You are here:
AustLII >>
Databases >>
Federal Magistrates Court of Australia >>
2011 >>
[2011] FMCA 91
[Database Search]
[Name Search]
[Recent Decisions]
[Noteup]
[Download]
[Help]
SZOJV & Ors v Minister for Immigration & Anor [2011] FMCA 91 (24 February 2011)
![[AustLII]](91.1.gif)
Federal Magistrates Court of Australia
[Index]
[Search]
[Download]
[Help]
SZOJV & Ors v Minister for Immigration & Anor [2011] FMCA 91 (24 February 2011)
Last Updated: 24 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
SZOJV & ORS v
MINISTER FOR IMMIGRATION & ANOR
|
|
MIGRATION – Application to review decision
of Refugee Review Tribunal – where Tribunal made an error about whether a
claim
was first made in a protection visa application or thereafter and found
that the claim was made late and was made to strengthen the
applicant’s
protection claims and was not genuine – where credibility and subsequent
findings in part based on these
findings – whether error of fact or
misunderstanding of evidence indicated a failure by the Tribunal to carry out
its function
to review the delegate’s decision – whether no evidence
to support Tribunal’s finding about late claim –
whether Tribunal
also failed to make findings about third applicant’s claims in a manner
constituting jurisdictional error. |
|
First Respondent:
|
MINISTER FOR IMMIGRATION & CITIZENSHIP
|
|
Second Respondent:
|
REFUGEE REVIEW TRIBUNAL
|
|
File Number:
|
SYG 991 of 2010
|
|
Hearing date:
|
22 October 2010
|
|
Last date of submissions :
|
18 November 2010
|
|
Delivered on:
|
24 February 2011
|
REPRESENTATION
Solicitors for the Respondents: |
DLA Phillips Fox
|
ORDERS
(1) A writ in the nature of certiorari issue directed to
the second respondent, quashing the decision of the second respondent made
on
8 April 2010 in Tribunal case number 0910162.
(2) A writ in the nature of mandamus issue directed to the second respondent,
requiring the second respondent to determine according
to law the application
for review of the decision of the delegate of the first respondent made on
23 December 2009.
|
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT
SYDNEY
|
SYG 991 of
2010
Applicants
And
|
MINISTER FOR IMMIGRATION & CITIZENSHIP
|
First Respondent
Second Respondent
REASONS FOR JUDGMENT
Background
- This
is an application for review of a decision of the Refugee Review Tribunal dated
8 April 2010 affirming a decision of the delegate
of the first respondent
not to grant the applicants’ protection visas.
- The
applicants, who are citizens of India, arrived in Australia in June 2009 and
applied for protection visas in September 2009.
The second and third applicants
applied for protection visas on the basis of their membership of the first
applicant’s family.
For convenience, future references to the applicant
are references to the first applicant. The applicant claimed in essence that
he
feared persecution on the basis of his religion as a member of the
“religious group” Dera Sacha Sauda (DSS). The application
was refused by a delegate of the first respondent and the applicants sought
review
by the Tribunal.
- The
Tribunal invited the applicants to a hearing. The applicant attended the
hearing on 19 February 2010. On the same day the Tribunal
wrote to the
applicants under s.424A of the Migration Act 1958 (Cth) (the Act)
inviting them to respond to information, including information about the
similarity between the applicant’s
claims and those of another protection
visa applicant and the use by both persons of the same residential and postal
addresses in
Australia.
- The
s.424A letter required a written response by 16 March 2010. On
16 March 2010 the Tribunal received a letter from the applicant seeking
a
two month extension of time to submit additional documents in support of his
review application. On 17 March 2010 he was advised
by a Tribunal officer
that the requested extension of time had not been granted by the Tribunal and
that if he had any documents
he should submit them as soon as possible. In
addition, on 18 March 2010 the Tribunal wrote to the applicants advising
that it had
decided not to grant any extension of time to provide comments or
response to the letter of 19 February 2010.
The Tribunal Decision
- In
its reasons for decision the Tribunal summarised the claims made by the
applicant in connection with his protection visa application
and at the Tribunal
hearing.
- The
Tribunal referred to the fact that it had sent a s.424A letter to the applicant
about issues that it had also raised with him at the Tribunal hearing and that
he had requested an extension
of time of two months in which to provide
additional documents in support of his review application. It recorded that it
had decided
not to grant an extension of time for a response to the s.424A
letter as the applicant had not previously indicated that he would need to
provide additional documents and had not indicated the
nature of any additional
documents he wished to provide or their relevance to the review.
- In
its findings and reasons the Tribunal recorded that the applicant claimed to
fear “harm and persecution in India because of his religious beliefs,
being a member of the...DSS”. However it found that there were
“a number of omissions [and] contradictions” in
relation to his claims and evidence and “evidence of
collusion”.
- The
applicant claimed that he had been a member of the DSS for three years, that he
initially went to Haryana (for DSS meetings) on
a monthly basis and thereafter
every two or three months; that he joined the DSS because “after he saw
the respect of the Dera they said he should become a member”;
and that he had become personally involved “after seeing their
teachings”. However the Tribunal found that when asked about the
principles of the DSS at the hearing “the applicant was able to give
only vague, generalised and limited answers”.
- The
Tribunal found that this lack of detail in relation to the DSS and its
principles and the reason the applicant joined, led it
to the view that the
applicant had very little knowledge about the DSS and that this indicated
“a lack of personal involvement over [the] period of three
years”.
- The
Tribunal addressed the applicant’s claim that “his house was
attacked in January 2009” during a prayer meeting and that
“Sikhs started throwing stones at them”, told them they had
to leave the DSS and to go to the Sikhs as follows:
- The
Tribunal raised with the applicant that he did not mention in his protection
visa application about the attack on his home in
January 2009. The applicant
said that he did mention it in the interview with the Department. The Tribunal
is of the view that
the failure to mention a significant event in the protection
visa application, and only raise it later in an interview with the Department,
indicates that the applicant made the claim purely in order to strengthen his
claim for protection, and that the claim is not genuine.
- The
Tribunal had regard to “a number of close similarities between the
applicants’ protection visa application and review application and
[those] of another person”, including use of the same residential
and postal address, arrival in Australia within two weeks of each other on
passports
issued at the same place and with visitor visas for travel to
Australia granted some nine days apart. The two applicants both based
their
claims to protection on membership of the DSS, claimed that they had been
threatened by militant anti-DSS organisations and
that they would be forced to
change their religion. They both claimed that such organisations were supported
by the BJP so that
the local police and authorities would not assist.
- The
Tribunal had regard to the fact that at the hearing the applicant said that he
and the other person shared a post office box “because they could not
work” and that “this saved money” and that the
other person had lived at the same address, but also to the fact that there was
“no further information provided in response to the
Tribunal’s [s.424A] letter [sent] after the
hearing” in relation to this issue. The Tribunal was not satisfied
that the applicant had explained “the significant number of
similarities between the two applications”. The Tribunal was
“of the view that this information indicat[ed] that there
ha[d] been collusion between the applicants and another person”
in their protection claims.
- The
Tribunal also had regard to some inconsistency in the applicant’s oral
evidence as to who lived at his address in Australia.
- The
Tribunal then reiterated that the applicant had “only raised the
alleged attack on his home for the first time at the Department
interview” and that he had “not given any explanation
[for] his failure to raise it in his protection visa application”.
This led the Tribunal to “conclude that this claim was made only in
order to strengthen [the applicant’s] protection claims”
and that it was “not genuine”.
- The
Tribunal found that “[b]ecause of the conflicts and omissions in
[the applicant’s] evidence and [the] evidence of
collusion” the applicant was “not a credible or reliable
witness”.
- After
recording that there was no evidence before it other than that of the applicant
as to his membership of the DSS, the Tribunal
considered the applicant’s
evidence of “monthly and then two or three monthly involvement over a
period of three years”. It found that the “applicant’s
knowledge of the principles of DSS...was vague and generalised”,
notwithstanding that the principles were “associated with everyday
practices, rather than [being] abstract concepts”. The
Tribunal was of the view that “a person with the length and frequency
of involvement” with the DSS that the applicant claimed
“would have a greater knowledge and familiarity than the applicant was
able to demonstrate”. The Tribunal found that the applicant was not a
member of the DSS.
- The
Tribunal considered a claim by the applicant that he was injured in an attack on
the DSS on 18 July 2007. It found that there
was “no
evidence...other than that of the applicant” in this respect and was
“not prepared to rely on [his] evidence alone” as it
had “found that he [was] not a credible witness”.
- The
applicant claimed that members of the Sikh association and militant groups had
threatened him so that he would “stop attending prayer [meetings]
and convert to the Sikh religion”, that they had “made a
hit list to kill members of [the] DSS” and that his family
would be killed if he went back to India. The Tribunal found that as it did not
accept that the applicant
was a member of the DSS and having found that he was
not credible, the applicant had not been threatened by Sikhs or militant groups
and that his family would not be killed if he returned to India.
- Further,
as the Tribunal did not accept that the applicant was a member of the DSS and
had found that he was not credible, it was
“not satisfied that police
and local authorities [we]re not interested in providing sufficient
protection to the followers of [the] DSS” as the applicant
claimed, that he reported threats to local police but that no action was taken
or “that he also reported these occurrences to the Chief Minister and
higher police authorities by mail but never received any reply”.
- As
the Tribunal did not accept that the applicant was a member of DSS and had found
he was not credible, it was not satisfied that
he was attacked on 18 July
2007 as part of an attack on the Dera by 50 or 60 people from the Sikh community
or that “he was injured on the legs with rods”.
- In
addition, as the Tribunal did not accept that the applicant was a member of DSS
and had found that he was not credible and as the
claim that his house was
attacked by Sikhs throwing stones in January 2009 when they were meeting to pray
there was said to have
been “only raised after the protection
[visa] application was made”, it was not satisfied that such an
attack had taken place.
- The
Tribunal found that there was no real chance that the applicant would experience
serious harm as defined in the Migration Act upon return to India. It did not
accept that he would face a real chance of persecution for a Convention-based
reason and found
that it followed that the applicant did “not have a
well-founded fear of persecution for a Convention-based reason”.
- The
Tribunal concluded that the primary applicant did not satisfy the criterion for
a protection visa set out in s.36(2)(a) of the Act and continued:
- The other
applicant (sic) applied on the basis of her (sic) membership of the primarily
applicant’s family. The fate of her
application depends on the outcome of
the primary applicant’s application. As the primary applicant does not
satisfy the criterion
set out in s.36(2)(a), it follows that the other applicant
cannot satisfy the relevant criteria set out in 36(2)(b) and cannot be granted a
visa.
- The
Tribunal affirmed the decisions not to grant the three applicants protection
visas.
Grounds of Review
- The
applicants sought review by application filed in this court on 6 May 2010.
They filed an amended application on 14 July 2010.
The applicant did not
file written submissions prior to the hearing, but made oral submissions at the
hearing and filed post-hearing
written submissions.
- The
first ground in the amended application is that the Tribunal adopted an
“unduly harsh approach to the fear of persecution” and
that it “erred in making findings” in relation to
well-founded fear because of the “[s]tringent application of the
test”.
- The
“[p]articulars” to this ground are in the nature of
submissions. Reference is made to the fact that the Tribunal recorded in its
decision
that at the hearing, when the “Tribunal asked whether the
applicant had experienced any harm”, he said that he had and referred
to an attack on the Dera on 18 July 2007 at Dubwali by 50 or 60 people from the
Sikh community,
claimed people were injured, that the police came but did not do
anything and that he was injured on the legs with rods but treated
the injuries
himself. Reference was also made to the fact that when asked if he had
“experienced any other problems”, the applicant told the
Tribunal that his house was attacked in January 2009 when they were meeting to
pray there, that Sikhs
had started throwing stones at them and had told them
they had to leave the DSS and go to the Sikhs. Issue was taken with the fact
that one of the reasons that the Tribunal “did not accept that the
applicant [had a] fear of harm” was because he did not mention
“this incident” in his protection visa application.
- The
particulars to this ground also address the fact that the 2007 attack was
mentioned in the protection visa application although,
as the applicant had told
the Tribunal, the date was incorrectly recorded by the friend who helped him to
complete the protection
visa application. It was said that this led the
Tribunal to find that “the applicant’s claims were not
genuine”.
- In
addition, it was submitted that the Tribunal erred in failing to
“explore or investigate about the incident of 18 July 2007”
and that it “simply followed the Delegate’s decision”.
- It
was also submitted that the applicant had been “denied procedural
fairness when the Tribunal did not accept [his] oral or written
evidence” and that when the applicant had asked for an
“extension of time to submit more documents in support of his
application”, the Tribunal was “pre-determined to make
judgment without any further oral or written evidence”.
- The
second ground in the amended application asserts that the Tribunal decision was
based on “assumption and probability”. It was claimed that
the Tribunal formed its opinion “based on the limited information about
the possible harm to the applicant” and “unnecessarily
linked other applicants for protection visa with [the
applicant’s] application”. This ground also takes issue with
the Tribunal’s questioning of the applicant at the hearing. It is
suggested that
the Tribunal “spent most of the time...to discredit the
credibility of the applicant asking more questions about his place of
residence in Australia and [the] link between [him] and other
applicants” with the same grounds for protection. The Tribunal is
also said to have “spent more time on the irrelevant
questions”, to have “ignored all other independent
information” and to have concluded that “the applicant and
persons like him ha[d] no fear of persecution...based on only assumption
and probability”. It was also claimed that the Tribunal did not give
consideration to the “cumulative effect of various fears of
persecution”.
- Ground
three of the amended application is that the Tribunal
“misconstrued” and “failed to carry out the
“real chance” test”, that its findings and reasons were
“confused” and that the “test for persecution was
not applied” according to law as “the Tribunal did not give
consideration to each separate aspect” of the claimed fear of
persecution.
- An
issue arose during the course of the hearing in relation to whether the Tribunal
failed to consider the claims of the third applicant.
It was addressed in
post-hearing submissions.
- Insofar
as the particulars to ground one focus on whether the applicant had mentioned
the events of July 2007 in his protection visa
application, the applicant
clarified in oral submissions that he took issue with the Tribunal’s view
that he did not mention
the attack on his home in January 2009 in his protection
visa application. As this was not clear from the amended application, the
parties were given (and took) the opportunity to make post-hearing written
submissions on this issue as well as on the issue of whether
the Tribunal failed
to consider the claims of the third applicant.
The “unduly harsh approach” and procedural fairness issues
- The
applicant contended first that the Tribunal adopted an “unduly harsh
approach”. Insofar as issue is taken with the Tribunal’s
approach to the applicant’s credibility generally, subject to
what is said
below in relation to the Tribunal findings about the events of January 2009,
credibility findings are findings of fact
par excellence for the
Tribunal. No jurisdictional error will be established provided that it is open
to the Tribunal on the material before it
to draw the conclusions that it draws
for the reasons that it gives.
- There
is nothing in the material before the court to support the claim that the
Tribunal misapplied the law in relation to well-founded
fear. Insofar as issue
is taken with the Tribunal’s reliance on when and how claims were made by
the applicant about events
in India these matters are considered below.
- It
has not been established that the applicant was denied procedural fairness
because the Tribunal did not accept his evidence. Merits
review is not
available. There is no transcript of the Tribunal hearing in evidence before
the court. Neither actual nor apprehended
bias is established in relation to
the Tribunal’s fact finding. While a factual error was made by the
Tribunal (which, as
discussed below, led to a jurisdictional error) the evidence
is not such as to demonstrate prejudgment or a state of mind on the
part of the
Tribunal constituting actual bias in the sense considered in Minister for
Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507;
[2001] HCA 17. Not is it such as to give rise to a possible apprehension of
bias as considered in Re Refugee Review Tribunal; Ex parte H (2001) 75
ALJR 982; [2001] HCA 28 such that the hypothetical fair-minded appropriately
informed lay observer might reasonably apprehend that the Tribunal might not
bring an impartial mind to the resolution of the question to be decided (Re
Refugee Review Tribunal; Ex parte H at [28]). I have borne in mind in that
respect that it is “a rare and exceptional case where actual bias can
be demonstrated solely from the published reasons for decision” (see
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 668 at [38] per von Doussa J and see NADH of 2001 and
Others v Minister for Immigration and Multicultural and Indigenous Affairs
(2004) 214 ALR 264; [2004] FCAFC 328 at [115] per Allsop J).
Extension of time issues
- As
set out above, after the Tribunal hearing on 19 February 2010, the Tribunal
wrote to the applicant under s.424A of the Act, inviting him to comment or
respond to information set out in that letter by 16 March 2010. The letter
advised that if
that could not be done the applicant may ask the Tribunal in
writing for an extension of time, that any such request was to be received
before 16 March 2010 and was to state the reasons why the extension of time was
required. The letter stated that the Tribunal would
“carefully
consider any request for an extension of time” and would advise
whether it was granted, but also that if the Tribunal did not receive the
applicant’s comments or response
within the period allowed or as extended,
it may make a decision on the review without taking any further action to obtain
his views
on the information.
- On
16 March 2010 the Tribunal received a letter from the applicant dated
10 March 2010 seeking an extension of at least two months
“to
submit additional documents in support of my review application”.
Apart from stating that he would “supply the essential documents very
soon” the applicant did not address the reason for his request.
- The
Court Book contains a Tribunal Case Note dated 17 March 2010 in which a
Tribunal officer recorded that the applicant had been
telephoned and notified
that the requested extension had not been granted and that if he had any
documents he should submit them
as soon as possible. In addition, on 18 March
2010 the Tribunal wrote to the applicant advising that the Tribunal had decided
not
to grant the request for an extension of time as described above. The
Tribunal decision was not made until 8 April 2010.
- Insofar
as the applicant’s request of 10 March 2010 constituted a request for
an extension of time to respond to the s.424A letter, the manner in which the
Tribunal approached that request is not such as to establish jurisdictional
error. The letter of
19 February 2010 had given the applicant a reasonable time
(until 16 March 2010) to respond. The matters raised in the s.424A letter
related to similarities between the applicant’s protection visa and review
applications and those of another person
and to whether any other persons lived
at his Australian residential address.
- The
Tribunal considered the request for an extension of time and in its reasons for
decision provided reasons why that request was
not granted as follows:
- On
16 March 2010 the Tribunal received a request for an extension of time to
respond to the Tribunal’s letter. The applicant
stated that he needed two
months; he wished to submit additional documents in support of his review
application. He would supply
essential documents very soon. He did not
indicate the nature of these documents or their relevance to the review.
- The
Tribunal decided not to grant an extension of time for the response. It made
this decision on the basis that the applicant had
not had not (sic)
previously indicated, on his visa application or at the review or hearing, that
he would need to provide additional documents and
did not indicate in his
request for an extension the nature of any additional documents he wished to
provide or their relevance.
The Tribunal advised the applicant of the decision
not to allow an extension of time on 18 March 2010.
- Such
an approach is not indicative of any failure to consider the request for an
extension if time, or of any lack of reasonableness
or procedural fairness.
There is nothing in the material before the court to establish any failure to
comply with the Migration Act or Regulations or jurisdictional error on any
other basis in the manner in which the Tribunal proceeded in relation to the
application
for an extension of time.
- It
appears to be submitted by the applicant that the Tribunal’s approach to
his request for an extension of time was indicative
of actual or apprehended
bias in the sense considered in Re Refugee Review Tribunal; Ex parte H
and Minister for Immigration and Multicultural Affairs v Jia Legeng.
That is not made out on the material before the court. It has not been
established that the Tribunal had “pre-determined to make
judgment” as was submitted. Indeed I note in that respect that while
the applicant was advised on 17 March 2010 that the extension
had not been
granted he was also told to submit whatever documents that he had as soon as
possible. There is no evidence that any
further material (whether in response
to the s.424A letter or otherwise) was submitted by the applicant prior to the
Tribunal decision of 8 April 2010.
- Insofar
as the applicant may have been seeking additional time to provide further
evidence (as distinct from the time to reply to
the s.424A letter), in these
proceedings the applicant tendered a medical certificate dated 19 September
2010 from a doctor in India relating
to his claims about being injured in July
2007 on the basis that this was the sort of information he had wanted to provide
to the
Tribunal. However any extension of time on such a basis was addressed in
the Tribunal’s response to his generally expressed
request. While the
Tribunal advised that an extension of time had not been granted, it also
informed the applicant that he should
submit any documents he had as soon as
possible, thus giving him an opportunity to provide further material. It did
not make its
decision until 8 April 2010. The applicant had ample time to
provide documentation about events of 2007 and 2009. The Tribunal
had informed
him of the need to provide such material. For example, in the letter
acknowledging receipt of the review application
dated 24 December 2009 the
Tribunal had advised the applicant that if he wished to “provide
material or written arguments for the Tribunal to consider”, he should
do so as soon as possible. The invitation to provide “new
information” was repeated in the hearing invitation letter of 20
January 2010.
- The
issues raised in the s.424A letter were not matters on which the applicant had
(according to the Tribunal account of the Tribunal hearing) sought additional
time at the hearing in order to obtain documents from India relevant to his
response. There is no evidence that the applicant had
told the Tribunal at the
hearing that he wished to provide documentation from India. The
Tribunal’s approach to the applicant’s
request for additional time
does not establish jurisdictional error on the part of the Tribunal, whether
consisting of actual or
apprehended bias or otherwise.
The July 2007 issues
- The
applicant took issue with the Tribunal’s consideration of his claims about
an incident of 18 July 2007. His concerns related
to the Tribunal’s
consideration of a reference to the incorrect date for this incident in the
protection visa application.
It was also submitted that the Tribunal erred in
failing to make further inquiries.
- In
one part of the applicant’s protection visa application the applicant
referred to events of “July 2009” involving clashes between
Sikh demonstrators and DSS at which he claimed to have been present. In
particular, he referred
to a curfew said to have been imposed on “July,
18.2009” (notwithstanding that he arrived in Australia in June 2009).
However later in the protection visa application the applicant
referred to
“clashes” between Sikhs and followers of the DSS in
“2007”. It is apparent from the Tribunal account of the
Tribunal hearing (which is the only evidence before the court of what occurred
in that hearing) that when the Tribunal asked the applicant whether he had
experienced any harm, he referred to an attack on the
Dera on 18 July 2007 by 50
or 60 people from the Sikh community, in which he claimed he had been injured on
the legs with rods.
When asked if he had experienced any other problems, the
applicant then referred to an attack on his house in January 2009. At that
point the Tribunal raised with the applicant “that he did not mention
in his protection visa application about the attack on his home in January
2009” (a matter to which I will return). It then “confirmed
with the applicant that he was granted [a] visitor visa in May
2009” and that this was “prior to the events of 18 July
2009” referred to in his protection visa application. At that point
the “applicant said that the incident was on 18 July 2007”.
The Tribunal “confirmed from its notes” that his oral
evidence was that the incident was on 18 July 2007. It raised with the
applicant “the fact that the date was apparently incorrect in the
protection visa application”. The applicant said this was a
“mistake” and it “should have been 2007”.
When asked if he had been assisted with the application, the applicant said
“a friend had helped him”.
- This
discussion at the hearing is not indicative of jurisdictional error.
Relevantly, in its findings and reasons the Tribunal accepted
that the
applicant’s claim in this respect was a claim that he was injured during
an attack on the DSS on 18 July 2007. It
did not rely on any failure to mention
such a claim in the protection visa application or on the fact that the
protection visa application
referred to the date of 18 July 2009. Rather,
having found that the applicant was not a member of DSS for reasons unrelated to
his
claims about the events of 18 July 2007, the Tribunal found that there was
no evidence to support the applicant’s claims that
he was injured during
attacks on the DSS on 18 July 2007 other than his evidence and that it was
“not prepared to rely on [his] evidence alone” as it
had found that he was not a credible witness. Subsequently, the Tribunal found
that as it did “not accept [that] the applicant was a member of
DSS and [had] found [that] he was not credible”, it was
“not satisfied that the applicant was attacked on 18 July 2007 or that
he was injured on the legs with rods”. The Tribunal’s treatment
of the applicant’s claims about the events of 18 July 2007 is not of
itself such as
to demonstrate jurisdictional error.
- Further,
there is nothing in the circumstances of this case to establish that the
Tribunal erred in failing to further explore or
investigate the alleged incident
of 18 July 2007. This is not a case in which there is any evidence that
the Tribunal undertook
to make any further inquiries. Nor is it one in which it
has been established that there was a “failure to make an obvious
inquiry about a critical fact, the existence of which [was] easily
ascertained” such as to give rise to any such obligation (see
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123;
[2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and
Bell JJ).
- What
was critical was not simply whether attacks on the DSS were perpetuated or a
curfew imposed on 18 July 2007, but whether the
applicant (who had been
found not to be a member of the DSS) was injured in such attacks. There was an
absence of evidence in that
respect other than that of the applicant. The
Tribunal was not prepared to accept the applicant’s evidence alone as it
had
found he was not a credible witness.
- Of
themselves these findings are not indicative of jurisdictional error. However,
as discussed below, their relationship to an error
of fact made by the Tribunal
about the timing of one of the applicant’s claims is of significance.
The January 2009 issue
- As
explained in the applicant’s oral submissions, ground one is intended to
take issue with the Tribunal’s consideration
of his claim that his house
was attacked in January 2009 during a prayer meeting, that Sikhs started
throwing stones at them and
told them they had to leave the DSS and go to the
Sikhs.
- In
oral submissions the applicant contended that, contrary to the Tribunal’s
finding, he had raised his claims about the events
of January 2009 in his
protection visa application. The Tribunal’s finding that the applicant
did not mention this claim in
his protection visa application and raised it for
the first time at the Departmental interview led the Tribunal to conclude that
this claim was made only to strengthen the applicant’s protection claims
and was not genuine. It was one of the factors that
led the Tribunal to find
that the applicant was not a credible witness which, in turn, led it to reject
other aspects of his claims.
- In
pre-hearing written submissions the first respondent contended that it was
“open to the Tribunal to draw adverse conclusions from the
applicant’s failure to mention an alleged attack on his home in January
2009 in his protection visa application”.
- As
the applicant contended, it is clear that the January 2009 claim was raised in
his protection visa application. Moreover, while
the solicitor for the first
respondent suggested in post-hearing written submissions that there was only a
“brief” mention of the January 2009 claim in the protection
visa application of a claim that “my house was attacked at once in
January 2009” and that there were “no further
references”, in fact in addition to the claim of an attack on his
house in January 2009, there was some elaboration of the background
to this
claim in the protection visa application.
- In
response to the question in the protection visa application, “Why did
you leave that country?” the applicant not only referred to his
presence in Haryana “at the time of clashes between Sikh demonstrators
and & followers of [DSS]” which led to an “indefinite
curfew” being imposed in Dubwali town in the Sirsa District on 18 July
2007 (albeit incorrectly described in the protection visa application
as 2009),
but also claimed that he “regularly visit[ed] DSS
headquarters” and, relevantly, that members of Sikh associations and
militant groups had threatened him to “stop attending
prayers” and “convert to [the] Sikh
religion”.
- In
response to the next question in the protection visa application, “What
do you fear may happen to you if you go back to that country?” the
applicant referred to a fear that he and his family would be “killed by
militant organisations” and/or that he would be
“forced” to change his religion. Importantly, he also
claimed that “[t]he Sikh associations have a public order that no
premis will be allowed to participate in prayer meeting (Naam Charcha), & if
they found someone participating in the function, they will be dealt with harsh
penalties” (which he described).
- The
reference to a prayer meeting (Naam Charcha) also appears in the
applicant’s specific claims about the events of January
2009. In response
to the protection visa application question, “Why do you think this
[harm] will happen to you if you go back?” the applicant made
more than a brief mention of an attack on his home in January 2009. He
stated:
- I am a
strong believer of DSS. I follow the principles of DSS. I offer my place for
naam charcha many times to followers of DSS.
The members of Sikh organisations
& militants din’t (sic) liked (sic) it. My house was
attacked at once in January 2009 when premis were doing naam charcha at my
place. We manage (sic) to escape but the attackers warned that if we
held the functions like this again, we will be dead. I have been offered a good
position
in Sikh Temple if I convert to Sikhism & stop attending &
organising prayers of followers of DSS. If I go back, I will be
forced to
convert to Sikhism or will be killed by militant groups.
- Further,
in response to the question about whether the authorities could and would
protect him, the applicant claimed that:
- All
followers of DSS are supportive of congress party. The present Govt. in the
state belongs to Bhartiya Janta Party (BJP) &
due to political enmity, the
local police & state authorities are not interested to provide sufficient
protection to the followers
of DSS. I have been verbally threatened many times
by members of Sikh organisation to face serious consequences if I din’t
(sic) stop attending naam charcha. I did report the threats to local
police but no action was taken against anyone. I also reported these
occurrences to the Chief Minister & higher police authorities by mail but
never receive any reply.
- So, I
believe, my family will not be protected if I return to India or if I go back I
have to convert to Sikhism against my will.
I fear persecution because of my
religious belief & as a member of DSS.
- Thus,
it is clear that in his protection visa application the applicant not only
claimed that his house was attacked in January 2009
but also provided details
about the background to and circumstances of the claimed attack which was said
to have occurred when followers
of the DSS were having a prayer meeting at the
applicant’s home, in circumstances where the Sikhs had a public order
preventing
participation in such prayer meetings (which provided for harsh
treatment for those found participating) and where the applicant
had been warned
to stop attending and organising prayers for DSS followers. He also explained
why he believed he would not be protected
by the authorities given past inaction
in response to his complaints.
- Consistent
with the applicant’s claims in his protection visa application, as the
delegate recorded when asked at the Departmental
interview to provide
“more information about the threats he received on
account of his adherence to the DSS” (emphasis added), the applicant
elaborated on his earlier protection visa application claim about the events of
January 2009.
He said that “stones were thrown at his house”
in January 2009 while a religious ceremony was conducted at his home which was
attended by some 50 people and that a young
teacher from Sirsa led the prayers.
He reiterated that he had reported the attack to the police, but that
“nothing happened”.
- I
am satisfied that, contrary to the Tribunal finding that the applicant only
raised the alleged January 2009 attack on his home for
the first time at the
Departmental interview, he made this claim in writing in connection with and as
part of his protection visa
application.
- The
Tribunal made the following finding in relation to this issue in the course of
addressing what were said to be omissions, contradictions
and evidence of
collusion in relation to the applicant’s claims and
evidence:
- The
applicant said that (sic) the hearing that his house was attacked in
January 2009 when they were meeting to pray there. Sikhs started throwing
stones at them
and told them they had to leave DSS and go to the Sikhs. The
Tribunal raised with the applicant that he did not mention in his protection
visa application about the attack on his home in January 2009. The applicant
said that he did mention it in the interview with the
Department. The Tribunal
is of the view that the failure to mention a significant event in the protection
visa application, and
only raise it later in an interview with the Department,
indicates that the applicant made the claim purely in order to strengthen
his
claims for protection, and that the claim is not genuine.
- Subsequently
the Tribunal reiterated its view that the applicant only raised the alleged
attack on his home for the first time at
the Departmental interview and that he
had not given any explanation as to his failure to raise it in his protection
visa application.
This led the Tribunal to conclude that the claim was made
only to strengthen the applicant’s protection claims and was not
genuine.
The Tribunal also found that as it did not accept the applicant was a member of
DSS, as it had found he was not credible,
and as the January 2009 claim was
raised only after the protection visa application was made, it was not satisfied
that such an attack
took place.
- Importantly,
the Tribunal found not only that this claim was not genuine but also that
because of the conflicts and omissions in the
applicant’s evidence and
evidence of collusion, the applicant was not a credible or reliable witness.
The Tribunal’s
reference to “omissions” clearly relates
to the applicant’s alleged failure to refer to the January 2009 claim in
the protection visa application.
Hence it cannot be said that the
Tribunal’s conclusion in relation to the applicant’s credibility
would have been the
same in the absence of the incorrect finding about the
lateness of the January 2009 claim.
- Having
rejected the applicant’s credibility, the Tribunal also rejected his claim
about attacks in 18 July 2007 in the absence
of corroborative evidence. Other
aspects of his claims were rejected on the basis of the findings that he was not
a member of the
DSS (given his limited knowledge) and that he was not credible.
- The
first respondent acknowledged that the Tribunal relied on the applicant’s
failure to articulate his claim about the January
2009 attack on his home in his
protection visa application as a factor in assessing his credibility. In
submissions, the solicitor
for the first respondent pointed to the fact that the
Tribunal had, as set out above, raised with the applicant at the hearing its
concern about the alleged house attack in January 2009. The Tribunal was said
to have expressed a concern that the alleged attack
had not been raised in the
protection visa application and to have given the applicant the opportunity to
respond. According to
the Tribunal, the applicant responded that he had spoken
about the attack with the Department, albeit there is nothing in the
Tribunal’s
account of the hearing to indicate that the applicant told the
Tribunal that he first made this claim in his protection visa application.
- It
was submitted that there could be no suggestion that the Tribunal had failed to
consider this claim, although it may have been
mistaken about the source of the
claim. Further, the Tribunal was said to have complied with its procedural
obligations, particularly
under s.425 of the Act. The first respondent
submitted that the Tribunal’s mistake about the claim being raised in the
protection visa
application at most led to an incorrect finding of fact
(Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206
CLR 323; [2001] HCA 30 at [92]) and that there were other reasons for the
adverse credibility finding, primarily the similarities to another protection
visa application
before the Tribunal that the applicant did not adequately
explain to the Tribunal.
- It
was submitted that the Tribunal did not overlook the January 2009 claim itself
or evidence substantiating the house attack which
may have led it to be
satisfied that the applicant had a well-founded fear of persecution. Reference
was made to the remarks of
Lindgren J in SZEHN v Minister for Immigration
& Multicultural & Indigenous Affairs [2005] FCA 1389 at [72]. His
Honour stated:
- The
distinction has been recognised between overlooking evidence which, if accepted,
might have led the Tribunal to make a different
finding of fact, and overlooking
evidence which, if accepted, might have led it to find a well-founded fear of
persecution established:
cf Minister for Immigration and Multicultural
Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [87]–[89],
Applicant WAEE (at [46]), MZWBW v Minister for Immigration &
Multicultural & Indigenous Affairs [2005] FCAFC 94 at [25]–[28],
and Thirukkumar v Minister for Immigration and Multicultural Affairs
[2002] FCAFC 268 at [29] per Cooper and Finkelstein JJ. The principle
underlying the distinction is that the Act does not prohibit the making of wrong
findings
of fact; it requires a review with a view to the Tribunal’s
deciding if it is satisfied that the applicant has a well-founded
fear of
persecution for a Convention reason. Only an overlooking of evidence which might
have persuaded the Tribunal to be so satisfied,
would amount to jurisdictional
error, and it is only for jurisdictional error that the Tribunal’s
decision can be set aside
notwithstanding the privative clause in s 474 of
the Act; Plaintiff S157.
- It
was submitted that in NABE v Minister for Immigration and
Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004]
FCAFC 263 the Full Court of the Federal Court had applied this principle in a
matter where, because of the Tribunal’s error, it had failed
to consider
an unexpressed claim of want of effective state protection against persecution
by a militant group. The court had concluded
(at [68]) that although the
Tribunal’s adverse credibility finding could have affected the outcome of
the review, it did not
constitute jurisdictional error, but was merely an error
of fact within jurisdiction.
- In
addition, reference was made to the fact that in Minister for Immigration and
Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 North and
Lander JJ had stated at [28] that:
- ... an
error of fact based on a misunderstanding of evidence or even overlooking an
item of evidence in considering an applicant's
claims is not jurisdictional
error, so long as the error, whichever it be, does not mean that the RRT has not
considered the applicant's
claim: Applicant WAEE v Minister for Immigration
and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 189;
Thirukkumar v Minister for Immigration and Multicultural Affairs [2002]
FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs
[2001] FCA 1294.
- The
applicant’s submissions in reply to the respondent’s supplementary
submissions did not specifically address this issue,
but reiterated other
matters raised in the amended application.
- The
Tribunal clearly either overlooked or misunderstood the content of the
applicant’s protection visa application in relation
to his claims that his
house was attacked in January 2009 during a prayer meeting and made a mistaken
finding that the applicant
first made this claim after he lodged his protection
visa application. The fact that the applicant did not expressly tell the
Tribunal
that it was mistaken about whether he mentioned the January 2009 claim
in his protection visa application, but rather said (correctly)
that he did
mention it in the interview with the Department does not overcome the fact that
the Tribunal made a mistaken finding
about whether the applicant in fact made a
late claim (that is, after his protection visa application).
- The
Tribunal did address the applicant’s claim about the events of January
2009. However it did so on the basis of its incorrect
finding, not simply about
whether there was a failure to mention the claim in the protection visa
application and the source of the
claim, but also about the time at which the
claim was first raised. It was the Tribunal’s mistaken view not only that
the
applicant failed to mention this significant event in his protection visa
application but also that he first raised it at the Departmental
interview that
led it to conclude that he made the claim purely in order to strengthen his
claims for protection and that the claim
was not genuine. These findings
contributed to the adverse credibility finding which in turn was a significant
part of the basis
for other adverse findings.
- Insofar
as the first respondent referred to the remarks of North and Lander JJ in
SZNPG, in that case what was in issue was whether this court had erred in
concluding that the Tribunal demonstrated “pre-judgment by refusing to
give weight” to documentary evidence of baptism in considering an
applicant’s claims to be a Christian. The Federal Magistrate had
found
that by failing to deal with a baptismal certificate “in any meaningful
way” and in the absence of “comprehensive findings of
untruthfulness”, the Tribunal had fallen into jurisdictional error.
That fact, together with other circumstances, was such that this court
had found
that there was an apprehension of bias (see North and Lander JJ in
SZNPG at [14] to [15]).
- On
appeal North and Lander JJ pointed out that it was not for the courts to
review the merits of the Tribunal decision and that a
wrong finding of fact and
unsound reasoning were not errors of law. Their Honours were of the view that
the case before them was
not a case in which the decision-maker had given
“no weight to the evidence proffered”. Rather, the Tribunal
had been of the opinion that the evidence in question (documentary evidence of
baptism) was “not of sufficient weight to allow a finding that the
[visa applicant] was a credible witness” in light of what were seen
as “glaring weaknesses” in his evidence (see North and
Lander JJ in SZNPG at [23]).
- In
rejecting any contention that the Tribunal had fallen into jurisdictional error
in the manner in which it expressed its rejection
of the baptismal certificate,
their Honours stated in SZNPG that if the Tribunal had failed to consider
an element of an applicant’s claim that would amount to jurisdictional
error because
the Act required “review of the whole of the
applicant’s claims” and to fail to do so would be a failure to
discharge the Tribunal’s imperative duties (SZNPG at [27]). It was
in that context that their Honours remarked at [28]:
- However, an
error of fact based on a misunderstanding of evidence or even overlooking an
item of evidence in considering an applicant's
claims is not jurisdictional
error, so long as the error, whichever it be, does not mean that the RRT has not
considered the applicant's
claim.
- However
in this case the Tribunal did not simply make an error of fact in
misunderstanding or overlooking the fact that the January
2009 claim was
made in the protection visa application. While the Tribunal considered the
claim, it rejected the genuineness of
the claim on the (incorrect) basis that it
was a late claim. It did not otherwise consider the merits of that claim. It
is necessary
to consider whether, notwithstanding that the claim was not
overlooked, the Tribunal’s approach nonetheless constituted or
evidenced a
failure to carry out its statutory duty under s.414 of the Act to carry out a
review of the decision of the delegate of the first respondent.
- The
Tribunal’s error was not simply an instance of errant fact-finding (see
NABE (No 2) and SZNPG at [28]). The Tribunal’s mistaken
conclusion that there was a late claim about January 2009 was a finding for
which there
was no supporting evidence and that was a critical step in its
ultimate conclusion (see SFGB v Minister for Immigration and Multicultural
and Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231 at [19]).
- In
this case there was no evidence to support the Tribunal finding that the
applicant made a late claim about events of January 2009.
The applicant’s
oral evidence to the Tribunal about mentioning the attack in the Departmental
interview does not constitute
a denial that it was mentioned in the protection
visa application, particularly given the fact that what was recorded by the
Tribunal
as being said by the applicant at the Departmental interview involved
an elaboration of the claim as made in the protection visa
application.
- I
am satisfied that the Tribunal’s error or misunderstanding was such that
it failed to understand what claims the applicant
had made in connection with
his protection visa application. As a claim about past harm relied on by the
applicant to support a
claim of a fear of persecution, the claim about January
2009 was of significance. The Tribunal relied on its error or misunderstanding
about the lateness of the January 2009 claim in a substantial way. The lateness
of the claim was the sole basis for its rejection
of the genuineness of that
claim. Moreover, the Tribunal went on to take this finding into account in
rejecting the credibility
of the applicant generally and hence other aspects of
his claims. It cannot be said that the Tribunal’s credibility finding
would necessarily have been the same in the absence of this error. The Tribunal
clearly regarded what it saw as the late raising
of such a claim as not only
indicative that it was made purely to strengthen the applicant’s claims
for protection and was
not genuine (cf MZXSA v Minister for Immigration and
Citizenship and Another (2010) 117 ALD 441; [2010] FCAFC 123 at [85]), but
also as an omission relevant to whether the applicant was a credible or reliable
witness. The adverse credibility finding
was in turn part of the basis for
rejection of other claim. The Tribunal’s error obscured its understanding
of the claims
that were advanced by the applicant in support of his protection
visa application.
- The
Tribunal did not simply rely on its error or misunderstanding “in only
a peripheral way” (MZXSA at [85] per Keane CJ, Perram and
Yates JJ). While there were other factors relevant to the Tribunal’s
credibility finding,
the Tribunal did not independently make a decision adverse
to the applicant. The Tribunal totally overlooked, ignored or disregarded
the
fact that a claim about the events of January 2009 was made in connection with
the applicant’s protection visa application
and on this basis did not
address the content of the claim, except insofar as it concluded, based on its
mistaken view about the
late timing of the claim, that it was made purely to
strengthen the applicant’s claims for protection and was not genuine.
Such an approach is contrary to that taken in Dranichnikov v Minister for
Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26.
As stated by Collier J in Khanam v Minister for Immigration and
Citizenship and Another (2009) 111 ALD 421; [2009] FCA 966 at
[30]:
- Procedural
fairness requires the tribunal to give real consideration to the claim of the
visa applicant and the merits of his case...failure
to do so constitutes a
denial of natural justice – and a jurisdictional defect infecting the
decision of the tribunal...
- Perhaps
the most apposite description of the nature of the Tribunal’s error in
this case is to be found in the approach taken
by Flick J in SZDFZ v Minister
for Immigration and Citizenship and Another (2008) 168 FCR 1; [2008] FCA 390
at [40] to [44]. In that case the Tribunal had found that the visa applicant
had been asked when the National Conference of the Awami League
and/or the Ajebo
League was to be held but that he was not able to specify when it was held,
beyond citing the year 2006. However,
as pointed out by Flick J, in fact the
visa applicant had at no time specified that the National Conference was to be
held in 2006
and, more importantly, he had never been asked when the National
Conference was to be held (see SZDFZ at [37] – [38]). In those
circumstances, in considering whether the Tribunal had made a finding for which
there was “no evidence which constituted jurisdictional
error” his Honour stated (at [40] – [43]):
- In reaching
the conclusion that there is jurisdictional error, it is recognised that an
error of fact does not of itself normally
constitute error of law, let alone
jurisdictional error: Attorney
General (NSW) v Quin (1990) 170
CLR 1 at 35-36 per Brennan J. In a context where there are
competing facts, the weight to be ascribed to particular pieces of evidence
is a
matter entrusted by the legislature to the Tribunal for resolution. Mere
disagreement with the ultimate finding of fact made
does not expose error of
law. And what may be described as "illogical or irrational" inferences drawn
from the facts before the Tribunal
may often be an unhelpful characterisation of
the reasoning process and may amount to no more than a conclusion that a Court
may
have reached a different factual conclusion: cf Re
Minister for Immigration and Multicultural Affairs; Ex parte Applicant
S20/2002
[2003] HCA 30; (2003) 77
ALJR 1165; 198 ALR 59 at [8]- [9] per Gleeson CJ. See also: NACB
v Minister for Immigration and Multicultural and Indigenous Affairs [2003]
FCAFC 235 at [22]- [30] per Tamberlin, Emmett and
Weinberg JJ.
- The
present finding of the Tribunal, however, involves no resolution of competing
facts and no process of reasoning, be it logical
or illogical. More importantly,
it is a finding which positively misstates what had occurred. This Court, as is
the Federal Magistrates
Court, is heavily dependent upon the findings and
reasons of the Tribunal being accurately set forth in the decision of the
Tribunal.
Where an error does occur, it may not usually matter how it occurred.
No submission is advanced in the present appeal that the finding
of the Tribunal
evidences a reasonable apprehension of bias — as may have been expected if
reliance was to be placed upon a
submission, for example, that the Tribunal was
committed to reaching a particular conclusion regardless of the evidence
given.
- But
what does matter is whether such an error, when it does occur, can be
characterised as a jurisdictional error. In the present
circumstances it is
considered that it can. In SFGB
v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; (2003)
77 ALD 402 Mansfield, Selway and Bennett JJ observed:
- " [19] ...
If the Tribunal makes a finding and that finding is a critical step in its
ultimate conclusion and there is no evidence
to support that finding then this
may well constitute a jurisdictional error ... "
- And, in SZDTZ
v Minister for Immigration and Citizenship [2007]
FCA 1824[DOC] Greenwood J reviewed some of the authorities
(including SFGB [2003] FCAFC 231; 77 ALD 402) and concluded:
- "[31] The
central matter is this.
- [32] A
determination of the Tribunal as to a state of satisfaction or otherwise, of the
relevant criteria or criterion in question,
that is based upon a finding of fact
or inferences drawn from facts, not based on logical or rational grounds, will
give rise to
an error of jurisdiction if there is no evidence to support the
finding or no proper basis for drawing the inference; or, if there
be some
evidence, although inadequate, reliance by the Tribunal upon that inadequate
evidence gives rise to an inference that the
Tribunal has misconceived the test
or is not, in reality, satisfied of the requisite matters, as a result of which
there has been
only a purported, rather than a real, exercise of the power
conferred upon the Tribunal."
- Although
the circumstances in which such errors as that which the Tribunal committed in
the present case may be rare, when they do
occur this Court should intervene
unless it is satisfied that the error was non-prejudicial. Such a finding should
not be made in
the present appeal. The reconstituted Tribunal was clearly
unimpressed with the appellant's credibility — but it remains unknown
which of a series of particular findings ultimately persuaded it that the
appellant's evidence was not to be accepted. The finding
that the appellant "was
asked" as to when the national conference was to be held, when he clearly was
not asked, could not be regarded
as irrelevant to the ultimate adverse findings
as to credit.
- Similarly
in this case the Tribunal’s finding that the applicant made a late claim
positively misstated what had occurred.
It involved no resolution of competing
facts or process of reasoning. The questioning of the applicant about this
issue at the Tribunal
hearing did not change the nature of the error. The
Tribunal made findings that the applicant had not made any claim about an attack
on his house in January 2009 in connection with his protection visa application
and that he had first raised this claim in the Departmental
interview when in
fact there was no evidence capable of supporting such findings.
- Whether
or not the Tribunal’s inference from its finding about the late raising of
the claim can be said not to be based on
logical or rational grounds, there was
no evidence to support the finding of a late claim and no proper basis for
drawing an inference
that the claim was made only to strengthen the application.
Nor was there a proper basis for such a perceived omission to be relied
on by
the Tribunal in support of the adverse credibility finding. Yet these findings
were critical steps in the Tribunal’s
ultimate conclusion (see SFGB
and SZDFZ, and also SZDTZ v Minister for Immigration and Citizenship
[2007] FCA 1824, SZKMX v Minister for Immigration [2008] FCA 856 and
SZJRU v Minister for Immigration and Citizenship and Another (2009) 108
ALD 515; [2009] FCA 315 at [51] – [56]).
- As
indicated above, while there were other factors relevant to the
applicant’s credibility, it is clear that the Tribunal’s
finding in
relation to the timing of the claims about the January 2009 attack was relevant
not only to rejection of that claim, but
also in relation to the
Tribunal’s finding about the applicant’s credibility. The finding
that the applicant was not
a credible or reliable witness then led to the
rejection of other aspects of the applicant’s claims. It was critical to
the
applicant’s claims as expressed that he establish prior persecution
and the extent of that persecution. He sought to establish
incidents in 2007
and in January 2009. One of the critical steps in finding that the applicant
did not have a well-founded fear
of persecution was the rejection of the claim
about January 2009 based on the late timing of that claim, a finding for which
there
was no evidence.
- I
am satisfied that the Tribunal fell into jurisdictional error on this basis and
that hence that the matter should be remitted to
the Tribunal for
reconsideration according to law.
The assumption and probability issue
- Insofar
as the applicant took issue with the Tribunal’s concern about the
similarity of other visa and review applications,
as the first respondent
submitted it was open to the Tribunal to question the applicant on these issues
and to consider such similarities
with a view to testing the truthfulness of his
claims. It has not been established that the Tribunal failed to comply with any
procedural
requirements under the Migration Act in so doing. In particular
there is nothing to suggest that the Tribunal failed to raise dispositive issues
at the hearing in compliance
with s.425 of the Act (see SZBEL v Minister for
Immigration and Multicultural and Indigenous Affairs and Another (2006) 228
CLR 152; [2006] HCA 63). The Tribunal sent the applicant a letter which set out
the particulars of similarities between the applications and the concerns
it had
regarding the information, in compliance with s.424A of the Act. This ground is
not made out.
- Insofar
as issue is taken with the fact that the Tribunal decision turned on its adverse
credibility finding, were it not for the
error in relation to the late claim
about the January 2009 incident which was a critical step towards such findings,
no jurisdictional
error would be apparent on the particular basis contended for
by the applicant.
The real chance test issue
- Ground
three of the amended application is that the Tribunal misconstrued and failed to
carry out the real chance test. However,
subject to what has been said in
relation to the January 2009 issue, it has not been established that the
Tribunal misunderstood
or failed to apply the real chance test as required by
law or that it did not give consideration to each aspect of the claimed fear
of
persecution asserted by the applicant. Ground three is not made out in the
manner contended for by the applicant.
The third applicant issue
- The
application for review was made in the names of three applicants – the
applicant husband, his wife and their son. The Tribunal
decision record is
said, on the cover sheet, to relate to the three named applicants. In its
outline of claims and evidence the
Tribunal recognised that the second and third
applicants had applied for protection visas as members of the family unit of the
applicant.
It described the personal details of the second applicant (the
applicant’s wife) and of the third applicant, the son of the
applicant
born in January 2009 and a Sikh. However the Tribunal did not ultimately make a
finding in relation to the third applicant
in its findings and reasons. After
finding that it was not satisfied that the primary applicant was a person to
whom Australia had
protection obligations under the Refugees Convention and
before affirming the decision not to grant the applicants’ protection
visas, the Tribunal stated:
- The other
applicant (sic) applied on the basis of her (sic) membership of
the primary applicant’s family. The fate of her application depends on
the outcome of the primary applicant’s
application. As the primary
applicant does not satisfy the criterion set out in s.36(2)(a), it follows that
the other applicant cannot satisfy the relevant criteria set out in 36(2)(b) and
cannot be granted a visa.
- It
did not make any such finding in relation to the third applicant’s
application.
- The
first respondent submitted that while only the second applicant was apparently
referred to in the concluding part of the Tribunal
decision set out above, the
third applicant was “implicitly included” as that finding
must be read in the context of the decision as a whole, including the fact that
correspondence from the Tribunal
to the applicants referred to all three
applicants and that in the claims and evidence part of the Tribunal’s
reasons the Tribunal
had noted that the second and third applicants had applied
for visas as members of a family unit and had described the third applicant.
It
was submitted that the Tribunal had referred to the third applicant in the
decision record and contended that the decision was
clearly intended to include
him.
- Moreover,
it was submitted that the third applicant’s rights as a member of a family
unit were identical to those of his mother
and were entirely dependent on the
success of the primary applicant’s claims, and because those claims were
comprehensively
rejected there could be no other outcome than that the second
and third applicants’ applications would be rejected.
- The
first respondent also submitted that the omission was only a minor omission and
that it was apparent that the intention of the
Tribunal was that the decision
include the third applicant. Reference was made to authorities to the effect
that omissions or typographical
errors generally do not amount to jurisdictional
error (see SZJRW v Minister for Immigration and Citizenship [2008] FCA
959, SZMAD v Minister for Immigration & Citizenship [2008] FCA 1275
and “CCC” v Minister for Immigration & Multicultural
Affairs [2001] FCA 682). Reference was made to the fact that the decision
record was a statement of reasons, not the decision itself (see Yusuf).
It was said to be without doubt that the decision made by the Tribunal was that
it could not be satisfied that the third applicant
met the criteria in
s.36(2)(b) of the Act.
- It
was submitted that, having regard to the Tribunal’s decision as a whole,
it was not apparent that the Tribunal’s omission
affected its exercise of
power, as the decision still affirmed the decision under review with respect to
all three applicants. More
generally, it was submitted that a finding of
jurisdictional error in the Tribunal’s failure to refer expressly to the
third
applicant in its conclusions would be reading the decision with an eye too
finely attuned to error and in a manner which subverted
the context of that
paragraph in the decision (see Minister for Immigration and Ethnic Affairs v
Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6). No reference
was made to any case in which a comparable error had occurred.
- In
SZMZT & Anor v Minister for Immigration & Anor [2009] FMCA 420
Scarlett FM found that the Tribunal’s failure to assess the claims of a
second applicant as a member of the family unit of
the first applicant (in
circumstances where it had assessed his claims to be a person to whom Australia
has protection obligations)
“appear[ed] to be a jurisdictional
error” (at [78]). However in that case his Honour found also that it
would be “futile to grant relief” on that basis given that
the Tribunal had found that the primary applicant was not a person to whom
Australia had protection obligations
(and that part of the decision was not
affected by jurisdictional error) so that the second applicant could not meet
the criterion
in s.36(2)(b) of being the spouse or dependent of a person to whom
Australia had protection obligations and who held a protection visa).
- While
having regard to the need not to scrutinise the reasons of the Tribunal in an
overly critical manner (see Wu Shan Liang), the Tribunal in this case did
not simply make an error in the nature of a typographical error. Nor do I
accept that it is apparent
that the third applicant was “implicitly
included” in the finding about the second applicant or that the
Tribunal findings were clearly intended to include him (cf A and Others v
Minister for Immigration and Multicultural Affairs (1999) 53 ALD 545; [1999]
FCA 116).
- On
the contrary, the absence of any reference to or discussion of evidence as to
whether the third applicant met the criteria for
a protection visa application
is such that it can be inferred that this was not considered by the Tribunal
(see Yusuf at [34] – [35], [68] – [69] and [75]).
- The
Tribunal failed to assess the third applicant’s claims. In particular it
failed to consider and make findings as to whether
the third applicant met the
criteria in s.36(2)(b) of the Migration Act or, indeed, whether he was on any
basis entitled to the visa for which he had applied. It thus fell into
jurisdictional error.
- Had
there otherwise been no jurisdictional error on the part of the Tribunal it
would have been necessary to consider whether relief
should be refused as futile
on discretionary grounds (a matter not expressly canvassed in the first
respondent’s submissions,
except insofar as it was submitted that the
Tribunal could not have made any finding other than to deny the third applicant
a visa).
However, given the jurisdictional error in relation to the January
2009 issue, relief should not be refused and the question of
whether the third
applicant met the criteria for a visa should be considered by the Tribunal.
I certify that the preceding one hundred and two (102)
paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 24 February 2011
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FMCA/2011/91.html
