SZFVL v Minister for Immigration & Anor [2005] FMCA 991

SZFVL v Minister for Immigration & Anor [2005] FMCA 991 | Case summary | Zoe

[30]

The applicant was born in Sudan in 1974 and claims to be a citizen of that country. The applicant arrived in Australia on 19 October 2003 on a Provisional Spouse Visa. On 10 November 2003 he lodged an application for a visa with the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") under the Migration Act 1958 (Cth) ("the Migration Act") (court book, pages 1-26).

The applicant claims persecution on the ground of political activity. In brief, the applicant claims that he was persecuted in Sudan because of his political activity while a student.

The respondent does not disagree with the description of the background to these proceedings as set out in the applicant's submissions dated 4 July 2005 at paragraphs 5-13 relevantly as follows:

The applicant is a Sudanese Muslim man .... His native language is Arabic.

Until about 7 August 1999 (court book, page 14), the applicant resided and was educated in the Sudan, primarily in or around the cities of Omdurman (Khartoum) and Elobeid (court book, page 17). All members of his immediate family live in the Sudan (court book, pages 5-7).

In 1999 the applicant left the Sudan on a valid passport and went to India where he attended university. While in India he met an Australian woman and it was decided that she sponsor him to come to Australia. The applicant made a Spouse Visa application in August 2002 while still in India: court book, page 2**.**

The applicant arrived in Australia on 19 October 2003 (court book, page 15) on a valid Sudanese passport. His passport expired on 29 October 2004: court book, page 23.

On about 14 September 2004 DIMIA refused to grant a Permanent Spouse Visa to the applicant: court book, page 50.9.

On 21 October 2004 the Bridging Visa associated with the Spouse Visa application ceased and the applicant was subsequently detained at Villawood IDC: see court book, page 50.9-10. [He then applied for a protection visa].

On about 18 November 2004 the Minister's delegate refused the applicant's application [for a protection visa]: court book, page 43**.**

On about 22 November 2004, the applicant's adviser lodged an application for review of the delegate's decision by the RRT: court book, page 54- 57.

The respondent supplements that description by noting that the applicant did not apply for a protection visa when he lived in India and nor did he seek to review the decision by the Department not to grant him a Permanent Spouse Visa upon separation from his wife at the Migration Review Tribunal (court book, page 50.9).

The claims of the applicant are accurately summarised by the RRT at court book, pages 148-151. In short, the applicant claims that:

[34]

a)

found that the applicant had sought to embellish his connection with the oppression in the west of Sudan on the basis of inconsistencies between the claims in his protection visa application with respect to where he resided and attended school (at Omdurman) and his evidence at the hearing (various locations in west Sudan because of his father's work) (court book, page 159.5). In so finding, the RRT rejected his explanation for the inconsistencies namely, that he had misunderstood the RRT's questions, because an interpreter had been present and the applicant was competent in English (court book, page 165.4);

b)

was not satisfied that the applicant had been mistreated, as he claimed, in 1998 because it was not plausible that he could have the injuries he alleged he had and then be capable of attending the local security office one week later to clean it (court book, page 159.10), and moreover, although the applicant had volunteered to show the RRT his alleged injuries, this did not prove that they occurred for the reasons the applicant had given (court book, page 159.9);

c)

was not satisfied that, even if the applicant had been mistreated, the applicant was of any continuing adverse interest to the Sudanese authorities (court book, page 160.2) as he had not been a person of interest at any time between his alleged expulsion from university due to his political activism and his departure from the country. For example, he was not, as would be expected given his dissident status, forcibly recruited into military service (court book, page 160.5). The RRT also rejected the applicant's explanation for avoiding conscription as recent invention on the basis that he had emphatically stated at the hearing that after his expulsion he had lived continuously with his father but had later stated that he had not been conscripted because he had moved around a lot and therefore the authorities had not been able to find him (court book, page 161.5);

d)

was not satisfied that the applicant had any outstanding military service obligations in Sudan given the inconsistent explanation proffered by him (see para (c) above) has to how he had evaded recruitment given that he was an alleged political dissident (court book, page 162.5). The Tribunal also rejected as invention the later explanation of the applicant, via his advisor, that he was not forcibly conscripted consequent upon his expulsion from university because "he was not considered a graduate to have been conscripted", or that because he was living in a rural area during the relevant time it was more difficult for him to be rounded up by the authorities in the "traditional way", on the ground that the explanation was inconsistent with the evidence the applicant had given during the hearing (court book, pages 166.3-166.5);

e)

did not believe that the applicant had been expelled for the reason the applicant gave, namely, because he was a political dissident (court book, page 162.5);

f)

did not believe that the applicant was of interest to the Sudanese authorities as a political dissident given that he had been able to secure two passport renewals, a fact inconsistent with the ICI and his alleged outstanding military commitments (court book, pages 162-163; 166.8);

g)

reasoned that if the applicant did have a genuine subjective fear of persecution as claimed, then he would have sought UN assistance in India to avoid refoulement to Sudan (court book, page 164.3); and

h)

found that the applicant's concerns and interests, even in India, were primarily, if not solely, social, ie cultural and sporting, and that any political activity was minor (court book, page 164.8).

[58]

Ms Seward and Ms Pepper both made written and oral submissions. In her oral submissions, Ms Seward said that there are two key issues to be resolved. The first is whether the RRT erred in making an incorrect factual finding that the applicant spent the whole of his school life in the Khartoum/Omburman region. In fact, the applicant had claimed that he attended four years of his schooling in Elobeid, where his mother lived in south western Sudan. Ms Seward submits that the RRT erred in failing to take into account that claim made by the applicant. Further, she submits that that part of the RRT decision is so illogical and irrational as to establish that the RRT presiding member did not understand the task that he had to perform and could not achieve the requisite degree of satisfaction required for him to deny the applicant a protection visa. Ms Seward submits that the first of four adverse findings on credibility made by the presiding member against the applicant is fatally flawed by the error made in considering the applicant's claims.

The second key issue is the confusion that arose concerning the injury to the applicant's big toe. The applicant asserted that he had been tortured by the Sudanese authorities. He had intended to claim that his big toenail had been pulled out as a form of torture. The claim actually put by him and on his behalf was that the toe itself had been removed. During the course of the hearing, the applicant invited the presiding member to inspect his body to see the injuries allegedly inflicted during torture but the presiding member did not take up that opportunity. The presiding member appeared to accept that the applicant had suffered the injuries he asserted but found that it was implausible that if the applicant had suffered the loss of the big toe, he would have been capable of returning seven days afterwards to his local security office and to perform cleaning duties. This was an adverse credibility finding. Ms Seward submits that the RRT erred in failing to inquire as to the precise nature of the applicant's injury, which would have revealed the truth about that injury and rendered plausible the applicant's claim to have returned a week after having lost his toenail to his local security office. Alternatively, Ms Seward submits that the RRT erred in failing to take account of relevant material, that being the physical evidence of the applicant's injured toe which had been offered to the presiding member for inspection during the course of the hearing.

In her written submissions, Ms Seward submits as follows:

[59]

The RRT's review of the delegate's decision

The RRT must review the decision of the Minister's delegate on a valid application for review being made: section 414 of the Migration Act. Under section 415 of the Act the RRT may exercise all the powers and discretions that are conferred by the Act on the decision-maker.

Section 65 of the Act requires the decision maker (and therefore the RRT) to "consider a valid application for a [protection] visa" and sections 54 and 55 require the consideration of all the information in an application.

It is only after considering a valid application as required by the Act that the RRT is able to be "satisfied" or "not satisfied" of the relevant matters for the purposes of exercising the power under section 65 to grant or refuse a visa.

Applicant's place of residence and schooling

The applicant's 10 November 2004 Protection Visa application (at court book, pages 1 - 19) is part of the application that was before the RRT: see court book, page 148.6.

The applicant's educational history set out in the 10 November 2004 Protection Visa application is at court book, page 17. It clearly states he went to El Tujar High Secondary School in Elobeid (referred to by the RRT as Al Ubayyid at court book, page 159) between 1989 and 1992. Elobeid is in Western Sudan.

The RRT states that it took information including the 10 November 2004 Protection Visa application into account prior to preparing its Findings and Reasons: court book, page 151.8. The Findings and Reasons indicate that this was not the case.

At court book, page 152. 5**,** the RRT states that it put to the applicant at the oral hearing on 23 December 2004 that all the schools set out in his 10 November 2004 Protection Visa Application were in Omdurman. (See TS page 7 para 60). The Transcript shows that the applicant does not give any response that could be construed as accepting that assertion as a fact. The RRT's statement is a misrepresentation of the contents of the 10 November 2004 Protection Visa Application.

The Transcript also shows that the applicant says to the Member (TS page 6 para 45) in respect of living with his mother that his father "took me back to her for the high secondary school in Elobeid". This is consistent with the information in his 10 November 2004 Protection Visa Application.

The RRT goes on to make the finding at court book, pages 159.5-6 that the applicant sought to embellish his connection with the "oppression in the west of Sudan" and that during his primary/secondary school years and while at University he had in fact resided primarily if not exclusively in Khartoum/Omdurman and to a lesser extent [possibly during some of his school holidays] with his mother at Al Ubayyid.

The RRT's Findings and Reasons show that the RRT failed to take into account the relevant consideration that the applicant was at high school in Elobeid for about 3-4 years between the ages of 15 and 18 years in coming to the determinations it made about:

[61]

The findings of the RRT set out at paragraphs 17 b. and c. above are illogical and unreasonable given the content of the applicant's written application and the evidence given at the oral hearing. The statement that his written application was entirely inconsistent with his oral account is clearly not based on the evidence before the RRT. It indicates that the RRT had not complied with the requirement that it take all the information in the applicant's application into account and was therefore a failure to properly exercise the RRT's power. This is a jurisdictional error: See Re Minister for Immigration; ex parte S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [9] and [34]; Re Minister for Immigration; ex parte Eshetu (1999) 197 CLR 611 at 656-657 [145].

Further, the RRT failed to consider all of the information in the applicant's application for a protection visa as required under the Act: see sections 414, 415 and then sections 54, 55 and 65. The failure to comply with the statutory requirements is a jurisdictional error.

Further, the failure to take into account the applicant's period at high school in Elobeid was a failure to take a relevant consideration into account which affected the exercise of power by the RRT under section 65 of the Act in that the RRT could not have been "not satisfied" of the relevant matters as required by that section before it could refuse to grant the protection visa. Therefore the power to refuse to grant the visa did not arise. The purported exercise of the power is a jurisdictional error: Minister for Immigration v Yusuf (2001) 206 CLR 323 at [82]; WAFP v Minister for Immigration [2003] FCAFC 319 at [19] and [21].

Applicant's claim of torture - removal of toe on left foot

One aspect of the applicant's claim of torture at the hand of the Sudanese authorities in 1998 on the fourth occasion he was detained was the removal of his big "toe" on his left foot: see court book, page 66.8.

The RRT placed great weight on this aspect of the claim in coming to its finding that the applicant did not satisfy the RRT that he had in fact been tortured or otherwise physically mistreated at that time or for the reasons claimed see court book, pages 159.8 - 160.1. The reasoning was that if his toe had been removed it was not plausible that the applicant could have been physically capable of attending the local security office one week after his release and without much apparent medical assistance in order to "clean the office" as claimed.

The RRT acknowledges that the applicant volunteered to show the Member the injury: court book, page 159.9.

The removal of the toe was discussed at pages 23-24 of the Transcript (paras 188 - 191). The Transcript shows that the Member declined the opportunity to see the applicant's injury when it was offered despite the Member's concern about the applicant's account being plausible.

The applicant sets out his knowledge of the English language in his affidavit. His evidence is that he understood the English word "toe" to signify his "toenail" and it was the toenail on his left foot that had in fact been removed under torture by the Sudanese authorities when he had been detained in 1998: see para 6 Affidavit of the applicant sworn 8 June 2005. The applicant always used the word "remove" with respect to the "toe" and did not use the word "amputate". The Transcript shows that he spoke only in English when discussing the "toe".

Mr Abu Baker El Bashir deposes in his affidavit sworn 9 June 2005 that he listened to the relevant paragraphs on the tapes at Exhibit A to his affidavit and did not hear the word "toe" or "toenail" said in Arabic.

Deborah Nicholls deposes to the circumstances after the RRT decision had been notified in which she came to know that it was the applicant's claim that it was his toenail that had been removed: see Affidavit of Deborah Ruth Nicholls sworn 5 June 2005 at paras 3 -11.

The applicant's true claim was that his toenail had been removed by the Sudanese security forces while he was detained in 1998. The RRT could easily have ascertained that this was his claim by taking up the applicant's offer to view his toe at the hearing when the opportunity arose.

In circumstances where:

[67]

Accordingly, it is not surprising that the RRT found that the applicant's evidence was inconsistent and untruthful and from the transcript of the hearing it would appear that at the hearing the applicant did embellish his connection with western Sudan by exaggerating the amount of time he claims to have spent living with his father as a child.

Moreover, while the RRT may have incorrectly described as a fact that all of the schools the applicant attended were located in Omdurman (court book, page 152.6) the error was not, the respondent submits, sufficiently material to give rise to jurisdictional error. The RRT was not incorrect when it stated that, as a matter of fact, the applicant had "primarily" resided in Omdurman and had attended school there (12 out of 16 years of primary and secondary education) (court book, page 159.6), and that therefore, by implication, the applicant could not have been telling the truth when he stated that he was living with his father in western Sudan and had spent the majority of his time there. This adverse conclusion was reiterated - correctly - by the RRT in its letter to the applicant dated 4 January 2005 (court book, page 131 at para 1). The RRT found the subsequent justification by the applicant in his response unconvincing and rejected it (court book, pages 135 and 165.4). It was entitled to do so.

Therefore, even if the RRT did erroneously characterise the location of the high secondary school that the applicant had attended, the error was one of fact only and was not such that, in light of the inconsistent evidence given by the applicant during the hearing, the RRT's finding that the applicant was not a witness of truth in this regard could be characterised as irrational, illogical or unreasonable.

The RRT properly comprehended the task it was required to undertake, viz, to determine whether or not the applicant fell within the definition of "refugee". It undertook that task by reference to the material before it. If in so doing it acted upon a factual understanding which was later revealed to be erroneous, this factual mistake was not one that went to the jurisdiction of the RRT to decide; something more was required: Re Minister for Immigration; Ex parte S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [36] per McHugh and Gummow JJ and Hong v Minister for Immigration [2004] FCA 1308 at [54]- [56]. By parity of reasoning nor can the findings by the RRT be characterised as manifestly unreasonable: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41.

In any event, the RRT put this 'error' to the applicant on several occasions and the applicant did not seek to correct it (T7 para 63 and T 8 para 65), and moreover, the RRT made it clear that it would not draw an adverse inference as to the credit of the applicant based on this inconsistency alone (court book, page 159.7).

Accordingly, this ground of review ought to be rejected.

Failure to take into account relevant considerations

Insofar as it is alleged that the RRT failed to take into account a relevant consideration, namely, that the "high secondary school" that the applicant attended was in Elobied, this ground is misconceived. The RRT had the applicant's protection visa application and other material before it and there is evidence that the RRT did take this fact into account (T 6 para 45 and 46; T9 para 71-72 and 74; court book, pages 65-66 and 148.5). Therefore this ground of appeal cannot succeed.

Applicant's claim of torture - Removal of toe on left foot

Breach of procedural fairness

There is no evidence to suggest that anyone other than the applicant is responsible for the misdescription of his toenail as his "toe" (see the applicant's statement at court book, page 66 and the affidavit of the applicant sworn 8 June 2005, paras 6 and 24). To the extent that it is suggested by the applicant that his advisor, Mr Moussa, is also at fault (see the applicant's affidavit paras 16 and 25) this is not corroborated by any affidavit evidence by Mr Moussa and therefore ought to be rejected.

Further, the applicant did not offer to show the RRT his toe or even his foot. Rather he offered to show the RRT his "back and my leg and my hand" (T23 para 190). Given that the applicant had put evidence that he had been tortured by being hit on the back of the legs with a stick (in 1994) and had a heated nail "moved" across his legs (in 1997), it cannot necessarily be inferred that what the applicant was offering to show the RRT was the injury to his toe or toenail and that therefore the misdescription would have been discovered. The applicant does not depose that this was his intention in any of the evidence he has subsequently filed.

In any event, the applicant was given the opportunity to put further information to the RRT regarding his injury. He could, for example, have included a medical report stating that his injuries were consistent with torture or that they would have permitted him to engage in certain types of physical activities consistent with the evidence he had given to the RRT. He did not do so.

A denial of procedural fairness cannot result from the alleged failure of a RRT to permit an applicant the opportunity of proving that in fact the evidence he had given to it was wrong. To do so would be a perversion of the concept of procedural fairness. There was nothing, the respondent submits, unfair about the hearing the RRT afforded the applicant. The applicant, through his own fault, told the RRT that his toe had been amputated. The RRT was entitled to take this description of his claim at face value, there being nothing to suggest anything to the contrary. The RRT did not need to see the injury, which could not have proved, as the RRT stated (court book, page 159.8), that it was as a result of the mistreatment he alleged (it could, for example, have been caused by an accident). Rather the RRT was entitled to accept the description proffered to it by the applicant of the alleged act of torture and to test it against other evidence that the applicant had given.

Thus the applicant was not denied the opportunity to put his claim before the RRT. Rather the claim the applicant put before the RRT was wrong. There being nothing to suggest to the RRT that the claim as put was incorrect, the RRT was entitled to rely on the claim as stated and therefore no duty arose for it to make further inquiries.

The normal rule is that a decision-maker need do no more than react to material sent to it: Peko-Wallsend at 46 and Visa International Service Association v Reserve Bank of Australia [2003] FCA 977; (2003) 131 FCR 300 at [629]. A duty to inquire arises only in exceptional circumstances: Minister for Immigration v SCAR (2003) 198 ALR 293 at [31]. The decision of Prasad v Minister for Immigration [1985] FCA 47; (1985) 6 FCR 155 at 169-170, upon which this applicant relies, stands for the proposition that exceptional circumstances will exist when a decision-maker unreasonably fails to ascertain material that is readily available and which is centrally relevant to the decision to be made.

In the present case, the RRT cannot be said to have acted with the requisite degree of unreasonableness in not examining the injuries of the applicant in circumstances where there was nothing to suggest, either by way of actual or constructive knowledge, that the applicant had not put his claim correctly. The situation would be very different if, for example, the RRT had been alerted to the misdescription and had subsequently refused to look at the applicant's toe. In such circumstances the RRT could be said to be exercising its power "in a manner so unreasonable that no reasonable person would have so exercised it": Prasad at 170. Where the material "contains some obvious omission or obscurity that needs to be resolved" then a duty to inquire may arise: Ertan v Hurford (1986) 72 ALR 695 at 702 per Toohey J. However, this is not the present case.

Furthermore, as the decision of the High Court in Re Minister for Immigration; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441 demonstrates, the onus of proving that such a duty has been breached is a considerable one. In that case a majority of the High Court held that the RRT's duty was limited to determining the case as articulated by the applicant, thereby obviating the need to read everything on its file, including a file note before it, which if it had been read by the RRT, could have led to the RRT believing, rather than disbelieving, the applicant's claim or at the very least could have afforded the applicant with an alternative basis for claiming refugee status.

Therefore, the respondent submits that this ground of review ought to be dismissed.

Failure to take into account a relevant consideration/ failure to consider all information

For the reasons given above, there was equally no failure by the RRT to take into account a relevant consideration in this regard. The RRT had regard to all of the material presented to it by the applicant, that is, the RRT had regard to the claim by the applicant that his toe had been amputated. The physical injury as described by the applicant was considered by the RRT. Therefore this ground of review must be rejected.

Similarly, the complaint that the RRT did not have regard to all of the information before it (see paragraph 45 of the applicant's submissions) cannot be sustained. The RRT did have regard to all of the information that the applicant presented to it. That the information presented to the RRT was incorrect cannot result in a finding that the RRT was somehow derelict in its duty.

Summary

The RRT's ultimate rejection of the applicant's claims was on the basis of its finding that he was not a witness of truth. This conclusion was made after the RRT reviewed the totality of the evidence before it, including (which the applicant has not challenged) its findings in relation to the applicant's explanation as to how he evaded military conscription and his renewal of his passport on two separate occasions while he was studying in India. The assessment of the credit of the applicant is a finding of fact par excellence by the RRT and one which a Court should be reluctant to impugn: Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67].

[71]

The Applicant relies on the primary submissions filed on 4 July 2005 and makes the following submissions in response to the Minister's counsel's submissions at hearing.

The Applicant does not propose making further submissions on the issues of "illegal departure" or "well-founded fear".

The Applicant's place of residence and education issue

Mistake of fact/jurisdictional error

The Respondent conceded that the Member failed to understand or misread the statement in the Applicant's November 2004 application that he attended El Tujeh Senior Secondary High School in Elobeid between 1993 and 1996.

The Respondent then submitted that that failure led to a mistake of fact which did not lead to jurisdictional error.

Any mistake of fact arises out of a failure to consider relevant information in the Applicant's written claim. That failure in itself is a failure to exercise the statutory power in accordance with the scheme of the Migration Act and is sufficient to establish jurisdictional error. The relevant powers and obligations are set out in the Applicant's primary submissions at paragraphs 32 and 33.

The Tribunal regarded information in respect of the location of the Applicant's schooling as a relevant consideration. This can be seen from the extensive questioning on the topic at the hearing in December 2004: see Transcript pages 2-7.

The face of the document at CB17 shows that the Tribunal could not have paid the attention reasonably required of it when it reviewed the Applicant's November 2004 application and could not have come to a rational or reasonable conclusion that the application stated the Applicant had only attended educational institutions in Omdurman. The inference to be drawn is that the Tribunal did not consider_, whether inadvertently or otherwise,_ the information in the Application regarding the Applicant's schooling in Elobeid between 1993 and 1996. The only other possible inference is that the Tribunal unreasonably and irrationally construed the meaning of the clear written word "Elobeid" to mean "Omdurman" something no reasonable decision maker could do. If that was the case the power of review was constructively not exercised. The Applicant suggests the former inference is the most likely scenario but relies on the latter inference in the alternative. Both result in jurisdictional error.

Effect of the error on other findings by the Tribunal

The Transcript shows that questioning on the Applicant's connections with western Sudan was the first issue raised at the hearing in December 2004 and the questioning continued for some time: see TS2: para 6 - TS9: para 75.

Given that the Tribunal's position was that the Applicant's November 2004 application showed no residential connection with western Sudan, it is reasonable to consider that the Tribunal's error may have contributed significantly to it taking an adverse position on the Applicant's general credibility from very early on in the hearing. The Court cannot assume that the finding as to residence and embellishment of a connection with western Sudan and subsequent findings by the Tribunal would not have been affected by the taking of such an adverse position. Nor can the Court assume that the line of questioning by the Tribunal would have occurred in the way it did had the Tribunal not made the fundamental mistake that the Applicant's written application did not claim that he had spent four of his formative adult years at high school in Elobeid.

Further, the information that the Applicant had spent four of his formative adult years in Elobeid was information that was directly relevant to the Applicant's connection with western Sudan and his claim of involvement in political activities connected with that region. The Court cannot assume that the Tribunal would have made its findings on claimed political activities even if it was aware of this connection. It is reasonable to think that any findings in respect of the Applicant's political activities may have been influenced by the misunderstanding that the Applicant had not lived for any significant time in Elobeid, a city in the west of Sudan.

It is therefore not possible to say that the jurisdictional error could not have affected the outcome and the Applicant is therefore entitled to the relief sought: see main submissions para 46; VAAD v Minister for Immigration [2005] FCAFC 117 at [77] - [83] and the cases cited there.

"primarily" argument

The Tribunal's statement at CB159.5 that the Applicant had resided "primarily, if not exclusively" in Omdurman during his educational years is made on the Tribunal's previously expressed understanding that the schools referred to in the Applicant's application were all in Omdurman: see CB152.5. It is on this factual basis that the Tribunal states the relevant claims in the Applicant's November 2004 application were "entirely inconsistent [with respect to where he resided and attended school], with his oral claims provided at the Tribunal hearing in December 2004. The word "entirely" is not superfluous and describes the Tribunal's actual understanding of the facts.

The Respondent suggests that "primarily" might as easily describe a situation where the Applicant lived the majority of his educational years in Omdurman. It is no answer to the Tribunal's error that the words used by the Tribunal to express that error are able to be used to express another thought, that is, that the Applicant had spent 12 out of the 16 of his educational years in Omdurman. Only the Tribunal's actual mistaken understanding could have been relevant to the Tribunal's actual decision making process, particularly the adverse finding as to credit and the ultimate finding that none of the Applicant's claims could be believed as a result of the adverse findings as to credit: see CB167.2-3.

Evidence regarding the removal of the toe/toenail

A critical part of the Applicant's case was his mistreatment at the hands of the Sudanese security forces on four occasions for reason of his political beliefs (CB65-66). On the last of those occasions (in 1998) he claimed in English that his toe had been removed and that he had been made to return to clean security force offices a week after that occurring.

The Applicant's case regarding the removal of the toenail is put on two bases as set out in paragraphs 42 and 44 of the Applicant's primary submissions. It is not "primarily" a Prasad-type case. Indeed if Prasad is understood as a failure to take a relevant consideration into account then the applicant's case is primarily based on such a failure and the consequential failure to exercise the statutory power.

This is not a case of "mutual mistake". The Applicant's only mistake is in the choice of English word used to describe his toenail. He is not mistaken about the nature of his injury. At all material times he believed he was telling the Tribunal that his toenail was removed. The Tribunal understands from the Applicant's choice of English words that it was his toe that had been removed. The Tribunal was labouring under a misapprehension caused by the Applicant's choice of words. But it is only the Tribunal that was mistaken as to the nature and extent of the injury.

If the Tribunal had simply accepted that the Applicant had suffered the injury as claimed in English and moved on, there would be no basis for impugning the Tribunal's decision making process. However, the issues raised by the Tribunal along with the Tribunal's own reasoning process provided the basis for a duty to inquire further or, put another way, gave rise to an obligation to take into account a consideration relevant to the Tribunal's deliberations.

The Tribunal itself made the injury to the toe an issue in assessing the truthfulness of the Applicant's claim that he had been forced to clean the offices of the security forces a week after the mistreatment and more generally the Applicant's claim that he had been mistreated by reason of his political opinions at the times and in the circumstances claimed. The precise nature and extent of the injury to the toe was implicitly put in issue by the Tribunal. This is seen in the Transcript.

The Applicant's offer to show his injuries (TS:23 para 190 second paragraph) was made immediately after a statement by the Tribunal that

[75]

The Applicant's case is that the Tribunal's reasoning shows the issue of the removal of the toe was central to the Tribunal's decision as to whether the mistreatment was for the reason claimed (that is, political activities) and its second adverse finding as to credit. Each adverse finding as to credit was central to the Tribunal's decision that the Applicant's claim in general could not be believed.

In circumstances where the nature of the alleged injury, particularly, the extent of that injury is central to the decision making process then there is an obligation to take into account all evidence in respect of that injury that is offered to the Tribunal and immediately available to it.

That obligation may be described as a "duty to inquire" if the evidence is offered and requires some further minor step to be made apparent. (Here the removal of a shoe and sock.) The obligation is to "apprehend" the information offered. Instead the Tribunal made an assumption about the nature and extent of the Applicant's physical injury (albeit innocently using as a basis for that assumption the Applicant's misunderstanding of English) without seeing the actual injury and then made a finding adverse to the Applicant's credit that was based on the nature and extent of the injury. The particular injury in question was one that was readily able to be assessed at the time of the hearing. The Tribunal's assumption of the worst made, in its eyes, the Applicant's account implausible. The failure to ascertain the relevant fact, although understandable, was objectively unreasonable given it was the Tribunal's subjective reasoning that determined the parameters of its enquiry. (see also Prasad at 563.3-4).

That obligation may also be described as an obligation to take into account a relevant consideration, the consideration being the extent of the Applicant's injury given the Tribunal's concern about the Applicant's capacity to do what he said he'd had to do a week after the injury.

Re Minister for Immigration; ex parte Applicants S134/2002 [2003] HCA 1; (2002) 211 CLR 441 is not concerned with a Prasad_-type duty to enquire and is not pertinent. The claim in question concerned a primary claim for protection by a mother and secondary claims for her children. The appeal was put on the basis that the Tribunal had failed to take material information into account, alternatively that the Tribunal had failed to afford procedural fairness to the prosecutors by failing to disclose material on the departmental file to them. The letters in question concerned a primary application for a protection visa by the prosecutor mother's husband. The letters would have been relevant to a claim by the mother through her husband but that claim was not put by the mother who at the time was not aware of her husband's claim (or whereabouts). The High Court's decision is based on the fact that the letters in question were not material to the determination of the prosecutors' claim: see page 457 paragraph 31. In this matter, the material is directly relevant to the Applicant's claim._

The failure to apprehend the physical evidence of the Applicant's toe at hearing was a jurisdictional error. It is not possible to say that the Tribunal's error as to the extent of the Applicant's injury to his toe could not have affected the outcome: see the cases referred to in paragraph 10 above.

The findings in VAAD in relation to the failure to have regard to relevant material support the Applicant's case on both issues.

[77]

These submissions are in reply to the extensive submissions in reply of the applicant filed 29 July 2005.

In addition to these further written submissions, the respondent also relies and repeats the earlier oral and written submissions she made in these proceedings ("the earlier submissions").

The respondent notes paragraph 2 of the applicant's submission in reply and accordingly does not make any submissions on the issues referred to therein. The applicant, by his refusal to make submissions on those issues or to further amend his application, is taken to have abandoned these possible grounds of review.

Mistake of Fact by the Tribunal: Schooling

The respondent conceded that the Tribunal had made an error of fact by stating that all of the schools the applicant attended were in Omdurman. However, despite the attempts of the applicant to elevate the error into a jurisdictional error, the error remains simply one of fact, which, given the confused, inconsistent and generally untruthful evidence of the applicant, had no bearing on the outcome of the Tribunal's decision: see in particular paragraphs 14-16 of the respondent's earlier written submissions.

While some errors of fact may be so egregious as to amount to jurisdictional error, this is not the present case. It is not the case that this was the only matter, or even a central matter, upon which the Tribunal did not regard the applicant as a witness of truth. Were this so, the error might be more easily characterised as a jurisdictional error. However, the Tribunal's damning findings of credit with respect to the applicant were based on the totality of the applicant's evidence and his propensity to exaggerate his evidence before it. An assessment of the applicant's credit is a matter which par excellence the Tribunal is in the best position to determine. [4] Further, given the character of the applicant's evidence, it is little wonder that the error was made by the Tribunal. That the error was put to the applicant several times by the Tribunal and not corrected by him, only reinforces the conclusion that the Tribunal legitimately drew, viz, that the applicant was embellishing his evidence in this regard. In any event, the Tribunal made it clear that it would not find against the applicant on the basis of where he lived and went to school alone: see the respondent's earlier written submissions at paragraph 18.

The applicant's submission at paragraph 5 effectively amount to the proposition that all errors of fact are jurisdictional errors. No authority is cited for this submission. To the contrary, the authorities have repeatedly stated that an error of fact is prima facie unreviewable and that to do so amounts to merits review: in addition to the authorities stated at paragraph 17 of the respondent's earlier submissions, see also Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) CLR 259 at 272. It is this very process, namely merits review, that the applicant is inviting the Court to engage in by its submissions at paragraphs 8-11.

Toe/Toenail

The applicant is correct when he says at paragraph 16 of his submissions in reply that "this is not a case of 'mutual mistake'." There was no mistake or misunderstanding by the Tribunal as to the applicant's own evidence that his toe, and not his toenail, had been removed. This is because it was the applicant alone who, albeit innocently, misled the Tribunal in this regard. For the applicant to now complain that the Tribunal in some way denied him natural justice or failed to take into account a relevant consideration when the Tribunal, as it was entitled to do, accepted the claim as put by the applicant is novel.

As stated above, the Tribunal was entitled to accept on its face the claim as put to it by the applicant. It was under no obligation to go behind the description by the applicant of the removal of his toenail in circumstances where it had no reason to doubt that the applicant did not mean or understand what he was saying. This is particularly so in circumstances where an interpreter was present and the applicant had the assistance of a migration agent in the preparation of his protection visa application.

To impose such a duty on the Tribunal would be, the respondent submits, far too onerous absent some notice, constructive or otherwise, that ought reasonably alert the Tribunal that further inquiries are required. This is so irrespective of whether or not the factual matter in question is relevant to, or even determinative of, the applicant's claims. The Tribunal must be entitled to rely prima facie upon the claims and material presented to it by the applicant. This is why the High Court has repeatedly stated that the obligation is on the applicant and not the Tribunal to present his or her case to the Tribunal and that the Tribunal does not have an independent duty to make its own inquiries: S134/2002 and Abebe v The Commonwealth (1999) 162 CLR 510 at [90], [187] and [190].

In any event, in the present case - unlike Prasad and the authorities that have followed and applied that decision - no such notice, actual or constructive existed that would have alerted the Tribunal to the fact that further inquiries may have been required.

Given that:

[87]

The presiding member went on to say that even if the applicant had been mistreated in the manner he claimed in 1998 there remained the question whether he had come to the adverse attention to the Sudanese authorities as a political dissenter between then and his departure from Sudan and whether he accordingly remained of continuing adverse interest to the Sudanese authorities for that reason. The presiding member found[8] that the applicant's claims concerning his expulsion from university and his being excused compulsory military service lacked credibility. This was the third credibility concern held by the presiding member. The presiding member was prepared to accept, based on country information, that the applicant might have been expelled from university if he was identified as a political dissenter but was not satisfied with the applicant's explanation as to why he would not have been forcibly recruited into the military after that expulsion.

The fourth area of credibility concern, in the presiding member's view, related to the applicant's claims of having renewed his passport with the Sudanese embassy in India on two occasions after he had left Sudan and arrived in India. The presiding member was concerned[9] that, given the reputation of the Sudanese authorities, it was implausible that a known political dissident who had departed Sudan illegally would have been able to renew his Sudanese passport in India twice.

Finally, the presiding member considered that the applicant had acted inconsistently with a subjective fear of persecution by not seeking protection in India and had acted inconsistently with his asserted political profile by not engaging in Sudanese political activities in India.

There are a number of difficulties with the presiding member's reasoning. First, the presiding member expressed a concern that the applicant had "embroidered his claims" in order to enhance his connection with Western Sudan where the persecution of the population is notorious. The trite reply to that concern is: so what? It should come as no surprise that an applicant for a protection visa in fear of his life may seek to embroider his claims in order to enhance his prospects of success. Untruthfulness is not incompatible with a well founded fear of persecution. The High Court of Australia has made this point clearly. In Minister for Immigration v Rajamanikkam [2002] HCA 32 at [91] Kirby J said:

[92]

Secondly, at least two and possibly three of the four key credibility findings made by the presiding member were based in whole or part upon factual errors. In relation to the first adverse credibility finding the Minister concedes that the presiding member was in error in believing that the applicant had claimed to have spent all of his school years in the Khartoum/Omdurman area. In fact, he had claimed to have spent four of his school years at his mother's home in Al Ubayyid[11], in South Western Sudan. If the first adverse credibility finding made by the presiding member had been determinative of the application the error made by the presiding member may have assumed the status of a jurisdictional fact sufficient to invalidate the decision. However, the presiding member made clear that his first adverse credibility finding was not determinative of the application. Nevertheless, it was one of the four key adverse credibility findings that led the presiding member to the conclusion that the applicant was not a witness of truth.

The second adverse credibility finding was also based upon a factual mistake. In this case the mistake was not that of the presiding member but of the applicant. The applicant genuinely intended to claim before the RRT that his big toenail on his left foot had been removed under torture by the Sudanese authorities. Because of his inadequate command of the English language, the claim in fact put to the presiding member was that the whole of his big toe on his left foot had been removed. After the hearing, for reasons that have not been explained, the applicant's migration agent compounded the problem by submitting in writing that the applicant's big toe had been "amputated". The present solicitors for the applicant made strenuous efforts to obtain evidence from the migration agent but were unable to get it. This is not the first case that I have seen when an applicant has been hindered rather than helped by a migration agent.

The applicant raises no complaint about the third or fourth adverse credibility findings made by the presiding member. In my view, the presiding member may have been in error in relation to the fourth adverse credibility finding in stating that the applicant claimed to have left Sudan illegally. In fact, the applicant had claimed to have left Sudan legally on a valid passport after his cousin paid a large bribe[12]. As I have noted earlier, the applicant has chosen not to take up the opportunity to amend his judicial review application to deal with that apparent error and has expressly declined to make any submissions about it. In the circumstances, I will make no finding on it.

[93]

The applicant asserts that the first adverse credibility finding made by the presiding member was unreasonable, illogical and not based upon findings or inferences of fact supported by logical grounds. The applicant relies upon the decision of the Federal Court in Prasad v Minister for Immigration (1985) 65ALR 549. That case stands for the proposition that a power is exercised in an improper manner if, upon the material before the decision maker, it is a decision to which no reasonable person could come. Equally, a power is exercised in an improper manner if the decision maker makes his decision - which perhaps in itself, reasonably reflects the material before him - in a manner so devoid of any plausible justification that no reasonable person could have taken that course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him. The Court found that in a case where it is obvious that material is so readily available which is centrally relevant to the decision to be made, to proceed to a decision without making any attempt to obtain the information may properly be described as an exercise of the decision making power in a manner so unreasonable that no reasonable person would have so exercised it.

In Re Minister for Immigration; ex parte S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [9] and [34] the High Court doubted that unreasonableness or illogicality is of itself a ground of jurisdictional error when considered against the fact finding process required of a decision maker under the Migration Act. Unreasonableness or illogicality may, however, point to jurisdictional error where that fact finding process fundamentally miscarries.

The applicant also asserts that the error of fact made by the presiding member in relation to the first adverse credibility finding points to a failure by the RRT to take into account a relevant consideration and a failure by the RRT to comply with its statutory obligations.

A mere factual error does not establish jurisdictional error unless it is a jurisdictional fact or otherwise a manifestation of error of law amounting to jurisdictional error: NABE v Minister for Immigration (No 2) [2004] FCAFC 263 at [53] and ordinarily, there is a distinction between overlooking a single item of evidence and overlooking an element or integer of an applicant's claims. However, a factual error assumes legal significance if the fact is of such fundamental importance as to establish a miscarriage of the fact finding process. The fact then becomes a jurisdictional fact[13]. Likewise, a failure to take into account an item of evidence assumes jurisdictional significance if it is so fundamental to the fact finding exercise that it goes to jurisdiction: WAFP v Minister for Immigration [2003] FCAFC 319 at [21].

In this case, I take the view that jurisdictional error has not been established in relation to the first adverse credibility finding made by the presiding member. Although the presiding member was in error in finding that the applicant claimed to have attended school entirely in the Khartoum/Omdurman region and although that error appears to have resulted from a failure to take into account the applicant's assertion that he attended school in Elobeid between 1989 and 1992, on a fair reading of the decision and reasons of the RRT, the adverse credibility finding was neither unreasonable nor illogical and neither was it based upon findings or inferences of fact not supported by logical grounds. The applicant had in fact resided "primarily" in Khartoum/Omdurman as found by the presiding member and the presiding member accepted that the applicant had lived to a lesser extent with his mother in Elobeid (although he limited that period of residence to school holidays). Secondly, as I have already noted, the adverse credibility finding made by the presiding member was expressly said to be not determinative in itself.

I find that the error made by the presiding member in respect of where the applicant attended school does not establish jurisdictional error.

[111]

That statement gives the impression that the presiding member was concerned not so much with the credibility of the claim of torture but with the claimed Convention nexus. The presiding member appeared to be indicating to the applicant that he accepted the credibility of his claim to have been tortured. There was no clear indication from the presiding member that he was not minded to accept the claim of torture based upon the implausibility of the applicant having been "up and about" a week later. The presiding member said that he did not know at the time what to think about that. The presiding member did not give to the applicant the clear indication of his thinking that the presiding member represents in the passage from his reasons reproduced at paragraph 26 above. This is a concern to me.

The presiding member did not claim to have any medical qualifications which would have enabled him to make an expert assessment on the capacity of the applicant to walk and work following the removal of a big toe. He did not to seek a medical assessment. He declined the opportunity to make an assessment by inspection of the applicant's injury. The adverse credibility finding made by the presiding member appears to be based on no more than the presiding member's subjective opinion.

The Minister submits that there was no procedural unfairness because the applicant was given the opportunity to submit more material after the hearing and, indeed, a further submission was made by the applicant's migration agent. There are two problems with that submission. The first is that the submission made by the migration agent was singularly unhelpful because it asserted that the applicant's toe had been amputated. The applicant states that he said no such thing to his migration agent and I have no reason to disbelieve him. He was genuinely intending to assert only that his big toenail had been removed under torture. The submission by the migration agent after the event is likely to have heightened, rather than lessened the presiding member's doubt about the applicant's account. Secondly, the discussion between the presiding member and the applicant on this issue at the hearing was in my view misleading because the presiding member appeared to be saying that he accepted the applicant's account of having been tortured by the Sudanese authorities. As I have noted above, there was no clear indication from the presiding member at the hearing that the applicant needed to submit further material relating to his physical capacity to walk and work one week after having been so tortured.

I do not think that the false impression created by the presiding member's comments at the hearing was removed by the invitation to comment issued after the hearing[19]. It is true that in that letter the applicant was put on notice that "if the Tribunal was satisfied it was not plausible the applicant would have been physically capable of doing this [cleaning the local security office] if he had suffered the injuries claimed at that time, this finding may support a conclusion that the applicant is not a witness of truth". However, the issue there raised was whether the applicant cleaned the local security office as he claimed - not whether he was tortured as he claimed. The claim of torture appeared to have been accepted by the presiding member at the hearing subject to doubt on the issue of a Convention nexus.

The adverse credibility finding made by the presiding member was made on a false factual basis. It was not the fault of the RRT that the mistake was made. The presiding member was innocently misled by the applicant because of his inadequate command of the English language. The error was compounded in the subsequent submission by the applicant's migration agent. Frequently, but not always, a decision based on a falsity unknown to the decision maker cannot be impugned. A distinction can be made in a case where an applicant has been denied the opportunity to correct the error. In Minister for Immigration v George [2004] FCAFC 276 at [52]- [53] the Full Federal Court said:

[112]

Where a decision is based on information or material that, unbeknownst to the decision-maker, is false or incorrect, that may not give rise to jurisdictional error, even though the decision may be objectively unfair, so long as there was in fact information or material before the decision-maker on which the decision could be based.

However, different considerations arise where, for whatever reason, a visa holder has not in truth been afforded the right to be heard. Where the Minister believes, erroneously, albeit on reasonable grounds, that a visa holder has been notified and proceeds on that untrue basis, there will be an error. The question is whether that error is a jurisdictional error. In order to determine whether a particular error is jurisdictional, it is essential to consider the relevant statutory context: see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 374, 389-391 and Plaintiff S157 of 2002 v Commonwealth of Australia [2003] HCA 2 at [25- 26], [37], [69] and [76 - 78]. In circumstances where a visa entitles the holder to permanent residence in Australia and cancellation will render that person liable to detention and removal from Australia, a mistake as to whether the person has been notified of the intention to consider cancelling the visa is a very significant one. Such a mistake will be even more significant if the consequences of the cancellation of a visa entitling the holder to permanent residence in Australia may include separation from his family and removal to a country with which he no longer has any social connection. Such a mistake, acted upon as it was here, must be regarded as going to the jurisdiction of the decision-maker to cancel the visa where procedural fairness is required before doing so. Failure to do so will normally involve jurisdictional error, notwithstanding that what occurred was subjectively fair from the point of view of the decision-maker, because, on the material and information available to the decision-maker, it was reasonable to conclude that a right to be heard had been afforded. Of course, this general statement is subject to any contrary indications within the relevant statutory scheme including, in this case, the deeming provisions within the Act. However, for the reasons already given, they do not assist in this case.

[117]

The applicant offered the presiding member the means to correct the mistake and the offer was not accepted. The presiding member had available to him the power to obtain a medical assessment which would also have corrected the mistake. The presiding member chose not to exercise that power. The presiding member probably deterred the applicant from introducing his own medical evidence by leading the applicant at the hearing to believe that his claim of torture had been accepted. In the circumstances, and notwithstanding the invitation to comment made after the hearing, it was procedurally unfair for the presiding member to make an adverse credibility finding based only upon the subjective opinion of the presiding member.

The Minister in this case placed no reliance upon s.422B of the Migration Act. Rather, the assertion of procedural unfairness was addressed on its legal merits. Even if the Minister had relied upon s.422B, I would consider myself bound by the decision of the Federal Court in WAJR v Minister for Immigration (2004) 204 ALR 624 which establishes that the common law fair hearing rule is not excluded by that section where Division 4 of Part 7 of the Migration Act does not govern the manner in which the RRT proceeded in the particular case. I am fortified in that view by the reasons of Raphael FM in SZCCS v Minister for Immigration & Anor [2005] FMCA 1120 at [19]. Those reasons not only support my view that s.422B does not exclude the fair hearing rule in this case, but also raise the alternative possibility that the RRT in this case may have breached its obligations under s.425. The passage from Minister for Immigration v SCAR (2003) 198 ALR 293 at [37] quoted by Hill J in NAJT at [27] adds further weight to that possibility. It is not necessary for me to make a finding on that issue, however and I refrain from doing so.

It could not be said that the want of procedural fairness in relation to the second adverse credibility finding made by the presiding member did not affect the outcome of the case before the RRT. It was a key factor in the decision, coupled with the other three adverse credibility findings, at least one (and possibly two) of which were based in whole or part upon factual errors made by the presiding member. If the applicant had been accorded procedural fairness the result may well have been different. The applicant is entitled to relief unless the Court is persuaded that the breach of procedural fairness could not have any bearing on the outcome: VAAD v Minister for Immigration [2005] FCAFC 117 at [82].

I find that the decision of the RRT is vitiated by jurisdictional error by reason of the breach of procedural fairness in relation to the second adverse credibility finding made by the presiding member. I will grant the applicant relief in the form of constitutional writs of certiorari and mandamus directed to the RRT.

I will hear the parties as to costs.

At a glance

Court

Decision date

Source

Judgment (120 paragraphs)

SZFVL v Minister for Immigration & Anor [2005] FMCA 991 (7 September 2005)

Parties

Legislation Cited (1)

Cases Cited (21)