CFM15 v Minister for Immigration and Border Protection

The Ground of Appeal 8 The sole Ground of Appeal relied upon before this Court provides as follows (without alteration): 1. The Federal Circuit Court erred in failing to act on the Order of the Federal Court of Australia dated 9 August 2016. Particulars a. The Federal Circuit Court failed to have regard to the affidavit of John Sweeney affirmed 6 May including an outline of submissions dated 6 May 2016 which were faxed to the Federal Circuit Court Registry on 9 May 2016 but not filed in the matter; and b. In failing to consider these documents was procedurally unfair. 9 The Ground of Appeal, as drafted, is without substance. 10 During the course of the hearing, concern was expressed as to the Ground having no apparent merit and the circumstances in which it came to be drafted. That concern was founded upon the question of whether or not independent consideration had been given to whether any other Ground was available upon which a successful challenge to the decision of either the Tribunal of the Federal Circuit Court Judge could be potentially advanced. 11 During the course of the hearing, the Appellant (with the assistance of his interpreter) explained that: the basis upon which he claimed that this Court should intervene is that he feared for his life if he returned to Sri Lanka; he wished to tender copies of newspaper articles to which reference had been made by the Tribunal and which assumed some relevance in the Tribunal's conclusions; and as at March 2017 he had retained a solicitor in Canberra to provide assistance. But: the first of those submissions inevitably confronted the difficulty that it is no part of the function of this Court to make findings of fact different to, let alone inconsistent with, those findings as had been made by the Tribunal: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50 at [23], (2015) 90 ALJR 197 at 203 per French CJ, Bell, Keane and Gordon JJ. See also: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [58], (2016) 237 FCR 1 at 18 per Griffiths J (Allsop CJ and Wigney J agreeing). And, on the facts of the present case, adverse findings had been made; the newspaper articles which the Appellant wished to tender or otherwise make available to this Court were not able to be produced at the hearing as he had not brought a copy with him to Court; and contact between the solicitors for the Respondent Minister and the Canberra solicitor had apparently met with the response in May 2017 that that solicitor would not be appearing on behalf of the Appellant for the purposes of the current hearing. 12 In addition to the newspaper articles to which the Appellant referred during the hearing, it was also understood that he wished to tender other evidence as well. During oral submissions, he thus stated: Because of the protection I needed in this country, I was clueless about the proceedings. Because I am unable to return to Sri Lanka, I told the real story to a friend of mine and then I got it written. I was never informed that I needed witnesses or evidence. I was told that I should present a protection visa application. Later, with the assistance of another friend in Australia, I became familiar with Mr John Sweeney. He is the one who did ask my case worker. He never asked me anything in particular to be presented to demonstrate the fact that I have problems. However, at this moment I do have evidence about my friend, Sugat, being killed. All the medical reports and Sugat's death certificate and the hospital reports relevant to my leg being broken, a copy of the police complaint or entry made by my wife prior to the day of the death and later, given by a Buddhist Monk in a temple in our village confirming the threats to my life. No one previously informed me that I needed all this evidence. About two, three months ago I do now have a lawyer in Canberra and he is the one who informed me that I needed such and such evidence for my case. I am able to produce any document to prove that my life is in danger in order to support my application for protection. But if this submission is to be construed as an attempt to tender further evidence on appeal, it also confronts a number of difficulties, including the fact that the task of this Court: is to conduct an appeal from the decision of the primary Judge and, although on appeal this Court can receive fresh evidence, there was no explanation as to whether any further material sought to be tendered was also sought to be tendered before the Federal Circuit Court and if not, why not; and is not (again) the task of making findings of fact, especially findings contrary to those made by the Tribunal. 13 The Court was thus left with the task of resolving the Ground of Appeal as set forth in the Notice of Appeal. No other ground of challenge was self-evident upon a fair reading of the Tribunal's reasons for decision. Those reasons were substantially founded upon an adverse assessment as to the credit of the Appellant.

A failure to consider the affidavit and submissions 14 In resolving this argument, it may readily be accepted that the Appellant was entitled to procedural fairness before the Federal Circuit Court and that an aspect of the requirement to afford procedural fairness is to consider the claims as made and the evidence relied upon. Falling short of those cases where a decision-maker's mind is so foreclosed as to be unwilling to genuinely consider claims made such as to manifest a reasonable apprehension of bias are those cases where it can be shown that a decision-maker has not even turned his mind to a claimant's case. In NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77, (2005) 228 CLR 470 at 526, Callinan and Heydon JJ thus concluded: [172] … unfairness can spring not only from a denial of an opportunity to present a case, but from denial of an opportunity to consider it. Failure by the Tribunal to consider a case can arise not only from obstruction by the Tribunal of its presentation but also from self-disablement by the Tribunal from giving consideration to that presentation by permitting bias to affect its mind: either way the case is prevented from having a fair impact on the Tribunal's mind. Another way in which the Tribunal can disable itself from giving consideration to the presentation of a case arises where it permits so much time to pass that it can no longer assess the evidence offered. There can, with respect, be no more blatant an example of a denial of procedural fairness than those (hopefully rare) cases in which it can be demonstrated that a claimant has been given the time and the opportunity to advance a claim, but to a decision-maker who (for whatever reason) has simply not heard that which has been put: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [389], (2013) 210 FCR 505 at 577 to 578 per Flick J. Although it may be difficult to prove that a decision-maker who sits through a hearing has simply not listened to that which is being said by a claimant, the failure to listen need not be confined to those cases where a decision-maker has "deliberately" refrained from listening. For a decision-maker to sit through a hearing but not listen to what is being said is no better than a decision-maker who sleeps through a hearing: cf. Orgona v Minister of Citizenship and Immigration (2001) 105 ACWS (3d) 123. It is an even more blatant example of a failure to consider the claims being made than are exposed by those cases in which a decision-maker remains attentive to what is being said through a hearing but for some reason resolves some, but not all, of the claims being made: cf. Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24], (2003) 73 ALD 321 at 326 per Gummow and Callinan JJ; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [42], (2001) 233 FCR 136 at 152 to 153. A decision-maker must remain "attentive to the evidence presented by the parties and to the submissions which they make": Cesan v The Queen [2008] HCA 52 at [71], (2008) 236 CLR 358 at 380 to 381 per French CJ. 15 It may also readily be accepted that a decision-maker need not refer to every piece of evidence before it: Minister for Immigration and Citizenship v Pemberton [2010] FCA 430 at [35] per Besanko J. 16 But the Ground of Appeal in the present appeal is without substance for the simple reason that the Federal Circuit Court Judge on the facts of the present case did in fact refer to and take into account the evidence that the Appellant contends was not considered. 17 The Federal Circuit Court Judge expressly referred to the affidavit and the outline of submissions identified in the Ground of Appeal. The reasons for decision of that Judge thus relevantly state as follows: [25] The documents which were unconsidered at the earlier show cause hearing comprise written submissions made on behalf of the applicant on 6 May 2016, and an affidavit made by John Sweeney on 6 May 2016 which introduces a transcript of the hearing conducted by the Tribunal. At no stage were those documents included in this Court's electronic file relating to this matter. It was ultimately necessary for my chambers staff to obtain them from the Federal Court appeal file. [26] In addition to those documents, I received from the Federal Court file the affidavit of Mr Sweeney, made on 16 June 2016, explaining the circumstances in which the relevant documents were not dealt with by the registry. 18 Nor could any submission prevail that the Federal Circuit Court Judge thereby merely noted that he had such documents before him but failed thereafter to take into account their contents. 19 For example, the affidavit of Mr Sweeney annexes the transcript of the Tribunal hearing. The "written submissions made on behalf of the applicant on 6 May 2016", again by way of example, state as follows: 1. These submissions are to show cause why the matter should proceed. 2. The transcript of the interview shows that the matter of the newspaper cuttings is raised twice. The first time at line 92 until line 98. The only other time it is discussed was at the very end of the interview where the Tribunal asked that it be photocopied for the Tribunal's records. 3. From line 288 until line 356, the Tribunal formally puts information to the Applicant about the possible adverse consequence of information that the Tribunal may rely upon. Nowhere in that section is the issue of the newspaper cuttings raised as possibly being adverse to the applicant. 4. A hearing should be set. 20 The fact that the Federal Circuit Court Judge took both the submissions and the transcript annexed to Mr Sweeney's affidavit into account emerges from the following observations of that Judge in his reasons for decision: [33] … The issue in the review here was the applicant's credibility. The newspaper cut outs were simply an item of evidence bearing upon his credibility. It is clear from the transcript, that the Tribunal put the applicant on notice about its credibility concerns regarding his claims. [34] In my opinion, no specific reference to the newspaper cuttings in relation to that credibility concern was necessary. In any event, it is plain from the transcript at about line 97 that the Tribunal made clear that it did not find the newspaper cuttings at all helpful. [35] I otherwise agree with the Minister's submissions concerning the ground of review. [36] In his written submissions, the applicant states that the transcript of the interview shows that the matter of the newspaper cuttings was raised twice, and that the only other time it was discussed was at the very end of the interview where the Tribunal requested that it be photocopied for the Tribunal's records. 21 The Federal Circuit Court Judge did in fact take into account both Mr Sweeney's affidavit and the submissions made. The sole Ground of Appeal therefore fails.

CONCLUSION 22 The appeal is to be dismissed with costs.

THE ORDERS OF THE COURT ARE:

1. The appeal is dismissed.
2. The Appellant is to pay the costs of the First Respondent. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.