FEDERAL COURT OF AUSTRALIA

AZK15 v Minister for Immigration and Border Protection [2015] FCA 1444

THE COURT ORDERS THAT:

1.    Subject to the orders below, the appeal be dismissed.

2.    Order (3) made on 27 August 2015 as to costs be set aside.

3.    In lieu thereof, the applicant be ordered to pay the first respondent’s costs of the application to the Federal Circuit Court as agreed or as taxed.

4.    The appellant pay the first respondent’s costs of the appeal as agreed or as taxed.

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

REASONS FOR JUDGMENT

Background to the appeal

1    To understand the grounds of appeal in this matter (13 in total, many of which overlap) it is necessary to be aware of the nature of the appellant’s claims over time and how they were resolved by the Refugee Review Tribunal (the Tribunal).

2    On 3 September 2013 the appellant applied for a protection visa via a firm of solicitors and migration agents. He had arrived in Australia on a Malaysian passport. In the accompanying statutory declaration the appellant said he was a Malaysian national with no other nationality and no right to enter or reside in a third country. He said he was of Arabic Shia ethnicity and held a Malaysian passport. He said he was born in Sabah, Malaysia but was orphaned and raised by a Pakistani Shia family and completed his primary education in Sabah. He said he had been discriminated against in Malaysia because of his Arabic and Shia identity and, as such, feared returning to Malaysia. He was then required by the Department to provide personal identification material. A fingerprint test revealed that he was born in Yemen and had a different name from that presented in his protection visa application. Other information disclosed he had a Yemeni passport which he had used to try to enter the USA in 2006.

3    Subsequently, the appellant was interviewed and under oath repeated that he had been born in Malaysia and produced his Malaysian identity card, Malaysian birth certificate, Malaysian passport and a Malaysian death certificate. It was then put to him that the Department had information showing he was a Yemeni citizen. The appellant denied this. When asked if he had any protection claims in respect of Yemen the appellant said he knew nothing about it.

4    Subsequently, the appellant provided a further statutory declaration. He said he was born in Yemen and travelled to Malaysia in 2010 using his Yemeni passport. He said he was granted Malaysian citizenship following a payment of approximately AUD100,000 to a high ranking official on the basis that it would be documented that he was an orphan raised by a Pakistani family. He understood his Yemeni citizenship was erased. He also understood that his Malaysian passport was genuine and that he was a Malaysian national holding no other nationality. He said he had not been truthful because he was fearful that his details would be released to Malaysia and his Malaysian citizenship would be revoked. The official to whom he paid the AUD100,000 said that if his true Yemeni identity were revealed his Malaysian citizenship and passport would be revoked.

5    The appellant was notified on 12 June 2014 that his application had been refused. The accompanying decision record states that given the appellant’s admissions about how he obtained Malaysian citizenship and that there is no good evidence of the revocation of his Yemeni citizenship the appellant was found to be a citizen of Yemen. The decision record also states that the appellant had acquired false Malaysian citizenship documents in a false name. It also refers to the Yemeni Constitution and laws pursuant to which the delegate considered the appellant remained a citizen of Yemen. The delegate thus concluded that the relevant country of reference for the purpose of assessing protection obligations was Yemen and not Malaysia. The delegate also found that Yemen was the relevant receiving country for the purpose of complementary protection as defined in s 5 of the Migration Act 1958 (Cth) (the Act). The delegate concluded that the appellant had effective protection in Yemen for the purposes of s 36(3) of the Act. The delegate noted the false claims made by the appellant both in his first statutory declaration and in the interview. The delegate concluded that the appellant’s unreliability meant that his claim to having revoked his Yemeni citizenship was not believed. It then considered country information relating to Yemen despite the appellant having made no protection claims in this regard. The delegate was not satisfied that Australia had protection obligations to the appellant.

6    The appellant’s solicitor then lodged an application for review with the Tribunal. The appellant made a third statutory declaration in support of this application. The appellant said he was the holder of a Malaysian passport and former holder of a Yemeni passport. He had been born in Yemen. He was currently married to a Malaysian citizen and had one child who is also a Malaysian citizen. He is a Shia and a member of the Al Khateab tribe and the Al Sadeh Shiite sect. He said he fled to Malaysia in November 2010 using his Yemeni passport as a result of ongoing conflict between Sunnis and Shias in Yemen and a tribal conflict between the Beit Thawi tribe and his tribe. He referred to threats against him and attempts on his life in Yemen including due to the wealth of his father. He said he feared returning to Yemen as he would be targeted by Sunni militants on the basis of his sectarian and tribal identity. He would be imputed to have Shia separatist beliefs and would be readily identified as a Shia and a member of the Al Khateab tribe and the Al Sadeh Shiite sect. He also feared that he would be apprehended at the Yemen airport merely because of the Malaysian passport issue and would be interrogated and mistreated and accused of being a Hezbollah or Iranian operative given the security tensions and his use of a different identity and passport.

7    The appellant made a fourth statutory declaration before the Tribunal’s hearing. The appellant said that he is a Yemeni citizen. He said all Shiites are considered to be “Hooti” (sic – Houthi) rebels in Yemen. He said he would be detained due to use of a false Malaysian identity and his father had been arrested as a Shia and had been accused of being a supporter of the “Hooti” rebels. He attached various documents about current conditions in Yemen.

8    The appellant was represented by his migration agent at the hearing before the Tribunal. The Tribunal affirmed a decision not to grant the appellant a protection visa. In its decision record the Tribunal set out the appellant’s claims over time by reference to the various statutory declarations including his claims in the last two statutory declarations to his fears about returning to Yemen based on various incidents he said had occurred in Yemen. It is apparent from the decision record that the appellant gave oral evidence about why he feared returning to Yemen (see the Tribunal’s reasons at [17]-[21]) and why he feared returning to Malaysia (at [26]). It is also apparent that a number of the inconsistences in his claims over time and perceived implausible aspects in his oral evidence were put to him by the Tribunal (for example, at [21], [28], [29]-[41]). In the section of its reasons in which the appellant’s claims were considered the Tribunal said this (a lengthy extract being necessary given the appellant’s claims in this appeal):

42.    The applicant arrived in Australia on a visitor’s visa on 11 August 2013. He applied for a protection visa on 3 September 2013. His nationality will be discussed below, however the Tribunal considers Malaysia to be the applicant’s country of reference.

43.    The applicant is a 34 year old Sunni Yemeni who was born and lived in Yemen but had been resident in Malaysia since 2010. He claimed that if he returned to Malaysia he would be persecuted because he was Shi’a and because he had fraudulently obtained his citizenship. He also claimed that if he returned to Yemen he would be targeted by Sunni groups because he was Shi’a, and by the Beit Dawi tribe because of a dispute his family had with them.

44.    In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.

45.    I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated his entire claim in order to be granted a protection visa.

Applicant’s Credibility

46.    The applicant has demonstrated a willingness to fabricate claims and to lie under oath in order to support such claims, which illustrates his lack of credibility. After submitting a statutory declaration that he had been born in Malaysia and was orphaned, and then denying under oath that he had ever been to Yemen, he subsequently submitted another statutory declaration in which he claimed that he was actually Yemeni and travelled to Malaysia in 2010 and was granted Malaysian citizenship after he paid a government official $100,000.

Applicant’s Nationality

47.    I am satisfied that the applicant is a citizen of Malaysia and his application will be assessed as such. In his initial protection visa application he claimed that he was a Malaysian citizen by birth, orphaned and raised by a Pakistani Shi’a family. He has admitted that he paid for citizenship, received an identity card and used this to legally obtain a passport and vehicle licence. This indicates that the Malaysian bureaucratic system recognises him as a legitimate Malaysian citizen.

48.    Country information indicates that a ‘citizenship-for-votes’ project has operated for a number of years in Sabah, where the ruling coalition sought to give Malaysian citizenship to foreigners to bolster the electoral changes of the federal ruling party, as well as to increase the proportion of Muslims in the state. Exactly how and when the applicant received his citizenship cannot be accurately known, however I do not accept that he paid a senior government official USD 100,000 for it.

49.    Although the applicant claimed he had paid for it with cash through his company, he failed post-hearing to produce the documentary evidence that he claimed he had. Country information also indicates that a Malaysian identity card can be obtained through a middleman for foreign workers for between RM 5-20,000 (approximately USD 1400-5600) which is well below the amount the applicant claimed to have spent.

50.    I note that the applicant has provided post-hearing a copy of a Malaysia marriage certificate in the name of ### that is dated 26 April 2012. I also note that the applicant has also presented a Malaysian birth certificate for his son dated 26 June 2013 that lists a Yemeni ### as the father.

51.    He has also provided copies of a Malaysian birth certificate that lists his name as ### that was issued on 23 July 2013, and a valid passport issued in the same name dated 31 July 2013. He also claimed during the hearing that he had a legitimate Malaysian identity card and a Malaysian driving licence. I am satisfied that at some point after 26 June 2013 the applicant has legally changed his name from ### and is now known as ### and that his Malaysian citizenship is in his current legal name. He has also claimed that his Yemeni citizenship has been revoked and, in the absence of information to the contrary the Tribunal accepts that Malaysia is now his sole country of citizenship.

52.    Regardless of how he obtained the necessary documents, I do not accept that the applicant faces persecution for fraudulently obtaining citizenship, nor do I accept that the applicant is at any risk of having this citizenship revoked or being refouled to Yemen. He has legitimate Malaysian travel and identity documents in his legal name, and I am not satisfied with any of the reasons he gave for fearing that his citizenship would be revoked.

53.    To begin with, I do not accept that he is being blackmailed by the businessman to whom he gave USD 100,000 both because I do not accept that he paid this amount, as well as the fact that the blackmail claim was mentioned for the first time during the hearing.

54.    I also do not accept that his business partner in Malaysia had approached the Yemeni Embassy about what had happened and had told others about the applicant. He had never mentioned this prior to the hearing, and while he has provided a copy of a business registration there is no indication of who the shareholders or principals are. Given this, as well as the applicant’s significant credibility issues, I am not satisfied that the applicant has a business partner or that he has told people about the applicant’s citizenship.

55.    I also do not accept that he would be questioned because he had an Arab rather than Malaysian face. There is a vibrant Yemeni community in Malaysia that includes tourists, students and Malaysian citizens, so it is reasonable to expect that his facial features would not elicit any questions regarding his right to citizenship. Nor do I accept that he lacks good Bahasa and people would know.

56.    To begin with, he still speaks Bahasa and had married a Malaysian citizen and it is reasonable to believe that his language would have improved significantly as a result. Although he claimed he was estranged from his wife (folio 92), this is inconsistent with the fact that she has come to Australia and also applied for protection, as well as the fact that he was asking what would happen if he had another child which would also indicate he is not estranged from his wife.

57.    I further note that the report of the Royal Commission of Inquiry into the ‘citizenship-for-votes’ scandal made no concrete proposals to investigate people who had obtained citizenship via this path, and that a Malaysian lawyer has been quoted as saying that ‘… despite the problematic origin, they may now have a relevant link with Sabah and Malaysia, and have rights under international law not be made stateless persons’.

Applicant’s religion

58.    I do not accept that the applicant is a Shi’a Muslim. The member has a PhD in Shi’a political development and asked some quite basic questions that would be considered reasonable for any observant Shi’a to know. He was only able to name the first four Imams but knew where few of them were buried; he claimed Ali was buried in Jannat al-Baqi’ in Saudi Arabia (he is buried in Najaf, Iraq), Hassan was buried in Karbala, Iraq (he is buried in Jannat al-Baqi’) and Imam Hussein was at Karbala (which is correct). He also did not know where the final (awaited) Imam disappeared from human view (Samarra, Iraq).

59.    He claimed that some Imams were buried in Jannat al-Baqi’ and some in Karbala. Of the twelve Imams, five are buried at Jannat al-Baqi’ (Saudi Arabia), one in Karbala, one in Najaf, one in Khazimayn two in Samarra (all Iraq, with the occulted one disappearing in Iraq) and one in Mashhad (Iran). Given shrine visitation of the Imams’ shrines is a religious obligation for observant Shi’a, his lack of knowledge is not indicative of a practising Shi’a.

60.    He was also unaware of who is marja’ al-taqlid was. This is a senior cleric whose religious opinions must be followed by observant Shi’a. They are all resident in Najaf (Iraq) or Qum (Iran). When asked, he claimed that the marja’ for Yemenis was Badr al-Din. This refers to the current leader of the Zaydi al-Houthi movement Sayyid Abdul-Malik Badr al-Din al-Houthi and is further evidence that the applicant is not a Twelver Shi’a.

61.    His inability to understand the difference between the branches of the Shi’a faith also makes me satisfied that the applicant is of the Sunni Muslim faith. Because he is Sunni I do not accept that he will face persecution for his religious beliefs in Malaysia. I have taken into account a document provided by the applicant that he claims is a statement of lineage showing his relationship to Imam Ali as proof of his Shi’a identity, however lend it little weight. The document is a photocopy of a page that could easily have been produced on any home computer. I have noted that the applicant’s lack of credibility and place much more weight on his lack of basic religious knowledge of his faith in determining his religious identity.

Other Issues

62.        Although I have found that the applicant is a genuine Malaysian citizen, he has made claims against Yemen and they will be addressed for completeness’ sake. I do not accept that the applicant would be targeted in Yemen for religious reasons. He claimed that he would be targeted by the Sunnis because of his Shi’a identity, however I have found that he is not Shi’a but rather Sunni.

63.    I also do not accept that the applicant would be targeted by the Beit Dawi tribe or that he had been targeted twice for kidnapping. To begin with his accounts rely entirely on his own testimony and I have found that he lacks credibility. I also find it lacks credibility that he would have travelled without his identity card and then, having been stopped at a checkpoint by the Beit Dawi tribe, the armed tribesmen would simply accept a paper vehicle registration document in someone else’s name as his true identity. It is reasonable to expect that they would have subjected him to more detailed questioning and perhaps sought some means to corroborate his alleged identity if they were, as he claims, manning a checkpoint to look for those opposed to them such as the applicant’s family.

64.    I also do not accept that he would suffer from increased religiously-motivated violence in Malaysia that has resulted from the Syrian conflict. He provided no information that supported such a claim and, given that I have found the applicant to be a Sunni Muslim in Malaysia he is a member of the overwhelmingly mainstream branch of the religion, further calling into question the validity of such a claim.

65.    Having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.

Complementary Protection

66.    Because I do not accept that the applicant will have his Malaysian identity questioned or revoked, that he is or would be considered to be Shi’a, that he has ever been kidnapped or is involved in a dispute with the Beit Dawi tribe, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.

67.    As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).

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ATTACHMENT A – RELVANT LAW

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4.    In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian – Complementary Protection Guidelines and PAM3 Refugee and humanitarian – Refugee Law Guidelines – to the extent that they are relevant to the decision under consideration.

Application to the Federal Circuit Court

9    The appellant applied to the Federal Circuit Court of Australia (the Federal Circuit Court) for judicial review of the Tribunal’s decision represented by Mr Jay Williams of counsel. While the application involved only four grounds, each ground was particularised with multiple contentions, totalling 58 paragraphs.

10    The Federal Circuit Court rejected each of the contentions and thus dismissed the application for judicial review (AZK15 v Minister for Immigration & Anor [2015] FCCA 2303).

Appeal to this Court

11    The notice of appeal to this Court involves 13 grounds, particularised in 30 paragraphs (the last three of which relate to a costs issue). While the grounds overlap I will deal with each ground separately.

Ground 1: No evidence of Malaysian citizenship

1.    The primary judge erred at [22] in AZK15 v Minister for Immigration & Anor [2015] FCCA 2303 (AZK Judgment No.1) by finding that [i]t is clear that these were matters taken into account by the Tribunal, and in my opinion, it was open to the Tribunal to find that the applicant was a legitimate Malaysian citizen, and it was open to the Tribunal to find that he had legally obtained a passport in Malaysia.’

2.    There was no evidence before the Tribunal or the Court that the appellant was a legitimate Malaysian citizen or that he had legally obtained a passport in Malaysia.

12    The basic proposition put for the appellant was that because he had obtained his Malaysian citizenship documents by a fraud and “fraud destroys everything” it necessarily followed that there was no evidence before the Tribunal that the appellant was a citizen of Malaysia.

13    The contention is misconceived in numerous respects. First, the existence of foreign laws and their content are a question of fact, not law. Evidence is required to prove the existence and content of a foreign law. Second, the appellant never asserted that his citizenship and associated documents were frauds. To the contrary, he asserted that his Malaysian passport was genuine (eg para 11 of his second statutory declaration and para 4 of his third statutory declaration). He asserted only that he had obtained his Malaysian citizenship by a payment of money, not that the citizenship so obtained was itself a fraud. There is a difference between a document being fraudulently obtained and a document itself being a fraud which the appellant’s counsel did not acknowledge. Third, it is not the case that it can be simply assumed that under Malaysian law citizenship obtained as a result of the payment of money means that the citizenship was fraudulently obtained, still less that the citizenship itself is fraudulent. The question was one of fact for the Tribunal. Fourth, the Tribunal considered the facts (which it put to the appellant) including that it was widely known in Malaysia that citizenship had been given in Sabah to change the electoral balance, including a Royal Commission into the practice which resulted in no findings being made, and that where 70,000 such citizenships had been granted in the last 50 years it was unlikely the appellant’s citizenship would be revoked because it was “to all intents and purposes genuine”. In other words, the Tribunal considered that based on the facts about Malaysia a citizenship obtained by the payment of money was accepted by Malaysia as and thus treated as genuine. Fifth, the only basis on which the appellant appeared to challenge this conclusion was that it went without saying, at least according to the submissions for the appellant, that “fraud destroys everything”. This maxim assumes that a citizenship obtained by the payment of money in Malaysia is necessarily fraudulently obtained. This is not a matter that can be assumed but is a matter for evidence. It also assumes that the citizenship obtained is itself fraudulent. Again, this cannot be assumed but is a matter for evidence. It also assumes that if fraudulent, the citizenship does not exist. This too cannot be assumed but is a matter for evidence.

14    The Tribunal, as noted, had evidence. It had evidence that the practice was common knowledge and involved some 70,000 people who had obtained citizenship in Sabah and that despite a Royal Commission there was no suggestion that Malaysia treated citizenship so obtained as not existing at all. To the contrary, the evidence was that Malaysia had issued the appellant with an identity card, a passport and a driver’s licence, all of which recognised him as a Malaysian citizen. Further, the appellant had married in Malaysia and his son’s birth certificate listed the appellant as the father and as a Yemeni. There was no suggestion that any of these documents had been obtained other than in the ordinary course.

15    The appellant placed weight on the Tribunal’s observation at [52] that it did not accept that the appellant faced persecution for “fraudulently obtaining citizenship”. The appellant said this proved that the Tribunal found the citizenship to be fraudulent with the consequence that “fraud destroys everything”. I disagree. The Tribunal prefaced this statement with the words “Regardless of how he obtained the necessary documents…”. By this it is clear that the Tribunal did not accept that the way in which the appellant had obtained citizenship involved a fraud which meant that Malaysia would treat the citizenship as not existing. Indeed, the Tribunal did not even accept that there was any such risk based on the material before it.

16    In these circumstances the claim that there was “no evidence” that the appellant was a citizen of Malaysia is misconceived. The evidence was not limited to the appellant’s initial and withdrawn false claim to have been born in Malaysia. The appellant himself said he believed his passport (and, by inference, his Malaysian identity card, driver’s licence and marriage certificate) were all genuine. His fear was that his Malaysian citizenship would be revoked if they discovered that he had obtained his citizenship by paying money and was a citizen of Yemen, but this was a fear the Tribunal rejected on the material before it.

17    Nothing in these circumstances transforms the plethora of evidence which was before the Tribunal to the effect that the appellant was a citizen of Malaysia (irrespective of how he obtained that citizenship) into no evidence at all so as to support a jurisdictional error on a no evidence ground. The contention overlooks the actual evidence of the relevant conditions in Malaysia. The plethora of evidence supporting the appellant being a citizen of Malaysia does not simply disappear as a result of the claim of how citizenship was initially obtained.

18    This ground cannot be sustained.

Ground 2: Failure to identify the correct country of reference

3.    The primary judge erred at [25] in AZK Judgment No.1, by finding that ‘[h]aving come to the finding that the applicant had been issued legally with a passport, it was clearly open to the Tribunal to find that the applicant was a legitimate Malaysian national and that Malaysia is the receiving country and country of reference for the assessment of the applicant’s claims.’

4.    There was no evidence that the appellant had been issued legally with a Malaysian passport and it was not open to the Tribunal to find the applicant was a legitimate Malaysian national and that Malaysia was the receiving country. Further, there was no evidence that the second respondent applied the correct test with regard to the applicant’s country of reference, by reference to the laws of that country of nationality or habitual residence.

19    This ground must fail for the same reasons as ground 1. There was evidence that the appellant had been legally issued with a Malaysian passport and it was open to the Tribunal on the material before it to find that the appellant was a citizen of Malaysia.

20    Insofar as another point is made in the last sentence in para 4 (“there was no evidence that the second respondent applied the correct test with regard to the applicant’s country of reference, by reference to the laws of that country of nationality or habitual residence”), the issue is raised under ground 6 dealt with below.

21    Ground 2, accordingly, cannot be sustained.

Ground 3: Failure to properly take into account refoulement to Yemen

5.    The primary judge erred at [27] in AZK Judgment No.1, by finding that ‘[i]t is clear that the risk of being returned to Yemen was a matter in respect of which the Tribunal had identified the applicant’s claims, and it was also clearly the case that the applicant was seeking to maintain that he was a citizen of Malaysia.’

6.    From [62]-[65] at page 335 of the Court Book, the second respondent failed to properly take into account the appellant’s claims with regard to Yemen. First at [62], the second respondent failed to take into account properly the religious claims of the appellant on the basis of his Sunni religion. Second, at [63], the second respondent failed to take into account properly the claims of the appellant vis-à-vis sectarian violence in Yemen and dismissed these claims on the basis of credibility when there was no logical connection to do so.

22    The primary judge did not err in [27] of his reasons. It is clear that the appellant’s concerns about the risk of being returned to Yemen were considered by the Tribunal. The appellant expressed his fears about Yemen (at [17]-[20]). The Tribunal considered those fears (at [62]-[63]). It is also clear that the appellant believed he was a Malaysian citizen, albeit one who was at risk of having his citizenship revoked (see the Tribunal’s reasons at [10], [23], [24], [26], [32] and [39]). I can see no error as identified in para 5 of the notice of appeal.

23    The submissions for the appellant in this regard contended that the Tribunal did not deal with the claim that because he had acquired a fraudulent passport, he did not acquire Malaysian nationality and did not lose his Yemeni nationality. But the Tribunal plainly did deal with this claim. Dealing with a claim does not mean that the claim must be accepted. The Tribunal considered the claim of refoulement from Malaysia to Yemen at [52] but simply did not accept that this was a risk. It cannot be said that the Tribunal did not deal with this claim. If what is truly meant is that the Tribunal was bound to assess the appellant’s claims by reference to Yemen alone and not Malaysia (which is not what ground 2 says but seemed to inform the appellant’s submissions) the problem for the appellant is that the Tribunal considered this also at [62]-[63].

24    The only specific piece of evidence that I can ascertain that the Tribunal did not expressly deal with is the appellant’s statements in his third and fourth statutory declarations that he would be detained at the Yemen airport because of his having obtained Malaysian citizenship (initially under a different name) and would be interrogated and mistreated as a result. But it must be remembered that it was open to the Tribunal to conclude that the appellant had Malaysian citizenship and was not at risk of refoulement to Yemen. As such, I am unable to accept that the Tribunal was bound to refer to this specific claim of an issue arising at the Yemen airport.

25    As to para 6, there was a logical basis to the Tribunal having rejected the appellant’s claims to be a Shia and instead concluding the appellant was a Sunni. The Tribunal had asked the appellant what it considered to be basic questions about basic tenets of the Shia faith which the Tribunal considered the appellant could not satisfactorily answer. So much is plain from the Tribunal’s reasons at [33]-[35] and [58]-[61]. The attempt by the appellant’s counsel to characterise the Tribunal’s questions as involving “complex” and not “basic” matters about the Shia religion, in circumstances where the Tribunal member held a PhD in Shia political development, transgresses into questions of fact which were matters for the Tribunal. It was for the Tribunal alone to decide what matters relating to the appellant’s claimed Shia faith were sufficiently basic that the appellant should have been able to answer them but did not do so satisfactorily. Equally, it is not to the point that the appellant gave some correct answers. Assessing whether the appellant’s answers were satisfactory or not was a matter for the Tribunal and cannot give rise to any jurisdictional error in the circumstances of this case. All of the contentions to the contrary overlook the distinction between merits and judicial review. The invitation to engage in impermissible merits review must be rejected.

26    Nor can it be said that there was no logical basis for the Tribunal’s view that the appellant was not a credible witness. Again, the approach taken involved an invitation to this Court to undertake the kind of assessment which is for the Tribunal alone to undertake. It was put that the appellant had a reasonable reason for initially having lied and had corrected the falsehoods at the first opportunity so that, as I understood it, his initial lies should not be held against him. Reference was made to Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [191] in which this was said:

…the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself. But those difficulties are to be confronted by the Tribunal in the execution of its tasks, not by a court that is asked to review the way in which the Tribunal reached its decision.

27    The problem with the approach for the appellant in the present case is it elevates a mere possibility (that lies in one respect do not mean lies in all respects) into a principle which the Tribunal was bound to apply in the present case. There were many separate bases on which the Tribunal considered the appellant to lack credibility, not merely his initial statement. The Tribunal considered he lacked credibility because of: (i) his lies under oath to the Department (at [46]); (ii) the fact that Malaysian identity cards can be obtained for far less than the appellant claimed to have paid (at [49] and [53]), (iii) the Malaysian birth certificate for his son lists the appellant as a Yemeni (at [50]), (iv) inconsistencies in his evidence and between his evidence and other material (at [52] and [56]), and (v) his claims to be a Shia which the Tribunal did not accept (at [58]-[61]). Moreover, in weighing these matters the Tribunal instructed itself at [44] that “undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth”. As such, the notion that the Tribunal failed to consider the overall consistency and coherence of the appellant’s account cannot stand with the reasoning process of the Tribunal.

28    The thrust of the appellant’s case seemed to be that because the appellant had corrected the untruths he initially told there was no logical basis for concluding that he was still telling untruths to the Tribunal. Had the Tribunal so reasoned – that the correction of one lie necessarily means all else is the truth – then the Tribunal’s reasoning would have been at risk of being found to be illogical. But it was not illogical for the Tribunal to weigh up all of the matters to which it referred and to conclude, on this basis, that the appellant lacked credibility as it did at [46].

29    None of the cases on which the appellant’s counsel relied are engaged by the circumstances of the present case.

(1)    The Tribunal did not “fail to respond to a substantial, clearly articulated argument relying upon established facts” as in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 73 ALD 321 at [24]. It dealt with the claims put, just not as the appellant would have liked.

(2)    The Tribunal did not make an error of fact or misunderstand the appellant’s claims as referred to in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63].

(3)    The Tribunal did not fail to consider all of the claims before it as in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42].

In this regard, if the Tribunal had found that the appellant was not a citizen of Malaysia or was at risk of refoulement from Malaysia to Yemen (which I consider were issues of fact for the Tribunal alone to decide on the evidence before it) then it would have been necessary to consider a different ground of review, namely, whether the Tribunal’s failure to refer to the appellant’s claims about being detained at Yemen airport because of his Malaysian passport and his use of a different name in Malaysia amounted to a failure to consider the appellant’s claim or part thereof so as to amount to jurisdictional error (see, for example, Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99). But such a case was not put (or certainly not clearly put) in this appeal and does not arise given that it was open to the Tribunal to find that the appellant was a citizen of Malaysia and was not at risk of refoulement from Malaysia to Yemen.

It is not the case that the Tribunal failed to consider the appellant’s claim that he would be persecuted in Malaysia because he had fraudulently obtained citizenship as submitted for the appellant. The Tribunal referred to this claim at [43] and must be taken to have rejected it in its reasons at [47]-[57]. The submission appears to overlook the entire process of reasoning at [47]-[57], the effect of which is that the Tribunal was satisfied that Malaysia would not have any issue with the appellant’s citizenship irrespective of the way in which he had obtained it. This necessarily involves the rejection of the claim that he would be persecuted by reason of his claim that he had fraudulently obtained citizenship.

30    I should also record the Minister’s submission that this ground was not raised below and was not the subject of an application for leave. The only reason for which I would reject leave is that the argument lacks substance having regard to the Tribunal’s reasons.

Ground 4: Failure to take into account Yemeni law

7.    The primary judge erred at [28] in AZK Judgment No.1, by finding that ‘In this case it is clear that the claim that the Tribunal was required to assess was one where the applicant was maintaining that he was a citizen of Malaysia. In circumstances where the Tribunal accepted that claim by the applicant and found that the applicant had a legally issued passport and as such was a legitimate Malaysian citizen, there was no requirement for the Tribunal to make findings in relation to the law of Yemen.’

8.    The Tribunal and the Court accepted the recanted claims of the appellant, which was inconsistent with the independent evidence regarding the appellant’s country of nationality. The Tribunal and the Court erred by finding that the appellant had a legal Malaysian passport and was a legitimate Malaysian citizen. As such, there was a requirement to for the Tribunal and the Court to take into account relevantly, the domestic law and international obligations of Yemen.

31    Insofar as this ground relied on there being an error in the Tribunal finding the appellant’s Malaysian passport to be legitimate and the appellant to be a legitimate Malaysian citizen the contentions must be rejected for the reasons given above. These were matters for the Tribunal alone to weigh up and find. Accordingly, the only issue is whether the Tribunal was bound to consider Yemeni law in making these findings.

32    I cannot see why, in reasoning as it did, the Tribunal was bound to consider Yemeni law. The contention appears to relate to the operation of the Act rather than the Tribunal’s actual reasoning process. Insofar as it does relate to the Act, the issues are dealt with under ground 6 below. Insofar as it relates to the Tribunal’s process of reasoning, the Tribunal was entitled to assess the appellant’s citizenship of Malaysia as the Tribunal did on the available material. In so doing there was no requirement to consider whether the appellant was also a citizen of Yemen. The relevant issue was possible refoulement to Yemen and this the Tribunal assessed as discussed above (that is, that the appellant was not at risk of refoulement from Malaysia to Yemen).

Ground 5: No evidence that the appellant’s Yemeni citizenship had been revoked

9.    The primary judge erred at [29] in AZK Judgment No.1, by finding that ‘[f]urther in my opinion, it was open to the Tribunal upon the findings it had made to accept the applicant’s evidence, as the Tribunal did, that the applicant’s Yemeni citizenship had been revoked (see para.51).’

10.    Further, the primary judge erred at [30] in AZK Judgment No.1, by finding that the ‘Tribunal was not required to engage in an analysis of Yemeni law in relation to that revocation’ and at [30] the primary judge erred by ‘accept[ing] the first respondent’s submission that, having found that the applicant was a citizen of Malaysia, it was not necessary for the Tribunal to address Yemeni law.’

11.    The primary judge erred by finding the applicant’s Yemeni citizenship had been revoked; by making findings that were inconsistent with the independent evidence regarding the appellant’s country of nationality and by not engaging with the law of Yemeni, in a genuine and proper manner, which was before the Tribunal and the Court.

33    Again, this “no evidence” claim must fail. There was evidence before the Tribunal that the appellant’s Yemeni citizenship had been revoked. The appellant said that he had been told it was revoked when he obtained his Malaysian citizenship. The appellant also said in his second statutory declaration that he understood he was no longer a Yemeni citizen. This was evidence on which the Tribunal was entitled to rely. In any event, it is difficult to see how this issue arises given the Tribunal’s process of reasoning. The appellant claimed fear of persecution in Malaysia and Yemen. The Tribunal found that he was a citizen of Malaysia and was not at risk of refoulement to Yemen from Malaysia. It did so irrespective of Yemeni laws. It is not apparent how Yemeni laws could have operated on or to affect the circumstances in Malaysia about which the Tribunal was satisfied.

Ground 6: Misapplication of law or failure to ask the correct question with regard to the country of reference of the appellant

12.    The primary judge erred at [31] in AZK Judgment No.1, by finding that ‘[i]t is clear in this case the Tribunal found that the applicant had Malaysian citizenship and it was not necessary for the Tribunal to further deliberate in relation to the issue of nationality or receiving country in relation to Yemen.’

13.    The primary judge erred by finding the applicant’s country of reference and citizenship was Malaysia and not Yemen.

34    This ground seems to be at the heart of the case put for the appellant.

35    The following submissions were made for the appellant:

65.    When assessing the criteria for a protection visa, it is necessary for the second respondent to establish the applicant’s country of reference’ in which he claims to fear harm. For protection visa applications made prior to 16 December 2014, as in this matter, there are different requirements in determining the relevant country for the purpose of the refugee criterion in s.36(2)(a) of the Migration Act 1958 (the Act) and the complementary protection criterion in s.36(2)(aa).

66.    Under the refugee criterion, the country is established by reference to the definition of a refugee in in Article 1A(2) of the 1951 Convention relating to the Status of Refugees.

67.    However, for the purposes of the complementary protection criterion, decision-makers must apply the pre 16 December 2014 definition of receiving country in section 5(1) of the Act.

…

71.    The second respondent did not identify the correct definition of ‘receiving country’ under the refugee criterion pursuant to Article 1A(2) of the Convention or under the complementary criterion pursuant to section 5(1) of the Migration Act 1958 (Cth).

72.    The second respondent did not identify the ‘receiving country’ solely by reference to the laws of Yemen or Malaysia and did not apply the laws of Yemen or Malaysia.

73.    The second respondent did not consider whether the applicant has dual nationality and the correct test to apply in that case. The second respondent did not consider whether the applicant is stateless and the correct test to apply in that case.

74.    As such, there was no evidence that the second respondent applied the correct test with regard to the applicant’s country of reference, by reference to the laws of that country of nationality or habitual residence.

36    To the extent that para 74 of the submissions for the appellant uses the language of “no evidence” of the Tribunal applying the correct test, the submission is misconceived. The Tribunal either did or did not apply the correct test.

37    It is true that, because the appellant’s application for a protection visa was lodged on 3 September 2013, s 5(1) of the Act before its amendment effective from 16 December 2014 applies for the purposes of complementary protection. Section 5(1), in its form before amendment, provided that:

receiving country, in relation to a non-citizen, means:

(a)    a country of which the non-citizen is a national; or

(b)    if the non-citizen has no country of nationality—the country of which the non-citizen is an habitual resident;

to be determined solely by reference to the law of the relevant country.

38    Article 1A(2) of the 1951 Convention relating to the Status of Refugees (as amended by the 1967 Protocol) provides that:

For the purposes of the present Convention, the term “refugee” shall

apply to any person who:

….

(2) As a result of events occurring before 1 January 1951 and owing to well founded

fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

39    It will be apparent that the key component of both provisions is the country of nationality. The Tribunal determined the appellant’s country of reference was Malaysia (at [42]). It did so by reference to its determination, as a matter of fact, that the appellant was a Malaysian national (see the heading before [47] of the Tribunal’s reasons – “Applicant’s Nationality”). It also did so for the purpose of assessing the appellant’s refugee status and complementary protection obligations. The appellant’s submissions do not disclose why this approach is said to involve any misapplication of law or failure to ask the correct question. If it is simply that the Tribunal did not expressly identify the provisions other than to the extent set out in Attachment A to its reasons or the fact that the two provisions were not identical, I cannot see any basis upon which the Tribunal was obliged to do so. If it is that the Tribunal did not identify the content of the Malaysian law which it was applying then, again, I do not see why the Tribunal was obliged to do so. The reason for this is that the Tribunal identified facts which provided a sufficient foundation for it to infer that Malaysia itself recognised the appellant to be one of its nationals – in the form of citizenship, a passport, an identity card, and a driver’s licence, and that the means by which the appellant obtained citizenship (payment of money) was a circumstance shared by numerous people in Malaysia none of whom appeared to have been subject to any action by Malaysia denying their nationality as Malaysians.

40    The appellant has not explained why the Tribunal’s approach was legally flawed other than by recourse to the maxim that “fraud destroys everything”. As discussed above, the material before the Tribunal supported the inference that the Tribunal drew that Malaysia accepted the appellant as a Malaysian national irrespective of how he had obtained citizenship. It was open to the Tribunal to draw that inference based on the available material. It was not necessary for the Tribunal to identify for itself a Malaysian law which expressly dealt with the appellant’s circumstances. This was because it had before it material showing that the appellant’s circumstances were common in Malaysia and that no step had been taken by Malaysia to suggest people in those circumstances were treated by it other than as citizens. The appellant’s personal circumstances supported this – he had obtained a passport, identity card and driver’s licence in Malaysia as a citizen of Malaysia and he believed all of these documents were genuine. His fear that if Malaysia found out he had paid money for his citizenship it would renounce his hitherto accepted Malaysian nationality was rejected by the Tribunal on the facts, as the Tribunal was entitled to do.

41    Otherwise, insofar as it was repeated for the appellant that the Tribunal failed to apply the laws of Yemen, the issue has been dealt with and rejected above.

Ground 7: Failure to take into account properly the PAM 3 Guidelines

14.    The primary judge erred at [32] in AZK Judgment No.1, by finding that ‘[i]n relation to the PAM3 guidelines I accept that the Tribunal had regard to those guidelines consistent with attachment A forming part of the Tribunal’s reasons. There is no jurisdictional error in relation to ground 1 set out relating to those guidelines. I reject ground 1 as identifying any jurisdictional error.’

15.    The second respondent failed to comply with Ministerial Direction Number 56 in contravention of s 499(2A) of the Migration Act 1958 (Cth); failed to take into account the matters identified in PAM 3 Refugee and Humanitarian Complementary Guidelines; and failed to take into account, relevantly the country information.

42    The appellant relied on SZUQZ v Minister for Immigration & Anor [2015] FCCA 1552. In that case, however, Judge Driver (correctly in my view) made clear that the obligation to consider the guidelines issued under s 499(2A) of the Act (PAM 3 Refugee and Humanitarian Complementary Protection Guidelines) arose only insofar as relevant to the claims made. Accordingly, this was said:

[26] The crux of each of the second and third grounds is that the Tribunal failed to take into account the matters identified in PAM 3 Refugee and Humanitarian Complementary Protection Guidelines (Guidelines) to the extent relevant. In order to succeed on either of these two grounds the applicant needs to establish from the Tribunal’s decision record that the Tribunal was required in the circumstances of this case to take into account the Guidelines, and that in failing to do so, the Tribunal breached s 499(2A) or overlooked a relevant consideration amounting to jurisdictional error.

[27] By s 499(1) of the Migration Act the Minister may publish directions concerning the performance of functions and the exercise of powers under the Migration Act. By s 499(2A) the Tribunal must comply with such directions.

[28] The Minister made Direction 56 on 21 June 2013 and it was binding on the Tribunal from 22 June 2013.

[29] Direction 56 requires that the Tribunal “take into account” the matters identified in the Guidelines to the extent that they are relevant to the decision under consideration.

43    To the same effect in SZUWX v Minister for Immigration & Anor [2015] FCCA 2151 Judge Driver said:

[21] The third ground in the proposed amended application relates to the Tribunal’s obligation to follow Ministerial Direction No.56 and PAM3 Refugee and Humanitarian Complementary Protection Guidelines (Guidelines) to the extent relevant. There is recent authority, including from me, on that issue. As I have indicated previously, it is for the Tribunal to determine whether the Guidelines are relevant, although the Tribunal cannot avoid the need to consider such relevance in circumstances where such consideration can properly be expected.

[22] The recent cases of SZUQZ and SZTCV [SZTCV v Minister for Immigration & Anor [2015] FCCA 1677] dealt with circumstances in Sri Lankan prisons. The present decision concerns lawlessness and general strife in Libya. Obviously, the circumstances are different. It is not clear to me what specific guidance the Guidelines might have provided to the Tribunal. The Tribunal was clearly aware of the Guidelines because it refers to them in the introductory portion of its reasons. However, there is no discussion of the Guidelines. What is apparent is that the Tribunal was, to some extent, grappling in the dark because it did not have available to it a country report from the Department of Foreign Affairs and Trade. Such a report would no doubt have been of assistance to the Tribunal if it had been available.

[23] The Tribunal was reliant on the country information made available by the applicant and that which the Tribunal could discover itself. The available information painted a picture of considerable uncertainty as to circumstances in Libya, but in those circumstances it is not necessarily apparent that the Tribunal erred by failing to discuss specifically the detail of the Guidelines.

44    It has not been explained why an obligation to consider the Guidelines arose in the circumstances of the present case. The paragraphs of the PAM 3 Guidelines ultimately identified as those on which reliance was placed were paragraphs 13 and 14 relating to the death penalty and torture, cruel or inhuman treatment or punishment and degrading treatment or punishment. Belated reference was also made to paragraph 22 of the PAM 2 Guidelines but no such document was provided. Given the lack of any reference to this document before the Federal Circuit Court or in appeal ground 7, I am unable to understand why reference was made to it in response to my invitation for the appellant to submit the extracts from the guidelines on which reliance was placed.

45    Insofar as I can understand the case put for the appellant it is that the appellant might face imprisonment by reason of fraudulent citizenship if sent back to Malaysia and the same if sent back to Yemen and this risk required the Tribunal to consider those parts of the PAM 3 Guidelines relating to punishment (para 14). The problem is that the Tribunal did not accept that the way in which the appellant had obtained citizenship would involve any such risk to the appellant as is apparent from its reasons at [52]. Having made that finding there was no occasion requiring consideration of the PAM 3 Guidelines.

46    I also am unable to understand the submission that the Tribunal failed to take into account country information. Nothing in the case put for the appellant identified what country information the Tribunal is alleged to have failed to take into account. If I speculate based on the submissions put about the PAM 3 Guidelines it might be that the appellant’s counsel had in mind information from Malaysia about how it would treat the appellant if it knew how he had obtained his citizenship (which seems to be linked to appeal ground 11). If this is so then again the problem is that the Tribunal had before it material which provided a proper foundation for it to infer that the appellant was not at risk for that reason including the Royal Commission to which it referred, the lack of any action having been taken as a result of the common knowledge that many citizens had paid money to obtain citizenship, the grant of a passport, identity card and driver’s licence to the appellant, and the reference on the birth certificate of appellant’s son to the appellant having been Yemeni. Having made those findings on the material before it the Tribunal was not obliged to search for country information about Malaysia to support the appellant’s claimed fears that he would be persecuted because he had paid money for his citizenship.

47    In this regard, it must also be noted that the Tribunal considered the appellant’s fears to be groundless also because it did not accept that any person was threatening to disclose to Malaysian authorities that the appellant had paid money for citizenship. The Tribunal rejected those claims outright at [53] and [54]. It also rejected his appearance as a basis for his citizenship being questioned at [55] and [56]. In other words, the Tribunal did not accept the factual foundation of the claimed fear – disclosure to Malaysian authorities of how the appellant obtained citizenship.

48    For these reasons I am unable to see how ground 7 can be sustained.

Ground 8: Actual or Constructive failure to deal the claims of the appellant or an integer of those claims

16.    The primary judge erred at [33] in AZK Judgment No.1, by finding that ‘[In relation to ground 2, it is clear the Tribunal dealt with the applicant’s claims. I do not accept that there was a claim advanced by the applicant that was not dealt with by the Tribunal.’

17.    The second respondent did not deal with the applicant’s claim, in effect, that because he had acquired a fraudulent passport he did not acquire Malaysian nationality and did lose his Yemeni nationality. It was an essential integer of the applicant’s claim that because his Malaysian citizenship was fraudulent, he did not acquire Malaysian nationality and therefore lose his Yemeni nationality.

49    This ground cannot be sustained. The Tribunal dealt with the appellant’s claim in this regard and rejected it at [52], explaining its reasons for doing so at [46] to [57] (amongst other paragraphs).

50    Insofar as further submissions were put in support of this ground I have already noted that the Tribunal rejected the appellant’s claim to be a Shia so the claim of a failue to consider this matter must also be rejected.

51    The appellant also relied on NBKE v Minister for Immigration and Citizenship [2007] FCA 126 (NBKE). It was put that the present case was analogous because in NBKE the Tribunal did not consider the applicant’s claim that because her marriage was bogus she did not lose her Chinese nationality and gain Indonesian nationality. In the present case, however, the Tribunal dealt with the appellant’s claims about his Malaysian nationality (that is, that he might not be a Malaysian national because of the way he obtained citizenship) and rejected them. It cannot be said that the Tribunal failed to deal with this part of the appellant’s claim. The fact that it did so by finding that the appellant was in fact a Malaysian national does not mean that it failed to deal with an integer of the appellant’s claim. NBKE involved a failure to consider the claim at all.

52    To explain why I find the approach to the appellant’s case difficult to follow I give as an example the following submission:

[the Tribunal]… acted on the evidence of the false Malaysian passport at face value, and concluded that it was ‘validly’ issued and, therefore, that it established conclusively that the applicant was a Malaysian national, and implicitly, a person to whom Malaysia would offer the protection that it would offer its nationals. This was plainly wrong.

53    The appellant had never said his passport was false. To the contrary he said he believed it was genuine. There was no evidence that the passport was a false document. The submission is based on the “fraud destroys everything” maxim despite the evidence before the Tribunal supporting the inference that Malaysia did not deny the citizenship or nationality of those who had gained citizenship in Sabah by the payment of money. No explanation is given as to why the Tribunal’s approach was plainly wrong as asserted. The submissions do not engage with the actual reasoning process of the Tribunal in the present case.

Ground 9: No evidence re country of reference or adverse credibility findings

18.    The primary judge erred at [34] in AZK Judgment No.1, by finding that [i]n relation to ground 3, I reject the proposition there is no evidence in relation to the adverse findings. For the reasons I have given, the adverse findings in relation to the country of reference, nationality or habitual residence were open. Insofar as ground 3 advances a criticism in relation to the adverse findings of credit those adverse findings of credit were open to the Tribunal on the material before the Tribunal. Ground 3 is not made out.’

19.    There was no evidence that the second respondent applied the correct test with regard to the applicant’s country of reference, by reference to the laws of that country of nationality or habitual residence.

20.    The adverse credibility finding by the second respondent was affected by jurisdictional error as it revealed a sufficient lack of rational or logical connection between the tribunal’s assessment of the applicant’s credit and the material upon which it relied to make that assessment.

54    This ground seems to be repetitive of those grounds already addressed. In written submissions, however, another claim was made – that the Tribunal failed to consider the advice from the Department or other sources as to the authenticity of the Malaysian documents. As far as I can understand it, this is a reference to a failure to consider the Department’s assessment that the appellant was Yemeni because he had paid money for his Malaysian citizenship. However, the Department’s assessment was not based on a finding that the Malaysian documents were inauthentic. It was based on the Department’s view that the appellant had not revoked his Yemeni citizenship having regard to the laws of Yemen. The Tribunal was not bound to consider the Department’s reasoning process and was not bound to reach the same result.

55    Accordingly, this ground cannot be accepted.

Ground 10: Failure to take into account properly, relevant considerations

21.    The primary judge erred at [35] in AZK Judgment No.1, by finding that [i]n relation to ground 4, I am not satisfied that there was relevant material that was not taken into account by the Tribunal, and ground 4 is not made out.’

22.    The second respondent failed to consider and take into account:

a)    the identification test details of the appellant by DIBP, which established the appellant’s citizenship as Yemen and not Malaysia;

b)    Malaysian law;

c)    Yemeni law;

d)    Ministerial Direction Number 56 in contravention of s 499(2A) of the Migration Act 1958 (Cth), in particular the PAM 3 Guidelines and country information.

56    To the extent this ground has not been addressed above, the identification test details confirmed that the appellant had been born in Yemen not Malaysia as he claimed and had held a Yemeni passport. This was never in issue before the Tribunal. What was in issue was the significance, if any, of the appellant’s claim that he paid for his Malaysian citizenship. It was that issue with which the Tribunal was required to, and did, grapple. In so doing it was not bound to consider the identification test details. They were a given which did no more than confirm the undisputed fact that the appellant was born in Yemen and had a Yemeni passport (which he used to travel to Malaysia). Otherwise, the issues raised by this ground are merely repetitive.

Ground 11: Unreasonableness – Section 427 of the Migration Act 1958 (Cth)

23.    The primary judge erred at [35] in AZK Judgment No.1, by finding that ‘[i]nsofar as the applicant argued that the Tribunal was required to take further steps under s.427 in relation to either Yemen or Malaysia I do not accept that the Tribunal was required to do so. Nor was it unreasonable for the Tribunal, or in any way a denial of procedural fairness to take no further steps to contact Malaysian or Yemen authorities. There is no substance in the contention of a breach of s.427 of the Act.’

24.    The failure of the second respondent to address the applicant’s contention meant that the second respondent did not consider whether this was an occasion when it should exercise its powers of inquiry under s 427(1)(d) of the Act to ascertain from the Malaysian authorities whether in the applicant’s circumstances, the applicant would be entitled to Malaysian nationality, and whether he would qualify for protection by the Malaysian state. Nor did the second respondent ascertain from the Yemeni authorities whether his Yemeni nationality was still in force and he would qualify for protection by the Yemeni authorities.

57    The first answer to this ground is that the Tribunal did not fail to consider the appellant’s claim that his Malaysian citizenship had been acquired for money and thus Malaysia might treat him as a non-citizen or persecute him or send him back to Yemen. The Tribunal considered and rejected all of these claims.

58    The second answer to this ground is that, contrary to the appellant’s submissions, NBKE is not authority for the proposition that it would be unreasonable for the Tribunal not to exercise its powers under s 427(1)(d) of the Act to “ascertain from the Malaysian authorities whether in the appellant’s circumstances, the appellant would be entitled to Malaysian nationality, and whether he would qualify for protection by the Malaysian state… [or to] ascertain from the Yemeni authorities whether his Yemeni nationality was still in force and he would qualify for protection by the Yemeni authorities”.

59    Section 427(1)(d) provides that the Tribunal may “require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination”. It is a discretion vested in the Tribunal. I am unable to see any circumstance which made it unreasonable in the present case for the Tribunal not to exercise that power. The appellant’s submission is the equivalent of saying the Tribunal was bound to require an investigation before it could decide the application for review. I do not accept this proposition. Nor do I consider that the Tribunal was bound to consider exercising its discretionary power. The appellant, represented by a migration agent at the hearing (and a solicitor otherwise), made no such request.

60    In NBKE Siopis J said only that:

[20] The failure of the Tribunal to address the appellant’s contention meant that the Tribunal did not consider whether this was an occasion when it should exercise its powers of inquiry under s 427(1)(d) of the Act to ascertain from the Indonesian authorities whether in the appellant’s circumstances, the appellant would be entitled to Indonesian nationality, and whether she would qualify for protection by the Indonesian state (Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16).

61    Justice Siopis did not say that this fact meant that the Tribunal had breached any obligation by acting unreasonably. This is clear from the fact that the only appeal ground with which his Honour was dealing was failure to consider the claim that as the marriage was not genuine she had not obtained Indonesian citizenship by marriage (see the reasons for judgment at [14]). Justice Siopis found that while the Tribunal acknowledged (that is, referred to) this claim it never considered it because it simply accepted the passport at face value (see at [17]). The present case is different. The Tribunal not only referred to the claim, it weighed it up on the basis of the available material about Malaysia and did not accept the claim for the reasons it gave. I am unable to discern any basis on which NBKE supports the submissions put for the appellant. I am unable to accept the further submission that Siopis J decided that the Tribunal’s failure to investigate by use of its powers in s 427(1)(d) itself amounted to jurisdictional error. Despite this, I accept that there are cases in which such a failure might amount to jurisdictional error because the failure to exercise the power effectively deprives an applicant of a fair hearing of the applicant’s claims.

62    As explained by Gilmour J in SZMYO v Minister for Immigration and Citizenship [2011] FCA 506, referring to the case cited by Siopis J at [20] of NBKE:

[61] In M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2006) FCAFC 16 at [76] the Full Court observed that if the material before the Tribunal and the circumstances are such that the need for further inquiry is obvious, and no impediment to the conduct of such an inquiry is apparent, the failure of the Tribunal to exercise the power under s 427(1)(d) and proceeding instead to make a decision adverse to an applicant may point to a conclusion that the Tribunal has denied the applicant the conduct of a fair proceeding. (Emphasis added).

63    I also accept the relevance of the submissions for the Minister in this regard as follows:

57.    In Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 [[2009] HCA 39], the High Court said (at [25]):

[25]    Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. … (Footnote omitted.)

58.    The High Court went on to conclude:

[26] … there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error.

64    In the present case the appellant’s submissions did not engage with the notion that the need for the further inquiry should be obvious or that it must be apparent that the failure to make further inquiry deprived the appellant of a fair hearing. Instead, it was submitted that it was “entirely reasonable” for inquires to have been made of the Malaysian and Yemeni authorities. This submission seems to involve an assumption that if it was reasonable to make further inquiries then it was necessarily unreasonable not to make further inquiries. I do not consider this to be correct. It may be reasonable to make further inquiries in many cases but that does not mean that the Tribunal has committed jurisdictional error in each case where it does not make further inquiries. Something more is required. The circumstances as they exist before the Tribunal must mean that the further inquiries are obvious ones to be made and, if not made, the applicant will be unable to obtain a fair hearing. I am unable to accept either matter in the circumstances of this case.

Ground 12: Jurisdictional Error versus Error within Jurisdiction

25.    The primary judge erred at [36] in AZK Judgment No.1, by finding that ‘I should note that even if contrary to the findings I have made there was a jurisdictional error in relation to the application of s.5(1) and/or the receiving country, nationality or habitual residence, that is not an error in the present case that could have had an impact in respect of the applicant because of the adverse findings by the Tribunal.’

26.    Further, the primary judge erred at [38] in AZK Judgment No.1, by finding that ‘[a]ccordingly even if such a jurisdictional error was made out, in the present case I am satisfied that the alleged jurisdictional error could not have made any difference to the outcome and as a matter of discretion writs should not issue.’

27.    The erroneous finding that the receiving country was Malaysia and not Yemen constituted a jurisdictional error as opposed to error within jurisdiction as it caused from the outset, a defective contagion with the examination of the appellant’s claims regarding Malaysia and Yemen. Once jurisdictional error was established, the appellant was entitled to relief and it was not a matter of discretion for the primary judge to dismiss the application.

65    Given the discussion above this ground does not arise. If it did arise, while I accept that a discretion exists (contrary to the appellant’s submissions), I am not satisfied that I would reach the same view as the primary judge. In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 96 ALD 1 the majority said this:

[28] This Court has previously emphasised that the grant of the constitutional writs is a matter of discretion, and the same principles apply to the grant of relief by the Federal Magistrates Court and the Federal Court pursuant to s 39B of the Judiciary Act 1903 (Cth). In Aala [Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82], Gaudron and Gummow JJ noted that:

[52] Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [(1949) 78 CLR 389]. Their Honours said:

“For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.”

[29] The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the Tribunal's finding that their claims lacked the requisite Convention nexus. The appellants' case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board [[1994] 1 SCR 202], cited in Aala, was one in which "irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse". In this regard, the references that were made in the course of argument to the "unbundling" of a Tribunal's reasons into "impeachable" and "unimpeachable" parts were more likely to mislead than to assist. While there may well be cases in which a tribunal's breach of s 424A affects its findings about the absence of a Convention nexus, this was not such a case.

66    The reason that I do not reach the same conclusion as the primary judge about this issue is that while the Tribunal rejected the appellant’s two main claims about being sent back to Yemen, it did not deal with the claim that the appellant feared he would be detained at the airport and be interrogated and mistreated not because he was a Shia (which the Tribunal had rejected) but because the circumstances relating to his change of name and holding of a Malaysian passport would give rise to a risk that he would be seen as associated with certain organisations due to a claimed heightened security risk. Because of this I am unable to reach the same conclusion as the primary judge but accept that, otherwise, the case would have been one where the discretion as available not to grant relief was available for exercise.

Ground 13: Denial of Procedural Fairness – Costs

28.    The primary judge erred at [2] in AZK Judgment No. 2 by denying the appellant an opportunity to examine an affidavit as to the actual costs incurred by first respondent.

29.    The primary judge erred at [3] in AZK Judgment No. 2 by denying the appellant an opportunity to file and serve an affidavit by his client as to his financial hardship and lack of capacity to meet a costs order.

30.    It was not in the interest of justice or the objectives of case management to do so.

67    The costs judgment is AZK15 v Minister for Immigration & Anor (No 2) [2015] FCCA 2330. The primary judge refused an adjournment application to require the Minister to prove the costs that had been incurred by way of affidavit (at [2]). His Honour also refused to adjourn the matter to allow the appellant to file evidence of his impecuniosity. Insofar as the second matter is concerned, I can see no error. The primary judge was not bound to adjourn the proceeding to allow the appellant to put on evidence of his impecuniosity, particularly where his Honour’s approach (correctly) was that impecuniosity is not a reason to withhold the making of the usual order as to costs. In respect of the second matter, I think it appropriate to record that I find this an unfortunate ground of appeal in that the appellant asserted impecuniosity, scale costs are known by lawyers generally to be low compared to actual costs, the appellant was legally represented by the same counsel as in this appeal, the amount claimed appears to be low given the number of appeal grounds raised and the written submissions put by both parties before the Federal Circuit Court, and the primary judge was right to raise the concern that requiring an affidavit would simply increase costs unlikely to be paid by the appellant in any event. It is difficult to see the injustice which this ground of appeal is intended to cure as a result.

68    Be that as it may, I accept that if the appellant wanted to see proof of the costs incurred then the discretionary options available to the primary judge consistent with the requirements of procedural fairness were only two. The primary judge could have adjourned the matter to enable the Minister to provide an affidavit proving the costs. Alternatively, the primary judge could have decided that in the circumstances the usual order as to costs should be made, the appellant’s claimed impecuniosity not being a sufficient reason to adjourn the costs issue as set out above. The primary judge erred in making the fixed sum costs order. The appellant was denied procedural fairness in this regard. Given the circumstances I consider that this aspect of the matter should not be remitted to the primary judge. Rather, I should make an order setting aside the costs order and replacing it with an order for the usual order as to costs.

Conclusions

69    For the reasons given the appellant has not demonstrated any error by the primary judge other than in relation to costs. The appeal should be dismissed.

Associate:

Dated:    18 December 2015