FEDERAL COURT OF AUSTRALIA

EYJ17 v Minister for Immigration and Border Protection [2019] FCA 347

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Circuit Court on 24 September 2018 be set aside.

3.    In lieu thereof, it is ordered that:

(a)    a writ of certiorari be issued, quashing the second respondent’s decision dated 12 October 2017.

(b)    the first respondent pay the appellant’s (applicant below) costs, of and incidental to the application, fixed in the sum of $7,328.00.

4.    The matter be remitted to the second respondent for hearing according to law.

5.    The first respondent pay the costs of the appellant, of and incidental to the appeal, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

(Revised From Transcript)

LOGAN J:

1    This is yet another case which has its origins in an era, earlier this decade, when many thousands of persons came to Australia by sea and thereafter came to lodge claims under the Migration Act 1958 (Cth) (Act) for Protection Visas or, sometimes, a kindred such visa known as a Safe Haven Enterprise Visa (visa). So, in that sense, the case is an exemplar of the impact, consequentially, on public administration and later in the exercise of Commonwealth judicial power, including by this Court, of that particular era.

2    The appellant came to Australia by sea without a visa authorising his entry in 2012. So too, as it happens, did a cousin who, long beforehand, had become his adopted brother. It is convenient to refer to the latter person as his brother. A particular reason for that reference to his brother will become apparent later in these reasons for judgment.

3    It is common ground between the parties that the background to the case, both in terms of the appellant’s personal circumstances and his visa claims, as well as the fate in public administration and in the exercise on occasion of judicial power of those claims, has been faithfully summarised by the appellant’s counsel in his written submissions. I therefore adopt that particular summary, which is as follows:

 3.    The appellant is a male, born in Baghdad, Iraq on 6 September 1979.

4.    Prior to his first birthday, the appellant was taken by his parents to the Islamic Republic of Iran where he remained, with the exception of two episodes discussed below, until leaving Iran for the last time in 2012.

5.    The appellant arrived in Australia on or about 13 April 2012 as an irregular maritime arrival; was interviewed by the department on 4 and 15 May 2012; and applied for a protection visa on 22 July 2012.

6.    The appellant claimed that his family entered Iran illegally in 1980 and that he only returned to his country of birth on two occasions. The first occasion was in 1991 when, following the death of his father in a work-related accident, his mother brought the appellant and his brother back to Iraq, only to returned two weeks later after the Iraqi Intifada had started. On return to Iran, he was initially placed in a refugee camp before he was given a green card (residence permit). The second occasion on which the appellant claimed to have returned to Iraq was in 2005 when the Iranian authorities deported him and his brother and they returned to his grandparent’s village in Samarra. The appellant was able to return to Iran when, with the help of his cousin, [name omitted], he presented a fake Iraqi passport to the Iranian Embassy in Baghdad and obtained a pilgrimage visa. He claimed, in broad terms, to fear harm by reason of his Feyli Kurd ethnicity, undocumented status and illegal entry into Iran.

7.    From his childhood in Iran to the present day in Australia, the appellant has been accompanied by, and his claims have involved, his brother. The appellant arrived in Australia on the same boat and applied for a protection visa, applied to the Tribunal for review, and applied to this Court for judicial review at the same times as the brother.

8.    By letter dated 23 November 2012, the delegate refused the appellant’s application for a protection visa. The delegate found that the appellant was not a Feyli Kurd, pointing to the fact that the interview had been conducted in Farsi (as opposed to Kurdish Feyli) and what the delegate found to be a lack of knowledge about Feyli Kurds, amongst other things. The delegate concluded that the appellant is an Iranian citizen, and not a stateless Feyli Kurd and therefore that he had no grounds for facing persecution in Iran.

9.    The same delegate also refused the brother’s protection visa application.

Tribunal proceedings

10.    On or about 27 November 2012, the appellant and his brother applied separately to the Tribunal for review of the delegate’s decisions.

11.    Initially, both the appellant and his brother’s reviews were constituted to the same Tribunal Member, Francis Simmons.

12.    On 5 February 2013, the Tribunal conducted a hearing in relation to the appellant’s case, however the appellant had requested that the Tribunal take evidence from his brother, and the Tribunal adjourned the hearing to 20 February 2013 so that the appellant and his brother could give evidence in respect of each others’ reviews.

13.    On 20 February 2013, the Tribunal conducted hearings in relation to the appellant and his brother. In the morning, the Tribunal ostensibly conducted a hearing in relation to the appellant’s review and, in the afternoon, conducted a hearing ostensibly in relation to the brother’s review. The Tribunal said that it recognised that the appellant wanted it to consider the evidence in his brother’s case and indicated that it would consider all of the evidence in the two cases together.

14.    Almost two years later, on 6 February 2015, the Tribunal wrote to the appellant’s migration agent, notifying him that Member Simmons had become unavailable and that another Tribunal Member, Giles Short, would “finish the review”. The same member was also to finish the brother’s review.

15.    The reconstituted Tribunal conducted further hearings in relation to each of the appellant and his brother's reviews on 6 March 2015. On that day, the Tribunal conducted a hearing in relation to the brother's review in the morning and a hearing in relation to the appellant's review in the afternoon.

16.    On 27 October 2015, the Tribunal affirmed the delegate’s decision to refuse the appellant a protection visa. The Tribunal’s decision was based upon differences between the appellant’s evidence and that which his brother had given, including that given at the hearing on 20 February 2013. The Tribunal also expressed reservations with respect to the cards said to have been issued by the Failyeen Kurd Society in Baghdad and the other supporting documentation and also with the plausibility of the appellant’s claimed exit from Iran via Imam Khomeini airport. The Tribunal concluded that the appellant was not a stateless Feyli Kurd but an Iranian citizen and that he was not owed protection under the Convention or the complementary protection provisions of the Act.

17.    The appellant applied to this Court for judicial review of the Tribunal’s decision and on 1 November 2016 orders were made by consent setting aside the decision of the Tribunal and remitting the application for review for further consideration according to law. The Tribunal was found not to have complied with section 424A of the Act in respect of the brother’s evidence.

18.    Meanwhile, the same Tribunal had affirmed the decision of the delegate to refuse the brother a protection visa, the brother had applied for judicial review of the Tribunal’s decision and orders were made setting aside the brother’s decision and remitting the brother’s application for review for further consideration according to law.

19.    The appellant and his brother returned to the Tribunal and it was again requested that the Tribunal take evidence from his brother in relation to the appellant’s review.

20.    On 28 August 2017, a differently constituted Tribunal conducted further hearings in relation to each of the appellant and his brother’s reviews. At the conclusion of the hearing, reference was made to the brothers· evidence being mutually corroborative and the fact that the earlier Tribunal had said the evidence given by each would be evidence in the other’s review; and the Tribunal said that it would “take that ... on board”.

21.    On 12 October 2017, the Tribunal again affirmed the delegate’s decision.

22.    The Tribunal found that the appellant was not in fact stateless but, rather, an Iranian citizen. The Tribunal said that it was “reasonable to believe that an adult could have made some inquiries ... in order to solve his problem of statelessness” yet the appellant, the Tribunal said, had a “complete ignorance of the Iraqi citizenship laws” and had not made “any attempt to find out about them”. The Tribunal also noted the appellant’s apparent lack of understanding as to what identity cards had been issued and inability to provide the Tribunal with documentary evidence of his sister's Iranian citizenship.

23.    The Tribunal also found that the appellant was not Kurdish. It gave “little weight” to the card issued by the Feyli Kurd Association or the appellant’s white card and relied upon the fact that the appellant “has proven not to be a witness of truth, speaks no Kurdish, [and] has no links to any Kurdish organisation in Iran or Australia”, amongst other things.

24.    The Tribunal held that, given its finding that the appellant is an Iranian citizen and is not a Kurd, it did not accept his claim to have returned in Iran in 1991 after the death of his father, that he was detained in an refugee camp upon return, or that the appellant and his brother had been stopped without valid documentation and expelled from Iran in 2005.

25.    The Tribunal also concluded that the appellant did not have a well-founded fear of persecution as a failed asylum seeker.

26.    The Tribunal concluded that it was not satisfied the appellant met the refugee or complementary protection criteria.

Federal Circuit Court of Australia proceeding

27.    The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision and, at final hearing on 24 September 2018, was granted leave to rely upon an Amended Application. The Amended Application contained five grounds of judicial review, of which only two (Grounds 3 and 4 of the Amended Application) are the subject of the present appeal.

28.    His Honour dismissed the Amended Application with costs and gave ex tempore reasons for judgment.

[sic, footnotes omitted]

4    There are two grounds of appeal, namely:

1.    His Honour erred in finding that the second respondent had considered the evidence given by the appellant’s brother and ought to have found that it committed jurisdictional error to consider that evidence.

2.    Further or in the alternative, his Honour erred in not finding that, in considering whether the appellant may be harmed as a “failed asylum seeker”, the second respondent asked itself the wrong question and thereby constructively failed to exercise its jurisdiction.

Ground 2

5    It is convenient, first, to deal with ground 2. It was submitted for the appellant that, in asking whether he had a well-founded fear of harm, the Administrative Appeals Tribunal (Tribunal) was required to ask how he would be treated if ‘returned’ to Iran. This was said to include a question of whether the appellant would be harmed as a member of a particular social group, “failed asylum seekers”. It was submitted that the Tribunal had asked itself the wrong question, because instead of asking what may happen if the appellant returned to Iran, it considered whether the appellant would be harmed if he were to return to Iran as a voluntary returnee. Support for these submissions was said to be found in s 5J(1)(b) of the Act, which provides:

(1)    For the purposes of the application to this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

…

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); …

6    What the Tribunal (Mr Shanahan, Member) stated, material to this particular ground of appeal, is to be found under the heading ‘Failed Asylum Seeker’ at [90] – [93] of the Tribunal reasons:

90.    Regarding being persecuted as a failed asylum seeker and considered to be a spy, I am not satisfied that either would occur. To begin with I am not satisfied that the applicant will be involuntarily returned to Iran either now or in the reasonably foreseeable future. The Iranian Foreign Minister during his March 2016 visit to Australia stated that Iran would only accept failed asylum seekers from Australia who returned voluntarily.

91.    Given that the Iranian government has indicated that it will not accept involuntary returnees, the only way that the applicant will return to Iran in the reasonably foreseeable future is as a voluntary returnee. If he does so I do not accept that the applicant will be harmed simply for being a failed asylum seeker. Country information indicates that a voluntary returnee is ‘..unlikely to attract much interest from authorities amongst the large regular movements of Iranians.’ And that Iranian officials do not attempt to prosecute a voluntary returnee. This was reinforced by a February 2011 UK Upper Tribunal decision found that those (Iranians) ‘merely returning from Britain’ are not at real risk of mistreatment’.

92.    He has not offered any country information to support his claim that he would be considered a spy, nor is any country information available to the Tribunal that would support such a claim.

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

7    In respect of this same issue in the original jurisdiction, the learned primary judge, in rejecting the related ground of review, stated:

44.    In relation to ground 4, Mr Chia of counsel submitted that the Tribunal had applied an erroneous test as to whether the applicant had a well-founded fear of persecution by making the assumption that the applicant would not be returned to Iran involuntarily. Mr Chia submitted that the Tribunal had failed to apply the correct test as to whether the applicant had a well-founded fear of persecution. The Tribunal made a finding that the applicant would not be returned involuntarily. It was in that context that the Tribunal proceeded to determine whether the applicant had a well-founded fear of persecution for any Convention reason. There was no erroneous application to the relevant test. No jurisdictional error as alleged in ground 4 is made out.

8    The Tribunal expressly found at [90] that:

I am not satisfied that the applicant will be involuntarily returned to Iran either now or in the reasonably foreseeable future.

9    There was never, at any stage, any material before the Tribunal, either at the hearing which led to the last of the Tribunal’s decisions or, for that matter, beforehand, either from the appellant or otherwise, that he would only return to Iran involuntarily. So the Tribunal’s absence of satisfaction as to involuntary return was well-founded. That being so, and as the Minister correctly, in my view (and on the assumption that it was otherwise not affected by jurisdictional errors) submitted, the Tribunal assessed claims as made by the appellant, made particular findings of fact and then measured what might be the appellant’s fate if returned against those findings of fact, including that absence of satisfaction. The Minister’s submission that the appellant’s claims were not premised on any claim that he would be forcibly returned is correct.

10    That being so, the case is one which, at a factual level, is distinguishable from CLS15 v Federal Circuit Court of Australia [2017] FCA 577. All that the Tribunal did was assess the appellant’s claims as made concerning his potential return to Iran. The primary judge correctly identified in the paragraph quoted the absence of merit in the point raised now in ground 2. Section 5J(1)(b) did not oblige the Tribunal to assess return scenarios which were never posited by the appellant in the claims which he made. I turn then to ground 1.

Ground 1

11    Having applied to the Tribunal (or its statutory predecessor, initially) for review, the appellant came to tender to the Tribunal on not one occasion but three occasions for the purposes of the review of the Minister’s delegate’s decision evidence from his brother. His brother gave oral evidence on three occasions to the Tribunal. Transcripts of this evidence form part of the proceedings before the Tribunal and are reproduced in the appeal book.

12    It is a noteworthy feature of Member Shanahan’s reasons that he makes no reference whatsoever to the brother’s having ever given evidence, let alone before him. He makes no assessment whatsoever of whether or not the brother’s evidence, as given on any occasion for the purposes of the administrative review as sought by the appellant, was or was not worthy of credit and whether that evidence did or did not in any way corroborate or was inconsistent with the evidence given by the appellant. Of this phenomenon and the associated ground of review alleging, as does ground 1 of the appeal, a jurisdictional error arising from a failure to consider the appellant’s brother’s evidence, the learned primary judge stated at [42] and [43]:

42.    In relation to ground 3, Mr Chia submitted that the Tribunal had failed to have regard to the brother’s evidence. The Tribunal’s reasons do not support that proposition. The Tribunal expressly referred to what had occurred at the hearing and the request to take into account the evidence from 2013 to 2015 including the brother’s evidence. That is also consistent with the transcript that was tendered by the applicant in the circumstances referred to above of the brother’s hearing. There was no need for the Tribunal to refer to every piece of evidence.

43.    The submission advanced that the brother’s evidence was corroborative reflected a contestable proposition advanced by the migration agent in all the circumstances and was not correct or binding on the Tribunal. Nor did the Tribunal on a fair reading of the decision as a whole fail to have regard to the evidence the brother had given. It was not necessary for the Tribunal to expressly make findings on the submissions advanced. No inference should be drawn that the Tribunal did not take into account the evidence given by the brother. Further, it is apparent that the Tribunal did not determine the applicant’s want of credibility by reference to the alleged error of the kind made by the earlier tribunal. No jurisdictional error as alleged in ground 3 is made out.

13    His Honour’s reference at [42] to an express reference to what had occurred at the hearing and a request to take into account the evidence from 2013 to 2015, including the brother’s evidence, is a reference to [65] of the Tribunal’s reasons, wherein it is stated:

65.    The adviser said that the applicant also relied on his evidence from 2013 and 2015 and stated that he would include the relevant elements in his submission. He was also asked to provide a copy of the applicant’s sister’s identity or naturalisation certificate (and not her birth certificate) post-hearing.

14    The Tribunal, under the heading “Consideration of Claims and Evidence”, made an elaborate assessment of the appellant and the credibility of his claims. The Tribunal stated at [70]:

70.    I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below, I did not find the applicant to be a reliable, credible or truthful witness and that he had lied to Commonwealth officials, fabricated his claims, in order to be granted a protection visa. [sic]

15    Had the brother given no evidence at any stage after the application for review was filed, that finding, as reasoned out by the Tribunal, might just have been regarded as one of those assessments which is “par excellence” for the Tribunal: see Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 74 ALJR 405. That is so notwithstanding the particularly pejorative quality of the finding in relation to the appellant, a liar.

16    It may readily be accepted, as the learned primary Judge observed, that the Tribunal was not obliged to set out each and every piece of evidence, and that a failure to refer to specific evidence does not necessarily mean that that evidence was not considered. It may mean nothing more than the Tribunal did not consider that evidence to be material: see as to the latter propositions, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68] – [69].

17    Further, on the subject of materiality, and very recently, the following observation has been made by Bell, Gageler and Keane JJ in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45] – [46]:

45.    Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

46.    Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.

18    In this case, it was common ground, or at least conceded on behalf of the Minister, that at least at a general level of abstraction, the brother’s evidence, if accepted, was capable of corroborating the evidence given by the appellant. That is not to say that it was completely congruent with that evidence, but it was capable of corroborating it. Of course, it was not evidence from an unrelated third party, but that does not mean it was incapable of having a corroborative quality.

19    There were other reasons, as the Tribunal’s reasons disclose, why it was that the Tribunal formed an adverse view as to the appellant’s credibility. But it is axiomatic that those other reasons, having regard to the whole of the Tribunal’s reasons, were not informed by, much less challenged by, an assessment of the appellant’s brother’s evidence. This is a case which, from the outset, had entailed the appellant deliberately presenting his brother as a witness to the Tribunal and, as it happened, successively so doing.

20    In the context of potentially corroborative evidence not adverted to by the Tribunal, the Full Court in VAAD v Minister for Immigration and Multicultural Affairs [2005] FCAFC 117 (VAAD) at [78] and [79] stated:

78.    It may well be that, had the error not occurred, the Tribunal would still have rejected the first appellant’s claim to have been preselected as a candidate for the UNP.  It is clear that the Tribunal’s assessment of the first and second appellants’ credibility was also based on other factors.  The Tribunal found that the first and second appellants had ‘embarked upon an elaborate process of fabricating evidence’ to support their claims.  The Federal Magistrate referred to the Tribunal’s assessment of the first appellant at [23] of his reasons:

‘The presiding member had numerous serious credibility concerns about the applicant’s wife’s claims.  In particular, the presiding member formed the view that the applicant wife had fabricated claims of threats from the [JVP] …that it would harm the applicant.  In addition the presiding member found the applicant wife to be an unimpressive witness who did not display the knowledge of the UNP that she would expect from a UNP member with a high political profile.’ 

79.    However, an assessment of credibility is not necessarily linear.   It is possible that had the Tribunal considered the UNP Letter as part of the file received from the Secretary, it may have accepted it as genuine.  If so, it is possible that the Tribunal would have been more likely to accept other aspects of the appellants’ account of their experiences in Sri Lanka.  As Gleeson CJ commented in Aala at [4]:

‘…Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive…’

Kirby J expressed a similar view in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 (‘NAFF v MIMIA’) at [81]:

‘…[D]ecision-making is a complex mental process.  Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points.  Contrary-wise establishing that an initial disbelief of a person’s credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person’s entire evidence in a new light.’

While it is impossible to know whether the Tribunal’s assessment of the appellants’ credibility would have been different if the error about the UNP Letter had not been made, or had been corrected, it is not possible to say that the error could not have affected the outcome.  

21    Later in time, and in relation to whether the ignoring of relevant material going only to fact-finding can be productive of jurisdictional error, is Robertson J’s influential judgment, in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99. In that case at [98], his Honour stated:

98.    While accepting that ignoring material relevant only to fact-finding does not of itself found jurisdictional error, is it the case, as contended for by the Minister, that to be “relevant” it must be possible to see, in effect a priori, that the material is in terms part of the claim to be a refugee? Is it only that which, in the present statutory context, adequately delineates and demonstrates the “gravity of the error” referred to by Professor Jaffe in his article “Judicial Review: Constitutional and Jurisdictional Fact”, Harvard Law Review, vol 70 (1957) 953 at 963 cited with approval in Kirk v Industrial Court of New South Wales at [64]? If it is so, it must be because it is only the claim which the Migration Act requires to be considered and because disregarding a relevant consideration which the Migration Act requires to be considered, at least where that Act’s requirements are construed to go to validity, answers the description of jurisdictional error: see Craig v South Australia at 177-179 and Professor Aronson’s “Jurisdictional Error without the Tears” in Groves and Lee (eds), Australian Administrative Law, Fundamentals, Principles and Doctrines (2007) 330 at 336, cited with approval in Kirk v Industrial Court of New South Wales at [71]. In my opinion the answer to the questions I have posed is “No” because otherwise the identification of jurisdictional error would put out of account the actual course of decision-making by the Tribunal and would proceed impermissibly by reference to categories or formulas. Although ultimately it is the claim which the Migration Act requires to be considered, there are many ways, actual or constructive, of failing to consider the claim.

22    Later, at [111], his Honour stated:

111.    In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

Immediately thereafter, and by way of example, his Honour made reference to VAAD.

23    Reading the reasons of the Tribunal member fairly and as a whole, as is obligatory, my conclusion is that the Tribunal has failed to take into account the brother’s evidence. A recipient of this Tribunal member’s reasons might well reach a view that the brother had never existed, let alone given corroborative evidence on three occasions subsequent to the application for review being lodged.

24    Assessing the brother’s evidence might realistically have resulted in a different decision. Insofar as the appellant has an onus of proof as to materiality and absence of reference to the brother’s evidence, he has, in my view, discharged that onus of proof.

25    What follows, in my view, from the foregoing, is that the Tribunal has failed to exercise its statutory function of reviewing the delegate’s decision by reference to the claims as made. In the circumstances of this case, the brother’s evidence was so central to an assessment of the merits of the claims as made that it would be impossible to discharge the statutory review function without adverting to and assessing the merits, if any, of that evidence.

26    In submissions made on behalf of the Minister, a critique was offered of the evidence which the brother gave, but the assessment of the worth, if any, of the brother’s evidence, is one for the Tribunal, not for a judge exercising judicial power. Once it is concluded that that evidence is materially corroborative, its worth, including the credibility of the brother, is for the administrative, not the judicial, branch. In my view, ground 1 is made out.

27    It follows that the appeal must be allowed.

Associate:

Dated:    13 March 2019