CJU15 v Minister for Immigration and Border Protection

1. The appeal be allowed.
2. The First Respondent pay the Appellant's costs.
3. The orders of the Federal Circuit Court made on 10 April 2017 be set aside and in lieu thereof order that: (a) There issue absolute in the first instance a writ of certiorari to quash the decision of the Tribunal made on 21 October 2015 in matter CLF 2013/296912. (b) There issue absolute in the first instance a writ of mandamus to the Tribunal to compel it to decide the matter according to law. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 The Appellant is a citizen of Fiji who applied for a protection visa on 27 November 2013. That application was refused by a delegate of the Minister and that decision was, in turn, affirmed by the Administrative Appeals Tribunal ('the Tribunal') on 21 October 2015. An application for judicial review of the Tribunal's decision on the basis of jurisdictional error was dismissed by the Federal Circuit Court on 10 April 2017: CJU15 v Minister for Immigration [2017] FCCA 424. It is from the orders of that Court that the Appellant now appeals. For the reasons that follow, the appeal should be allowed with costs. 2 Although the Appellant's notice of appeal nominated four grounds of appeal, only one of these - ground 1 - was pursued at the hearing. It involved the contention that the Appellant had been denied procedural fairness by the Tribunal and the Federal Circuit Court had erred in not so holding. 3 The alleged denial of procedural fairness concerned the Tribunal's treatment of what purported to be an undated signed statement from a member of the Fiji Military Forces to whom it is useful to refer as Mr V. The statement by Mr V was evidently intended to corroborate the Appellant's claim that he had a well-founded fear of persecution if returned to Fiji. The basis of the Appellant's claim for protection was that he had worked in the Fiji Police Force since 1989 and had been involved in investigations into allegations against military personnel. In particular, he claimed to have been involved in the investigations into the army mutiny of 2000 and the military coup of 2006. As a result, the Appellant said he was in possession of information which could, if revealed, result in the sentencing to a period of imprisonment of the current Prime Minister of Fiji, the Right Honourable Josaia Voreqe Bainimarama. Commodore Bainimarama had been the Commander of the Armed Forces at the time of the 2000 mutiny and led both the 2000 counter-coup and the subsequent 2006 coup. The information allegedly possessed by the Appellant included the fact that he claimed, in 2000, to have seen a number of brutally executed bodies in a container in the course of an investigation to which he was assigned. These were bodies of soldiers of the Counter Revolutionary Warfare Unit ('CRWU'). Disgruntled soldiers in the CRWU had supported the first mutiny in 2000 when forces loyal to George Speight took control of the Parliament. It was that which had led to the successful counter-coup by Commodore Bainimarama. A subsequent second mutiny by soldiers in the CRWU in the same year also failed. The suggestion, as we understood it, was that CRWU had suffered very badly at the hands of the rest of the military under the command of Commodore Bainimarama. The Appellant's investigation into the bodies of the CRWU soldiers found in the container carried with it the suggestion that the military force of Fiji (under Commodore Bainimarama) had executed rebel soldiers (with great brutality on the Appellant's account). If true, it suggested the commission of serious crimes. 4 Mr V's statement suggested that he had told the Appellant that he should leave Fiji because the military were pursuing him as he had a 'gadget' containing sensitive coup-related information. The relevant finding by the Tribunal was at [132] and was in these terms: 'The Tribunal notes that one of the witness statements suggests that the applicant may have been in possession of a "gadget" or electronic device containing sensitive information. However, this claim has not been made by the applicant himself at the Department or the Tribunal… The Tribunal is not satisfied that the applicant was, for several years prior to his departure from Fiji, or continues now to be, of interest to the authorities…' (grammatical and typographical errors in original corrected) 5 The Tribunal then went on to conclude that the Appellant did not have a well-founded fear of persecution. As it happens, the delegate had also concluded that he should not rely upon the statement of Mr V. He did so, however, on the different basis that he was not satisfied that the document was authentic. He noted that it was undated and merely a photocopy. 6 There was a difference, therefore, between the way in which the Tribunal and delegate arrived at admittedly the same conclusion that Mr V's statement should not be relied upon. For the delegate it was because the document was not authentic. For the Tribunal it was because the version of events contained in the statement had not been advanced by the Appellant himself either before the delegate or the Tribunal. 7 The Appellant's submission is that the way in which the delegate decided the matter had put him on notice that he had to meet a case in the Tribunal that the statement was not an authentic document. However, he had no notice of any suggestion that the reliability of the document would be impugned because it was inconsistent with the claims he had himself made. This was the denial of procedural fairness upon which the Appellant relied. For the Minister, it was submitted that this misidentified the issue which had been decided. The question was not concerned with the reliability of Mr V's statement but instead with whether the Appellant had led enough evidence to satisfy the Tribunal that he was of ongoing interest to the authorities. 8 We would accept that the architecture of the Appellant's argument is supported by the High Court's decision in SZBEL v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2006) 228 CLR 152 ('SZBEL'). The way in which a delegate deals with a claim can legitimately leave an applicant on review with the impression that a particular topic has been concluded in the applicant's favour. In such cases, unless the Tribunal gives notice to an applicant that it proposes to do so, it will generally be procedurally unfair to determine that topic adversely to the applicant: see SZBEL at [47]. 9 The question here is whether the 'topic' is couched at a high level of generality ('the Appellant has not satisfied the Tribunal that he is of ongoing interest to the authorities') in which case the Appellant was on notice of it or at a lower level of generality ('the statement of Mr V was unreliable because it was inauthentic') in which case he was not. 10 The correct answer to that question turns on the reason one is asking it. In this case the immediate question is whether the Appellant has suffered a procedural unfairness. Unless the Appellant had a submission which could have been made if he had been put on notice of the inconsistency argument no unfairness arises. The question then is whether such a submission was available. 11 The Tribunal's point was that if the Appellant was relying upon his possession of what we assume was most likely a USB stick containing sensitive information about the military as a reason he was in danger from the military, then it might be expected that he would have mentioned that in the claims of persecution he made in his application. 12 Counsel for the Appellant submitted that there were two steps which could have been taken if the Appellant had been on notice that the issue was consistency between his own version of events and Mr V's statement rather than merely the authenticity of Mr V's statement. These were, first, that he could have called a witness - we assume Mr V - to give evidence. Secondly, he could have submitted that his claims already included the allegation that he held information adverse to the military. The additional fact that the information was on a USB stick was, so it was said, hardly an inconsistency. 13 We do not accept the first of these arguments. Calling Mr V to give evidence would not have assisted in demonstrating that Mr V's account was consistent with the Appellant's. Both accounts were already available. Once the inquiry was into whether they were consistent or not, further evidence really could not assist in the resolution of that issue one way or the other. 14 However, we do accept the second argument. The Tribunal accepted that the Appellant had claimed to the delegate that 'he was a witness who held information that could lead to Bainimarama being gaoled': [75]. He gave similar evidence before the Tribunal. We accept that that answer is at least consistent with the proposition that he held a USB stick with such information on it even if his evidence did not mention it. There is a contrary argument available. The answers he gave to the Tribunal in relation to this topic did not mention the USB stick when it might well have been expected that they would. The Tribunal summarised the evidence which the Appellant gave when asked what the information he held was (at [75]): 'The applicant told the Tribunal that when conducting interviews, people had told him that Bainimarama had given to shoot the CRW officers. The Tribunal asked the applicant whether, having taken the statements he was able to talk further about the events that followed the mutiny and what had happened to the CRW officers that were killed or what kind of orders had been given. The applicant told the Tribunal that the CRW went against them and the CRW officers had the worst injuries he had ever seen. They had been really brutalised.' 15 On this view, it would have been natural for the Appellant, if he held such a USB stick, to tell the Tribunal of its existence. It is possible to see force in that contention. On the other hand, when one resorts to the actual question asked by the Tribunal which elicited this evidence it is not necessarily self-evident that the answer would have required a reference to the USB stick. The question was this: 'All right. At one point during the departmental interview, you said to the officer that one of the reasons you were afraid to go back to Fiji was that you had information or you were a witness who could put Bainimarama in gaol. What do you mean by that? What information or what did you witness that would be a perceived threat by Bainimarama?' 16 It would not have been surprising to respond to this question by referring to the USB stick but it would also be quite understandable if the Appellant had not. It all rather turns on what is on the USB stick. If it is the Appellant's personal journal recording his day to day activities that might be one thing; if it contains video footage of military personnel engaged in misconduct, that might be another. We are not prepared to say in light of those observations that a submission on the Appellant's behalf that there was, in fact, no inconsistency between his claims and the content of Mr V's statement was without substance. 17 That being so, it seems to us that the manner in which the Tribunal proceeded has occasioned the Appellant a procedural unfairness. He came to the Tribunal to meet a case, inter alia, that the statement of Mr V was unreliable because it was undated and only a photocopy. The Tribunal rejected his case (on this aspect) because Mr V's statement was not consistent with the claims made by the Appellant in his own evidence to the delegate and the Tribunal. The Appellant had no reason to think at the time of the hearing that Mr V's statement might not be accepted because it was not consistent with his own evidence, a proposition which the delegate had not advanced. Had he been told that this was what the Tribunal was going to do, he had a submission, which was not absurd or outlandish, to meet it. In our opinion, this was procedurally unfair within SZBEL. 18 The Federal Circuit Court did not deal with an argument based on SZBEL. The procedural fairness argument it considered was slightly different. The issue at first instance seems to have been over whether the Tribunal had placed any weight on the statement of Mr V (and another man no longer material). The argument was that the Tribunal denied the Appellant procedural fairness by not telling him that it was going to give Mr V's statement no weight. It does not seem to have been pursued on the more concise basis that the denial of procedural fairness arose from the Tribunal's rejection of Mr V's statement on a different basis to that relied upon by the delegate. It is not suggested now by the Appellant that the Court below erred in rejecting the argument it considered. 19 This reveals that the argument now advanced was not advanced at first instance. A question therefore arises as to whether the Appellant needs leave to pursue the present argument. This was raised during the hearing of the appeal and the Appellant applied for leave to rely upon a ground not raised in the Court below. Leave should be granted. The First Respondent is not prejudiced by it in the sense that there is no additional material required to meet it. Further, on one view it may be seen as merely a more refined version of the argument run below. In any event, we are satisfied that not only is the point substantive but it is in fact correct. 20 We therefore detect no error in the reasons given by the Federal Circuit Court for rejecting the Appellant's case in the Court below. However, the correct result now that the proper ground is raised is that procedural unfairness under SZBEL is shown and relief ought to have been granted. In that sense, error is established in the Court below even though its reasons for arriving at the contrary conclusion cannot be faulted. 21 The appeal should be allowed with costs, the orders of the Federal Circuit Court made on 10 April 2017 should be set aside and in lieu thereof it should be ordered that the decision of the Tribunal made on 21 October 2015 in matter CLF2013/296912 be quashed by a writ of certiorari and it be ordered by way of a writ of mandamus to redetermine the matter according to law. The question of whether the Tribunal needs to be reconstituted for that purpose will be a matter for the President of the Tribunal under s 19A of the Administrative Appeals Act 1975 (Cth). I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Perram, Farrell and Gleeson.