EIC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Introduction 1 The appellant, who was born in Burkina Faso, appeals from a judgment of the Federal Circuit and Family Court of Australia (Division 2) that dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal). 2 The appellant relies on a single ground of appeal, which is that the primary judge erred in finding that the Tribunal did not fall into jurisdictional error by failing to accord the appellant procedural fairness at general law or, alternatively, by breaching s 425 of the Migration Act 1958 (Cth). This ground of appeal overlaps with the substance of ground 1 of the application for judicial review at first instance. 3 For the reasons that follow, I consider that the appeal should be allowed. In summary, I consider that the Tribunal failed to comply with its obligation in s 425 of the Migration Act or failed to accord the appellant procedural fairness. In my respectful opinion, the primary judge erred in concluding otherwise.

Background facts 4 The background facts are set out in the reasons of the Tribunal at [9]-[14] and in the reasons for judgment of the primary judge (EIC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 282 (the Reasons)) at [3]-[15]. 5 I note, in particular, the following matters. 6 On 22 August 2019, the appellant made the relevant application for a protection visa. (An earlier application in 1997 for a protection visa had been refused.) In a statement provided on 22 August 2019, the appellant claimed that he had been a student activist in Burkina Faso and that he had been imprisoned for seven months because of his political activities (see the Tribunal's reasons at [24]). 7 On 9 March 2020, a delegate of the first respondent (the Minister) refused to grant the appellant the visa. 8 The appellant applied to the Tribunal for merits review of the delegate's decision. 9 On 10 August 2020, a hearing was held before the Administrative Appeals Tribunal. The appellant and his support person attended the hearing. 10 On 12 August 2020, the Tribunal asked the appellant to provide copies of the attachments mentioned in a submission (see the Tribunal's reasons at [59]). 11 On 21 August 2020, the appellant provided to the Tribunal a number of documents including, relevantly, two letters of support (the Support Letters). The Support Letters and the covering emails for those letters appear at pages 703 to 706 of the Appeal Book. In his covering emails, the appellant stated that the first letter (dated 18 August 2020) was from a friend and the second letter (dated 19 August 2020) was from the appellant's brother. The letters supported the appellant's claims for a protection visa. Each letter included an email address and a telephone number for the writer. 12 On 25 August 2020, the Tribunal wrote to the appellant inviting him to comment on, or respond to, information (as set out in the letter). The letter included the following statement in bold: "Please note, however, that we have not made up our mind about the information." The letter referred to the appellant's earlier application for a protection visa and two medical reports that had been submitted in support of that application. The Tribunal's letter identified a number of inconsistencies between that material and the appellant's current claims. The Tribunal's letter did not refer to, or raise any issues about, the Support Letters. 13 On 4 September 2020, the appellant provided a response to the Tribunal's letter of 25 August 2020. 14 On 8 September 2020, the Tribunal decided to affirm the decision under review. In its reasons for decision, the Tribunal stated, at [77], that certain claims of the appellant had been "concocted". Relevantly for present purposes, the Tribunal stated at [80]: Finally, I have considered the [letters] provided following the hearing, reportedly written by the applicant's brother and a friend. These letters purport to confirm claims which I have found to be lacking in credibility. No verifiable evidence has been provided regarding the identity of the authors of these letters or their relationship to the applicant. I believe that these letters were written by the applicant or at his instructions for the purpose of supporting his claim for protection and I have given them no weight. (Emphasis added.) At the hearing before the primary judge, it was common ground that, at [80] of its reasons, the Tribunal (impliedly if not expressly) made a finding of fraud. 15 Prior to its decision, the Tribunal did not raise with the appellant any issue concerning the genuineness of the Support Letters.

The Tribunal's reasons 16 I will now outline the Tribunal's reasons in more detail. 17 The Tribunal set out certain country information at [15]-[21]. 18 The Tribunal described the appellant's claims and the evidence at [22]-[70]. The Tribunal first referred to the appellant's earlier protection visa application (lodged in 1997). The Tribunal then referred to the appellant's 2019 application for a protection visa, and described the appellant's submissions to the Department and to the Tribunal. The Tribunal described, at [39]-[58], the Tribunal hearing on 10 August 2020. In this section of its reasons, the Tribunal referred to a number of concerns it had raised with the appellant during the course of the hearing. For example, the Tribunal stated at [40]-[41]: 40. I advised the applicant that I had significant difficulty accepting his claims regarding his involvement in politics in Burkina Faso in the 1990s because he had given inconsistent accounts of events which occurred prior to his departure from his homeland and because his claims appeared to be at odds with evidence regarding the situation in Burkina Faso at the time he claims to have been detained. 41. I noted that the applicant's 1997 application made no mention of being detained at any time and stated his parents and two of his siblings had been killed immediately before he left Burkina Faso. However, in his current application he claimed that he had fled Burkina Faso after being detained and that his father had been killed after he left the country and his mother and siblings were still living in Burkina Faso. I also noted that he had initially stated that he was detained for seven months, but later said that he was only held for one or two months. I observed that these inconsistencies appeared to indicate that he was not a credible witness and invited him to comment. 19 The Tribunal referred to post-hearing submissions made by the appellant at [59]-[70]. This included the Support Letters. 20 The Tribunal considered the appellant's claims and evidence at [71]-[90] of its reasons. The Tribunal stated that it did not find the appellant to be a truthful or credible witness, and that it did not accept that he fled Burkina Faso because he was of adverse interest to the authorities because he was a student activist: at [71]. The Tribunal referred to the inconsistencies between the appellant's claims in his earlier 1997 application for a protection visa and his 2019 application. The Tribunal referred to the appellant's explanations for the inconsistencies, but did not accept these. The Tribunal referred to other inconsistencies in the appellant's accounts. The Tribunal then stated at [77]: I do not accept that the applicant was a political activist in which he fled Burkina Faso or that he fled his homeland in about 1996 because he was at risk of serious harm. I find that these claims were concocted to support his application for protection and residency in Australia. (Emphasis added.) 21 The Tribunal stated, at [78], that in reaching the above conclusion, it had considered the reports that stated that the appellant was suffering from PTSD in the late 1990s as a result of his experiences in Burkina Faso. The Tribunal referred, at [79], to scars on the appellant's shoulder and his side. The Tribunal stated that "in light of my findings regarding [the appellant's] credibility and in the absence of any verifiable evidence, I do not accept that they are the result of ill-treatment or torture inflicted on the [appellant] while he was in detention in Burkina Faso". 22 The Tribunal referred, at [80], to the Support Letters - that paragraph, which is central to the appeal, has been set out in the "Background facts" section of these reasons. 23 The Tribunal stated at [81]: After considering all of the relevant evidence, I am not satisfied that the applicant faces a real chance of experiencing serious or significant harm on return to Burkina Faso because he is of adverse interest to the authorities because of his past or present political opinions. 24 At [82]-[90], the Tribunal dealt with other claims made by the appellant. 25 The Tribunal concluded, at [91], that it was not satisfied that the appellant faced a real chance of suffering serious harm amounting to persecution for any of the reasons set out in s 5J(1) of the Migration Act, at the time of the Tribunal's decision or in the foreseeable future. The Tribunal was therefore not satisfied that the appellant had a well-founded fear of persecution if he returned to Burkina Faso. The Tribunal also concluded, at [92], that the appellant did not meet the complementary protection criterion.

The reasons of the primary judge 26 The appellant advanced three grounds of review before the primary judge. Only ground 1 is relevant for present purposes. By ground 1 (set out in the Reasons at [22]) the appellant contended that the Tribunal fell into jurisdictional error by failing to accord the appellant procedural fairness before making its decision on 8 September 2020. The particulars to that ground referred to: the appellant providing the Tribunal with the Support Letters; the Tribunal's finding at [80] of its reasons; and the fact that the Tribunal did not alert the appellant to its concerns about the genuineness of the letters before making that finding. 27 The primary judge noted, at [28], an issue as to whether ss 422B and 425 of the Migration Act operated to displace the common law rules of procedural fairness. The primary judge stated that it was unnecessary to resolve that issue. 28 The primary judge noted, at [29], that there was no dispute that, at [80] of the Tribunal's reasons, the Tribunal (impliedly if not expressly) made a finding of fraud. 29 The primary judge discussed relevant authorities including: WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 (WACO); WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597 (WAEJ); WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 (WAGU); WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 (WAJR); Minister for Immigration and Citizenship v SZMOK (2009) 247 FCR 404 (SZMOK); Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 (SZNSP); and Minister for Immigration and Border Protection v Ly (2018) 263 FCR 512 (Ly). 30 The primary judge referred, at [51]-[62], to the inconsistencies in the appellant's evidence. The primary judge stated, at [63], that the inconsistencies in the appellant's evidence were "not minor" and that they were "significant". The primary judge also stated, at [63], that the truth of the appellant's claims was "squarely in issue". The primary judge stated, at [64], that it was important to bear in mind that the Tribunal formed its view that the appellant was not truthful or credible, and had concocted his claims, on a number of bases. The primary judge stated, at [65], that the Support Letters were tendered by the appellant "in an effort to assuage the real concerns that the Tribunal had about whether the [appellant] was being truthful". 31 The primary judge referred, at [66], to the cases relied on by the appellant (WACO, WAGU, WAJR and Ly) and stated that none of those cases resembled the factual situation that the primary judge had described. 32 The primary judge reasoned at [67]-[69]: 67 The Applicant says that the support letters were 'critical' and 'corroborative' of his accounts. I am not persuaded, given the circumstances of this case which I have outlined at some length, that the support letters, given their content, who they were from, and who produced them, were 'critical'. Moreover, I am not persuaded that the support letters could truly be said to be 'corroborative' of the Applicant's account of events. The support letters were not corroborative in the sense of them being evidence independent of the person whose evidence was sought to be corroborated. They were letters from the Applicant's brother and Applicant's friend - persons who might be expected to support what the Applicant said. The support letters were not sworn statements. Further, the support letters were sourced by the person whose credibility was seriously and repeatedly in question and produced to the Tribunal by the person whose credibility was seriously and repeatedly in question. The support letters were in truth simply the Applicant asserting by another means matters that he was already on notice that the Tribunal doubted were true. Moreover, the support letters did nothing to address the other bases upon which the Tribunal concluded he was not credible or truthful, for example, the country information at [76] or the [Applicant's] conduct and explanations relating to the 1997 Application. 68 The Applicant placed much emphasis on the decision in Ly. The facts in Ly are not similar to the facts before me. In the circumstances of this case, there was nothing surprising about the Tribunal's reasoning concerning the genuineness of any support letter produced 'by the applicant'. It was 'abundantly clear' to the Applicant the issues that he faced yet he sourced and produced unsworn documents which were in truth not corroborative. Further, in Ly the dispositive issue was whether the receipts were not genuine because they were in the same writing and this was not an obvious issue. That is not the case in this proceeding. The issues with the Applicant's credibility and truthfulness, given what occurred, was obvious. 69 It can be appreciated that the issue before me is one that is difficult to resolve. Ultimately, however, I have come to the view that this is one of those rare cases where, given what occurred, the Tribunal was not required to raise with the Applicant the concerns it had about the support letters. This matter falls to be resolved along the lines set out in SZNSP. The Applicant was clearly on notice of the Tribunal's concerns about his credibility and that the truth of his claims was in issue. The document he produced in support of his claims was a document which he sourced and was not one that was truly corroborative. While the Tribunal at [80] gave no weight to the support letters, it did so in circumstances where it had already closely examined the inconsistencies in the Applicant's evidence (at [41]-[58]), it had recorded that the inconsistencies had not been sufficiently explained (at [72]-[75]), it had noted that none of the available evidence suggested that student activists were being killed abducted or detained (at [76]) and where it did not accept that the Applicant was a political activist, that he fled his homeland in 1996, and where it found he had 'concocted' his claims to support his application for protection and residency in Australia: at [77]. 33 For these reasons, ground 1 was dismissed.

The appeal 34 The appellant appeals from the judgment of the Federal Circuit and Family Court (Division 2). The appellant relies on a single ground, which has been set out in the Introduction to these reasons.

Applicable principles 35 Section 422B(1) of the Migration Act provides that Div 4 of Pt 7 "is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with". 36 Section 425 of the Migration Act provides: 425 Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 424C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. 37 It is important to note that the statement in s 422B(1) that Div 4 of Pt 7 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule is qualified by the words "in relation to the matters it deals with". There is, therefore, scope for the operation of the natural justice hearing rule in relation to matters that are not dealt with: see WAJR at [57]-[59] per French J (as his Honour then was); Ly at [48] per Rares, Robertson and Farrell JJ. 38 In WAJR, French J discussed two then recent Full Federal Court decisions (WACO and WAEJ) and stated at [56]: It may be that procedural fairness would not require the tribunal to invite comment prior to finding no more than that it was not satisfied about the reliability or genuineness of particular documents. But where as here, there is a clear implication in the tribunal's reasoning by reference to the appearance of the documents, that they were concocted for the purposes of the application, then on the authorities I have referred to, procedural fairness would require an opportunity be given to the appellant to comment. I took a similar approach in WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912; BC200304925. (Emphasis added.) 39 The above paragraph was quoted with approval by the Full Court in Ly at [42]. 40 In SZMOK, the Full Federal Court (Emmett, Kenny and Jacobson JJ) stated at [61]-[64] and [68]: 61 Nevertheless, fairness may require that, before a finding of forgery is made, the person accused of forgery be given the opportunity of answering the accusation. A finding of forgery, like a finding of fraud, is not one that should be lightly made. Both involve serious allegations. A finding that documents are forgeries could turn upon the credit of an applicant insofar as the finding is that the documents have been concocted by that applicant to advance his case (WACO's Case at [53]). 62 Under s 425, an Applicant is to be invited to give evidence and present arguments relating to the issues arising in relation to the decision under review. Those issues will not be sufficiently identified in every case by describing them simply as whether the Applicant is entitled to a protection visa. The issues arising in relation to a decision under review are to be identified having regard, not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker, namely the Minister's delegate, but also to the fact that the Tribunal is to review the particular decision for which the decision-maker will have given reasons. The Tribunal will not be confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL's Case) at [33]-[35]). 63 However, if the Tribunal takes no step to identify some issues other than those that the delegate considered dispositive, and does not tell an applicant what that other issue is, that applicant is entitled to assume that the issues the delegate considered dispositive are the issues arising in relation to the decision under review. On review by the Tribunal, the issues arising in relation to the decision under review would be those that the original decision-maker identified as determinative against the relevant applicant, unless some other additional issues are identified by the Tribunal, as they may be. If the Tribunal invites an applicant to appear and says nothing about a matter on the basis of which the Tribunal decides against the applicant, then it would not have complied with s 425 and the applicant would not have been accorded procedural fairness (see SZBEL's Case at [37]). 64 There may well be cases where the Tribunal's questions during a hearing sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. Such an indication may be given in many ways. It is not necessary for the Tribunal to put to an applicant, in so many words, that the applicant is lying or that the applicant may not be accepted as a witness of truth or that the applicant may be thought to be embellishing the account that is given of certain events. The Tribunal is not to adopt the position of a contradictor. However, where there are specific aspects of an applicant's account that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask that applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted (SZBEL's Case at [47]). Nevertheless, procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. To adopt such a course could run a serious risk of conveying an impression of prejudgment (SZBEL's Case at [48]). … 68 While the Tribunal has a duty to raise clearly with an applicant the critical issues on which a review may depend, there is no general rule that the Tribunal cannot make a finding that a document is not genuine without specifically referring to its concerns about the document. The circumstances may be such that the Tribunal had sufficiently alerted an applicant to the doubts it had about the genuineness of all documents that the applicant had submitted. While a finding of forgery should not be lightly made, the circumstances of a particular case may be such that it would be unnecessary to afford a person affected by such a conclusion the opportunity of dealing with it. The decision of the Full Court in WACO's Case turned upon the application of well known and established principles to the particular and peculiar circumstances of that case (VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [64]). WACO's Case does not establish any new principle. (Bold emphasis added.) 41 The Full Court in Ly referred, at [51], to the reasoning of the Full Court in SZMOK at [68]. After setting out that paragraph, the Full Court in Ly stated at [51]: We do not regard what the Full Court there said as inconsistent with what French J said in WAJR. The Full Court was saying that there was no general rule but that it was necessary to look at the circumstances of each case. With respect, we agree. What is procedurally fair or unfair in relation to a finding that a document is not genuine depends on the procedures adopted, including whether the Tribunal had sufficiently alerted an applicant to doubts it had about the genuineness of documents submitted by him or her. Similarly, it is not always a jurisdictional error for the Tribunal to reject corroborative evidence, including of a documentary kind, on the basis of its views of an applicant's credit.

Consideration 42 The appellant contends, in summary, that the Tribunal failed to accord the appellant procedural fairness, or failed to comply with its obligation in s 425 of the Migration Act, by failing to alert the appellant to the issue of the genuineness of the Support Letters, before making a finding that they were fraudulent or forgeries. 43 The Minister's counsel stated at the hearing of the appeal that the Minister accepted below, and continues to accept, that the finding at [80] of the Tribunal's reasons is an implicit if not express finding that the appellant fraudulently created the Support Letters (but the Tribunal left open whether the appellant authored the letters himself, or whether someone else did so at his direction) (T13-14). 44 The Minister submits that: there could have been nothing surprising about the Tribunal's reasoning; it was obvious on multiple bases (including the framing of the issues in the delegate's reasons, and the Tribunal's conduct of the hearing, as recorded in its reasons), that the question whether the appellant had concocted his claims was very much a live issue; and, by parity of reasoning with SZNSP, it was obvious that the genuineness of any purported letter produced by the appellant supporting his claims was also a live issue. The Minister therefore submits that there was no breach of s 425, or any form of procedural unfairness, in the Tribunal's approach. 45 In my view, once the appellant submitted the Support Letters to the Tribunal, and the Tribunal had concerns that the letters may have been fraudulently created by the appellant (as indicated by its later finding at [80] of its reasons), an issue arose as to the genuineness of the letters. Further, in my view, it was incumbent on the Tribunal to raise this issue with the appellant before making a finding that the letters had been fraudulently created by the appellant. This can be analysed in one of two ways (by parity of reasoning with WAJR at [57]-[59]). On one view, the issue of the genuineness of the Support Letters became an "[issue] arising in relation to the decision under review" within the meaning of s 425(1); the Tribunal was therefore required by s 425(1) to invite the appellant to appear before the Tribunal to give evidence and present arguments relating to the issue. On another view, the issue raised by this case is not dealt with in s 425 or in any other provision of Div 4 of Pt 7; therefore the exhaustiveness referred to in s 422B(1) does not apply; the natural justice hearing rule therefore operates; and this required the Tribunal to raise the issue of the genuineness of the Support Letters with the appellant before making a finding that the appellant fraudulently created the letters. It is not necessary for present purposes to decide between these alternatives, as they both yield the same result. 46 Contrary to the submissions of the Minister and the conclusion of the primary judge, in my view, the issue of the genuineness of the Support Letters was not sufficiently raised during the course of the hearing on 10 August 2020. The material before the Court does not include a transcript of the hearing, but the Tribunal's reasons at [39]-[58] indicate the questions asked by the Tribunal during the hearing. It is apparent from this section of the Tribunal's reasons that the Tribunal raised concerns about inconsistencies in the appellant's accounts, inconsistencies between the appellant's accounts and other material before the Tribunal, and the appellant's credibility. However, it does not appear that the Tribunal raised, for example, an issue as to the genuineness of all documents relied on by the appellant (whether already submitted or to be submitted in the future). In the circumstances, I do not consider that the Tribunal's questions during the hearing were sufficient to put the appellant on notice of the issue of the genuineness of the Support Letters. 47 The Minister relies on the judgment of the Full Federal Court in SZNSP, particularly at [30]-[33] and [35]. In that case, during a hearing before the Refugee Review Tribunal (the RRT), the visa applicant presented a witness statement of a named individual. In its reasons for decision, the RRT concluded that the visa applicant had fabricated her claims. That conclusion was based on a number of matters: see SZNSP at [12]. After making those findings, the RRT addressed the witness statement and said: "Given the adverse credibility finding, the Tribunal does not give weight to the document" (see SZNSP at [13]). The Full Court held that it was not irrational for the Tribunal to approach the matter in the way that it did: at [36] per North and Lander JJ; at [50] per Katzmann J. In my view, this case does not offer any significant assistance for present purposes. The case was concerned with apprehended bias (see [14]) and irrationality (see [36]); it was not concerned with the natural justice hearing rule. 48 Insofar as the Minister relies on the observation of North and Lander JJ in SZNSP at [35] that, to be corroborative, evidence should be independent of the person whose evidence is sought to be corroborated, I do not consider this proposition to assist in the present case. Whether or not the Support Letters satisfy that conception of corroborative evidence, they were supportive of the appellant's claims. That is sufficient to give rise to the issue of whether the Tribunal complied with s 425 or the requirements of procedural fairness. 49 In the circumstances of this case, the Tribunal failed to comply with its obligation in s 425 of the Migration Act or failed to accord the appellant procedural fairness. I respectfully disagree with the contrary view of the primary judge, for the reasons set out above. 50 Further, the failure to comply with s 425 or to accord the appellant procedural fairness was material because it deprived the appellant of a realistic possibility of a different outcome: Nathanson v Minister for Home Affairs [2022] HCA 26 at [1], [45]. The Minister did not suggest otherwise. The error of the Tribunal was therefore a jurisdictional error.

Conclusion 51 For these reasons, the appeal is to be allowed. The orders of the primary judge should be set aside and in lieu thereof it should be ordered that: the decision of the Tribunal dated 8 September 2020 be set aside; and the matter be remitted to the Tribunal for determination according to law. There is no apparent reason why costs should not follow the event. I will therefore make an order that the Minister pay the appellant's costs of the proceeding in the Federal Circuit and Family Court, and of the appeal (the latter to be fixed as a lump sum). I will also make directions for the fixing of the lump sum. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky.