FEDERAL COURT OF AUSTRALIA

SZVZI v Minister for Home Affairs [2019] FCA 1390

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an appeal from the whole of the Judgment of the Federal Circuit Court in SZVZI v Minister for Immigration and Border Protection [2018] FCCA 972 delivered on 30 April 2018. In that decision the primary Judge dismissed the appellant’s application for review of the decision of the Administrative Appeals Tribunal (formerly the Refugee Review Tribunal) (Tribunal). The Tribunal had earlier affirmed the decision of the delegate of the first respondent (formerly the Minister for Immigration and Border protection) (Minister) to refuse to grant the appellant a Protection (Class XA) visa (protection visa).

Background

2    A summary of the factual background to this appeal and the decision of the Tribunal were set out in the primary judgment. I gratefully adopt that summary:

3.     The applicant is a citizen of Sri Lanka and is of Tamil ethnicity and Catholic religion. The applicant arrived in Australia as the holder of a visitor visa on 11 September 2012, and applied for a protection visa which was received by the Minister’s department on 5 October 2012. The application included various documents as attachments, including the applicant’s claims to fear harm contained in a written statement.

4.     The applicant claimed to fear harm from Sri Lankan government forces, the Sri Lankan police and paramilitary groups. He claimed to have been employed by the United Nations Office for Project Services (“UNOPS”) from around 2007 to 2012.The applicant claimed that he was threatened by members of the Tamil Makkal Viduthalai Puligal (“TMVP”) by telephone and letter, and on 15 May 2008, they came to his home and asked him to “act as a [spy] for them” regarding the Liberation Tigers of Tamil Eelam (“LTTE”).

5.     The applicant claimed that on 19 May 2008, members of the LTTE came to his home and “took [him] to their camp”. He was questioned about his attendance at the TMVP office. He claimed to have been beaten with wooden clubs where he “sustained minor injuries and got (sic) bleeding” and “injuries inside [his] body” that were subsequently treated by his “[r]oommates”.

6.     Further, the applicant claimed that on 12 June 2008, he had been forcibly removed from a bus by members of the Eelam Peoples Democratic Party (“EPDP”) and taken to another camp. He claimed to have been questioned about his involvement with the LTTE, and was kept in a room. He was subsequently told that he would be released if he paid money, and a member of the EPDP took him to withdraw money, which the applicant handed over to him, and was then released.

7.     The applicant claimed that he was then removed from a bus by “Omanthai military police” as he was suspected of providing the Sri Lankan government’s “information” to the LTTE. He was taken to a room where his clothes were removed and he was assaulted. The applicant tried to make a complaint to the police but they refused to assist him.

8.     The applicant also claimed to have continued receiving threatening phone calls and letters. On 12 January 2009, he attended a TMVP office again out of fear. The applicant told them that he worked for UNOPS and he was then “locked up” for three hours forced to “point out LTTE cards who were mixed with the people came (sic) from Seddikulam”. The applicant claimed to have then received threatening telephone calls, to have been followed by unknown people, and his driver was also “taken by [an] unknown arms group” but released after three months.

9.     The applicant claimed to have then applied for a tourist visa to travel to Australia as he feared for his life, but he “altered the letter date” which he then “tendered to the Australian Embassy in Colombo”. However, his application was “rejected”.

10.     While working in Batticaloa on or about 25 August 2012, the applicant claimed to have been approached by “Mr Thurairatnam”, an election candidate of the Tamil National Alliance (“TNA”), and was asked to work for him. The applicant refused, but the man came to his house “again and again”, and he was “convinced” to work for him.

11.     The applicant distributed TNA leaflets and propaganda and claimed that on or about 2 September 2012, he was assaulted with wooden clubs by supporters of an opposing political party. He claimed that supporters of the TMVP “had thrown sands and stones” on them whilst they were having a party meeting, and he claimed to have been assaulted again on 8 September 2012.

12.     On 8 September 2012, the applicant claimed that “five people” came to his home with half their faces “block[ed]” and asked his wife whether the applicant was home. His wife told them that he was not home, and was then told by the “people” that they were going to kill the applicant. Fearing for his life, the applicant left his home, and the following day he left for Colombo where he made arrangements to fly to Australia.

13.     The delegate refused the application for the visa on 22 February 2013 and the applicant was notified by letter of the same date sent to his representative authorised to receive correspondence on his behalf…

(References removed.)

Decision of the tribunal

3    On 12 March 2013, the appellant applied to the Tribunal for a review of the decision of the delegate. The appellant attended a hearing before the Tribunal on 2 September 2014 and provided submissions dated 16 September 2014 and 26 October 2014.

4    The Tribunal made a decision on 19 December 2014, finding, in summary:

    The Tribunal did not accept much of the appellant’s evidence in relation to problems he claimed to experience in Sri Lanka.

    Whilst the Tribunal accepted the appellant’s employment history, specifically his employment with United Nations Office for Project Services, the Tribunal did not accept that he had the problems claimed with the Tamil Makkal Viduthalai Puligal (TMVP), the Eelam Peoples Democratic Party (EPDP) or the military police because he was working in the Liberation Tigers of Tamil Eelam (LTTE) controlled area in the Vanni. The Tribunal did not consider it credible that if the appellant had been summoned by the TMVP to their offices as claimed and that if he had refused to assist them as requested, they would not have taken some action against him.

    Whilst the appellant claimed that he had received threatening phone calls, the Tribunal did not consider it credible that the TMPV or the Karuna or Pillayan Group would make threatening phone calls to the applicant but take no action to make good on their threats. The appellant submitted that they had not wanted to do anything to harm him as he was working for the UNOPS, however the Tribunal noted that, on the appellant’s submissions, the fact that he was working for UNOPS did not protect him as he had previously been summoned to the TMVP office, detained for three hours and verbally abused.

    Further, the Tribunal considered that an additional reason not to accept the evidence of the appellant was that he never raised these claims with his superiors in UNOPS, even though he claimed that the problems he was facing were the direct result of his work with UNOPS. The Tribunal noted that the appellant submitted that he did not report being stopped, detained and mistreated by the military police when travelling in a UN vehicle to his superiors at UNOPS but reported this to the police. The Tribunal considered that this did not “make any sense” and did not regard his evidence in this respect to be credible. The Tribunal also did not accept that if the appellant had been followed by people on a motorbike when travelling in a UN vehicle he would not have raised this with his superiors.

    The Tribunal also considered to be relevant the claims which the appellant had made with regard to problems experienced as a result of his work for UNOPS in the LTTE-controlled area. At a hearing on 6 May 2010, the appellant gave evidence before the Migration Review Tribunal in support of an application for a humanitarian visa. The appellant noted the situation in Sri Lanka had changed because the TMVP had been disarmed and the office where he was then working was safe for him. At a further hearing before the Migration Review Tribunal on 17 March 2011, the appellant also noted that “he had not had any problems with the Sri Lankan authorities or the government nor had he had any problems with the LTTE”. In submissions dated 16 September 2014 the appellant’s representative said that he had given this evidence as he feared that the authorities would intercept his conversation. He explained that he had come to Australia to save his life and that was why he said there were no problems in Sri Lanka. The Tribunal accepted that “people with a genuine fear of being persecuted may feel the need to tell lies in order to obtain visas to leave their countries and to travel to a place like Australia”. However, the Tribunal considered that in the present case the evidence the appellant gave to the Migration Review Tribunal that there were no problems for him in Sri Lanka “is more consistent with the objective evidence than his subsequent claims in connection with his application for a protection visa that he had come here to save his life”.

    For these reasons, the Tribunal did not accept the truthfulness of the appellant, and did not accept the veracity of the majority of events that he claimed had occurred as a result of his employment with UNOPS. The Tribunal did not accept that the appellant had any problems with the TMVP, the Kuruna Group, the Pillayan Group, the LTTE, the EPDP or the military police as a result of his employment or that there was a real chance that he would be persecuted by the Sri Lankan government, the Sri Lankan authorities, the TMVP, the EPDP, the Karuna Group, the Pillayan Group or any other pro-government paramilitary groups as a result of political opinion imputed to him due to his employment with UNOPS.

    In relation to the appellant’s claims that he was involved in campaigning for a TNA candidate during a provincial council election on 8 September 2012, the Tribunal did not accept that the appellant had told the truth about his involvement in campaigning, or that he had been threatened following the election. Further, the Tribunal did not accept that if the appellant returned to Sri Lanka, there was a real chance that he would be killed or otherwise persecuted as a result of his real or imputed political opinion in support of the TNA or LTTE.

    The Tribunal considered advice of the Australian Department of Foreign Affairs and Trade in relation to the security situation in Sri Lanka. Based on the evidence before the Tribunal it did not accept that there was a real chance the appellant would face harm on the basis of his race as a Tamil if he returned to his home region in Sri Lanka.

    The Tribunal further did not accept that there was a real chance the appellant would be persecuted as a failed asylum seeker.

    The Tribunal concluded:

I have considered the totality of [the appellants] circumstances as a Tamil from the Eastern Province who I accept has worked in the past for UNOPS and for an NGO and who will be returning to Sri Lanka as a failed asylum-seeker. However, even taking into account the cumulative effect of these circumstances, I do not accept for the reasons given above that he has a well-founded fear of being persecuted for reasons of his race (Tamil), his imputed political opinion (in favour of the LTTE), or his membership of three particular social groups… I do not accept on the evidence before me that the fact he worked for UNOPS or an NGO, the fact he worked briefly in the LTTE- controlled area in the Vanni, his age, his gender or the fact that he originates from the Eastern Province place him at increased risk of being persecuted taken alone or in combination with other factors. I do not accept that [the appellant] has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Sri Lanka now or in the reasonably foreseeable future.

(Appellant’s name redacted.)

    The Tribunal also examined the complementary protection criteria for the granting of a visa, but considered that the appellant did not meet these.

5    Overall, the Tribunal was not satisfied that the appellant was a person to whom Australia has protection obligations and affirmed the decision of the delegate not to grant a Protection (Class XA) visa.

Decision of the Federal Circuit Court

6    The appellant sought judicial review of the decision of the Tribunal pursuant to s 476 of the Migration Act, by way of an application to the Federal Circuit Court dated 14 January 2015. The application was amended on 26 February 2015 and 21 August 2017. In the further amended application the appellant relied on the following two grounds of review:

I still fear persecution in my home country. I seek justice and mercy as the Refugee Review Tribunal’s (RRT) review process is faulty. I am unrepresented.

Ground 1

The RRT did not comply with section 424AA and it has breached its statutory duty imposed by section 424A of the Act. The RRT has also failed to put to me orally the concerns and adverse information which arose during the RRT hearing and in writing the concerns and adverse information which arose in my review (reasons for refusing my review) and it has failed to invite me for my comments, after the hearing, before it made its decision.

I had a legitimate expectation and a matter of procedural fairness that the RRT would contact me for a second hearing and/or that the RRT would invite me for comments in writing if they found any negative information in respect of my RRT review after the hearing.

The RRT did not give me an opportunity after the hearing, before this decision was taken, to respond to negative information by way of a further hearing or respond to me in writing their intention to use this information to refuse my application. The RRT decision indicates that there are major issues which the RRT did not consider.

The RRT failed to consider my claims of hear harm [sic] from the Paramilitary groups under the complementary protection criteria set out in section 36(2)(aa) of the Migration Act 1958 (Cth).

Ground 2

Some findings, inferences, conclusions and reasoning of the RRT occurred in the absence of evidence and/or supporting materials or were based on foot notes cited below in the reasons and findings in the RRT’s decision.

A reasonable RRT reviewer might reasonably arrive at a divergent conclusion on all the information and evidence before the RRT.

Particulars

The RRT’s reasoning and conclusions are substantially based on foot notes cited below in the reasons and findings in the RRT’s decision.

I need to [sic] my protection visa interview CDs as well as the transcript and I also need to closely read the full evidence cited as footnotes in the RRT’s decision which will enable me to provide further particulars of my grounds before the court hearing.”

7    The primary Judge noted that the written submissions provided by the appellant gave rise to additional grounds of review. His Honour considered that the appellant’s oral and written submissions gave rise to three grounds of complaint:

30.    One, the Tribunal should have invited the applicant to a further hearing to give him the opportunity to put his “concerns” to it. This is addressed under ground one below.

31.     Two, the Tribunal used footnotes in its decision record. It was not clear what the footnotes referred to. This is addressed in ground two below.

32.     Three, the applicant insisted he “really” does have “problems” in his home country.

8    His Honour considered that the appellant’s insistence that he had problems in his home country could not be understood as anything other than an invitation for the Court to substitute its own findings of fact for those of the Tribunal. The primary Judge found that this constituted impermissible merits review.

9    The primary Judge noted that Ground 1 consisted of various assertions. His Honour considered each of these in turn:

35.     First, the applicant asserts that the Tribunal failed to comply with s.424A and s.424AA of the Act. The difficulty for the applicant is that he did not identify what “information” was caught by s.424A(1) of the Act such as to engage the Tribunal’s relevant statutory obligations.

36.    Second, the ground asserts the Tribunal failed to put to him its “concern[s]” presumably about his evidence, and the “adverse information” which “arose” during the Tribunal hearing. The applicant asserts that the Tribunal did not put these to him either orally or in writing.

37.    The Tribunal’s subjective views of the applicant’s evidence are not “information” for the purposes of s.424A of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 (“SZBYR”)).

38.    It may be (it was not explained by the applicant before the Court), that the reference to “adverse information” which “arose” during the Tribunal hearing, is a reference to information which the applicant gave to the (then) Migration Review Tribunal in May 2010 and March 2011, in relation to a visitor visa application.

39.    There is no transcript of the Tribunal hearing in evidence before the Court. The only relevant evidence of what occurred at the hearing is that contained in the Tribunal’s decision record. The decision record reveals that the Tribunal did put this information to the applicant at the hearing pursuant to s.424AA of the Act.

40.    On what is before the Court, the Tribunal complied with the relevant requirements of s.424AA of the Act, and thereby discharged the obligation pursuant to s.424A(1) of the Act. The Tribunal gave details of the information to the applicant and explained the relevance of the information to the review.

41.    The view that the Tribunal took of the information, and the applicant’s explanation in relation to it, is not “information” for the purposes of s.424A(1) of the Act (SZBYR at [18] and Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 at [23]).

42.    Third, the ground also complains that the applicant had a “legitimate expectation” that the Tribunal would give him the opportunity to make comments in writing, on any “negative information” that it may have found.

43.    Having discharged any obligation in relation to “information” by use of s.424AA of the Act, the Tribunal had already discharged its obligation pursuant to s.424A(1) of the Act. It was not required to write to the applicant, after the hearing, and give him a further opportunity to comment when this opportunity had already been given at the hearing.

44.    In any event, the applicant’s ground appears to overlook the fact that the Tribunal did give the applicant the opportunity to make post-hearing written submissions. This included the matter of his visitor visa application. The applicant’s representative responded on his behalf. The Tribunal considered these submissions.

45.    Fourth, the ground also complains that the Tribunal did not give the applicant the opportunity for a second hearing to discuss its “intention to use this information to refuse [his] application”, or give him an opportunity to comment in writing.

46.    The Tribunal’s obligation pursuant to s.425 of the Act is to invite the applicant to a hearing to present his arguments and evidence, in relation to the issues dispositive of the review (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) 189 FCR 494, Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 and Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575). The Tribunal in the current case did provide a meaningful opportunity for the applicant to do this.

47.    On the evidence before the Court, the issues in the review were discussed at the hearing. I cannot see that there was any obligation on the Tribunal to invite the applicant to a second hearing.

48.    The evidence before the Court reveals that the applicant would have been on notice, at the hearing, of the Tribunal’s concerns about some of the central parts of his evidence. The Tribunal also made repeated references in its decision record to what it “put” to the applicant at the hearing in this regard.

49.    Fifth, the ground complains that the Tribunal “failed to consider” the applicant’s “[fear of] harm from the [p]aramilitary groups” when it considered the complementary protection criterion (s.36(2)(aa) of the Act).

50.    This complaint fails at the factual level. If the applicant’s complaint is that the Tribunal did not accept his claims, then this is no more than an invitation for the Court to engage impermissible merits review.

51.    In all, ground one does not reveal jurisdictional error in the Tribunal’s decision.

(References removed.)

10    The primary Judge then considered Ground 2:

52.    Ground two appears to assert that the Tribunal fell into jurisdictional error because there was no evidence for some of its findings. In this light, the ground appears to assert that the decision was legally unreasonable.

53.    The only particular given to “explain” this ground, is that the Tribunal used “footnotes” on which to base its reasoning and conclusions. The applicant also raised the matter of footnotes orally before the Court.

54.    It must be said that the actual assertion of legal error in this ground is difficult to comprehend.

55.    As the Minister submits, the Tribunal’s use of footnotes was entirely orthodox. The footnotes variously sourced the evidentiary basis for the propositions and information on which it relied in its reasoning. The fact that the applicant does not understand this well established method of referencing source material, does not reveal jurisdictional error in the Tribunal’s decision.

56.    To the extent that the ground appears to indicate that the Tribunal’s decision was unreasonable or illogical, no such claim can be made out in light of relevant authority (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437, ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 and CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 70 AAR 413). In fact, the Tribunal’s decision was based on a series of findings which were reasonably open to the Tribunal to make, and for which it gave intelligible and cogent reasons based on the evidence before it.

57.     Ground two is not made out.

11    As the appellant was self-represented before the Federal Circuit Court, the primary Judge considered it appropriate to consider whether the appellant was denied procedural fairness in relation to a certificate issued by an officer of the Minister’s department pursuant to s 438(1)(a) of the Migration Act, and the documents covered by this certificate, in light of MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 234 FCR 1.

12    The certificate covered two sets of documents which were provided to the Court in a sealed envelope. These documents concerned a protection visa interview with the appellant’s father and legal advice concerning the decision of the Tribunal in relation to the appellant’s father. The primary Judge noted at [63]-[64] that, in its decision record, the Tribunal indicated that the appellant’s father had come to Australia as a visitor and successfully applied for protection, however the Tribunal did not refer to the documents subject to the s 438 certificate. In his Honour’s view the documents were of no significance to the Tribunal’s decision.

13    Whilst no submission were made in relation to the validity of the s 438 certificate, his Honour was satisfied that regardless of the validity of the certificate no “practical injustice” arose from the Tribunal not disclosing its existence to the appellant; AVO15 v Minister for Immigration and Border Protection [2017] FCA 566. Further, his Honour considered that there was no evidence to suggest that the Tribunal had acted on the s 438 certificate. At [66] his Honour noted:

There is nothing to indicate that the Tribunal considered these documents as material to the conduct of the review of the decision before it (CQZ15 at [65]). It is reasonable to infer that the Tribunal did not refer to, or act on, the s.438 certificate or the relevant documents, because the content of the documented could have had no impact on the task it was jurisdictionally required to exercise. Therefore, there was no denial of procedural fairness to the applicant.

14    In light of the above findings, his Honour considered that there was no jurisdictional error and dismissed the appeal.

Appeal to the Federal Court

15    In his Notice of Appeal from the Federal Circuit Court of Australia, the appellant relied on the following ground of appeal:

The Federal Circuit court failed to find, in respect of the AAT (Respondent/Tribunal) that the Respondent declined its jurisdiction to me on the basis of grounds including the main grounds stated in my Federal Circuit Court Application filed in Sydney. They are:

The Tribunal did not comply with s.424AA and s.424A of the Act - The Tribunal failed to consider the my fear of harm in the context of complementary protection - The Tribunal made findings based on no evidence - The Tribunal's decision was illogical and unreasonable. There was denial of procedural fairness to me.

16    The appellant seeks the following orders:

1.    The IAA decision and the Federal Circuit Court judgement be quashed

2.    To determine my case according to law

3.    A new AAT review/hearing

17    On 20 June 2018, Registrar McCormick directed the appellant to file a written outline of submissions by no later than ten business days prior to the hearing. The respondent was to file and serve their written outline of submissions by no later than five business days prior to the hearing. I heard this matter on 21 August 2019, the respondents filed their submissions on 13 August 2019, and the appellant did not file his submissions until 16 August 2019. Despite the appellants delay in filing and the inability of the respondent to respond in their written submissions, I do not consider that this has created an undue burden on the respondent, and have therefore accepted these submissions.

18    The appellant’s written submissions are as follows:

1.    The Appellant SZVZI accepts the decision of Bell, Gageler and Keane JJ. of the decision in Minister for Immigration and Border Protection v SZMTA/ CQZ 15 v Minister for Immigration aud Border Protection/ BEG 15 v Minister for Immigration and Border Protection [2019] HCA 2019, esp at [3), [4], and [5].

2.    Relevant documents contained in the 'Notification AB88 are at AB90-AB109. These do not appear to contain material relevant to the claims made by the Appellant before the RRT, notwithstanding reference to the Appellant is made therein from time to time (see eg,, AB1 01, AB94, AB90). Such reference is mainly background information in relation to the Appellant's family as contained in the Appellant's father's visa application.

3.    It is not argued that the contents of the incorrectly notified information were material to the ultimate decision by His Honour Nicholls J. (AB57&AB73).

19    The appellant made oral submissions at the hearing, with the assistance of an interpreter. The appellant submitted, in summary:

    The Department of Immigration rejected his statement as it was not in conformity with the statement of his father. The Department of Immigration failed to provide these statements to the Tribunal. These statements may have been material to the decision of the Tribunal.

    Members of the Department of Immigration when interviewing the appellant were “holding my father’s file, not my file, and they were posing questions based on the file meant for my father”.

    The Tribunal failed to provide the appellant with an opportunity to make submissions when he appeared before the Tribunal.

20    The Minister filed written submissions, and was legally represented in Court by Counsel. The Minister submitted, in summary:

    Before the primary Judge, the appellant relied on two grounds of review, namely that the Tribunal failed to comply with s 424A of the Migration Act 1958 and that the Tribunal’s decision was made without evidence or was illogical. These grounds were rejected in the primary judgement at [34]-[51] and [52]-[57], respectively.

    The notice of appeal appears to repeat these grounds and should fail for the reasons given by the primary Judge at [34]-[57].

    The Minister conceded that the purported s 438 certificate before the Tribunal was invalid. The Minister submits that the issuing of an invalid s 438 certificate to the Tribunal was an error but would not establish a jurisdictional error unless the breach was material: SZMTA.

    The appellant has failed to satisfy the Court that the breach in respect of the purported s 438 certificate was material, and that there was a realistic possibility of a different outcome if the Tribunal had taken into account the information covered by the certificate: SZMTA at [45]-[48].

    For the reasons provided by the primary Judge at [62]-[63] the material was of no relevance to the decision of the Tribunal.

Consideration

21    The Minister conceded that the s 438 certificate before the Tribunal was invalid. However, the Minister submitted that the invalid certificate does not establish a jurisdictional error as the breach was not material. Further, the appellant did not contend that the contents of the incorrectly notified certificate were material to the decision by the primary Judge.

22    The relevant documents contained mainly background information in relation to the appellant’s family and do not appear to be relevant to the appellant’s claims before the Tribunal. Accordingly, consistent with the submissions of both parties, this information was not material to the decision of the primary Judge, and no practical injustice arose in respect of the issue of the certificate. I consider that the invalid s 438 certificate did not give rise to a jurisdictional error.

23    The appellant further contends that the Department of Immigration failed to provide statements of the appellant and his father to the Tribunal. At the hearing, in relation to this point the appellant submitted:

THE INTERPRETER: The Immigration – Department of Immigration, they took my application. The reason for the rejection was that my statement was not in conformity with the statement made by my father. RRT has accepted that. However, before the RRT had admitted that statement, it had failed to call me, either to give evidence or to watch the matter while it was being ..... into.

…

THE INTERPRETER: Federal Circuit Court – the Federal Circuit Court also had admitted the statement, but – but – but what happen was the Department of Immigration has failed to forward the documents and the statements made by me and by my father to the tribunal – the RRT – Refugee Review Tribunal. If the Department of Immigration had submitted the documents to the RRT, decision would have been taken in my favour by RRT.

HER HONOUR: Why is that?

THE INTERPRETER: Because – I’m telling this because I believe lot of information have been refused – have been hidden.

HER HONOUR: So you’re saying information was not forwarded by the department to the tribunal.

THE INTERPRETER: The information regarding me and my father were not submitted to the tribunal.

HER HONOUR: Okay. So did you have the information?

THE INTERPRETER: Yes, I have got.

HER HONOUR: No. Did you have it to provide to the tribunal?

THE INTERPRETER: Yes. I had that, but I was not summoned. I was not called by the RRT.

(Transcript p 3.)

24    In relation to this ground the respondent submitted:

MR REILLY: I’m not entirely sure what the appellant is now asserting. It does not seem to be the same as what he asserted to the Federal Circuit Court. Doing the best I can, the fact that the appellant’s father had been granted a protection visa was noted by the tribunal at paragraph 13, but it was never suggested that his claims had any particular relevance for the appellant’s claims.

HER HONOUR: When you say it was never suggested, you mean never suggested by the appellant?

MR REILLY: Yes, by the appellant or by anyone else, for that matter, or by his – he was represented. He had – he had an agent. So I don’t know what the appellant is referring to when he says that the tribunal wasn’t given the father’s statement.

HER HONOUR: All right. Perhaps just to assist you further, Mr Reilly, I will ask the appellant if he can elaborate a bit on this point, so he can clarify what he means. So what do you mean, Mr Appellant? When you say – you said before that the department rejected your visa application because it was inconsistent with your father’s. What do you mean by that?

THE INTERPRETER: When I say that it was not in conformity with the statement made by father, is that because while I was interviewed, they were holding my father’s file, not my file, and they were posing questions based on the file meant for my father.

HER HONOUR: Okay. All right. Thank you. All right. Back to you, Mr Reilly. Does that help you? Maybe not.

MR REILLY: Not really. Again, none of this was ever put to a Federal Circuit Court. The appellant didn’t file a transcript of the tribunal hearing below. However, the tribunal’s reasons are quite detailed and they indicate a quite lengthy discussion with the appellant at the hearing about his claims. He didn’t seek to rely on his father’s claims. Indeed, there was no mention of his father, except for paragraph 13. Given his father had come to Australia some seven years before the appellant, that’s not surprising. I frankly don’t know what the appellant is talking about when he says he wasn’t given an opportunity to make submissions. He obviously was, from a plain reading of the tribunal’s reasons. So I frankly am somewhat at a loss for words to know what the appellant is actually complaining about, but I’ve done the best I can in explaining why it’s not actually a valid complaint. Is there anything further that I can assist your Honour with?

HER HONOUR: Well, I have your written submissions. Do you rely on them as well?

MR REILLY: I rely on my written submissions. It may be the appellant is confused about the issue of the 438 certificate, which covered information concerning the father, but our point and the appellant - - -

…

MR REILLY: Sorry. Our point, and the appellant seemed to accept this in his written submission, is that that material was not of any relevance to the tribunal’s decision precisely because it concerned the appellant’s father and the appellant’s father’s claims were of no relevance to the tribunal’s decision because it was considering the appellant’s claims, which had nothing to do with his father’s claims.

…

MR REILLY: It may be that the appellant is confused because of the issue concerning the section 438 certificate. As your Honour will have seen, that certificate referred to information concerning the appellant’s father’s protection visa application. The Federal Circuit Court accepted that that material was of no relevance to the tribunal’s decision in relation to the appellant. The appellant himself seems to have accepted that in his written submissions before your Honour. So that just really reinforces the point. There was nothing relevant about the father’s claims for the appellant’s claims before the tribunal. Of course, if he wished to say there was, then he could have done that, but there’s no suggestion in the tribunal’s reasons that he ever said anything to that effect, and his claims were rejected because the tribunal didn’t think he was telling the truth about what had happened to him, not what had happened to his father.

(Transcript pp 4-6.)

25    Despite asking the appellant to elaborate on this ground, the meaning of this contention remains unclear to me. So far as I can ascertain, the appellant contends that the interviewing officer of the Department had the file of the appellant’s father rather than the appellant, and further that information concerning the appellant and his father were not provided to the Tribunal. However this issue was not raised before the primary Judge, it does not appear that the appellant claimed before the Tribunal that there was any confusion about the file, and to the extent that the appellant claimed absence of information provided to the Tribunal this appeared to relate to the s 438 certificate (and therefore is of no assistance to the appellant for the reasons I have already set out). In my view this ground of appeal lacks merit.

26    Second, the appellant complains that whilst he appeared before the Tribunal, he was not provided with the opportunity to make submissions and was not asked to provide substantial evidence or documents. I do not accept this proposition. On 2 September 2014, the appellant attended a hearing before the Tribunal. Whilst the transcript of the Tribunal hearing was not provided to the Court, the Tribunal’s reasons are detailed and refer discussions between the Tribunal member and the appellant in relation to his claims. The Tribunal also received written submissions from the appellant’s representative dated 16 September 2014 and 23 October 2014. It is clear that the appellant was provided with numerous opportunities to make submissions to the Tribunal and to provide relevant evidence or documents. If the appellant failed to provide relevant documents or evidence, this does not constitute a jurisdictional error on the part of the Tribunal.

27    Further, and as the primary Judge noted at [45]-[48], the Tribunal was not required to invite the appellant to a second hearing to discuss the Tribunal’s intention to use particular information to reject his application, especially where this information was put to the appellant at the hearing.

28    Third, the appellant sought to rely on the grounds of appeal before the primary Judge, namely, that the Tribunal failed to consider the appellants fear of harm in the context of complementary protection, the Tribunal made findings based on no evidence, the Tribunal’s decision was illogical and unreasonable and that the appellant was denied procedural fairness. The appellant has not identified how his Honour erred in examining, and determining, these issues. This ground of appeal has no merit.

29    In my view, the appropriate order is to dismiss the appeal with costs.

Associate:

Dated:    28 August 2019