Materiality
119 The primary judge held that, in circumstances where the Tribunal was providing the appellant with an opportunity to explain a concern expressed by the Tribunal as to the failure to include all his claims in his Protection Visa application, any failure by the Tribunal to warn the appellant that he could claim privilege did not deprive the appellant of a favourable outcome and thus was not material (Reasons [81]).
120 The appellant submits that the Tribunal's adverse credit finding against the appellant was based on three distinct matters: his failure to raise the claims in his application; his delay in making the application; and his return trips to India. As was submitted by the appellant, central to the Tribunal's adverse credit finding was the appellant's failure to raise the claims about past harm in his application.
121 It is appropriate to note that since April of 2015, s 423A of the Migration Act has required the Tribunal to draw an adverse inference in relation to the credibility of a claim that is raised by an applicant for a protection visa that was not raised in the application before the primary decision maker unless the Tribunal is satisfied that the applicant has a reasonable explanation as to why the claim was not raised before the primary decision was made. This section was inserted into the Migration Act by the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) and entered into force on 18 April 2015 (s 2(1)) but only applied to applications for protection visas made on or after 14 April 2015 (s 15(4)). As the appellant's application was made on 22 December 2014, this section is of no application. However, although there was no requirement that the Tribunal draw an adverse inference on the basis of the additional claims that were made subsequent to the decision of the Delegate, the Tribunal was entitled to do so should such an inference be reasonably open.
122 The adverse credit finding was in the following terms (AAT Reasons [95]):
The Tribunal is satisfied that the applicant has attempted to shift the blame to his previous migration agent in completing the written application and suggesting problems with the delegate interview to account for the problems that the Tribunal has with the applicant's evidence, but that is not the case. The Tribunal is satisfied that the deficiencies in the applicant's evidence are due to the fact that his claims are a fabrication.
123 The relevant principles relating to materiality were considered recently by the Full Court in the context of a failure to consider a matter in the context of a decision not to exercise the power conferred by s 501CA(4). In PQSM v Minister for Home Affairs [2020] FCAFC 125, Banks-Smith and Jackson JJ (Mortimer J dissenting) considered the recent High Court decisions Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421. Their Honours summarised the principle to be applied in the following terms at [139]:
It is sometimes said that the reasons of the majority in SZMTA represent no departure from Hossain. To the extent that this means that Hossain and SZMTA are consistent with each other, that is correct. But in SZMTA it was necessary to say where the threshold for materiality lay, and there is no warrant in our view to disregard the repeated statements by the majority to the effect that an error will be material, and so jurisdictional, only if there could 'realistically' have been a different decision if the error had not been made. It is open to debate whether that is, in truth, a departure from the standard of materiality applied in Hossain, or even a departure from Peko-Wallsend or other previous High Court decisions that apply the concept of materiality or an analogue of that concept. But in our respectful view the debate is an arid one: the majority in SZMTA has expressed the threshold in clear terms.
124 As the Full Court said recently in XFCS v Minister for Home Affairs [2020] FCAFC 140 at [46]:
Where materiality is in issue, it is a question of fact whether there could realistically have been a different decision. "[I]t is a question the court must resolve on the basis of the evidence and inferences available, including the reasons of the Tribunal or other decision-maker under review": PQSM at [151]. It follows that, on appeal, an appellant who challenges a finding that a matter that would otherwise be jurisdictional in character was not material must identify factual error by the primary judge.
125 The onus of proof is on the appellant: SZMTA at [46]. The appellant submits that had the Tribunal properly exercised its power and not fallen into jurisdictional error, it either would not have asked the impugned questions at all, or would not have done so without first asking the appellant whether he wanted to obtain legal advice before answering the question or whether he was aware of his right to claim privilege. The appellant submits that had the questions not been asked at all, different credit findings might have been made. Alternatively, if he had been appropriately warned, the appellant may have sought legal advice and identified that his former migration agent was a necessary witness.
126 The respondent submits that, in circumstances where the appellant sought to deploy the communications with Mr Chaudhry to his advantage before the Tribunal, the most likely inference is that "he would have done nothing differently" had a warning been issued.
127 As summarised above, the Tribunal made adverse credibility findings against the appellant on three bases: the additional claims, the delay in filing the protection application and the appellant's trips to India.
128 It is likely that the appellant's answer to Q16, that "I did tell [Mr Chaudhry] everything, but they, they said at this stage you just submit a summary of the event and we'll give the details at a later date" informed, in part, the Tribunal's view that the appellant had sought to shift the blame for the omission of significant claims (AAT Tribunal [95]). However, that finding is at the conclusion of the Tribunal's assessment of the appellant's credibility in relation to the additional claims. It is apparent the reasoning of the Tribunal in respect to that assessment is based on the seriousness of those claims by comparison with those in the original application, and to the Delegate. It is also apparent that it includes reasoning based on his evidence in the Tribunal unrelated to the answer to Q16 (or any of the impugned questions). That reasoning applies irrespective of and unaffected by the answer given to Q16 (or any of the impugned questions).
129 The Tribunal stated (AAT Reasons [87]-[95]):
87. The Tribunal asked the applicant why he did not tell the delegate his story. The applicant told the Tribunal that he just answered the questions but did not give the delegate full details. When asked why the applicant did not do so, the applicant told the Tribunal that so many things had happened and he did not give details of the events. When asked why the applicant did not do this, the applicant told the Tribunal that at the time he was nervous and he was trying to be brief when asking questions. He told the Tribunal that he was under the impression that he would submit more details after the interview.
88. The Tribunal asked whether the applicant raised claims with the delegate after he was given a break to confer with the migration agent. The applicant said he did. The applicant told the Tribunal that the migration agent advised him through the interpreter, but because his original migration agent (the person assisting to complete the written protection visa) was different to the one he had in the interview, there was some confusion. The applicant told the Tribunal that there was a discussion about Sikhs having problems in India but that it was not mentioned in the correct way as it should have been.
89. The applicant told the Tribunal about some of the difficulty he experienced in Thailand. He told the Tribunal that he had been locked in a showroom with a friend named [friend's name] after the applicant had gone to customers who had been making partial payments for goods but had stopped doing so. He was told that if he was asking for money that was owed he would be arrested. He told the Tribunal that he was locked in the showroom for a short time (about 10 to 15 minutes) while those customers were ringing around to try and get the applicant and his friend arrested. The applicant was pushed, made to sit down and was told that his captors "would fix you". The applicant told the Tribunal that he could not escape because the door was further away and had been locked. The applicant told the Tribunal that he was very scared. The applicant told the Tribunal that by chance, police arrived and he and his friend were freed as a result of that attendance, because police were there due to the police's own problems with the customers. The Tribunal asked the applicant whether he had told the police what had happened and he said he did not. When asked why, the applicant said that the police did not ask him anything. The police told the applicant and his friend to go out because the police were going to lock the showroom. The police assumed that the applicant and his friend were just ordinary customers.
90. The Tribunal asked the applicant whether he had previously been detained by Indian authorities and he said that had. The applicant told the Tribunal that he had been detained many times, but he had been locked up for three days and two nights on three occasions and was tortured. He told the Tribunal that if the police could not find him at home, they used to come after his other family members, and on one occasion tortured his brother to find out the applicant's whereabouts. The applicant told the Tribunal that there were no outstanding cases against him in India, but he was worried that the authorities in India would come and torture him again with false allegations.
91. The applicant told the Tribunal that in India, not only had he been arrested, but so had his customers who had come to his shop for measurements. He told the Tribunal that since being in Thailand, police continued to attend his family home in India. He was made aware of this from speaking with his family. The Tribunal asked how often the police attended the family home in India between 2001 and 2014 when the applicant was living in Thailand. The applicant told the Tribunal that he did not know exactly. His family used to tell him when the police attended, but it was at least twice a year. The applicant told the Tribunal that recently a friend of his who was with his brother in India let his brother know that the police were still looking for the applicant, and asked the friend to let police know when the applicant returns to India.
92. The applicant's oral explanations to the Tribunal about his failure to provide some meaningful detail of his claims in his written protection visa application concerning his past claimed harm in India are not persuasive. The Tribunal does not accept that the applicant, who availed himself of the migration agent to complete the form, had three meetings in the preparation of his written protection visa application, would not have provided this information in his written application. The Tribunal does not accept that the applicant's previous migration agent would act in such a way as to disadvantage the applicant's protection visa claim, because it would inevitably result in concern being raised about the credibility of a late claim being raised by the applicant. The applicant's written protection visa application makes no mention of the now claimed occurrences in India, claims that he was being targeted because of his Sikh religion, or anything other than a claim that he had had difficulty in his business dealings with customers who did not come good on his payments for the applicant's services, and that he started receiving threats just before travelling to Australia from Thailand. He was told that they would not leave him alone in India or Thailand, [and] that he had threats to his life in India and Thailand.
93. Further, the fact that the applicant, who according to the evidence he gave to the Tribunal, had been falsely imprisoned in a showroom in Thailand by these creditors, yet no mention of that is contained in his written protection application is of great concern to the Tribunal. The Tribunal finds it incredulous that that this incident would not be mentioned, in favour of mentioning 'threatening calls and messages' that the applicant received following arrangements for his trip to Australia, especially in light of the applicant telling the Tribunal that he was very scared during his 10 to 15 minute false imprisonment by the creditors.
94. The applicant's explanation for failing to raise in his written protection visa application this incident in the showroom is not persuasive, telling [t]he Tribunal at the time he was not scared, despite earlier telling the Tribunal he was, and that the threats and messages had been ignored by him, and only concerned him when he found out there were connection between his customers in Thailand to people back in India he became scared. In the Tribunal's view, if the connection to individuals' (sic) in India was the aspect which made the threats to the applicant scared, that is even more reason to expect that the applicant would have raised his claims about past harm in India in his written application form.
95. When considering that applicant's claims about past harm, the Tribunal's view is that the applicant invented those claims for the purpose of a protection visa. He provided a compact narrative in his written application for protection, which in essence narrowed his claims to a business dispute, and after being unsuccessful at the delegate stage, has then fabricated an entire backstory for his time in India, and greatly expanded on his claims for his time in Thailand.
130 Assuming, contrary to the conclusions reached above about whether the impugned questions could properly have been the subject of a claim for legal professional privilege, if Q16 had not been asked, or if none of Q4, Q10, Q15 or Q16 had been asked, the adverse credit finding by the Tribunal was, in any event, a legitimate inference that was open to the Tribunal.
131 If those questions had not been asked the Tribunal was still considering a situation where the appellant made additional claims of substance in the Tribunal in a context where they had not been included in the written application for a Protection Visa, even in the most basic summary form, nor raised with the Delegate, and in a context where the appellant had raised a different additional matter before the Delegate which was not in his written application. This was also in a context where the appellant was assisted by a migration agent (who was a lawyer). Given those circumstances and the content of the additional claims, absent a reasonable explanation for the delay in raising these additional claims, an adverse inference against the appellant was capable of being drawn, and was the most probable conclusion.
132 That said, the appellant's failure to raise the claims in his written application for a Protection Visa was the basis of only one of three matters on which the Tribunal made adverse credit findings. Any question which might have been the subject of legal professional privilege involved no inquiry as to the reasons for the appellant's delay in lodging his Protection Visa application some 9 months after his arrival in Australia, nor did they inquire into the reasons for the appellant's 10 trips to India whilst he was still living in Thailand, despite his fear of persecution in India.
133 In relation to the appellant's delay in lodging his application the Tribunal noted that the appellant had claimed in his written application for a Protection Visa that he had received threatening phone calls and messages just before he left Thailand. As noted above, the Tribunal found that it "cannot accept that the applicant would decide to lodge a claim for protection in Australia some 9 months after arrival, when he was unlawfully in Australia, if his claims were genuine. His evidence about the delay was vague and unconvincing" (AAT Reasons [100]).
134 In relation to his several return trips to India, the Tribunal noted that in a submission filed with the Tribunal prior to the hearing, the appellant stated that he returned to India for one week in 2011 to marry his wife. The Tribunal formed the view that the appellant:
deliberately omitted [this travel] because it would have raised concerns that the applicant did not actually fear returning to India, and would undermine the credibility of the applicant's claims. The Tribunal does not accept that the applicant would return to India 10 times (and by implication, return to Thailand where he also allegedly fears harm) if his claims about past harm and concern for future harm, were true. (AAT Reasons [104]).
135 It is difficult to see that there could realistically have been a different decision by the Tribunal given its findings in relation to the issues of delay and the return trips to India. Those findings were not dependent upon the adverse finding of credit in relation to the detail put in the original application. Indeed, the finding in relation to the delay in the application was based squarely on the claims made in the original application. Similarly, the adverse finding in relation to the return trips to India was based on the omissions made in the original application in the context of his claims in that application: "I had threats to my life both, in India as well as Thailand. I fear for my life if I return to Thailand or India".
136 As to the appellant's submission that, if the questions had been asked and a warning given, the appellant may have sought legal advice and identified that his former migration agent may have been called as a witness, there was no evidence before the FCC as to the appellant's understanding, or as to what he would have done had he been made aware of his right, if any, to claim legal professional privilege. This suggests that the failure by the Tribunal to give a warning made no difference to how the appellant would have acted. Moreover, as the respondent contended, the appellant sought to rely on his communications with Mr Chaudhry, to his advantage. This is in the context where the appellant could have, but did not, call his lawyer as a witness in the Tribunal to support his evidence. The significance of an explanation for the additional claims was evident, as reflected by the appellant volunteering one when asked about the accuracy of the original application. The relevance of evidence from his lawyer was readily apparent regardless of the questions or an absence of a warning as to legal professional privilege.
137 Any such evidence would not have cured the deficiencies in relation to the appellant's delay in applying for a Protection Visa, nor his return visits to India (via Thailand) despite his alleged fear of persecution in those two countries. The required threshold for materiality has not been met: SZMTA, per Bell, Gageler and Keane JJ at [45].
138 The primary judge was correct to conclude that the failure by the Tribunal to advise the appellant that he could claim legal professional privilege did not deprive him of a favourable outcome and so was not material. There was no jurisdictional error on the part of the Tribunal.