per Gray, Tamberlin and Lander JJ.
The applicants’ lawyer emphasised that the Tribunal should be focussing on the acts of persecution and not worrying about delays or police certificates or membership cards. The Tribunal did focus upon the acts of persecution, at CB 224 at [35]-[36] the Tribunal detailed the applicant’s evidence of his activities with the MDC and the incident in December 2006 when he claimed to have been taken by ZANU-PF and mistreated. At CB 225 at [40]-[41] and [43] the Tribunal summarised the evidence concerning the applicant’s return to Zimbabwe and his claim his family’s food hut was burned down. The Tribunal clearly directed itself to the question of the alleged persecution the applicant faced, and claimed he would continue to face if he were returned. It did not misdirect itself.
The Tribunal took into account the considerations necessary to determine if it was satisfied the applicant met the statutory requirements of a Protection Visa, and it properly applied the law: Yusuf. What the applicant has essentially submitted in this ground is that all of the matters the Tribunal considered that it made adverse findings with respect to were irrelevant. This is simply a disagreement with the Tribunal Decision, and does not disclose jurisdictional error.
Paragraphs 80 – 81
Grounds 3 – 5 concern what was stated at CB 236 at [80] and [81] of the Tribunal Decision:
80. The Tribunal accepts that the mere fact a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that he or she satisfies all of the required statutory elements. Although the concept of onus of proof is not appropriate in administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the Tribunal to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.
81. In determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the applicant’s claims. This may involve an assessment of the applicant’s credibility and in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
(Citations omitted)
Applicants’ submissions
The applicant made the following submissions at hearing on this point (noting the Particulars only addressed the credibility issue):
a)the second sentence at CB 236 at [80] imposes an onus on the applicant, and the High Court cases cited did not deal with the onus of proof in the migration context and those decisions are wrong and new law should be made;
b)the applicant does not have to satisfy the requirements, nor do they have to supply the relevant facts, the applicant essentially just has to assert that they are the subject of persecution and that is the end of the applicant’s obligations in the matter, it is for the Tribunal to be satisfied the statutory requirements are met;
c)the applicant can remain mute at the Tribunal and the Tribunal can then go away and verify the claims in such way as it sees fit, however as elucidated by Kirby J in SGLB, to expect an applicant to satisfy the requirements and provide the relevant facts is setting the applicant up to fail;
d)an impermissible burden of proof has been placed on the applicant as the applicant can never prove, and are not in the position to provide evidence, if they were beaten, raped or mistreated as they claim and the Tribunal should give them the benefit of the doubt;
e)the Tribunal was simply paying lip service to the need for caution at CB 236 at [81];
f)the comments in Guo are that it is the Minister that must first be satisfied, thus the applicant is under no compulsion to provide evidence and the Tribunal cannot draw any adverse inference from this such that if what Kirby J in SGLB is taken to mean is that there is an obligation or duty of the applicant to provide evidence then that is wrong; and
g)the applicant does not have any role to play in providing the relevant facts and is the worse person to do so because in most circumstances the applicant is under stress and duress and cannot think cogently or coherently.
Minister’s submissions
The Minister submitted:
a)the passage at CB 236 at [80] of the Tribunal Decision is frequently used in decisions refusing to grant protection visas, is entirely unexceptional and no error of law, let alone jurisdictional error, arises from its content;
b)there is no error of law or jurisdictional error as to an applicant having to satisfy the Tribunal of the required statutory elements, or that the relevant facts of the individual case will have to be supplied by the applicant themselves, or that a decision-maker is not required to make an applicant’s case, or that the Tribunal is not required to accept uncritically any and all of the allegations made by an applicant;
c)the statements made by the Tribunal at CB 236 at [80] are common and unexceptional, and do not constitute the imposition on the applicant of an “impermissible burden of proof”;
d)CB 236 at [81] is simply a general statement with regard to the Tribunal’s assessment of an applicant’s claims and credibility; and
e)the assessment of the applicant’s claims and his credibility was open to the Tribunal for the reasons which it has set out in the Tribunal Decision and included giving the applicant the benefit of the doubt in certain instances.
At hearing the Minister also submitted as follows:
a)the second sentence at CB 236 at [80], which the applicant suggests imposes an unfair onus upon the applicant, is a paraphrasing of Guo, CLR at 596 per Kirby J in the High Court and therefore cannot amount to jurisdictional error;
b)in any event when one reads the Tribunal Decision as a whole it is clear the Tribunal was aware of the statutory task before it and placed no onus upon the applicant, and at CB 236 at [80] in all respects is an “unexceptional” paragraph that discloses no jurisdictional error; and
c)in response to the submissions that the Tribunal was “highly suspect” and, with respect to CB 236 at [81], simply paying “lip service” to the caution to be exercised in making an adverse credibility finding, the Tribunal took the caution necessary and that does not preclude it from making an overall adverse credibility finding.
Consideration
Contrary to the applicants’ submission it is fairly settled that use of the term “onus of proof” in administrative matters is unhelpful and inappropriate, including in migration proceedings before the Tribunal: Wu Shan Liang, CLR at 282-283 per Brennan CJ, Toohey, McHugh and Gummow JJ. Even in the case the applicant referred the Court to, Ejueyitsu v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 328; (2006) 151 FCR 289 at [91] per Weinberg J the Federal Court, stated “…it is plainly wrong for a decision maker to approach an application for merits review by considering whether a persuasive burden of proof has been discharged.” Suffice to observe that that position remains unaltered. That does not mean, however, the applicants’ assertion that the applicant could just sit mute if they chose to is correct, for if the applicant did so then reaching the level of satisfaction required under s.65 of the Migration Act would be undoubtedly difficult for the Tribunal as it is also well accepted that “… it is for the applicant for a protection visa to establish the claims that are made”: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155; (1985) 65 ALR 549 at 169-170 per Wilcox J; SZBEL at [40] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; Re Minister for Immigration & Multicultural Affairs; Ex Parte ApplicantS154/2002 [2003] HCA 60; (2003) 77 ALJR 1909; (2003) 201 ALR 437 at [57] per Gummow and Heydon JJ and [81] per Kirby J; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73] per Marshall, Mansfield and Siopis JJ; Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412 at [76] per Heerey, Conti and Jacobson JJ; Abebe at [187] per Gummow and Hayne JJ.
The applicant emphasised that the statement “… It remains for the applicant to satisfy the Tribunal that he or she satisfies all of the required statutory elements” at CB 236 at [80] and said that it imposed an impermissible onus upon the applicant. The Minister made reference to Guo, CLR at 596 per Kirby J which is as follows:
124. However, the mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for reasons of political opinion. It remains for the Minister in the first place to be “satisfied” and, where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.
It is clear that the Tribunal has simply paraphrased what was stated by Kirby J in Guo, CLR at 596. There is no error in the Tribunal’s statements made at CB 236 at [80], and when considering the Tribunal Decision as a whole it is clear the Tribunal did not impose any onus or evidentiary burden on the applicant. Rather, it made findings based on the materials and information that were before it, some supplied by the applicant and some supplied by country information. It did not reach the level of satisfaction on the information and materials before it that the applicants’ met the statutory criteria, and it was thereby required under s.65 of the Migration Act to refuse to grant a Protection Visa to the applicants.
In MZWMF v Minister for Immigration & Multicultural Affairs [2006] FCA 780 at [10]-[11] per Weinberg J the Federal Court dealt with a paragraph in a Tribunal decision almost identical to that at CB 236 at [80] of the Tribunal Decision, and at [11] per Weinberg J said:
The Tribunal referred to several cases in support of these propositions. These included Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Nagalingam v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191 and Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155. The Tribunal did not err in relying upon these cases, or in its formulation of the relevant legal principles. Moreover, the appellant’s contention must fail by reason of the principles stated by the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] - [24].
It follows that the Tribunal in this matter made no error in adopting the same principles and expression of the law, and CB 236 at [80] contains no jurisdictional error.
CB 236 at [81] again appears to be a paragraph expressing the general principles the Tribunal applies when making findings of fact. The matters the Tribunal refers to, in particular “the need and importance of being sensitive to the difficulties asylum seekers often face” is a matter that can be traced to, amongst others, the caution expressed by Kirby J at [73] in SGLB which the applicants rely on heavily in the case. There are no principles or statements of law that are incorrect at CB 236 at [81] and there can be no error on that basis.
The assertion that the Tribunal was paying “lip service” to the caution it was referring to at CB 236 at [81] cannot be accepted. For reasons already discussed at [32]-[50] above the Tribunal’s assessment of the applicant’s credibility was entirely open to it on the materials and information before it. Further, at CB 236-237 at [84] the Tribunal expressly applied the principles to the applicant’s claim of being an active member of the MDC, and while it was satisfied he was not an active member it nevertheless gave him the benefit of the doubt and proceeded to address whether he had a well-founded fear of persecution on the basis of being a low-profile member. It similarly referred to being unable to make a finding on the claim the applicant’s uncle was killed due to support for the MDC, and proceeded on the basis that the claim may be true: CB 238 at [87].
As to the claims of sexual assault that the applicants’ lawyer asserted were shown no sensitivity, the Tribunal referred to having considered this claim “carefully” and provided three reasons for coming to the conclusion that the applicant had not been sexually abused. The credibility of the applicant was only one reason it gave, it also referred to country information and a previous finding that the applicant was of a low profile. The Tribunal did not reject the claim of sexual abuse based on the applicant being unable to corroborate that such an event happened, rather the Tribunal rejected the claim on the basis of having weighed all of the evidence: CB 237-238 at [86].
The assertion the Tribunal did not take a sensitive approach, or exercise the caution it adverted to at CB 236 at [81], when assessing the claims of the applicant applying for refugee status does no more than appeal to the Court to cross the line into impermissible merits review.
No jurisdictional error in the Tribunal Decision is established by grounds 3-5.
Other matters
Oral evidence in judicial review hearings
At the hearing the applicants’ lawyer indicated that he wished to have the applicant provide oral evidence for the Court to consider. The Minister had received no notice that the applicant was wishing to do so. When questioned what the applicant would be testifying to if he were allowed to give oral evidence, it was said that:
…the issue of delay in making an application for a protection visa is a factor and if, for example, the applicant was in the stand and provided a code of [sic:good] reason for the delay then that would go to – that would go to weakening the ground that has been relied on by the tribunal in refusing the applications…
I’m proposing that the applicant give evidence about the police certificates, the country information service, having to leave Harare, the onus of proof, the issues of credibility, the inconsistencies and the MDC cousin [omitted], the membership…
Transcript, p.4 at [41]-[45] and p.8 at [32]-[35]
The applicants’ lawyer emphasised he would not be asking the Court to conduct a merits review and his line of questioning would be limited to establishing jurisdictional error, specifically that there was no basis for a finding of fact made by the Tribunal. The lawyer submitted that the applicant has a right to give evidence and if the Court does not allow him to do so in effect it is denying him that right. The Minister opposed the applicant being allowed to give oral evidence given there had been no notice and it appeared the evidence he may give is in any event seeking merits review.
Following exchanges with both the applicants’ lawyer and the Minister’s lawyer the Court proposed that it adjourn the hearing to another day and order that the applicant have leave to file any further affidavit evidence he wished to present. This would allow the Minister an opportunity to consider the evidence and raise any objections to its admissibility. The applicants’ representative withdrew his request for the applicant to provide oral evidence, and the following exchanges are extracted from Transcript pp.8-11:
HIS HONOUR: So you’re not pressing the opportunity that the court is – or is prepared to afford the applicant to give affidavit evidence about the matters that you’ve outlined.
MR FORD: Yes, your Honour, yes. That’s right. We’re not – I don’t propose to put the applicant in the stand today to give oral evidence and I propose now to now make submissions about the decision of the tribunal and point to the applicant’s claims.
HIS HONOUR: Well, I make it perfectly clear, Mr Ford, and will do in due course in any reasons for decision that I publish, that the court is prepared, if your client wishes to do so, to allow him the opportunity to put on affidavit any matter of evidence which the applicant says legitimately goes to his judicial review application. The court is not denying him the opportunity to give evidence, it is simply saying that in all the circumstances it is only fair that that go on affidavit.
MR FORD: Yes, your Honour, and I will obtain instructions from my client to that effect as to whether he chooses to put on affidavit evidence.
…
MR FORD: Your Honour, I’ve obtained instructions from the applicant, and he does not propose to put on any affidavit evidence.
The hearing then proceeded to the giving of oral submissions. Given the exchange that occurred between the applicants’ lawyer and the Court in respect of the applicant providing oral evidence, and notwithstanding the applicants’ lawyer withdrew that request and elected to proceed, the Court will briefly address this matter as to why the Court proposed to allow the applicant to file affidavit evidence as opposed to oral evidence.
Consideration
In support of the applicant providing oral evidence reference was made to s.64 of the FCCA Act which is as follows:
Evidence may be given orally or by affidavit
(1) Testimony in a proceeding in the Federal Circuit Court of Australia is to be given orally or by affidavit.
(2) However, the Federal Circuit Court of Australia or a Judge may:
(a) direct that particular testimony is to be given orally; or
(b) direct that particular testimony is to be given by affidavit.
…
Reference was also made to r.15.04 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”):
Court may call evidence
(1) The Court may of its own motion call any person as a witness in proceedings and give directions as to examination and cross-examination.
Evidence in this Court may thus be led by way of affidavit or orally, however, the issues the Court raised with allowing the applicant to provide oral evidence was that, at the very least, the Minister had not been placed on notice of this. The applicants’ lawyer submitted that there is no requirement under the FCCA Act or the FCC Rules that consent be obtained for a party to give oral evidence or notice be given to an opposing party. What is required however is that the Court operate in a manner that facilitates the proper administration of justice: FCCA Act, ss.3, 42; FCC Rules, r.1.03. The Court makes detailed programming orders in migration matters to facilitate this process.
The Court makes two observations as to why it did not consider it proper to grant leave for the applicant to provide oral evidence at the hearing (though it re-iterates he was given an opportunity to file affidavit evidence if he wished). The first is by reference to order 2 of the Registrar’s Orders which was as follows:
Other than the Court Book, all evidence relied upon by the parties must be presented by way of affidavit…
The Registrar’s Orders were, significantly, made by consent. The applicants’ representative stated that s.64 of the FCCA Act was not conditional or dependent on the Registrar’s Orders, but this overlooks that order 2 of the Registrar’s Orders was a direction that pursuant to s.64(2)(b) of the FCCA Act that any evidence wished to be relied upon was to be given by affidavit and not orally without notice.
In SZNOZ v Minister for Immigration & Anor [2009] FMCA 943 (“SZNOZ”) the Court considered if leave ought be granted for an applicant to provide oral evidence at the hearing of a judicial review application in circumstances where an applicant had failed to provide evidence in accord with the Court’s orders. While in SZNOZ it was found there would be no utility in granting leave to adduce oral evidence, at [13] per Emmett FM the Court stated in any event the Court would decline leave as the applicant had been on notice of the requirement to file any evidence by way of affidavit before a certain date.
The second observation is the question of the relevance of oral evidence in judicial review proceedings where the Court is generally not permitted to admit fresh evidence: MZXLD v Minister for Immigration & Citizenship [2007] FCA 1912 at [10] per Gordon J. Nonetheless, in Chandra v Webber [2010] FCA 705; (2010) 187 FLR 31; (2010) 270 ALR 393 at [40] per Bromberg J the Federal Court accepted that the touchstone of the admissibility of evidence on an application for judicial review will depend upon the relevance of the evidence to the ground of review and the circumstances of the case. To this effect the applicants’ lawyer stated that the applicant’s evidence would go toward establishing that there was no basis for particular findings of fact, which can constitute jurisdictional error.
During the course of submissions the applicants’ lawyer indicated that the evidence he wished to obtain from the applicant if he had been enabled to do so was evidence that would support his contention that the country information was wrong: Transcript, p.34 at [3]-[5] and [29]-[30]. Clearly that was a matter that should have been put to the Tribunal and not the Court on judicial review. There might also have been serious issues as to the admissibility of such evidence. In any event, the Court had already extended the opportunity to adjourn the hearing and allow the applicant to put on affidavit evidence. The applicant did not wish to do so and cannot argue the Court did not deny him an opportunity to be heard or give evidence.
Bias
At hearing the applicants’ lawyer submitted that:
“... I don’t accept that the tribunal is bringing an unbiased mind to this matter. When it asked these questions, it had preconceived notions; it had already decided what was going to happen...
(Transcript, p.23 at [39]-[42])
The Minister rightly objected stating this was not a ground of review in the Judicial Review Application. The applicants’ lawyer confirmed he did not press the bias claim, however he submitted it was open for the Court to make a finding of bias it so desires: Transcript, p.24 at [4]-[5] and [9]-[14]. In his closing submissions the applicants’ lawyer again returned to the bias claim and submitted that given the Court has original jurisdiction it may enliven the Court to make a finding of bias, notwithstanding it was not a pleaded ground of review, if it was satisfied there was jurisdictional error on that basis: Transcript, p.67 at [43]-[47].
The Minister in his oral submissions emphasised that this was not a ground of review, that the applicants’ representative had not pressed the claim, and contrary to what was submitted the Court cannot still make a finding of bias and if it were to do so it should require an amended application and further hearing or written submissions on that point. In any event, the Minister submitted that the Tribunal Decision evidences no indication of apprehended bias.
While the Court accepts bias was not a pleaded ground of review, given the applicants’ submissions it will address briefly those contentions raised.
From the submissions made it appears the applicants’ representative was asserting the Tribunal had displayed apprehended bias. He pointed to CB 225-226 at [44]-[45] of the Tribunal Decision as evidence the Tribunal had “initial scepticism” and submitted the Tribunal regularly starts from the position of “No” when considering an applicant’s claims for protection.
The Court can identify nothing in the Tribunal Decision upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind to the assessment of the materials and the relevant issues: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ. What the Tribunal was doing at CB 225-226 at [44]-[45] was putting matters to the applicant for comment and inviting the applicant to provide information in support of his application. This is not indicative of any kind of bias.
In this matter bias was not pleaded, and the applicants’ lawyer ultimately made a conscious decision not to press this ground. The applicants’ lawyer had an earlier opportunity to amend the Judicial Review Application by virtue of the Registrar’s Orders to include bias and did not do so. Ultimately, no allegation of bias has been distinctly made and clearly proved: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J.
If the applicant was seeking leave to amend the Judicial Review Application to include a ground of bias that leave is refused on the basis the explanation for any late amendment was unsatisfactory, and in any event the ground would have no reasonable prospect of success.
Reasonableness
The applicants’ lawyer made brief reference to the “whole Briginshaw v Briginshaw unreasonable claim”: Transcript, p.48 at [15]-[16]. Again, he stated that while he had not directly pleaded this claim and does not press it, the Court is not precluded from making a finding of jurisdictional error on this basis. The applicant referred to the Tribunal Decision being “unreasonable” in ground 2 of the Judicial Review Application.
The Minister submitted that a fair consideration of the Tribunal Decision as a whole does not demonstrate that the decision was unreasonable within the meaning of that expression.
Having regard to the Tribunal Decision there is nothing to indicate the Tribunal acted unreasonably. For the reasons otherwise set out in these Reasons for Judgment, the Tribunal made findings with an evident and intelligible justification: Li at [76] per Hayne, Kiefel and Bell JJ.
Conclusions and orders
The Court has concluded that the applicant has failed to establish there is any jurisdictional error in the Tribunal Decision and therefore the Judicial Review Application must be dismissed.
The Court will also order that the name of:
a)the first respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”; and
b)the second respondent be changed to “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.
Finally, as noted at [9], [10] and [15] above the Court will make the appropriate orders granting the applicant leave to file the Particulars, striking out grounds 1-15 of the Extension of Time Application and also striking out grounds 1-2 of the Judicial Review Application.
The Court will hear the parties as to costs.
I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Deputy Associate:
Date: 27 September 2019
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