DDX16 v Minister for Immigration and Border Protection - [2018] FCA 838 - FCA 2018 case summary — Zoe

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DDX16 v Minister for Immigration and Border Protection

[2018] FCA 838

Federal Court of Australia|2018-06-08|Before: Derrington J

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Court

Federal Court of Australia

Decision date

2018-06-08

Before

Derrington J

Source

Original judgment source is linked above.

Judgment (13 paragraphs)

[1]

Leave to amend the Notice of Appeal be refused.
The appeal be dismissed.
The appellant is to pay the first respondent's costs of the appeal to be taxed or as agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

[2]

Introduction 1 In this matter the appellant sought judicial review in the Federal Circuit Court of a decision of the Administrative Appeals Tribunal (the Tribunal), which was made on 27 September 2016. The Tribunal had affirmed the decision of a delegate of the Minister not to grant the appellant a protection visa. 2 This matter is noteworthy because of the credit findings made by the Tribunal in relation to the appellant. He had proffered to the Tribunal a number of grounds on which he sought to obtain a protection visa pursuant to s 36(2)(a) (under the Refugee Convention) and s 36(2)(aa) (the Complementary Protection Obligation) of the Migration Act 1958 (Cth). As will be discussed below the Tribunal found that the appellant lacked any credibility in relation to any of the claims he advanced and, indeed, it reached a state of satisfaction that his claims had been fabricated. 3 Included in the evidence advanced by the appellant was a letter, purportedly written by four persons who were said to be residents of the village where the appellant had previously resided in Lebanon, one of whom was or is the mayor of the village. The mayor also purportedly certified the letter. The Tribunal obviously rejected the veracity of the letter and, subsequently, the ground in support of which it had been proffered. 4 On the application for judicial review before the Federal Circuit Court, the appellant complained that the contents of the letter had been improperly rejected and the whole of the argument before that Court proceeded on this issue. That ground is no longer relied upon on this appeal. 5 At the hearing of the appeal the appellant abandoned the grounds in the Notice of Appeal and sought leave to amend it to raise a new ground which has not previously been relied upon. That course was opposed by the Minister. 6 It is necessary to set out the background of this matter to provide the context in which the application for leave to amend is made.

[3]

Background 7 The appellant is a citizen of Lebanon who, most recently, entered Australia on a sponsored family visitor visa on 25 October 2014. On 8 December 2014, he made an application for a subclass 866 protection visa. That application was made through his then solicitor Mr B. 8 The appellant provided an initial statement in support of his application. In it he founded his claim upon the assertion that he had been a Lebanese intelligence informant. He claimed that he had been an employee in a petrol station in a specified location in Lebanon and that he was approached by a member of the Lebanese intelligence who inveigled him to become an informant and to report any suspicious or relevant information about people in his village. He said that he called the intelligence regularly if he saw anyone new arrive in the village or any new groups forming. He says, however, that after a while he felt that he was of no further use to the Lebanese intelligence and he believed people in the village knew about him being an informant. 9 On 14 February 2015, the appellant added further paragraphs to his initial statement. In those additional paragraphs he alleged that from September to December 2014 (while he was in Australia) news spread in his village that he was working for the Lebanese intelligence and then, in October 2014, the Lebanese army conducted raids in and around his village. In particular a number of arrests were made. He claims that since that time many groups of long-bearded men stopped at the petrol station where he had previously worked asking for his whereabouts and threatening him. He says he has been told this by the station owner. 10 At the Tribunal hearing the appellant asserted that the contents of his interview with the Immigration Department had been misinterpreted and errors had been made. He also claimed that his previous advisor, Mr B, had added information into his statements which he had not said and that he hid somethings from him. He claimed that his statement had been falsified by Mr B. Although he had not complained previously, he claimed that he was intending to do so as at the date of the hearing. Despite that he had previously indicated that the content of his statements was true and correct. The Tribunal pointed out a number of inconsistencies in his statements and noted that he was not able to provide any coherent explanation for them. He alleged that he was not told what was in the statements and that Mr B put various matters in there. He also claimed that he may be able to obtain documents to prove that he worked for the Lebanese Government. 11 At the Tribunal hearing he made a number of inconsistent statements about his claim to be an informant for Lebanese intelligence. He said that the intelligence officer was, in fact, a local police officer. He claimed that he had been given a government identity card although it appeared to be merely a weapons licence. He suggested that if he showed this card to anyone there it would prove he was working for the government. That said, he gave a rather poor explanation as to why it was not an ordinary weapons licence. 12 The appellant also gave an account of the occasion when, so he says, four men with long beards attended at the service station. In this statement he made additional allegations suggesting that these people were involved with ISIS and that they were carrying significant weaponry. He also claimed that he followed them for some distance, saw where they went, rang the intelligence officer who recruited him and waited for him to arrive. In relaying this story he also asserted that he had numerous contacts with the intelligence officer. He said that he showed the intelligence officer where the terrorists were located. He claims that, as a result of his actions, some of the terrorists were killed and others were arrested 13 days later. It should be noted that he gave various statements as to the date of those arrests. He said that people began calling him on his phone and telling him that he would be killed because he was working for the government. He also claims that he received various other threats, his car tyres were slashed and he received threatening phone calls. He claims that he hid in an underground room that no one else in his family used. He gave evidence that nothing happened to the other members of his family. 13 At the Tribunal hearing the appellant also made further allegations concerning Mr B. He said that he and Mr B had a falling out over fees, that Mr B went to Lebanon on a holiday and told someone from his village that the appellant had told the Australian Government that ISIS was in the village which is why people from that village would not obtain visas to enter Australia. The Tribunal noted that the village Mukhtar (the Mayor) had signed a letter to this effect. The Tribunal quizzed him as to why he had not raised this issue earlier given that it allegedly happened a year prior to the Tribunal hearing. In response he claimed that he was helpless until he found his present lawyer. The appellant's wife gave evidence of what she said was a conversation which she overheard concerning Mr B and that her husband would be a dead man if he returned to Lebanon. 14 The Tribunal put to the appellant the inconsistencies in his story about being recruited as an intelligence informant and his various versions of what he told the Lebanese intelligence services. It was also put to him that the documents which he had produced, which he claimed were top secret, were most unlikely to have been in his possession if they were, in fact, top secret.

[4]

Decision of the Tribunal 15 The Tribunal identified that the two claims advanced by the appellant were that if he were forced to return to Lebanon he would be killed by Islamic State because he had reported them to Lebanese Intelligence and, secondly, he would be killed by villagers because a story had been circulated that he told the Australian Government that Islamic State was present in his village with the result that no visas would be issued to people from that village. 16 At [35] of the Tribunal's reasons it said: 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 find that he fabricated his entire claim in order to be granted a protection visa. 17 In relation to the appellant's claim that he worked for Lebanese intelligence and that he informed on a group of Islamic State fighters, the Tribunal disbelieved him for a number of reasons, including: (a) It was unlikely that a petrol station attendant (being the position held by the appellant) would be recruited as an Intelligence informant. (b) There was inconsistency in the appellant's evidence as to who had actually recruited him. In the first instance he said the person was a member of Lebanese intelligence, but subsequently he said that it was a local police officer. (c) There was also significant inconsistency in the appellant's story as to when and how contact was made between him and Lebanese intelligence. These stories advanced by him were substantially different and this did not arise from an interpreting error. (d) It was not accepted that he was provided with a special identity card by the intelligence officer which identified him as working for the government. The document given was an ordinary weapons licence which was routinely issued by the Ministry of Defence. (e) The Tribunal did not accept the appellant was an informer or that he reported a car full of jihadists who refuelled at his petrol station. There were many inconsistencies in relation to this claim. (f) The Tribunal rejected his claim that he was called on his phone and threatened with death as a consequence of his reporting. The Tribunal also disbelieved that his tyres were slashed or that he was forced to live underground in his family home. (g) The Tribunal did not accept the proposition that if Islamic State had become aware he informed on them they would not harm his family. It was aware of the nature of the violence inflicted by Islamic State such that they would not have hesitated to wreak revenge on his family if they actually believed that he was an informant. (h) The Tribunal doubted the veracity of various documents handed over to it by the appellant. It was concluded that it was most unlikely he would be in possession of top secret documents. 18 Similarly the Tribunal did not accept that Mr B had visited the appellant's village and informed the villagers there that the lack of visa approvals for people from that village was due to the fact the appellant had informed the Australian Government that Islamic State was present in their village. The reasons were: (a) That it was most unlikely that this extremely serious accusation against a lawyer/migration agent would not have been the subject of a formal complaint. (b) It was disingenuous to suggest that the appellant had, only on the day of the hearing, decided to make a complaint about Mr B in relation to his alleged conduct in Lebanon. (c) The Tribunal did not accept that people in the Lebanese community were loath to take action against the lawyer. (d) The Tribunal rejected the applicant's wife's evidence on this topic as well. (e) The Tribunal rejected that Mr B, as the appellant's advisor, had added things to his statement without his knowledge. There was much inconsistency as to the appellant's evidence about his statements and why they contained so many inconsistencies. (f) The Tribunal disbelieved the appellant's wife's suggestion that, when she was in the appellant's home village, she overhead the conversation of a number of men playing cards saying that the appellant was "a dead man" because of what he had done. (g) In relation to the letter from the villagers, including from the mayor, the Tribunal relied upon the country information which indicated that letters from local mayors are not normally considered as reliable sources of information. The handwritten note was identified as being vague and containing few details which supported the appellant's claim. It had also been partly written by the appellant's niece and nephew and partly by the local mayor. The Tribunal placed more weight on the appellant's lack of credibility as a witness than on the statement. 19 The Tribunal also rejected the appellant's claim that someone from Lebanese intelligence had told members of the community that he was an informant as well as his claim that bearded men were looking for him. 20 As a result, the Tribunal found that neither of the appellant's claims had been made out. It confirmed the delegate's decision not to grant the appellant a protection visa.

[5]

The decision of the Federal Circuit Court 21 Before the Federal Circuit Court the appellant did not contend that there was any jurisdictional error in the Tribunal's rejection of his claim that Islamic State would kill him if he were to return to Lebanon because he had been reporting on them. He claimed that the Tribunal erred in rejecting his second claim concerning the activities of Mr B. It was submitted that there was no evidentiary basis for the rejection of the statement from the villagers which had been endorsed by the mayor. The essence of the claim appears to have been that the Tribunal wrongly relied upon country information to the effect that letters from local mayors in Lebanon are not normally considered as reliable sources of information. It was argued that this was irrelevant to the letter under consideration because the letter was from four people (including the mayor) and then purportedly authenticated by the mayor. The learned judge at first instance held that no error was involved in the Tribunal's decision. It was held that: (a) It was clear that the appellant's evidence was generally rejected on credibility grounds and that all of his claims were rejected as a fabrication. (b) It was accepted that the country information concerning the propensity of local mayors to falsify documents applied to the letter in question which was both by the mayor himself and purportedly authenticated by the mayor. (c) The country information relied upon provided evidentiary support for the rejection of the assertions by the four villagers including the mayor. It was appropriate to reject the mayor's role in the preparation of the document and only a short step to support the conclusion by the Tribunal that, because statements by mayors could not be relied upon, the document certified by a mayor could, equally, not be relied upon. (d) It followed that there was not a complete absence of evidentiary support for the Tribunal's rejection of the document and hence the ground in the application failed.

[7]

The proposed Amended Notice of Appeal 24 In the proposed Amended Notice of Appeal only one ground is advanced. It is: The decision of the Federal Circuit Judge is in error as the Judge erred in not finding that the Tribunal had failed to comply with s 424A of the Act in respect of the Tribunal member's own experience in Lebanon in April 2016 and December 2015 on previous visits. 25 The question surrounding the application of s 424A arose as a result of a discussion between the Tribunal Member and the appellant in the course of the hearing. That conversation is recorded at page 45 of the transcript of the Tribunal hearing. It occurred in the context of the appellant asserting that he would not be able to relocate within Lebanon and was as follows: Applicant: All areas in Lebanon are full of deaths and explosion. Where can I go and live? Tribunal: In Beirut? Where are all the deaths and explosions in Beirut? I took my family on holiday there, with my kids, in December. there's no- it was perfectly fine. Went up to lots of parts of Lebanon. Applicant: This year? Tribunal: December last year, yep. I was there again in April. It's all-its all pretty good. I was just wondering if-why you say there are deaths and explosions everywhere? It doesn't appear to equate to either country information or my personal experience. 26 The substance of this conversation found its way into the statement of reasons of the Tribunal in the following passage which is contained in paragraph [30]: He had also claimed in a statement that he went into hiding in September but this wasn't apparent from today, where he said he was in his house in October. He claimed he was hiding underground at his home from September. He was asked why he couldn't relocate to Beirut if he had problems in his village. He claimed that all areas in Lebanon were full of death and explosions. It was put to him that the member had taken his family on holidays to Lebanon in December 2015 and the member was there in April 2016 and it was all fine. He said there was no peace for the last two years. 27 The substance of the submission advanced on behalf of the appellant is that the information concerning the member's own experiences in Lebanon ought to have been dealt with in accordance with s 424A of the Act. It was further submitted that because the information was not dealt with in accordance with that section the Tribunal had committed a jurisdictional error. 28 It should be noted that this new proposed ground of appeal was the only ground which was agitated on the hearing of this appeal.

[8]

Whether the new ground ought to be allowed? 29 There is no doubt that the ground of appeal now sought to be agitated before this Court is "new" in that it was neither raised nor agitated before the Federal Circuit Court. It is accepted by the appellant that leave is required to amend the Notice of Appeal so as to advance the new ground: Metwally v University of Wollongong (1985) 60 ALR 68, 71; Coulton v Holcombe (1986) 162 CLR 1, 7. 30 In deciding whether or not to permit the new ground to be raised at this stage, consideration has to be given to whether it would be expedient in the interests of justice to do so: BOZ16 v Minister for Immigration and Border Protection [2018] FCA 418 at [66]. In turn, that question involves assessing the merits of the proposed new ground. In matters of the present nature, the merits of any proposed new ground, which does not involve any contentious factual issue, must necessarily be regarded as an "important consideration". 31 Additionally, in applications of this nature, the Courts are acutely aware of the serious consequences which might flow from a wrongful refusal to grant a protection visa and that refusal of an application to raise a new ground may result in an appellant being returned to a life-endangering situation: see the comments of Madgwick J in NAJT v Minister for Immigration (2005) 147 FCR 51, 84. Although Mr Godwin for the appellant relied upon the Full Court's decision in Lobban v Minister for Justice (2016) 244 FCR 76, I cannot find anything in the reasons in that decision which advances the appellant's argument. In that case the new ground of appeal raised important issues of general public importance concerning the executive's intervention with personal liberty and, for that reason, the new ground was permitted to be agitated on appeal. No such general issue arises for consideration in this case although there is, perhaps, some greater significance to the point raised by the new issue beyond the resolution of the case between the parties. 32 On behalf of the appellant it was also submitted that consideration had to be given to the fact that this is an appeal from an application for judicial review which was akin to the exercise of power under s 75(v) of the Constitution. That power, as was noted by Gagler J in Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42, 95 [126], is afforded to the Courts for the purposes of ensuring that Commonwealth officers act only within the scope of the authority conferred upon them by the Constitution or by legislation. In that sense, the appellant submits, the appeal concerns the accountability of the Executive such that it might more readily be said that allowing the amendment would be in the interests of justice. 33 It ought be acknowledged that the Minister, by his Counsel, very properly conceded that if a viable ground existed in the proposed amended Notice of Appeal, it should follow that leave ought to be granted. Mr Johnson, for the Minister, accepted that there was no prejudice arising from the late raising of the new ground. He did, however, argue that the proposed new ground was without any merit and, for that reason, it ought not to be allowed.

[9]

The merits of the new ground 34 On behalf of the Minister it is submitted that the proposed amendment has no merits because the information in question - being the member's knowledge of the general security position in Lebanon - was not "information" within the scope of s 424A of the Act and, as such, it did not have to be treated as required by that section. Section 424A, relevantly, provides: 424A Information and invitation given in writing by Tribunal (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. … (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application for review; or (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or (c) that is non-disclosable information. 35 The appellant submits that the relevant information which was subject to this section was the Tribunal member's own experience in Lebanon in April 2016 and December 2015 and, it would seem, on previous visits. More particularly, it was his knowledge of whether there existed general violence in throughout Lebanon and, in particular, in Beirut. The appellant further submits that the Tribunal did not comply with the terms of s 424A in relation to that information.

[11]

Did the information undermine one of the appellant's claims? 38 For the Minister it is submitted that the "information" about the Members' experience in Lebanon was related to the issue of why the appellant was not able to relocate to Beirut if there were problems in his village. It is also submitted that the claim advanced by the appellant as to why he was not able to relocate in Lebanon was that ISIS would find him and kill him because he had reported on them. For that reason, so the submission went, allegations of generalised violence and danger in Lebanon would not constitute a reason or part of a reason for affirming the decision under review. 39 I do not accept this submission on behalf of the Minister. It does not appear that the appellant gave any reason for not being able to relocate within Lebanon other than that in all parts of Lebanon there was death and explosions. That was part of his claim to answer the question of whether he might relocate given his experiences in his home village. However, it is correct to say that the only two grounds advanced by the appellant as founding his claims to protection were the claim that he was at risk from ISIS because he had reported them to the Government and the claim that his former lawyer had told members of his village that the appellant had told the Australian Government that ISIS was present in his village and that was why persons from that village could not obtain visas to Australia. That being said, it is a necessary constituent part of a "claim" for protection, especially under the complimentary protection grounds, that the applicant is unable to relocate within the receiving country. In this case, the claim to general violence in Lebanon was given as a reason why the appellant could not live outside of his village which was an element of his claim that he could not live in his village and would be at risk if he returned to Lebanon. 40 Given the above analysis of the appellant's claims, information to the effect that it was safe to live in other parts of Lebanon, including in Beirut, undermined the claims for a visa on the basis that he would be at risk of injury from ISIS or from other persons from his home village. The allegation that there was general violence in the remainder of Lebanon was, in effect, advanced as a reason as to why he was not able to avoid living in his home. The assertion that a person is at risk in their home town or city can only be advanced as a ground for protection if it is not possible for the person to live in other parts of their country of origin. 41 In this light the information in question was information which the Tribunal would consider would be "the reason, or a part of the reason, for affirming the decision that is under review". That analysis must necessarily take place at the time at which the information is advanced, being prior to the Tribunal reaching a conclusion about the claims generally. That is why it is necessary for the information to be, as the Minister submitted, "in its terms be of such significance as to lead the Tribunal to consider in advance of reasoning on the facts of the case that the information of itself 'would', as distinct from 'might', be the reason or part of the reason for affirming the decision under review": Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600, 604 [9] (emphasis added). 42 Here, had the Tribunal paused at the time the Tribunal Member's information was revealed to the appellant and it considered, in advance of its reasoning on the facts of the case, whether the information would be part of the reason for affirming the decision under review, it must have answered in the affirmative. In order for the appellant to succeed on either the convention ground or on the complimentary protection ground, it would be necessary to show that relocation within the receiving country was not an option. In terms of s 36(2)(aa), it would be a necessary and foreseeable consequence of the appellant being returned to the receiving country that there is a real risk that he will suffer significant harm. In this sense the probative strength of the information was probably sufficient to have undermined the claim: Khan v Minister for Immigration and Citizenship (2011) 192 FCR 713; SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890. 43 However, the above is not the only quality which the relevant information requires before it is required to be dealt with pursuant to s 424A.

[12]

Does the exclusion in s 424A(3)(a) apply? 44 Mr Johnson further submitted that the information which was revealed to the appellant during the course of the Tribunal hearing was not relevant information within s 424A(1) by reason of the exclusionary operation of s 242A(3)(a). Relevantly, that section has the effect that s 424A(1) does not apply to information, "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member". 45 A natural reading of the words used by the legislature might suggest that the word "and" is used in its conjunctive sense such that for information to be excluded from the operation of the section the information needs to be both "not specifically about the applicant or another person" and "just about a class of persons". Mr Johnson, submitted that this was not how this sub-section has been construed in this Court. He referred to the observations of the Full Court of this Court in Minister for Immigration and Citizenship v SZHXF (2008) 166 FCR 298, 303 [19], which considered the operation of sub-section (3)(a). In that case their Honours (Tamberlin, Gyles and Stone JJ) said: [19] In considering whether certain information is specifically about an applicant or another person for the purposes of s 424A(3)(a) of the Act, it is not necessary for the tribunal, as a separate requirement, to make a finding that the relevant "information" is "just about a class of persons of which the applicant or other person is a member". The Full Court observed in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at 563; [2004] FCAFC 82 that the reference to the "class of persons" in s 424A(3)(a) "is not another criterion to be met". Rather, the reference "is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it": see also VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80 at 95; 75 ALD 609 at 622-3; [2003] FCAFC 186 per Kenny J and at FCR 99; ALD 626-7 per Downes J; NANM and NANN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 99 at [17]. 46 The effect of this construction is that the sub-section excludes information which is not specifically about the applicant or another person. The additional clause merely emphasises that information about a class of persons is not to be taken to be about a person because they are within that class. The decision of the Full Court is binding and a consideration of the reasoning discloses that it is an accurate explanation of the section's operation. 47 In the present case there was a dispute as to the precise identification of the information in question. Mr Godwin, in his very able submissions on behalf of the appellant, submitted that the information was about a person, being information about the Member and his perceptions of the circumstances of life in Lebanon and, in particular, in Beirut. On the other hand, Mr Johnson for the Minister submitted that the information to which the appellant was to respond was not about the Member or the Member's perceptions. It was about the situation in Lebanon in terms of community safety and the exposure of members of the community to harm. 48 Despite Mr Godwin's submissions to the contrary, the information in the present matter which was raised during the course of the hearing was information about the security situation in Lebanon and, in particular, Beirut. It was that information which was relevant to the determination of the issues which the Tribunal had to decide and which affected, or might have affected, the determination of the appellant's claims to a protection visa. Indeed, if the information was merely about the Member and his perception of the situation in Lebanon, that information would not overcome the first requirement of s 424A(1)(a) in that it could not be the reason or part of the reason for affirming the decision under review. The fact that the Member had views about the security situation was irrelevant to the questions to be determined. 49 In the result, the information about security in Lebanon and Beirut was not information about the applicant or about another person. It was, as was submitted by Mr Johnson, "country information" which concerned the security of persons living in those places. That being so, the information was excluded from the operation of s 424A(1) by reason of the operation of s 424A(3). 50 It follows that the proposed new ground of appeal is without sufficient merits in that it would necessarily fail. For that reason leave to raise it should be refused.