FEDERAL COURT OF AUSTRALIA

SZTQD v Minister for Immigration and Border Protection [2016] FCA 339

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Circuit Court of Australia on 29 September 2015 be set aside and in lieu thereof it be ordered that:

(a)    The decision of the second respondent dated 15 November 2013 be quashed.

(b)    An order in the nature of a writ of mandamus be issued directing the second respondent to hear and determine the applications for review of the decision of the first respondent’s delegate dated 28 August 2012 according to law.

(c)    The first respondent pay 75% of the applicants’ costs.

3.    The first respondent pay the appellants’ costs.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    This is an appeal from the decision of the Federal Circuit Court refusing the appellants’ claims for constitutional writ relief in respect of a decision by the Refugee Review Tribunal made on 15 November 2013 that affirmed the Minister’s delegate’s decision not to grant the appellants’ protection visas: SZTQD v Minister for Immigration [2015] FCCA 2530.

Background

2    The appellants are husband and wife. They are citizens of Sri Lanka who arrived in Australia on 19 June 2011, at which time the wife held a student visa and her husband was named as her dependant on that visa. On 29 July 2011, the appellants lodged their own independent claims for protection visas. The husband and wife jointly completed Part B of Form 866B, but stated that each had claims in his and her own right to be a refugee. The fact that each appellant separately claimed protection in his or her own right is a matter of considerable significance having regard to the way in which those claims were dealt with in the administrative stages and later proceedings in the Court below.

3    The wife completed her Form 866C headed “Application for an applicant who wishes to submit their own claims to be a refugee”, to which she attached a statement answering the questions in that form as to the basis of her individual claims. Her statement asserted that on the night of 23 April 2011, when she was in her room, unknown persons came to the house in which she and her husband lived. She wrote that those persons were searching for her husband and had commenced their search downstairs before coming upstairs. She claimed that the persons pushed her father. She asked who the persons were and then her father said that he would telephone the police, to which they responded that they were from the police.

4    She claimed that the person asked a lot of questions, including whether her husband was in the LTTE (or the Liberation Tigers of Tamil Eelam). She claimed that the persons asked whether “we all supported the LTTE”. The wife claimed they asked what her husband’s telephone number was, she responded that she did not know, they searched the cupboards, then they slapped her and she fainted. She said that she understood from something her husband had said that he was having problems with “those people” and her father-in-law had said that her husband’s phone had some video clips.

5    The wife also claimed in the statement that the following day the same people came again looking for her husband, later “they tried to take me”, her parents begged them not to and prostrated themselves to persuade the people not to take her. She claimed that afterwards she was very confused and that her parents advised her not to stay at home as those people might come again, and her parents took her to her uncle’s house, where she stayed until she came to Australia. She claimed that she understood, “that all these problems are caused by [her husband’s] work for Mano Ganesan, and some video clips he had in his phone. I have not seen these video clips.” She claimed to have been very scared when the people came to her house and that they had tried to take her because her husband was not in the house. She claimed that they had behaved very badly and used bad words to scold her when she did not tell them anything.

6    Her husband also made claims in his application for the protection visa, which can be briefly summarised because they are not crucial to the resolution of these proceedings. In essence, he claimed to have been a Tamil and that he feared supporters of a political party, that he called the “UPLF”, would harm him because he supported a different political party called the Democratic People’s Front. He claimed that he had put up posters and distributed flyers on behalf of the leader of the Democratic People’s Front. He claimed that on 4 April 2010 while on his way to work, he had been stopped by a member of the UPLF whom he knew, a Mr Weerasinghe, who assaulted him and took posters that had been in his car.

7    He claimed that about a year later, on 23 April 2011, Mr Ganesan asked him to put up some more posters for the Democratic People’s Front. The husband claimed that he arranged for two friends to do that for him and that while those friends were putting up a poster outside Mr Weerasinghe’s house, Mr Weerasinghe’s bodyguards came out, took the posters, the husband’s mobile phone and the key of the motorbike that he had loaned to his friends. The husband claimed that the bodyguards checked his mobile phone and found video clips on it depicting the killing of Tamils from Jaffna in camps and that the bodyguards then beat up his friends to find out who owned the phone. He claimed that the friends led those persons to the house where he lived with his parents, younger brother, his wife and her parents but that he was not at home, so the bodyguards questioned his wife and father about him, slapped his wife and beat his wife’s father. He claimed that one of the persons had shown a police badge to his wife’s father.

8    The husband claimed that he telephoned Mr Ganesan immediately upon returning that evening, who told him that the video clip issue was not his problem because it was not related to his posters and asked the husband where he had obtained the video clips. The husband claimed to have informed Mr Ganesan that a navy friend, named Jagath, had given them to him and that he also telephoned Jagath, who told him that he (Jagath) had deleted all the video clips from his own phone and could not help the husband.

9    The husband claimed that he then went into hiding at a friend’s house and when his father and father-in-law went to see Mr Weerasinghe the following day to try to resolve things, the latter responded that the matter had gone to “higher ups”. The husband claimed that after that conversation, men went to the family home and stayed for three hours, ransacking it and threatening and unsuccessfully trying to take his wife. He claimed that after that incident, he had gone into hiding with his wife at her uncle’s house, but that his assailants’ associates continued to return to the family home demanding that the husband come out of hiding. The husband claimed that ultimately all the members of his family, except his grandmother, relocated due to the harassment.

The proceedings before the delegate

10    The delegate conducted a joint interview with the husband and the wife. The delegate first interviewed the husband in his wife’s presence and went through the details of his account with some thoroughness. The delegate recorded that when she asked the husband about a video clip depicting a violent rape by six men of a girl and another video clip of victims being buried alive after a shell attack, the wife had become “extremely emotional at that stage of the interview and began indicating how her clothes were pulled at during the incident when men entered the family home seeking the husband on 23 April 2011”. At that point, the delegate recorded that the husband also became emotional, that she suspended the interview and that it could not be resumed.

11    The delegate’s decision record incorrectly stated in the “applicant details” section that the wife was “Applicant who is a member of the family unit but not making specific claims”. The delegate’s decision record was written consistently with that description. The delegate’s finding of credibility included statements that the Minister accepted in argument can be construed, as I do, as applying only as findings in relation to the husband’s claims in the following terms:

Both the applicant and Applicant 2’s written evidence referred to extreme confusion as the alleged events unfolded, and at interview, I did not find the events as outlined by the applicant, plausible.

Credibility Finding

Whilst I accept the applicant is [the husband], a citizen of Sri Lanka of Burgher-Tamil ethnicity, as claimed, I do not accept that he has come to the adverse attention of SL authorities or parties operating with impunity in SL for the possession of videos on his telephone, or that he fears returning to Sri Lanka because he is imputed with support for the LTTE because he came into possession of videos on his telephone depicting the killing of Tamil people from camps in Jaffna. (emphasis added)

12    The delegate made no separate assessment of the wife’s claims or credibility when she made her finding that one or more unknown persons had “assisted the applicant with the fabrication of claims” in making an application for a protection visa. She rejected the husband’s application and also determined to “refuse to grant a Protection visa to [the wife] who is a member of the family unit included in the application”.

The proceedings in the Tribunal

13    Each of the appellants applied for a review of the Tribunal’s decision on an application form. The Tribunal acknowledged the receipt of each of their applications on 21 September 2011. On 15 January 2013, it issued an invitation for the appellants to attend a hearing before the Tribunal on 6 March 2013. The Tribunal member, as had the delegate, referred in her decision record, given on 15 November 2013, to the husband as “the applicant” for the sake of brevity. However, the Tribunal recorded at [3] that, “the applicants applied to the Tribunal for a review” of the delegate’s decision.

14    The Tribunal summarised the information from the applications for protection visas to which I have referred above. It recited its careful and detailed questioning of the husband and its exploration of his claims, including those concerning his relationship to Jagath and how he had claimed to come into possession of the video clips. The Tribunal set out its account of what happened in the course of its questioning of the wife, who had not been present while her husband was being questioned. The Tribunal asked the wife if she wished to correct or add to her written statement and, when she replied that she did not, its decision record stated at [54]:

The Tribunal asked the second applicant whether she made any protection claims on her own behalf or whether she depended entirely on her husband’s claims to protection, and the second applicant responded that she depends solely on her husband’s claims to protection. (emphasis added)

15    However, the transcript of that part of the hearing was as follows:

M[ember]    … thank you for coming along today to give your evidence. Now, I have read the statement that you prepared for your protection visa application. So, I don’t need to go over that with you. Is there anything in that statement that you would like to correct or is there anything in that statement that you would like to add to it?

I[nterpreter]    No.

M[ember]    No, okay. Now, do you make any protection claims on your own behalf or do you rely upon the claims that um your husband makes?

I[nterpreter]    I was depend on my husband’s claim.

M[ember]    Okay, that’s how I understood it from having read your statements. You said that on, um, the night of the 23rd April 2011, and then the following day as well, these people came to your house to ask questions about your husband. Now, you say that these people were police.

I[nterpreter]    I don’t know whether all the people belong to police but one of the person in that group, he actually showed his badge to my father and he slapped him on his face. That’s was, that’s was terrible treatment and still, it’s in front of my eyes. My father just asked him, told him, shall I call the police? And they don’t need to treat him like that for that simple thing.

M[ember]    Okay.

I[nterpreter]    So, he actually, the person who showed the badge claiming him as a police, he slapped me as well.

M[ember]    Yes, I’ve read your statement so we don’t need to go over that because I understand that you find that distressing. But if there’s anything that you want to add to the statement, then this is your opportunity to do that. (emphasis added)

16    The Tribunal then recited the course of its interchanges with the wife during the hearing in the decision record as follows:

56    The Tribunal informed the second applicant that there was information contained in the decision record by the delegate which the Tribunal would put to the second applicant for comment because that information would be the reason or part of the reason for affirming the delegate’s decision to refuse his Protection visa application. The Tribunal stated that the information was obtained from the decision record of the delegate, and it relates to the chronology of events prior to their departure from Sri Lanka. The Tribunal informed the second applicant that it was putting this information to her for comment not because the Tribunal had come to any conclusions on that information but because the information might leave it open to the Tribunal to doubt whether she and the applicant had left Sri Lanka because of a fear of persecution and to doubt whether she and the applicant had spent a period of time in hiding in Sri Lanka prior to their departure. The Tribunal indicated that if the second applicant required time to consider her response then she could request that time.

57    The Tribunal then put to the second applicant the following information:

a.    The applicant had obtained his passport in October 2009;

b.    The second applicant had obtained her passport in September 2010;

c.    The applicants had applied for a student visa on the first occasion on 17 December 2010, an application which was refused on 10 March 2011; the applicants had applied on the second occasion for a student visa on 13 May 2011, which was granted on 15 June 2011; and

d.    According to information provided for the second student visa application, the applicants had provided the same residential address in the second student visa application as they had in the first student application, which indicated that as at 11 May 2011 they were still living in the same house.

58    The second applicant indicated that she wished to respond immediately and that she understood the significance of the information being put but the Tribunal and the significance of that information to the Tribunal’s decision. (emphasis added)

17    In contrast, the transcript of the hearing recorded a lengthy, less structured, statement by the Tribunal which did not deal with the wife’s claims in her application for a protection visa.

M[ember]    I have a few problems with some of your husband’s claims and I put those to him for his comment but I should raise them with you as well. Um one of the difficulties that I put to your husband was in terms of the events, the chronology of the events that preceded your departure from Sri Lanka. So, I want to put those to you as well for your comment because it may, if I cannot be satisfied about these matters, then it may throw some doubt on whether or not your husband has been truthful in his protection claims. So, the events the chronology of the events that concern me are um as follows, first of all that you and your husband obtained your passports in September and October 2010. And your first application for a student visa was made on the 17th of December 2010. Now, that application was refused because of reasons of your financial sponsors but the significance of it is that it precedes the events in April 2011 which your husband says is the reason why you left Sri Lanka. Now, I haven’t … I’m not putting this to you because I haven’t come to a decision, I’m putting it to you because I want to be fair and to give you an opportunity to respond if there is anything that you’d like to say in response. So, just think about that for a moment and I’ll put to you also the other aspect of the chronology of events that concerns me about your husband’s claims. But this also is something you say in your statement as well so, I need to put it to you for your comment. And that is that you say that you say that you went into hiding at your uncle’s house after this event on the 23rd and 24th April 2011. Um, and you say that you stayed there until you left to come to Australia. Um, but according to the information that is in the department’s decision record, the address that you gave to the department for your second student visa was the same address and that was as at 11 May 2011. So, that tends, without more, to suggest a contradiction between, um saying that you were in hiding from 24 April in one context, and in another context, saying that you were living at the same address at least until the 11 May. So the significance of those two issues is that it throws some doubt on whether or not the claims made by your husband are true and it also throws some doubt on whether or not uh you genuinely fled Sri Lanka because of a fear of persecution. So, uh, you don’t have to respond but this is your opportunity to respond if you wish to do so or you can have some time, you could ask for some time to think about your response if you prefer but now is your opportunity to resolve those issues for me if you wish to do so.

I[nterpreter]    I would like to tell you now.

M[ember]    Okay. You understand the significance of why I’m putting this to you?

I[nterpreter]    Yes, I do understand it. (emphasis added)

18    It appears that in the above exchange the Tribunal was seeking to comply with its obligations under s 424AA of the Migration Act 1958 (Cth).

19    The wife then responded to some of the information that the Tribunal had put to her. She corrected the member as to when her husband had received his passport. She told the Tribunal that it was in 2009, rather than 2010, which the Tribunal acknowledged. The wife also explained why she claimed she had gone into hiding when applying for the student visa. She told the Tribunal that she had specified the same address in her second student visa application because, first, they were using an agent to apply for that visa, secondly, her mother was sponsoring them for the visa and the agent had told them that they should use the home address, and, thirdly, they did not want to reveal that they were in hiding to the immigration authorities, who were Sinhalese.

20    The wife asked the member to clarify whether there were any differences between the two dates of application for visas about which the member had asked. The Tribunal said that the first visa application was made before 23 April 2011. The wife then responded that the first application had been made before those events because her husband’s problems had started early in 2010 and, at that time, they had decided to escape. The wife told the Tribunal that “they have threatened my husband many times and they have been calling him an LTTE supporter”, and that the couple had subsequently married and decided to leave the country.

21    At the conclusion of the hearing, the transcript recorded:

M[ember]    Okay, is there anything else that you wanted to tell me? There’s nothing else that I wanted to ask you.

I[nterpreter]    I would like to ask you, tell you one thing Member, that my, there is no safety for my life, to my husband and to myself, there is no safety at all. They behave very brutally, they will behave cheaper than animals. When they were trying to take me at the time, I thought they would actually take me, abuse me but, somehow, I’d been left (sobbing).

M[ember]    Okay, unless there is anything else that you wanted to ask, I don’t want to distress you any further.

I[nterpreter]    I would like to ask you that don’t send us back to our country because if anything happens to my husband, if anything happens to my husband, I don’t have anyone to support me. We are scared, the police will start searching for us.

(A1 and A2 sobbing)

M[ember]    Okay, rather than continue, I think it’s probably a good time to stop the hearing now. What I’ll do is that I’ll take into account all the evidence that you have given during the hearing today and I’ll come to a decision on your application for review. And I will try to do that as quickly as I can. (emphasis added)

22    The Tribunal’s decision record noted that the wife had responded at the conclusion of the hearing “that there is no safety for her and [her husband] in Sri Lanka” among other matters that it summarised. It referred to country information indicating that Mr Ganesan was the leader of the Democratic People’s Front and the successful parliamentary candidate for the United National Front at the 2010 elections and had a well-established profile as a human rights advocate concerned with monitoring extrajudicial killings and disappearances. The Tribunal found that there was no such party as the UPLF, but that the governing party of then President Rajapaksa, was known in 2004 as the Sri Lanka Freedom Party or SLFP, and became part of a political grouping known as the United People’s Freedom Alliance.

23    The Tribunal’s findings and reasons concentrated principally on the husband’s claims, with occasional reference to the use of a plural for the “applicants” or references to the wife. It formed a very adverse view of the husband’s credit and evidence, but when dealing with them jointly, it was equally condemnatory of the wife.

24    The Tribunal’s findings and reasons did not at any point deal with the wife’s specific claims in her Form 866C application that those who had visited the house on 23 April 2011 had asked about whether she and the others present all supported the LTTE, had hit her and tried to take her away on that and the subsequent occasion. However, the findings and reasons section of its decision record commenced (at [63]-[64]):

63    The Tribunal finds that the applicants have fabricated their claims to protection. The Tribunal is satisfied that the applicant did not experience harm in Sri Lanka by political opponents or police or anyone else, and neither did his wife, the second applicant. But because of this finding, the Tribunal does not accept that the applicants have any fear of harm if they return to Sri Lanka, and that accordingly they are not entitled to Australia’s protection. The Tribunal will affirm the decision by the delegate to refuse to grant them protection visas.

64    The tribunal is satisfied that both applicants have given false evidence solely in order to remain in Australia, that neither have any genuine fear of harm if they return to Sri Lanka. The reasons for making a finding adverse to their general credit, and specifically for rejecting as fabrications their claims about the video clips and Jagath, are:

a.    The departure from Sri Lanka to Australia gives the appearance of orderly, methodical and sustained planning. The first applicant obtained his passport in October 2009, the second applicant in September 2010. They applied for visas on 17 December 2010 and, when that applicant was refused on 10 March 2011 they applied a second time on 13 May 2011. Their visas were granted on 15 June 2011 and they arrived in Australia on 19 June 2011;

b.    Although the second applicant’s student visa was valid until 29 August 2012, she ceased studying in September 2011, which was just two months after they lodged their protection visa application;

c.    The claim that they had been in hiding prior to leaving Sri Lanka is contradicted by the information they provided as to residential address in their second student visa application. When the Tribunal put this to the applicant, he then claimed that they used the family home address for consistency in correspondence, and said that although the whole family had to leave because of the constant harassment, they left his grandmother to live there. The Tribunal does not accept that a family which is being constantly harassed by persons with an apparent propensity for abuse and violence would, for leave the most vulnerable member of their family to live there. The Tribunal is satisfied that this was a story concocted by the applicant to account for the conflicting information he had earlier given in the second student visa application; (emphasis added)

25    The Tribunal then continued in seven further subparagraphs, in [64d-j] of its reasons, to explain (without any reference to the wife) in detail why it rejected the husband’s account of his political activities, the possession of the video clips, his asserted relationships with Jagath and Mr Ganesan, some inconsistent evidence he gave about Jagath during the course of the hearing and his inability to name any anti-Tamil paramilitary groups operating in his area. The appellants made no complaint about any of those findings as to the husband’s credibility.

26    The Tribunal’s reasoning proceeded in [65]:

For all these reasons, in combination with the fact that the applicants have not provided any material which might provide support for their claims, the Tribunal does not accept that the claims made by the applicants are true, the Tribunal is satisfied that they were fabricated for the sole purpose of extending their stay in Australia after their student visas ceased. (emphasis added)

27    Next, in a long paragraph the Tribunal made further adverse findings against the husband alone concerning his knowledge of, and involvement, in Sri Lankan politics, and then continued:

67    The Tribunal does not accept that the applicant was pursued and targeted for harm on account of being in possession of video clips of atrocities committed against Tamils. The Tribunal is satisfied that the applicant has fabricated this claim. The second applicant did not claim personal knowledge of this, only that her father told her that the trouble with Weerasinghe and the men who allegedly came to their house was related to video clips, but the Tribunal finds that her recitation of this belief was also false.

68    The Tribunal finds therefore that the applicant [sic] have fabricated their claims to protection, that they have fabricated their claims of harm to themselves and to other members of their family prior to and since their departure from Sri Lanka, and that they do not have any genuine fear of harm if they return to Sri Lanka. (emphasis added)

28    In the emphasised passages in [67] of the Tribunal’s reasons, the only finding about the second applicant was that she gave a false recitation of the belief about what her father had said concerning each of the video clips and her husband’s difficulties caused by Mr Weerasinghe.

29    Notably, the Tribunal’s reasons did not identify, let alone discuss, the specific claims that the wife had made that she personally feared harm from persons who had come to the house, inquired about whether she was, or could have had imputed to her a political opinion of being associated with or being supportive of the LTTE, and that she, and her father in her presence, had been assaulted in their home.

The proceedings before the trial judge

30    In the Court below, the appellants, who were represented, pressed a single ground of review, namely:

1.    The Refugee Review Tribunal failed to lawfully address a claim relevant to both section 36(2)(a) and section 36(2)(aa) of the Migration Act 1958 (Cth) that arose on the evidence before it.

Particulars:

1.1    The second applicant made claims that she personally fears harm due to her husband’s, the first applicant’s, circumstances. Further, the second applicant claimed that she was assaulted by people who tried to take her and behaved very badly.

1.2    This claim was not assessed independently of the first applicant’s claims.

31    The trial judge noted that the appellants had argued that the Tribunal had failed to deal with the wife’s claims, first, contrary to its representations that it would and, secondly, that it had not given her an opportunity to put her case. His Honour found that any claim based on a representation was not made out, and that argument was not pressed in this appeal.

32    The trial judge found that (at [17]-[18], his Honour’s reference to p 22 of the transcript is to the passage I have set out at [14] above):

17    … the applicants’ argument is one of form rather than of substance. The second applicant expressly told the Tribunal, as recorded at p.22 of the transcript of the Tribunal hearing, that she relied on her husband’s claims and, implicitly, that she had no claims of her own. Further, no separate claims referable to the second applicant and requiring consideration arose tolerably clearly from the materials before the Tribunal. In the circumstances, the second applicant’s claims to be entitled to protection were indivisible from those of her husband. Consequently, the Tribunal did not err by considering with her husband’s claims such claims as the second applicant had.

18    Further, the Tribunal was not required to give more consideration than it did to the mistreatment allegedly suffered by the second applicant when men purporting to be police entered her home in April 2011. That event was said to have been provoked by conduct claimed for the first applicant which the Tribunal rejected as a fabrication. As the motivation for the alleged intrusion was rejected by the Tribunal, the alleged event lacked any relevant significance and the fact that it was not addressed in greater detail does not evidence error on the Tribunal’s part. (emphasis added)

33    His Honour found that although the Tribunal had been required to afford the wife an opportunity to put her case to it, it was not required her to afford her an opportunity to “retell her account”, if that involved nothing more than a repetition of matters already articulated and before the Tribunal. He concluded that since the wife had not suggested that her purported desire to “retell her account” would have amounted to anything more than a simple repetition, the Tribunal had discharged its duty by inviting her to add to what she had already said.

34    His Honour found that the appellants had not identified any matters that the Tribunal was obliged, but had failed to, raise with the wife pursuant to s 425 of the Act. He held that the Tribunal had put to the wife, in the long passage that I have set out at [17] above, its concerns regarding her knowledge of events involving her that were the basis of its findings in [64a.-c.] of its reasons (set out at [24] above). His Honour dismissed the application and ordered the appellants to pay the Minister’s costs.

The legislative scheme

35    Relevantly, Div 4 of Pt 7 of the Act commenced with s 422B that relevantly provided:

422B    Exhaustive statement of natural justice hearing rule

(1)    This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

…

(3)    In applying this Division, the Tribunal must act in a way that is fair and just. (emphasis added)

36    Pursuant to s 425, the Tribunal had to invite an applicant for review to appear before it to give evidence and present arguments relating to issues arising in relation to the decision under review unless, relevantly, it considered that it should decide the review in the applicant’s favour on the basis of material before it.

37    Where an applicant for review appeared before it because of an invitation under s 425, the Tribunal had power, under s 424AA, to give the applicant clear oral particulars of any information that it considered would be the reason, or part of the reason, for affirming the decision that was under review. If it did so, it had to ensure, as far as reasonably practicable, that the applicant understood why the information was relevant to the review and the consequences of the information being relied on in affirming the decision that was under review and the Tribunal had to orally invite the applicant to comment on, or respond to, the information, after advising the applicant that he or she might seek additional time to comment on or respond to that information.

This appeal

38    At the commencement of the appeal today, the appellants filed a further amended notice of appeal, which the Minister did not oppose, that contained the following ground:

That His Honour erred in failing to find that there had been a breach of section 425 in circumstances where the Tribunal did not provide the Second Appellant an opportunity to give evidence and present arguments regarding harm she had claimed she had experienced at the hands of the Sri Lankan Army Sri Lanka Police and others.

Particulars:

(1)    His Honour erred at paragraph [22] by characterising the Appellants’ case as one where the Appellant was simply denied an opportunity to “retell her account” rather than to gain favourable credit findings on the basis of demeanor”; and

(2)    His Honour erred at paragraph [26] of the decision in the court below in holding that the evidence “did not support a conclusion” that the Tribunal had prevented the Appellant from presenting her case fully.

39    The ground of appeal, as originally framed when the appeal was first filed, stated:

The Court should have found that the second respondent committed jurisdictional error in amounting procedural fairness when it failed to provide meaningful opportunity for hearing and consider the Second Appellant’s Convention and complementary protection claims individually. The Court erred in finding that the Second Respondent did consider the Second applicant's claim or integer of claim that arose on the information and evidence before it.

40    The original ground was developed during the course of argument, after I raised, and the Minister accepted, that one issue that was arguable in the appeal was whether the Tribunal had performed its function of reviewing the wife’s independent claims for a protection visa and whether the Tribunal was entitled to formulate its understanding of the wife’s claim in the way it did in the passages from its reasons and the transcript I have set out at [14] and [15] above.

The Minister’s submissions

41    As oral argument on the appeal developed, it became clear that the appeal concerned whether the Tribunal had failed to make a finding on a substantial, clearly articulated argument relying upon established facts that amounted to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction, as in Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 at 394 [24]-[26] per Gummow and Callinan JJ and 408 [95] per Hayne J agreeing; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 17-18 [55] per Black CJ, French and Selway JJ.

42    The Minister argued that the Tribunal did not fail to discharge its statutory function of conducting a hearing relating to issues arising in relation to the delegate’s decision under review in accordance with s 425 of the Act. He contended that the Tribunal was not obliged, and ought not to, adopt the position of a contradictor to the claims made by an applicant for review, because the proceedings were inquisitorial not adversarial, in reliance on what Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ had said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 165-166 [47].

43    Initially, the Minister had argued that the delegate’s decision had indicated that the veracity of the wife’s statement attached to her claim for the protection visa was in issue. But, during the course of argument the Minister accepted that what the delegate had said was open to the construction that only the husband’s credibility had been rejected by the Tribunal, and that it had not considered, or made a finding about, the wife’s. The Minister argued that the trial judge was correct to have found, as he did, that the appellants had not identified the “issue” in respect of which they had been denied a hearing under s 425 in accordance with SZBEL 228 CLR 152.

44    The Minister contended that it was not necessary for the Tribunal to have put to the wife that it might not find her claims to be true, and that the Tribunal had given her an adequate opportunity to put her case, including by asking her whether there was anything she wished to add to what was in her statement. The Minister contended that the Tribunal’s global findings of fabrication and concoction against both appellants implicitly had rejected the claims that the wife had made in her protection visa application. He submitted that the Tribunal was entitled to proceed as it did, particularly in light of the way in which it had conducted the hearing and could proceed, as his Honour had found at [17]-[18] (see [32] above), on the basis of what the wife had said to it about depending on her husband’s claim, particularly since she had not corrected the Tribunal’s subsequent recitation of its understanding that her claim was dependent upon her husband’s claims.

45    He argued that because the wife had indicated that her case was not independent of that of her husband, the Tribunal had not committed any jurisdictional error. The Minister contended that the Tribunal had offered the wife the opportunity to expand about her account and asked her about aspects of the evidence, to which she had responded, and that it was open in those circumstances for it to make the findings about the wife’s credit that it did. The Minister submitted that the wife had not been denied an opportunity to present her case fully and that the Tribunal’s statement at the conclusion of the hearing that it was “probably a good time to stop the hearing now” had to be read in the context of the hearing as a whole, including the unclear statement by the wife, which the Tribunal took as a matter of fact to be a clear one, that she was not making any independent claims of her own.

Consideration

46    The claims raised in the wife’s protection visa application that had not been considered by the delegate and were not the subject of any adverse conclusion by the delegate. They were that the wife feared persecution by reason of an imputed political opinion that she was a supporter of the LTTE and that she had, in fact, suffered some harm through the physical assault and threatening behaviour during the claimed visits to the family home on 23 and 24 April 2011.

47    While the wife’s claims had a degree of connection to those being advanced by the husband, including because they related to her understanding of video clips she had not seen, she made her claims in a separate protection visa application and as discrete claims in the application for review.

48    In my opinion, the Tribunal had before it a substantial, clearly articulated argument relying upon established facts that appeared pellucidly in the wife’s separate application for a protection visa: Dranichnikov 197 ALR at 394 [24]-[26], 408 [95]; NABE 144 FCR at 17-18 [55]. She had applied to the Tribunal to review that claim. Her claim had not been considered by the delegate, indeed it had been mischaracterised by the delegate in her decision as being one dependent upon the husband’s claims alone. The wife’s claim was made as a separate claim in both the Form 866C and in the application to the Tribunal for review of the delegate’s decision. It was not merely a claim solely dependent on the husband’s claims. Moreover, during the course of the hearing the wife, as the Tribunal recorded at [60] of its reasons, she told it that “there is no safety for her and [her] husband in Sri Lanka”.

49    The Tribunal’s characterisation that the wife had not made any protection claims on her own behalf amounted to a failure by it to perform its function of review of the delegate’s decision under s 425. That function required that the wife appear before the Tribunal, give evidence and present arguments relating to the issues arising in relation to the decision of the delegate under review. The decision of the delegate under review had ignored the wife’s independent claim for a protection visa, as did the Tribunal.

50    Moreover, the Tribunal’s questioning of the wife did not indicate to her that anything she had said in her statement in support of the protection visa concerning the incidents in April 2011 was an issue in the review. She was not on notice that her claims about what happened at the house were in issue because, among other things, the Tribunal told her, “I’ve read your statement so we don’t need to go over that because I understand that you find that distressing.” The mere fact that the Tribunal then offered the appellant the opportunity to add anything she wished to her claim did not discharge its obligation in s 422B(3) that it had to act in a way that was fair and just or to review the delegate’s decision.

51    The Tribunal must identify any aspects of an applicant’s account to him or her as important issues if the tribunal relies on those aspects as determinative, where the delegate had not identified those aspects as being in issue: SZBEL 228 CLR at 165 [42]-[43]. Thus, for example the delegate’s decision can identify such an aspect as being in issue by making an adverse finding about it. Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ explained, in SZBEL 228 CLR at 165 [42]-[43] and [47], why the applicant for review there had not been afforded procedural fairness when the Tribunal made determinative findings against him on matters that he had not been put on notice were issues in the review. They said:

the appellant's complaint is more deep-seated than a complaint about the making of unstated cultural assumptions. It is that he was not on notice that his account of how his ship's captain came to know of his interest in Christianity, and his account of the captain's reaction to that knowledge, were issues arising in relation to the decision under review.

The delegate had not based his decision on either of these aspects of the matter. Nothing in the delegate's reasons for decision indicated that these aspects of his account were in issue. And the Tribunal did not identify these aspects of his account as important issues. The Tribunal did not challenge what the appellant said. It did not say anything to him that would have revealed to him that these were live issues. Based on what the delegate had decided, the appellant would, and should, have understood the central and determinative question on the review to be the nature and extent of his Christian commitment. Nothing the Tribunal said or did added to the issues that arose on the review. ...

… there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. (emphasis added)

52    The wife’s account of what had happened to her and in her presence at her home was not the subject of any questioning by the Tribunal. In particular, the Tribunal did not ask her to expand upon those matters or to explain why her account of them should be accepted. Indeed, it reinforced to her that those aspects were not in issue by telling her that “we don’t need to go over” what she had claimed in her statement attached to her protection visa application. However, it found that she had fabricated and concocted her whole account, having previously told her she did not need to say anything about it, but could if she wished. There is nothing in what the Tribunal said or did to alert the wife that her account of the events at her house, or belief in what her father had said, was an issue in the review, yet it found that she had fabricated that evidence and her belief in what her father had told her.

53    I am of opinion that the Tribunal’s conduct of the review in arriving at its finding that the wife fabricated and concocted her account in the circumstances was both unfair and unjust, contrary to the Tribunal’s obligation under s 422B(3). It was not a discharge of the Tribunal’s function to review the delegate’s erroneous decision that had also failed to deal with her clearly articulated independent claim to a protection visa. The Tribunal constructively failed to exercise its jurisdiction to review the delegate’s decision. It did not deal with her independent claim to a protection visa.

54    I reject the Minister’s argument that the Tribunal sufficiently identified the issues in the review in the very long passage (set out at [17] above), by referring at two points to the wife as potentially being at risk of having her claim rejected. In particular, he argued that towards the conclusion of its monologue, the Tribunal raised a question as to how the wife claimed that she went into hiding at her uncle’s house “after this event on 23rd and 24th April 2011” until she and her husband departed for Australia. It suggested that her account of what happened subsequently might throw some doubt on whether or not the claims made by her husband were true and some doubt on, “whether or not you genuinely fled Sri Lanka because of a fear of persecution”. There is no ground of appeal dealing with whether or not the Tribunal adequately conformed with s 424AA in that lengthy, unstructured monologue and it is not necessary to deal with that subject here.

55    Critically, at no point did the Tribunal direct the wife’s attention to there being any issue about the veracity of what she had claimed had happened to her on 23 and 24 April 2011 or her belief as to what her father had told her. As Kiefel, Bell and Keane JJ noted in Minister for Immigration and Border Protection v WZARH (2015) 326 ALR 1 at 9 [36]-[37], an applicant for review at a hearing under s 425 must be given a full opportunity to be heard. They held that such an opportunity comprehends the concomitant advantage that the Tribunal member, who must make a decision, will obtain by being in a position to use all the information obtained by him or her at a hearing, including impressions gained from the applicant’s demeanour when giving evidence, in coming to a conclusion as to the genuineness of the applicant’s account.

56    Here, s 425 mandated that the wife, as an applicant for review and whose account the Tribunal could not accept on the papers, had to be afforded the opportunity to both appear before the Tribunal to give evidence and to present arguments relating to issues arising in relation to the decision under review. At no point during the course of the hearing, and particularly as evidenced in the passages I have quoted at [17] and [21] or otherwise in the review, was either appellant given an opportunity to present any arguments in relation to the issues arising in the review relating to the wife’s independent claims. She was not told that an issue in relation to the decision under review was that she had concocted or fabricated her account of what she claimed had happened to her on 23 and 24 April 2011 or that her claimed belief in what her father had told her was false.

57    It follows that the wife had no opportunity to present evidence or arguments in relation to the Tribunal’s global findings against her of concoction and fabrication.

58    It is not to the point to ask whether the decision-maker’s factual conclusions are correct in cases of judicial review. Rather, the relevant question is about the decision-maker’s processes, not the actual decision: WZARH 326 ALR at 10-11 [41]-[44] per Kiefel, Bell and Keane JJ, at 12 [53]-[56] per Gageler and Gordon JJ.

59    I am of opinion that the trial judge erred in deciding that the wife had made no separate claims that required consideration. Her visa application made a freestanding claim for protection. It was never considered by either administrative decision-maker. Moreover, the Tribunal failed to have regard to that clearly articulated claim relying on established facts both in the wife’s application for a protection visa and her evidence. The Tribunal had to consider that claim and to give the wife an opportunity to expand upon the aspects of her account that were in issue (namely all of them) by, among other means, asking her to explain why the aspects of that account that the Tribunal later found were concoctions or false should be accepted, as the Court held in SZBEL 228 CLR at 166 [47].

60    This was not a case, as his Honour characterised it, of the wife complaining that she should have had an opportunity “to retell her account”. The Tribunal had a duty to conduct the review of her independent claim for a protection visa under s 425 and to do so in a way that was fair and just in accordance with s 422B(3). It failed to do so by erroneously characterising her application as wholly dependent on her husband’s claims and then globally dismissing her evidence as concocted and fabricated in the way it did. His Honour made a similar error.

Conclusion

61    For these reasons, the Tribunal’s decision was affected by jurisdictional error and must be quashed.

62    The Minister argued that I should make an order as to costs that reflects that the appellants’ grounds of judicial review have developed and changed over the course of the proceedings in the Federal Circuit Court and on appeal.

63    The power to award costs where there are competing considerations involves the exercise of a judicial discretion that reflects “a broad evaluative judgment of what justice requires”: Gray v Richards (No 2) (2014) 89 ALJR 113 at 113-114 [2] per French CJ, Hayne, Bell, Gageler and Keane JJ.

64    The arguments that the appellants put in the Court below did not appear to mirror the basis on which I have decided the appeal. However, his Honour rejected the ground of judicial review that was pressed before him. That ground did raise the issue and his Honour addressed it in [17] and [18] of his reasons, erroneously, as I have found. The central argument in support of the appellant’s ground of review in the Court below and on appeal as originally articulated, reflected the essential reasons on which I have decided the appeal. The changes in the way in which that ground has been put and its refinement during the course of argument today suggest that it is appropriate to make an adjustment to the usual order for costs that would otherwise have followed the event in the Court below.

65    Accordingly, I will order that the Minister pay the appellants’ costs of the appeal and 75% of the costs before the trial judge.

Associate:

Dated:    11 April 2016