FEDERAL COURT OF AUSTRALIA

SZVFH v Minister for Immigration and Border Protection [2017] FCA 909

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs as taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NICHOLAS J:

BACKGROUND

1    This is an appeal from a judgment of a Judge of the Federal Circuit Court of Australia dismissing with costs the appellants’ application for judicial review of a decision by the second respondent (“the Tribunal”) rejecting the appellants’ application for a protection visa.

2    The first appellant is a citizen of Fiji who arrived in Australia on 22 July 2013 as a holder of a tourist visa. The second appellant, his wife, was included in the first appellant’s application for a protection visa as a member of his family unit. For convenience I shall refer to the first appellant as “the appellant”.

THE TRIBUNAL’S DECISION

3    The appellant’s application for a protection visa was lodged on 22 October 2013. In it he alleged that he feared persecution in Fiji because of his political opinion. The application was refused by a delegate of the first respondent (“the Minister”) whose decision was affirmed by the Tribunal by a decision made on 8 September 2014.

4    The matters upon which the appellant relied in support of his application for a protection visa were summarised by the Tribunal in its reasons for decision. The appellant claimed that he had been abused and harmed by the Fijian army because he was a strong supporter of the United Fiji Party, Soqosoqo Duavata ni Lewenivanua (“SDL Party”) and that he was against the current Fijian government. He claimed that he had been beaten and detained by the army on three occasions and that he feared that if he were to return to Fiji the Fijian army, the Fijian regime, and the current Fijian Prime Minister, would abuse, mistreat, detain or kill him.

5    There were three particular incidents described by the appellant in this evidence to the Tribunal involving physical abuse. The first was in 2007 when the appellant was challenged by six army personnel who confiscated his vehicle and physically and verbally abused him. The second was in 2009 when police and army personnel stopped the appellant and members of his family at a wharf while they were on their way to an island to install a new chief. The male members of the family were arrested and taken to the police station. The appellant was questioned and ill-treated. The third was in 2013 when a martial arts class he was participating in was stopped by army personnel who attacked the appellant, rendering him unconscious.

6    The Tribunal referred to the appellant’s evidence in relation to these incidents. It also noted that between 2010 and 2013 he worked for an American company in Afghanistan and that in the period 2011 to 2013 he returned to Fiji on a number of occasions. It also noted that after entering Australia on a tourist visa in July 2013, the appellant did not apply for a protection visa until October 2013. The Tribunal also referred in its reasons to what it perceived to be inconsistencies in the evidence of the appellant and his wife.

7    The Tribunal did not accept that the appellant was ever questioned, arrested, detained or ill-treated in any way by the military in Fiji. Nor was the Tribunal satisfied that the appellant was a person to whom Australia has protection obligations and that he did not satisfy the criteria set out in s 36(2)(a) or (aa) of Act for a protection visa. In reaching these conclusions it is apparent that the Tribunal gave little weight to evidence given by the appellant’s wife and his cousin.

the proceeding before the primary judge

8    There were two grounds of review relevant to the appeal that were relied upon by the appellant before the primary judge, namely:

1.    The Tribunal made jurisdictional error in that it made its decision without (a) taking a relevant matter into consideration, (b) inquiring into the circumstances of the applicant's cousin's grant of protection visa which is relevant to a critical claim of the applicant

Particulars

In dismissing the claim that the applicant was detained on 3 April 2009 the Tribunal failed to take into consideration the applicant's cousin's oral evidence to the Tribunal that he was with the applicant and he was also detained. See [13]. [21]. [24] & [29].

The Tribunal failed to inquire from the applicant's cousin who was a witness before the Tribunal about the factual circumstances of his case and especially the claimed incident on 3 April 2009 which formed the basis of the cousin's successful Tribunal application and protection visa.

2.    The Tribunal made jurisdictional error in that it ignored a relevant real evidence about the serious harm suffered by the applicant in Fiji

Particulars

Although the applicant volunteered to show the scars resulting from the serious harm the applicant suffered in Fiji, the Tribunal refused to view that but made a negative finding about that. See [27].

Although medical evidence is for the medical professionals the Tribunal had to view the real evidence to form a view about the applicant's claims.

9    The primary judge rejected ground 1 on the basis that the Tribunal had regard to the cousin’s evidence but did not give it much weight. His Honour also rejected the contention that it was not open to the Tribunal to conclude that the cousin had a vested interest in the success of the appellants’ visa applications.

10    The primary judge also rejected the appellant’s contention that the Tribunal was required to ask more questions of the cousin than it did or, in particular, that it should have asked the cousin to describe the incident at the wharf and the nature of the appellant’s involvement in greater detail. His Honour dealt with this at [19] to [21] of his reasons as follows:

[19]    The relevance for the Tribunal of the event in question was whether the first applicant had been present at the particular incident. The cousin’s evidence was clear and to the effect that he had been:

Tribunal:    I’m mindful of the time, so is there anything else you want to say?

Witness:    The second incident that happened was when we were forcefully and retained [sic] from the wharf when we were on a trip to our village to install our chief.

Tribunal:    You were with him then?

Witness:    I was with him.

Tribunal:    You were there.

Witness:    In 2009.

[20]    The applicants’ case seems to be that the Tribunal should have sought from the cousin a repetition or an elaboration of this evidence. However, it had no obligation to do that. The Tribunal has no general duty to inquire. When it is suggested that the Tribunal should have made an enquiry which it did not make, it is important to ask whether the failure to make the identified enquiry supplied a sufficient link to the outcome of the review as to constitute a failure to review. In circumstances where the evidence does not suggest that further enquiry by the Tribunal would have yielded a useful result, the Tribunal does not err if it does not make such an enquiry: Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 at 1129 [26]; SZTDD v Minister for Immigration & Border Protection [2016] FCA 136.

[21]    Having alleged that the Tribunal should have asked more questions of the cousin than it did, it was necessary for the applicants to make out all the elements of the SZIAI test, including the “sufficient link” element. However, no evidence was adduced to show what information would have been gleaned if the Tribunal had made the enquiries postulated by the applicants in their submissions. As a result, there is no basis to conclude that the failure to make the postulated enquiries supplied a sufficient link to the outcome of the review that it constituted a failure to review and so jurisdictional error.

11    As to ground 2, the primary judge found that it was open to the Tribunal to decide not to view the appellant’s scars and bruises.

THE SCOPE OF the APPEAL

12    The appellant’s notice of appeal contains four grounds of appeal. Three of these relate to the Tribunal’s evaluation of evidence given to the Tribunal by the appellant’s cousin. The fourth ground of appeal relates to the scars on the appellant’s body. The grounds of appeal are as follows:

1.    The learned primary Judge erred by failing to find that the Tribunal made jurisdictional error (a) by its finding that the Cousin had vested interest in the applicant's application and (b) by being uninterested in the cousin's evidence.

Particulars

(i)    The Tribunal's finding that the applicant's cousin is not an independent witness and that he has vested interest, implying that he was lying, was an adverse credibility finding made without any evidence other than the biological relationship;

(ii)    Tribunal failed to ask any substantive question about the incident of harm from an eye witness who was himself an alleged party to the incident and thus it was uninterested;

(iii)    The evidence that the Cousin obtained protection visa from the same Tribunal but a different member based on that same incident suggests that it was necessary at the minimum to explore the truth of that incident before rejecting it; and

(iv)    Tribunal had failed to exercise its jurisdiction by failing to deal with the applicant's case because it did not give opportunity for the Cousin to give evidence by failing to ask any substantive question about the incident.

2.    The learned primary judge erred by finding that even if the Tribunal's finding that the cousin has a vested interest is mistaken it was an error within jurisdiction.

Particulars

(i)    The Tribunal's finding that the applicant's cousin is not an independent witness and he has vested interest, implying that he was lying was an adverse credibility finding without any substance;

(ii)    His Honour the learned primary judge failed to find that the Tribunal made adverse credibility finding against the witness who is the applicant's cousin simply on the basis he is the applicant's cousin;

(iii)    This finding was not open unless there was problem with the cousin's evidence and it was legally unreasonable. Thus, it was not an error within jurisdiction.

3.    The learned primary judge erred by finding that the Tribunal has no obligation to ask for elaboration of the cousin's evidence and the Tribunal has no general duty to inquire.

Particulars

(i)    This was not a general duty to inquire but a specific duty to inquire during the hearing based on the specific circumstances arising from the consequence of the evidence of the cousin;

(ii)    The Tribunal's duty was to deal with the applicant's case as required under s414. The Tribunal failed to question the witness and thus failed to provide an opportunity to give relevant and critical evidence under s425; and

(iii)    Unquestionably further inquiry would have yielded critical information about the incident. Both of them were mistreated in the same incident and that they were together with among others and would have provided further vital details of the incident.

4.    The learned primary judge erred by finding that the conclusions which the applicants would have wished the Tribunal to draw from a consideration of any scars or bruises on the first applicant's body required the Tribunal to have an expertise which it did not have.

Particulars

(i)    The main applicant claimed to have been harmed and claimed to have scar and bruises as a result of the harm. The evidence that can be viewed from the scar and the bruises is not just medical evidence but includes whether the scar and bruises are consistent with the position and the type of assault claimed and the narrative of the assault provided by the applicant. Further even where a medical expert provides evidence it is the Tribunal that is the ultimate decision maker in deciding whether to accept the evidence of the medical expert including the ability to reject the medical evidence based on its own judgment; and

(ii)    The failure of the Tribunal to view the scar and the bruises, question the applicant about it and take the impressions formed from that into consideration is a failure to exercise jurisdiction in dealing with the case.

(emphasis original)

13    Counsel for the appellant’s challenges to both the decision of the primary judge and the Tribunal’s decision is founded on the following three contentions:

(a)    The Tribunal committed a jurisdictional error in connection with its assessment of the appellant’s cousin’s evidence to the Tribunal. In particular, it was not open to the Tribunal to find that the cousin was not an independent witness, that he had a vested interest in the outcome of the appellant’s application, or to not take the cousin’s evidence into account.

(b)    The Tribunal committed a jurisdictional error by failing to ask more questions of the appellant’s cousin, by failing to make enquiries of the cousin that it was required to make, and by discouraging him from giving relevant evidence.

(c)    The Tribunal committed a jurisdictional error by refusing to examine various scars beneath the appellant’s clothing which the appellant claimed were the result of injuries inflicted on him by members of the Fijian army.

14    There were a number of submissions relied upon by the counsel for the appellant that travel beyond the appellant’s grounds of review relied upon before the primary judge.

15    First, there was a submission made that the Tribunal sought to prevent both the appellant’s wife and the appellant’s cousin from giving relevant evidence by asking them distracting and irrelevant questions. As counsel for the Minister pointed out, the submission was tantamount to a complaint of bias on the part of the Tribunal. No allegation of bias was raised below. In any event, the primary judge found (at [17]) that the Tribunal gave proper, genuine and relative consideration to the cousin’s evidence.

16    Secondly, there was a submission made that the Tribunal failed to afford the appellant procedural fairness. This was also a matter not advanced below and not raised in the appellant’s notice of appeal.

17    No application for leave to rely on either of these additional grounds of review was made and neither forms part of the subject matter of this appeal.

CONSIDERATION

18    The first three of the appellant’s grounds of appeal relate to his cousin’s evidence.

19    It is important to note that the Tribunal did not find that the cousin was “lying” as is suggested in the particulars to ground 2. What the Tribunal said was that neither the appellant’s wife nor his cousin was an independent witness and that they each had a vested interest in the outcome of the application. The Tribunal said at [23]:

… The Tribunal does not consider the [wife] or cousin to be independent witnesses; they both have a vested interest in the outcome. Furthermore their evidence alone does not overcome the noted difficulties in the evidence. Accordingly, the Tribunal does not give their evidence much weight.

20    A rejection of a witness’s evidence by a judge or an administrative decision maker does not carry with it a finding that the witness has given dishonest evidence or that he or she has lied: Smith v New South Wales Bar Association (1992) 176 CLR 256 at 268.

21    Nor is it correct to say that the Tribunal failed to have regard to the cousin’s evidence. The Tribunal had regard to the cousin’s evidence but did not give it much weight. What weight, if any, should be given to the cousin’s evidence was a matter for the Tribunal: see, for example, Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [44]-[45] and [184]-[185].

22    The appeal book includes the transcript of the cousin’s evidence to the Tribunal. It is apparent from the transcript that the cousin gave some evidence about the appellant’s work as a driver and bodyguard for a government official. He also gave some evidence in relation to the first incident referred to in the appellant’s evidence which he said he did not witness, but which he said he was told about. The cousin also gave some evidence concerning the second incident at the wharf. This evidence, which was quoted by the primary judge, was quite brief, but it is clear that the cousin claimed to have been present. There was then some further evidence given by the cousin in relation to other matters. Towards the end of his evidence, he was asked whether there was anything else he wanted to say, to which he responded “That’s all.”

23    There was in this case no obvious failure to make any inquiry about a critical fact. It is apparent that the Tribunal understood that the cousin’s evidence was corroborative of the appellant’s evidence. Crucially, however, there is nothing in the evidence to indicate that any more detailed description by the cousin of the relevant events including, in particular, the incident at the wharf, would have exposed any additional facts or circumstances that might have led the Tribunal to accept the evidence of the appellant and his cousin in relation to such events: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [18]-[26].

24    Finally, I agree with the primary judge that it was open to the Tribunal to find that the cousin was not an independent witness and that he had a vested interest in the outcome of the appellant’s application for review based on their familial relationship.

25    As to the fourth ground of appeal it is important to note, the Tribunal accepted as plausible that the appellant had scars on his body. The Tribunal said at [27]:

[27]    The applicant offered to remove clothing items to show the Tribunal scars alleged to have been caused as a result of the claimed assaults, the Tribunal declined noting that as the Tribunal is not a medical expert, it would not be in a position to assess the cause of any scars. The Tribunal accepts as plausible that the applicant has scars but on the basis of the available information and in consideration of the evidence as a whole, the Tribunal is not satisfied that any scars that the applicant has had been caused as claimed.

26    The Tribunal was of the view that it would not be able to tell based upon an examination of the scars whether they were the result of injuries suffered by the appellant at the hands of the military in Fiji or in other circumstances. The correctness of that conclusion was not challenged. In those circumstances, it is impossible to see how the Tribunal’s decision not to inspect the appellant’s scars could constitute jurisdictional error.

DISPOSITION

27    In the result, I respectfully agree with the primary judge’s conclusions. The appellant has failed to demonstrate any error by his Honour. The appeal will be dismissed. The appellants must pay the first respondent’s costs of the appeal.

Associate:

Dated:    8 August 2017