FEDERAL COURT OF AUSTRALIA

CMV15 v Minister for Immigration and Border Protection [2017] FCA 1422

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

GREENWOOD J:

Background

1    This proceeding concerns an appeal from the judgment and orders of the Federal Circuit Court of Australia (the “Federal Circuit Court”) in CMV15 v Minister for Immigration & Anor [2016] FCCA 691 (“the primary judgment”).

2    In the primary judgment, Judge Street dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) by which the Tribunal had affirmed a decision of the delegate of the Minister for Immigration and Border Protection (the “Minister”) to refuse the applicant’s application for a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (the “Act”).

3    The relevant background facts are these.

4    The applicant appellant (henceforth referred to simply as the appellant), a citizen of Afghanistan, arrived on Christmas Island on 22 July 2012, after the boat on which he had been travelling was intercepted by the Australian Navy.

5    On 11 March 2013, the appellant lodged a protection visa application with the Department of Immigration and Citizenship (now the Department of Immigration and Border Protection). On 26 September 2013, a delegate of the Minister refused the application.

6    On 1 October 2013, the appellant applied to the Refugee Review Tribunal (as it then was) for a review of that decision. On 23 July 2015, the appellant appeared before the Tribunal. On 23 October 2015, the Tribunal affirmed the decision of the delegate.

7    On 26 November 2015, the appellant sought judicial review of the Tribunal’s decision. On 31 March 2016, the Federal Circuit Court dismissed that application.

The Current Proceeding

8    On 21 April 2016, the appellant filed his notice of appeal from the Federal Circuit Court, which contains a single ground of appeal, namely that the primary judge:

… erred in failing to follow the Federal Court of Australia decision in SZTKE v Minister for Immigration and Border Protection [2015] FCA 1002.

9    Counsel for the appellant acknowledged at the hearing of the appeal that (T, p 3, lns 1-3; lns 7-11):

… the appellant’s ground turns on the proposition that the tribunal departed from the delegate’s findings without having given adequate notice that the matters the subject of those findings were live issues … [a]nd that’s in a nutshell where the appellant takes the matter. And, in particular, and dovetailing in some ways the findings of his Honour in the [C]ourt below, the appellant submits that his Honour failed to apply the reasoning of his Honour Bromberg J in respect of the matter of SZTKE v Minister for Immigration and Border Protection. …

[emphasis added]

10    The question raised by the appeal is a short point. Although the point is framed by reference to a contended failure on the part of the primary judge to apply the reasoning reflected in SZTKE v Minister for Immigration and Border Protection [2015] FCA 1002 (“SZTKE v MIBP”), the question properly framed is this: did the primary judge fall into error by failing to find that the Tribunal fell into jurisdictional error in the conduct of the statutory review function by denying the appellant an opportunity to “give evidence and present arguments relating to issues arising in relation to the decision under review” (an opportunity to be given by reason of s 425(1) of the Act), by finding that the appellant’s claims concerning the family reasons for fleeing Afghanistan; his claims concerning his father’s consequential efforts to make peace within the family; and his claim that his father was shot in 2006 in the circumstances as claimed, could not be believed, without first putting the appellant on notice that an issue arising in relation to the decision under review was whether the appellant’s version of the facts on these issues was credible and whether the Tribunal might depart from the findings made by the delegate in favour of the appellant on aspects of these issues?

11    That being so, it is necessary to examine the decision of the Minister’s delegate and the Tribunal’s findings, particularly those findings of the Tribunal which are said to constitute a departure from matters accepted by the delegate in the appellant’s favour without adequate notice that a departure from those findings was an “issue arising” in relation to the decision under review.

12    It is also necessary to examine the transcript of the hearing before the Tribunal (the “Tribunal Transcript”).

The Appellant’s Claim

13    Broadly speaking, the appellant claimed protection on the following bases.

14    He is a Pashtun Sunni Muslim from Doda, Laja, in Paktia Province, Afghanistan, who, in 1985 when he was about one year old, moved with his family to Parachinar, Pakistan. The reason for doing so, as claimed by the appellant, was due to the “constant fighting and dangerous situation in Afghanistan” and also due to the fact that an uncle of the appellant was said to have eloped with a woman whose family (cousins of the appellant), did not consent to the marriage, which meant that the appellant’s family feared violent retribution at the hands of their extended family. That family dispute (sometimes referred to throughout the material as a “blood feud”) was said, by the appellant, to be the “cause of a lot of violence and arguments and the [appellant’s] house was burn[ed] as a consequence”.

15    According to the appellant, increasing sectarian violence in Pakistan prompted his family to seek to return to Afghanistan in 2006 and, so, the appellant’s father travelled alone to Doda and attempted to resolve the feud. However, he was shot and killed by his cousins.

16    Following the death of his father, the appellant, along with his family, relocated to Peshawar, Pakistan, where he commenced work driving oil tankers that supplied fuel to the American military forces based in Kabul, Afghanistan. The appellant was subsequently injured in a “terror attack” whilst travelling in a convoy to Kabul. The appellant also claimed that in the wake of that attack, approximately some three weeks afterwards, he received a letter, which threatened that he would be killed for supplying fuel to the Americans.

17    The appellant, therefore, claimed (for the reasons discussed at [12]–[14] of these reasons), that he feared living in both Pakistan and Afghanistan and could not return to Paktia Province, Afghanistan, given the ongoing blood feud and the circumstances of his father’s death.

18    Despite the appellant’s claims, the Minister’s delegate was ultimately not satisfied that the appellant is a person in respect of whom Australia has protection obligations under s 36 of the Act and clause 866.221 of Schedule 2 to the Migration Regulations 1994 (Cth).

The Delegate’s Decision

19    On the question of the family feud and the appellant’s travel to Afghanistan the delegate said this (Delegate’s Decision Record, p 7):

The applicant claims that one of the reasons his family fled their village of Doda, Afghanistan in 1985 and relocated to Pakistan was on account of a family feud. Country information advises that blood feuds are primarily a Pashtun tradition and are rooted in Pashtun[’s] customary law system, Pashtunwali. Blood feuds may give rise to long cycles of retaliatory violence and revenge.

With no evidence to the contrary I accept as plausible that the applicant’s family fled Afghanistan on account of a family feud. It is however noted as per the evidence provided by the applicant, all his younger siblings were born in Doda, Paktia. This indicates that the applicant’s parents did return to Paktia on at least three occasions (in 1997, 2000 and 2002) after their move to Pakistan in 1985 and given that their children were born there, makes me consider that each of their visits would have definitely been for more than a few days.

I accept as plausible the applicant’s father was killed in 2006 in Doda, as claimed, however there is no evidence to indicate that he was killed by the applicant’s extended family members or that it was on account of a family feud. Further, the fact that the applicant’s parents returned to Doda on a number of occasions, for the birth of their children, makes me consider that they did not fear harm there at the hands of their extended family members or anyone else.

I do not accept the applicant’s claims that he has not returned to Doda in Paktia Province since 1985. As per the evidence provided, it is noted that the applicant travelled to Afghanistan on a number of occasions including to get married and despite his claims, the applicant’s marriage certificate indicates that he was married in Paktia. Furthermore, the applicant’s international driver’s licence issued to him in 2005 indicates his place of domicile as Paktia.

The fact that the applicant chose to travel to Afghanistan, not only to get married, get his driver’s licence and taskera but also as part of his employment as an oil tanker driver, makes me consider his claims to fear serious harm at the hands of his extended family members not to be credible. It is noted that Kabul is approximately 2 hours away from Paktia and the fact that the applicant chose to travel to Kabul and stayed there on a number of occasions makes me consider his claims of fear at the hands of extended family members not to be credible. In addition, the applicant’s daughter was born in Doda in 2010. The fact that the applicant’s wife chose to return to her family home in Doda, Paktia for the birth of her child, and the fact that the applicant permitted her to do so and possibly accompanied her there, makes me consider that the applicant’s claims of fear of harm in Afghanistan on account of a family feud not to be credible.

I do not accept as credible the applicant’s assertion that his extended family members are so against his family that they would pursue him anywhere in Afghanistan. In light of the evidence as discussed above, I find it implausible and consider it does not support the applicant’s claim that he is a potential target for his extended family members and that he fears serious harm and possible death as a consequence.

[emphasis added]

20    In relation to the appellant’s experiences in Kabul, although the delegate was willing to accept that the appellant was injured while travelling to Kabul in his capacity as an oil tanker driver, the delegate was unwilling to accept that the appellant had “been threatened with harm or has been or is of continuing adverse interest to the Taliban or any other militant group in Afghanistan and or Pakistan since then” (Delegate’s Decision Record, p 8).

The Tribunal’s Decision

21    The Tribunal set out what it described as its “credibility concerns”, under the following headings:

    The willingness of the applicant’s father to return to the native village in 2006;

    Evidence about the applicant’s willingness to return to Afghanistan;

    Evidence about being attacked by the Taliban;

    Evidence about a threatening letter from the Taliban; and

    The applicant’s willingness to remain in his home in Peshawar after the threatening letter was received from the Taliban.

22    It is not necessary, for present purposes, to identify each and every one of the Tribunal’s credibility findings as to each of these five topics except to say that, put simply, the Tribunal did not accept the appellant’s evidence and ultimately took the view that the appellant was “not a witness of truth” due to concerns it held about his credibility. Those concerns were “due to his untruthfulness … [and] include[d] not just inconsistency in evidence but also concerns about his and his father’s claimed behaviour” (Tribunal’s Decision Record at [44]).

23    In affirming the decision of the delegate, the Tribunal reached the following “conclusions on credibility” at paras 41-43:

41    At the beginning of the hearing the Tribunal advised the applicant that although the delegate found certain aspects of his evidence to be credible, it was nevertheless the task of the Tribunal to decide for itself whether or not he was telling the truth and that was a purpose of the questions the Tribunal would be asking him. Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false. Accordingly, the Tribunal disbelieves the applicant’s claims about his uncle eloping with a woman whose family would not accept their relationship and, therefore, that his own family fled Afghanistan in fear of harm from these people. The Tribunal disbelieves his claim that the family home in his native village was burned down and his claims about his father’s efforts to make peace with these people by sending letters and then retuning there in 2006.

42     It follows that the Tribunal does not believe the applicant’s father was shot in 2006 as he claimed. Because he is not a witness of truth the Tribunal also disbelieves the applicant’s evidence about driving a truck with fuel for the American military, being attacked by the Taliban and a threatening letter being left at a relative’s shop after that. The tribunal accepts that the applicant has some sign of injury to his right eye and fingers on his right hand which he pointed out at the hearing but it has no credible evidence as to how these injuries were sustained.

43     Because he is not a witness of truth, while the applicant claims to have been educated in Pakistan and employed there, the Tribunal finds it has no credible evidence about when and for how long the applicant lived in Pakistan and the circumstances under which he left that country and Afghanistan as well as how he left. The Tribunal finds that he has withheld the truth from the Tribunal about that and about his family’s circumstances in the native village in Afghanistan (including where his immediate family are living). There is no credible evidence that the applicant has suffered harm in Afghanistan and that anyone in Afghanistan seeks to harm him. There is no credible evidence as to why the applicant left Afghanistan and Pakistan and why he does not want to return to Afghanistan.

[emphasis added]

24    It should be noted that on 23 July 2015, commencing at 1.13pm and concluding at 4.15pm, the Tribunal conducted an oral hearing at which the claims of the appellant were discussed. The appellant was represented at the hearing by Mr Adler, a registered migration agent. In the Tribunal’s letter dated 16 June 2015 to the appellant’s representative, the Tribunal invited the appellant to appear before it “to give evidence and present arguments relating to the issues arising in relation to the decision under review” [emphasis added]. On 20 July 2015, Mr Adler sent an email to the Tribunal returning two particular forms relating to the hearing and told the Tribunal that the appellant’s “pre-hearing submissions will follow shortly”.

25    Mr Adler’s pre-hearing submissions on behalf of the appellant are thorough, careful and extensive. The submissions contain 19 pages and many footnotes. At the outset, Mr Adler frames the claims of the appellant by observing that the appellant relies upon the claims for protection set out in his statement of claims dated 19 February 2013 and, by the submissions, confirms that this statement is an accurate statement of his claims. Mr Adler then identifies a number of matters in respect of which the delegate is said to have made factual errors. The basis upon which those factual matters are said to be wrong is set out in that part of the submission.

26    The next part of the submissions addresses the matters to be considered at the hearing and it is in these terms:

Further Matters to be Considered

It is clear that [the appellant’s] claims for protection fall into two parts: the earlier part of his claims relates to the blood feud issues in which his family became inextricably embroiled and which fall to be assessed primarily under complementary protection legislation due to the existence of a real risk of suffering significant harm, as well as the Refugees Convention owing to the [appellant] being a member of the Particular Social Group of Pashtun men whose families cannot resolve their differences; and the second part of his claims emanating from his employment as a fuel delivery driver which falls to be assessed under the Refugees Convention as imputed political opinion. We will address these issues in the two sections below.

[emphasis added]

27    Mr Adler then notes that the delegate had accepted that the appellant’s family had been or were involved in a “long-standing blood feud” and that the appellant’s father had been killed as a result of the feud when he returned to Afghanistan to attempt to resolve the dispute. Mr Adler then makes a number of observations on pp 3 and 4 of the submissions about the phenomenon of blood feuds in Afghanistan and especially such feuds among Pashtun people. Mr Adler then makes these observations at p 4 of the submissions:

The evidence provided by [the appellant] that his family fled from their village because of a feud is entirely credible and represents a sensible attempt to avoid a situation that has potentially very extreme consequences. The fact that the feud is still ongoing is also credible.

[emphasis added]

28    It can be seen therefore that at a time prior to the commencement of the hearing, the appellant’s adviser and thus the appellant, anticipated that questions of credit would be alive before the hearing and that it would be contended that the statements made, and evidence of the appellant, about the family feud, the reasons for fleeing from the village and related matters were “entirely credible”; and the notion that the feud was a continuing one is “also credible”. It thus seems that a question of credibility going to the blood feud was an open question and by the submissions, the appellant, by his adviser, was agitating for a finding from the Tribunal (or at least an acceptance by the Tribunal) that his claims and contentions going to the blood feud were “entirely credible”.

29    On 23 July 2015, the hearing took place.

30    A transcript of the hearing is in the appeal record and I will return to the transcript later in these reasons.

31    On the day following the hearing, Mr Adler sent an email to the Tribunal referring to the hearing the day before. The email attached the appellant’s “post-hearing submission” dated 24 July 2015. In that document, Mr Adler took the “opportunity” to confirm his “oral submissions” made at the conclusion of the hearing. By the document, he sought to “re-affirm” a number of matters “in relation to any questions that may arise about our client’s credibility”. Thus the document was confirming the oral submissions on the various questions made at the hearing and re-affirming questions going to the appellant’s credibility. The first of the matters going to credibility addressed in the further submissions from Mr Adler was this:

The family feud

Many questions were put to our client about this aspect of his claims and we note that he provided spontaneous, consistent and logical answers to the matters raised. While there may be suggestions that, with hindsight, some of his family’s actions could have been handled differently, and that a different approach might have prevented the death of [his] father, such hypothetical variations to the facts are not relevant to an assessment of credibility and would not change the fundamental elements at issue, namely that the blood feud exists and [he] is at risk of suffering serious harm because of that feud.

We have previously submitted that this aspect of [his] claims are well supported by independent country information and it is our understanding that the Tribunal did not have any questions about our client’s credibility in relation to these matters. …

[emphasis added]

32    At paras 9 to 17, the Tribunal in its decision of 23 October 2015 addresses the facts (and questions put to the appellant and answers given concerning the facts) going to the blood feud, the circumstances of the appellant’s family’s departure from Afghanistan; the circumstances giving rise to the feud; the father’s return to try and settle the feud; and the father’s death at the hands of his cousins. At paras 18 to 24, the Tribunal addresses the evidence concerning the appellant’s unwillingness to return to his native village in Paktia which, again, was a concern going to the harm the appellant would suffer from the family of the woman with whom the appellant’s uncle had eloped many years before.

33    At paras 41 and following, the Tribunal sets out its conclusions on credibility in which it thoroughly rejects the evidence of the appellant and finds that the appellant is “not a witness of truth” and that “the account of events on which his protection claims are based is false”. The Tribunal disbelieved the appellant’s claims in relation to his uncle eloping with a woman whose family would not accept the relationship. At para 44, the Tribunal says that it has taken into account the submissions made by Mr Adler dated 24 July 2015.

34    It is now necessary to turn to the transcript of the proceedings before the Tribunal. At the outset, the Tribunal Member spoke to the role of the Tribunal and the purpose of the hearing. The Tribunal Member made these remarks as part of the opening (T, p 1):

We’re here today because you applied to the Department of Immigration of a protection visa. The department refused your application and you’ve come to the Tribunal for a review of that decision. The Tribunal is independent of the Immigration Department. The Tribunal can only decide certain issues. The [f]irst issue is whether you’re a refugee. A refugee is someone who can’t go back to their country because they have a well-founded fear of persecution. The persecution they fear must be on one of the five grounds. Those grounds are race, religion, nationality, political opinion or your membership of particular social group. Persecution is serious harm. Your fear of persecution must be well-founded. This means that if you go back to Afghanistan [there] must be a real chance that you will suffer persecution. If I find that you are not a refugee I must consider if you need complementary protection. This means I consider if there are substantial grounds for believing that if you are sent back to Afghanistan there is a real risk that you will suffer significant harm. To decide these issues I’m going to ask you questions about why you are afraid to go to Afghanistan. I also ask these questions to assess your credibility. Even if the Immigration Department believes some or all of an applicant’s evidence, the Tribunal must always make up its own mind if an [applicant] is telling the truth. If you don’t understand a question I ask just say so. If you don’t know the answer to a question just say so. There is no need to guess or make up an answer to please the Tribunal. I know a good deal about your case. This is because I have the Immigration Department file for your application, I have considered carefully the information you gave them, I also have written submissions from your representative that were received on Tuesday. Our interpreter is here to help us communicate. This is his only role. He can’t give advice about your case. He has promised not to disclose anything he hears today. Do you understand the interpreter?

[emphasis added]

35    The Tribunal Member says that he has considered particular material from the Immigration Department file and has also considered the pre-hearing written submissions of Mr Adler. An interpreter was available to assist the appellant and the Tribunal in the process of conducting the hearing.

36    It is not necessary to recite in these reasons all of the relevant parts of the transcript of the hearing which give context to the question now in issue. However, it should be noted that at pp 1, 2, 3, 4, 5, 6 and 7, the Tribunal Member asks the appellant a wide-range of questions in relation to the circumstances which caused the appellant’s family to leave Paktia when the appellant was only one year old; the events surrounding the appellant’s uncle eloping with a girl that he wished to marry; the appellant’s father’s reaction to his brother’s conduct; the place where the family went to live and whether the uncle (and his wife) went to live with them; the family reaction to all of those events; the attempts by the appellant’s father to try and resolve the dispute “within the family” by a number of means; the ultimate election by the appellant’s father to return to the village to speak to the family of his brother’s wife; the decision of the appellant’s father to take two Maliks with him when seeking to engage with the family of his brother’s wife; and the events that occurred, as reported by the Maliks when returning with the father’s body, that “the girl’s family just took out guns and shot [the appellant’s] father”.

37    The following exchange then took place before the Tribunal (at p 7):

Member:     So you know , why was your father willing to take the risk of going back to see this girl’s family and he had written to them a number of times to make peace and all they had done was come back and reject his offers and indicate that they were angry?

Appellant:     In 2007 these Taliban and Shi’a Sunni major crisis and war, fighting starting and then so many house were burned, the issue arises there that’s why my father had to decide to make a peace deal with this people and go back to my home valley because living in P was not peaceful there.

…

Member:     I’m wondering why your father would take the risk of going back to the village to see the girl’s family with a view to live there instead just not leave Parachinar and go and live in Peshawar?

Appellant:     My father, my mother told me that he was very upset and worried about the future generation he always wanted to make a peace deal with the family and live at there so the kids and the future generations can live in their own village peacefully.

Member:     But couldn’t he have sent someone on his behalf to the girl’s family to approach them about that rather than taking the risk of going himself?

Appellant:     [Maybe] my father has tried to arrange someone but maybe no one would like to go there.

Member:     Why’s that?

Appellant:     Because my age was that much not that mature, he was taking all the decision himself, my father.

Member:     You see one way of looking at it is to ask why the girl’s family would feel so strongly about this matter in 2006 that they would actually [shoot] your father when it was something that happened twenty years earlier.

Appellant:    In our culture when this happened so the girl’s family first start looking for the actual person who did this thing but if they can’t find that person say then they take the revenge from one of the brother in the family.

Member:    Your father would know that, wouldn’t he?

Appellant:    Yes.

Member:    If it is such a serious thing and it is normal to attack family if the culprit can’t be found and if your father’s previous efforts for peace had been rejected, why then go back and take the risk?

Appellant:    When the letters and response letters were negative, my mother told me that my father took the decision to take two Maliks along with him to there to the girl’s family and negotiate with them if they had any demands if they agree to give them a girl and the family and we become relative and start to living peacefully in the village and other demands we could fulfil them so we can come so that’s why my father decided to go.

Member:    Your mother told you that?

Appellant:    Yes, my mother told me this, my father was always thinking of this and was going to act on this.

38    After the process of asking questions of the appellant had concluded at the hearing, the Tribunal Member asked the appellant’s representative whether he had any comments he would like to make. The interpreter was invited to translate those comments as they were made. The transcript at pp 26 and 27 contains a number of oral submissions of 23 July 2015 made by the appellant’s representative some of which are also referred to in the post-hearing submissions. In the course of the oral submissions, the appellant’s representative said this:

I’ve already made comments in the written submission about this use [of] blood feuds and the length of time those things can continue and that’s well known. I don’t think there is anything controversial in accepting that blood feuds are real and they often involve killings of family members after considerable lengths of time. We’ve heard that my client’s father has been killed as [a] result of this feud. It seems to me that if there is a suggestion he can return to his village, that would have to be based on a finding that this blood feud is a total fabrication. The delegate accepted the veracity of this situation and I understand you are not required to follow that, but I can see no basis on which to make a finding that says there is no truth to the existence of this family dispute. And so if there is a basis as to the family dispute then my client has a real chance of suffering significant harm were he to return to his village. It is unclear how such disputes play out and which members of the family become the ones who are recipient of violence but I think we can see my client’s father has been killed [and] were he to return as the son of that man he would be the next in line for retribution.

39    It seems reasonably clear from all of these exchanges between the Tribunal and the appellant reflected at pp 1-8 of the hearing transcript that the Tribunal was questioning and examining with the appellant the claims based upon the blood feud events and the circumstances that resulted in the death of the appellant’s father, with a view to deciding whether the appellant’s pre-hearing submissions that the appellant’s evidence on these issues was “entirely credible” could be accepted and thus whether it could be satisfied about those matters.

The Federal Circuit Court Decision

40    Before the Federal Circuit Court, the appellant raised a single ground of appeal in his amended notice of appeal:

1.    The Tribunal breached section 425 of the Migration Act 1958 (Cth)

Particulars

a.    The Tribunal failed to put the Applicant on notice that his credibility was in issue in respect to the issue of his father’s death and the decisions by his family to flee Afghanistan as a result of a blood feud, thereby denying the Applicant the opportunity of leading evidence in respect of these issues.

[emphasis added]

41    Thus, the elements of the ground of appeal are that the appellant was not on notice from the Tribunal that his “credibility was in issue” in relation to the decision under review concerning first, the issue of his father’s death and second, the decisions of his family to flee Afghanistan as a result of a blood feud. It may be that the Tribunal itself did not precisely say or put to the appellant or the appellant’s migration adviser, that issues arising in relation to the decision under review would include a question of whether the credibility of the appellant’s version of events could be believed concerning the decisions of his family in electing to flee Afghanistan as a result of a blood feud, and the circumstances of his father’s death. Yet, as earlier mentioned, the appellant’s pre-hearing submission framing further matters to be considered expressly contemplated a consideration of the appellant’s “claims for protection” relating to “the blood feud issues in which his family became inextricably embroiled”, leading to an asserted conclusion that the appellant’s “evidence” (version of events) concerning the family fleeing from their village because of the blood feud was “entirely credible”. It was certainly a matter of no surprise to the appellant’s adviser that the credibility of the appellant’s evidence in relation to the blood feud and its role in causing the appellant’s family to flee Afghanistan was an “issue arising” for further consideration in the course of the review.

42    Subject to the operation of s 425(2) and (3), s 425(1) of the Act provides that the Tribunal must invite an applicant to appear before it to “give evidence and present arguments relating to the issues arising in relation to the decision under review”.

43    In dismissing the application made to the Federal Circuit Court of Australia, the primary judge said this:

9.    The first topic that was addressed by the applicant’s representative [in the post-hearing submissions dated 24 July 2015] was the family blood feud. In those circumstances, it is apparent that it was understood and appreciated by the applicant’s representatives that the applicant’s credibility was a live issue before the Tribunal. Those submissions dated 24 July 2015 proceeded to address the assessment of credibility and identified authorities and submissions in support of the same.

10.    No further opportunity was sought by the applicant in the applicant’s representative submissions to put on any further material in relation to the credibility issues. This case is distinguishable from the circumstances in which the Tribunal has not made clear that the applicant’s credit is a live issue in relation to findings that may have been earlier accepted by a delegate.

11.    In that regard, the Tribunal explored with the applicant the fact that he went back to Afghanistan twice after the alleged fleeing of Afghanistan by the family to obtain a licence and then to marry on the second occasion. The Tribunal identified in the transcript that on the second occasion the marriage was to one of the applicant’s cousins. It was in those circumstances the Tribunal raised the question of whether there was any trouble because they are people who killed the applicant’s father. That issue referred to by the applicant was again a clear identification that the alleged incident involving the father and the blood feud are live issues.

12.    I should also note that the reference to the blood feuds was an issue touched upon by the applicant’s representative in the transcript on the day of the hearing in submissions. I do not accept the proposition that the issue of the father’s death and the decision of the family to flee Afghanistan as a result of a blood feud was not an apparent live issue before the Tribunal.

13.    There was no denial of procedural fairness in the conduct of the hearing by the Tribunal. There was no breach by the Tribunal of s 425 of the Migration Act 1958. The applicant had a genuine hearing. The alleged jurisdictional error is not made out. The application is dismissed.

The Appeal to this Court

44    As mentioned at [8] and [9] of these reasons, the appellant relies on a single ground of appeal. The essential point is that the primary judge failed to apply to the facts the relevant principles identified in SZTKE v MIBP which in turn are those principles identified by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (“SZBEL v MIMIA”).

45    In SZTKE v MIBP, the appellant, a citizen of Sri Lanka and applicant for a Protection (Class XA) visa, claimed that the following events had taken place:

    He had been detained in a camp by the Sri Lankan army during the civil war;

    While detained, he was physically abused in the course of interrogation;

    He was released after members of his family paid a bribe to persons they believed were from the Criminal Investigation Division (the “CID”);

    Subsequently, on two separate occasions, CID agents attended his workplace and made enquiries about his whereabouts;

    He applied for and received a Sri Lankan passport, with the assistance of an agent, who paid a bribe to the passport officer;

    When departing Sri Lanka for India, he was questioned as he passed through security, but his agent intervened and paid another bribe;

    Upon his return to Sri Lanka having been told that the situation had improved, CID agents again attended his workplace, this time on three occasions, and sought him out; and

    Around that time, Sri Lankan authorities began arresting people who had previously been detained in camps and he feared for his safety as a result.

46    The delegate of the Minister, in rejecting the application, accepted for the large part that the aforementioned events had indeed transpired as recounted by the appellant, however, disbelieved that the CID had come looking for him and did not accept that anyone from the CID or the Sri Lankan authorities was searching for or interested in the appellant.

47    The delegate’s decision was affirmed by the Refugee Review Tribunal, which had in turn not accepted a number of the findings made by the delegate and had also formed the view that it did not consider the appellant to be a credible witness. Rather than list out each of the various departures, of which there were several, it suffices to say that the relevant departures related to the alleged payment of bribes on the three separate occasions.

48    First, although the Tribunal accepted that the appellant was detained in a detention camp, it did not accept that he was released after the payment of a bribe. Second, the Tribunal did not accept that the appellant received a passport by virtue of the payment of a bribe. Third, the Tribunal did not accept that the appellant had any need to pay a bribe in order to depart Sri Lanka for India.

49    An application for judicial review to the Federal Circuit Court was dismissed. On appeal to the Federal Court of Australia (the “Federal Court”), the appellant relied upon six grounds, with ground one being that:

His Honour should have found that the Tribunal committed jurisdictional error by failing to comply with its obligations under s 425 of the Act. His Honour erred in his findings (SZTKE v Minister for Immigration & Anor [2015] FCCA 103 at [13]–[21]).

Particulars

a.    The Tribunal rejected the Appellant’s credibility by virtue of the matters set out at CB210 [46]–[52].  The Tribunal failed to provide the Appellant with an opportunity to give evidence and present arguments in relation to the same.

b.    The Delegate accepted the credibility of the applicant's account concerning his detention in a detention centre (including his account of being released by virtue of a payment of a bribe) (CB 114) and his account of obtaining his passport and departing the country through the payment of a bribe (CB 115). The Tribunal rejected the plausibility of the Appellant's account in these respects without informing the Appellant that it had doubts [about] these aspects of his account and providing him with an opportunity to give evidence and present arguments in relation to the same[.]

50    In SZTKE v MIBP, Bromberg J considered the relevant legal principles to be applied in determining whether the Tribunal has discharged the statutory obligation of providing an applicant with an opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review. His Honour said this:

34    What is required is that the appellant be somehow alerted to the fact that the issue is live. That may be done in a number of different ways including by the Tribunal challenging what the applicant has said and asking the applicant to explain why his or her account should be accepted.  But, that does not require the Tribunal to put to the applicant (in so many words) that he or she is lying or embellishing, nor to disclose what it is minded to decide.

35    Counsel for the Minister submitted, “as long as there’s nothing the tribunal member says that gives the appellant the impression his evidence will be accepted then that is sufficient,” and that “nowhere in that passage could it be suggested to the appellant that his claim about offering a bribe to be released from detention was going to be accepted or that the delegate’s finding was going to stand in relation to that point.  So there has been no procedural unfairness … .”  That was in keeping with the Minister’s submission elsewhere that it was sufficient for the appellant to have been given an opportunity to explain himself in regard to a particular issue. 

36    I do not accept those submissions.  More is required than that the Tribunal abstain from positively indicating to an appellant that his or her account will be accepted.  More is required than that an appellant be merely given an opportunity to explain himself or herself.  So much is evident from the fact that in SZBEL the relevant evidence was “elicited” by the Tribunal without further comment and that, notwithstanding that elicitation, it was held that procedural fairness had not been afforded. There must be something that indicates to the appellant that the issue is live.

[emphasis added]

51    Bromberg J, in allowing the appeal, found that the Tribunal did not sufficiently identify to the appellant that the first issue of whether a bribe had been paid in order for the appellant to leave the detention camp and the second issue of whether a bribe had been paid in order to procure a passport (which were matters accepted by the delegate), were “issues arising” or issues alive in relation to the decision under review.

52    In SZBEL v MIMIA, the High Court (Gleeson, Kirby, Hayne, Callinan and Heydon JJ) considered s 425 of the Act and the obligations of the Tribunal under that section. In that case, the appellant relied upon a statutory declaration in support of his protection visa application which set out, among other things, three “elements”. A delegate of the Minister refused the application but, in doing so, “dealt directly” with only one of the three elements. On appeal to the Refugee Review Tribunal, that Tribunal affirmed the decision to refuse the visa application, having found all three of the elements detailed in the statutory declaration to be implausible. The High Court, however, held that although the appellant was questioned about various matters, at no stage did the Tribunal identify the other two elements as “important issues”, nor did it “challenge what the appellant said” nor “say anything to him that would have revealed to him that these were live issues” (SZBEL v MIMIA at [43]).

53    At [32], the Court observed that the Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591, “rightly” stated that:

It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.

[High Court emphasis]

54    The Court also said this at [33] to [35]:

33     The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited "to give evidence and present arguments relating to the issues arising in relation to the decision under review". The reference to "the issues arising in relation to the decision under review" is important.

34     Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.

35     It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.

[original emphasis]

55    The Court at [37] then gave the following very clear, simple and obvious illustration of the principle presently under consideration:

… Suppose (as was the case here) the delegate concludes that the applicant for a protection visa is a national of a particular country (here, Iran). Absent any warning to the contrary from the Tribunal, there would be no issue in the Tribunal about nationality that could be described as an issue arising in relation to the decision under review. If the Tribunal invited the applicant to appear, said nothing about any possible doubt about the applicant's nationality, and then decided the review on the basis that the applicant was not a national of the country claimed, there would not have been compliance with s 425(1); the applicant would not have been accorded procedural fairness.

[emphasis added]

56    The Court also made these observations:

47     First 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.

48     Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369:

"the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."

Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.

49     Finally, even if the issues that arise in relation to the decision under review are properly identified to the applicant, there may yet be cases which would yield to analysis in the terms identified by the Full Court of the Federal Court in Alphaone. It would neither be necessary nor appropriate to now foreclose that possibility.

[original emphasis]

The Parties’ Submissions

57    The appellant, in his written submissions, frames the issue on appeal as a contended failure by the Tribunal to “put the [a]ppellant on notice that his credibility was in issue in respect of his father’s death and the decision to flee Afghanistan as a result of a blood feud” and that by doing so, he was “denied the opportunity of leading further evidence in respect of these points”.

58    The appellant says that “[m]ore is required than merely the [a]ppellant being given an opportunity to explain himself” and “[t]here must be something that indicates that the issue is ‘live’”.

59    The appellant says that “on a fair reading of the material, the Tribunal simply did not put to the [a]ppellant that his credibility was in issue on the matters regarding the family blood feud” and that “[t]he recitation of [the Tribunal’s] statutory function at the commencement of the hearing does not address the particular requirements of notification of issues identified by the Court in SZBEL” particularly where “a positive finding of fact in the [a]ppellant’s favour by a delegate is to be departed from by the Tribunal”.

60    In relation to Mr Adler’s post-hearing submission of 24 July 2015 addressing the question of the “family feud”, the appellant submits that notwithstanding that correspondence:

a.    The agent expressly questioned the relevance of the exchanges to an assessment of [the appellant’s] credibility; …

b.    Clearly, the [a]ppellant did not understand that the issue of his credibility was a live issue with respect to the blood feud;

c.    The submissions were forwarded on the basis that the blood feud existed and that the [a]ppellant had not been put on notice as to any change from its acceptance by the delegate;

d.    The advisor does seem aware of the Tribunal's concerns regarding … the [a]ppellant's credibility on the issue of his work delivering fuel. The evidence provided to further the [a]ppellant's credibility [is] expressly focussed on the issues relating to the latter point.

61    The Minister submits that of the two “kinds of case” referred to at [47] of SZBEL v MIMIA (and [56] of these reasons), the “present case falls within the first scenario”, namely that the “Tribunal made clear to the appellant, at the commencement of the Tribunal hearing, that it had to decide for itself whether the appellant was telling the truth ‘although the delegate found certain aspects of his evidence to be credible’”. The Minister points to para 41 of the Tribunal’s Decision Record (see also [23] of these reasons) as supporting this contention. The Minister also submits that “[t]he appellant, through his advisor, appeared to be well aware that all claims were in issue, as cautioned by the Tribunal”.

Consideration

62    In the passages quoted at [19] of these reasons, the delegate accepted as plausible the claim that the appellant’s family fled Afghanistan due to a family feud. The delegate also accepted as plausible the claim that the appellant’s father had been killed in Doda “as claimed” although that finding was immediately qualified by the observation that there was “no evidence” (which must necessarily be a reference to no evidence other than the appellant’s own evidence, that is, no corroborative evidence) that the appellant’s father was killed by the appellant’s “extended family members” or that the killing was “on account of a family feud”.

63    The delegate in the passages quoted at [19] of these reasons then identifies a number of matters that suggested there were a number of inconsistencies between the appellant’s version of particular events (such as whether or not the appellant had returned to Doda since 1985), and other facts (and documents) about those events. Those considerations together with the reservation the delegate expressed about the lack of evidence to support the claim that the appellant’s father was killed by members of the extended family or due to a family feud, led the delegate to conclude that the appellant’s claims of fearing serious harm at the hands of his extended family members were not credible.

64    Nor did the delegate accept that the appellant’s extended family members were so against him that they would pursue him anywhere in Afghanistan.

65    In that context, the appellant sought review of the delegate’s decision before the Tribunal and in that context the appellant’s migration agent put on his pre-hearing submissions, dated 20 July 2015, in support of the propositions to be advanced and contentions to be made at the hearing on 23 July 2015.

66    The written submissions sought to correct some errors in the delegate’s reasons and then addressed the topic of the further matters to be considered by the Tribunal for the purposes of the hearing and the review of the decision itself. The “issues arising” in relation to the decision of the delegate under review included, as framed by the appellant’s agent, the first “part” of the appellant’s claim to protection relating to the “blood feud issues” in which his family had become “inextricably embroiled”. An issue arising in relation to that matter was the contention that the appellant’s evidence that his family had fled from their village because of the feud was “entirely credible”. Another issue arising was whether it was “the fact” that the feud was still ongoing. A further issue was whether the appellant’s evidence on that topic was “also credible”.

67    Those pre-hearing submissions may, in part, explain why the delegate at the outset of the hearing (having explained some matters going to the notion of fearing harm for a Convention reason and the notion of persecution), explained to the appellant that in deciding issues, the Tribunal Member would be asking questions about why the appellant was afraid to go back to Afghanistan and, in asking questions, the Tribunal would be making an assessment of the appellant’s credibility. In the context of the credibility assessment, the Tribunal member said that even if the Department believed some or all of an applicant’s evidence, the Tribunal must always make up its own mind if an applicant is telling the truth.

68    Whether the pre-hearing submissions of the appellant’s agent, in part, explain the particular observations of the Tribunal Member or not, there can be little doubt that the Tribunal Member’s observations at the outset were informed by the appellant’s pre-hearing submissions and those submissions informed the sequence of questions at pp 1-8 of the hearing transcript which address the topics earlier described.

69    Those topics go to all of the events giving rise to the particular circumstances of the blood feud, the steps the appellant’s father took to try and resolve it, the basis on which the appellant’s family became so “inextricably embroiled” in it, the contended circumstances of the appellant’s father’s death, and whether the feud endures.

70    Having regard to the pre-hearing submissions of the appellant, the extensive sequence of questioning about all aspects of the blood feud by the Tribunal Member, the oral submissions made at the hearing and the post-hearing written submissions of 24 July 2015, there is no doubt that the appellant was on notice, that is to say, the appellant was anticipating and expecting the Tribunal to examine all aspects of the blood feud said to give rise to a basis for a claim for protection which would include an examination of whether the appellant could be believed on the central contentions.

71    In relation to the particular exchange at the Tribunal hearing (mentioned below and set out in context at [37] of these reasons), given emphasis by the primary judge, counsel for the appellant made the following observations during the course of the hearing before this Court (T, p 36, lns 28-43):

… [M]uch of this material that precedes the statement … is in the manner of elicitation of evidence up to that point. But then when we see the question:

You see, one way of looking at it is to ask why the girl’s family would feel so strongly about this matter in 2006, they would actually shoot your father when it was something that happened 20 years earlier.

Now, two issues arise there in that what – the first issue, of course, is that what is being asked there is about the motivations for the blood feud, but another way of looking at this particular question is that it is utterly consistent, at this stage, with the findings as made by the delegate, for the delegate accepted that the blood feud existed, but the delegate held that the father’s killing was not for that reason. And, again, what has not been made as a live issue there on that particular question is the issue of whether or not the blood feud was a live issue in respect of this appellant’s credibility.

72    Notwithstanding that submission, it is clear that the Tribunal Member was calling into question all aspects of the blood feud including, as the appellant anticipated, all of the circumstances which caused the appellant’s family to be inextricably embroiled in it.

73    This is not simply a case of an introductory formulaic statement being made by the Tribunal Member which might be said to carry with it some suggestion that the appellant was put on notice of the “issues arising” without any proper identification of the precise issues.

74    The “issues arising” in relation to the decision under review were scoped by the pre-hearing submissions; those topics became the subject of extensive questioning; the issues were the subject of oral remarks; and were the subject of the post-hearing written submissions.

75    This case falls squarely within the principles described in the first part of [47] of the decision of the High Court in SZBEL v MIMIA (set out at [56] of these reasons). That follows because there is a sufficient indication, having regard to the pre-hearing submissions, the questioning, the oral address and the post-hearing submissions that everything the appellant said in support of his application reliant upon all elements of the so-called blood feud within the family, and all aspects of its consequences, was in issue.

76    It follows that the appeal must be dismissed with costs.

Associate:

Dated:    30 November 2017