SZVAP v Minister for Immigration and Border Protection

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 701 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

JUDGE: FLICK J DATE: 7 OCTOBER 2015 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The two Appellants are husband and wife. The husband is a 29 year old Sunni Muslim from Sarghoda in Pakistan; his wife is a 29 year old Sikh woman from the Punjab in India. He is a citizen of Pakistan; she is a citizen of India. 2 In June 2013 applications were lodged with the then Department of Immigration and Citizenship seeking a Protection (Class XA) visa. Those applications were rejected by a delegate of the Minister in December 2013. Applications for review were made to the Refugee Review Tribunal later in December 2013. The Tribunal in August 2014 affirmed the decision not to grant protection visas. 3 An application seeking judicial review was filed with the Federal Circuit Court of Australia in September 2014. Before that Court two Grounds of Review were relied upon, namely: a failure to comply with s 425 of the Migration Act 1958 (Cth) (the "Migration Act"); and a contention that the decision of the Tribunal was "arbitrary, illogical or irrational". Both grounds were rejected and the Federal Circuit Court dismissed the application in May 2015: SZVAP & Anor v Minister for Immigration & Anor [2015] FCCA 1380. 4 A Notice of Appeal was filed in this Court in June 2015. As then drafted, the argument founded upon a failure to comply with s 425 of the Migration Act fell by the wayside; it was only the claim as to arbitrariness, illogicality or irrationality that was initially sought to be pursued in this Court. 5 The appeal first came before this Court on 19 August 2015. On that occasion there was no appearance for the Appellants. Counsel for the Respondent Minister sought an order that the appeal be dismissed pursuant to r 36.75 of the Federal Court Rules 2011 (Cth) (the "Federal Court Rules"). That Rule provides in relevant part as follows: Absence of party (1) If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that: (a) if the absent party is the appellant: (i) the appeal be dismissed; or (ii) the hearing be adjourned; or (iii) the hearing proceed only if specified steps are taken; or ... Rather than making that order, the matter was stood over to 2 September 2015. The Appellants were advised of the re-scheduled hearing date and appeared on that re-scheduled date. Counsel for the Minister took some care on that occasion to take the Court through the Appeal Book with a view to exposing the reasoning process of the Tribunal. 6 Having had the benefit of that exposition, it was considered appropriate that an order should be made pursuant to r 4.12 of the Federal Court Rules referring the matter to Counsel for pro bono assistance. The primary reason for that referral was the preliminary view then formed that findings of credit had been made by the Tribunal which did not appear open to it on the materials, and a failure on the part of the Tribunal adequately to explain the manner in which it had made those adverse credit findings. 7 Thereafter the matter was referred to Mr Webb of Senior Counsel. On behalf of the Appellants he filed an Outline of Submissions and sought leave to file an Amended Notice of Appeal. The two further Grounds of Appeal sought to raise an argument that the Tribunal had committed jurisdictional error in that it either: failed to afford the Appellants procedural fairness by giving them notice of the issue whether they had misrepresented the nature of their relationship to other persons who had given evidence before the Tribunal on their behalf; or failed to give proper, genuine and realistic consideration to the evidence of the witnesses called on behalf of the Appellants and other documentary material, including photographs depicting the Appellants together in the company of other people in different social contexts. The first of these two Grounds, it should be noted, was a far more focussed argument directed to a contravention of s 425 of the Migration Act than the procedural fairness argument as advanced before (and rejected by) the Federal Circuit Court. 8 On 2 October 2015 the First Respondent notified the Court that the Minister was prepared to consent to leave being granted to file an Amended Notice of Appeal raising the two further proposed Grounds of Appeal; concede jurisdictional error on the part of the Tribunal; and would consent to orders, including an order that the appeal be allowed. 9 The orders proposed by the parties should be made. But short reasons for doing so should be provided because the present case provides a useful instance of circumstances in which jurisdictional error may be exposed notwithstanding the decision of the Tribunal being founded upon adverse findings as to credit.

The reasons for decision of the Tribunal 10 The fear of persecution confronted by the Appellants in the present proceeding was founded upon the "interreligious" relationship between the husband and wife - he being a Sunni Muslim and she being a Sikh. 11 The Tribunal concluded that they were "not committed to each other in a relationship" and that they were "not (and have never been) in a relationship…". In so concluding, the Tribunal at the outset of its reasons stated that it "held concerns about the credibility of the applicants' evidence" and concluded that they were not witnesses of truth. 12 Notwithstanding the consent on the part of the Respondent Minister to the appeal being allowed, the reasons of the Tribunal should nevertheless be reviewed with some care. 13 The Tribunal in its reasons for decision recorded its conclusions as to the credibility of the evidence of the now-Appellants and the evidence upon which they relied (in relevant part) as follows (without alteration): Conclusions on credibility 30. Considered cumulatively, the concerns the Tribunal holds about the credibility of this couple lead the Tribunal to find that they are not witnesses of truth. At the hearing the applicants called four witnesses, including a witness who claimed to have introduced the couple to each other, who all said that they were friends of the couple; socialised with them and believed the couple were living together in a genuine relationship. In addition, prior to the hearing, the Tribunal received statutory declarations from some of those witnesses and also four other people who also claimed to know the couple and claimed that the couple were in a genuine relationship. 31. The Tribunal has carefully considered the evidence of all of these witnesses but their assertions do not overcome the concerns the Tribunal holds about the credibility of the applicant and his wife. Those concerns, considered cumulatively, significantly discredit them as witnesses. The Tribunal finds that the couple have represented to these witnesses that they are in a genuine relationship and marriage, but, the Tribunal does not believe that to be the case. Representations this couple have made to these witnesses about being in a genuine relationship and marriage are false. 32. As stated above, the couple have produced medical evidence indicating that the applicant's wife fell pregnant and had a miscarriage in 2011. However, this also does not overcome the concerns the Tribunal holds about the credibility of this couple. The pregnancy and miscarriage do not, per se, demonstrate that these applicants are committed to each other in a genuine relationship (even when considered together with the assertions of witnesses that they are). The couple also submitted to the department and Tribunal photographs of themselves together and with other people. The Tribunal finds these documents have been submitted to maintain what the Tribunal finds to be a false claim that this couple are in a genuine and committed relationship. 33. To the department they have submitted documents such as a residential tenancy agreement and accounts sent to either of them at the address where they claimed to have lived together in a relationship. Although they have been submitted to convey the impression the couple live together in a relationship, they do not demonstrate that to be true and do not overcome the Tribunal's concerns about their credibility. By letter dated 3 June 2013 the representative made submissions to the department and by letter dated 22 July 2014 the representative made submissions to the Tribunal. In these submissions the representative advanced country information about the treatment of couples in India and Pakistan who enter into inter religious marriages as well as information about human rights practices in those countries. That information does not assist the applicant and his wife because the Tribunal finds that they are not in a genuine relationship and marriage and will not seek to live together in their respective countries. 34. For the reasons given above, the Tribunal finds that the applicant and his wife are not committed to each other in a relationship. They have undergone a civil marriage ceremony and may well have lived at the same address. However, the Tribunal does not believe that this couple have, at any stage, lived together in a relationship. Their protection claims were solely based on what could happen to them if their relationship to each other became known and they actually tried to live together in their respective countries. The Tribunal finds that this couple are not (and have never been) in a relationship and they will not seek to live together in their respective countries.

Adverse findings as to credit - merits review -v- judicial review 14 Considerable caution must be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error. 15 Thus, for example, in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [96], (2010) 240 CLR 611 at 636 Crennan and Bell JJ cautioned against sanctioning the ground of judicial review asserting arbitrariness, illogicality or irrationality as a means of impermissibly achieving "merits review". The same degree of caution has also been expressed in respect to an argument that there has been a failure to give proper, genuine and realistic consideration to material being an impermissible invitation to effect "merits review" - and not "judicial review": e.g., Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45], (2010) 6 ASTLR 339 at 351 per Basten JA (Allsop P agreeing); Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132 at [36] per Allsop CJ, Flick and Griffiths JJ. 16 And, in the specific context of adverse findings as to credit, McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67], (2000) 58 ALD 609 at 625 relevantly observed: [67] In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were "utterly implausible". However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible". The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged. These observations - or, at least, such parts of these observations as refer to findings on credibility being "the function of the primary decision maker par excellence" - have oft been since cited: e.g., SZSBR v Minister for Immigration and Border Protection [2013] FCA 1208 at [9] per Farrell J; MZZSH v Minister for Immigration and Border Protection [2014] FCA 1292 at [20] per Murphy J; SZSFS v Minister for Immigration and Border Protection [2015] FCA 534 at [20] per Logan J. The comments of McHugh J as to the absence of any need to provide "detailed reasons", however, have not gone without notice: e.g., Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326 at [47] per Campbell JA (Allsop P and Beazley JA agreeing); SZSQY v Minister for Immigration and Border Protection [2013] FCA 1288 at [16] per Cowdroy J. 17 The difficulties confronting any party who seeks to upset findings founded upon an assessment of the credibility of witnesses cannot, accordingly, be under-estimated: e.g., Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51, (2010) 115 ALD 303. 18 And the circumstances in which findings of credit may be made are many. Cases may thus arise where adverse findings as to credibility are founded, either in part or in whole, upon an assessment as to oral evidence by reference to contemporaneous documents. Similarly, cases may arise where adverse findings as to credibility are founded, either in whole or in part, upon an assessment as to oral evidence by reference to other objective facts. Cause to question such findings may arise by reason of adverse findings as to credibility sitting inconsistently with such other objective evidence as is before a decision-maker which is supportive of the claims being advanced and which has been rejected. 19 The question as to the appropriate approach of a Court undertaking judicial review becomes even more acute, however, where the adverse findings as to credibility are founded simply upon an assessment as to whether: a particular witness; and/or the corroborative evidence of other witnesses is to be believed or disbelieved. 20 Whatever may be the difficulties, however, adverse findings of fact founded upon credibility - like other findings of fact - may expose jurisdictional error. A finding of fact founded simply upon a conclusion that a witness is not to be believed is no more immune from judicial scrutiny than is any other finding of fact. 21 In an appropriate case findings of credibility by an administrative decision-maker may expose legal error. 22 Thus, for example, in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, (2013) 212 FCR 99 at 121, Robertson J also observed: [78] It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal's rejection of the entirety of an applicant's evidence and the entirety of the applicant's claim. The Refugee Review Tribunal in that case had found the claimant had been "untruthful", including in the account he had given as to his having studied Persian in Pakistan. The Tribunal, however, had failed to refer in the course of the hearing or in its reasons to a document from Punjab University corroborating the claimant's account. Notwithstanding the findings as to credit, the decision of the Tribunal was set aside. See also: MZYWL v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 895 at [24] per Bromberg J. Jurisdictional error may also be exposed where the Tribunal applies "a process of reasoning which damns a man's credibility by reference, materially, to a false factual premise concerning a critical document": SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470 at [37], (2009) 181 FCR 113 at 126 per Logan J. Unwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 437 at [54], (2002) 194 ALR 676 at 685. 23 "Adverse findings as to credit by the Tribunal", as has previously been observed, "do not shield its decision-making processes from scrutiny": SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] per Flick J. And the basis upon which the Tribunal has made adverse findings, including adverse findings as to credit, must be adequately explained: SZSRV v Minister for Immigration and Border Protection [2014] FCA 220 at [23], (2014) 142 ALD 219 at 223. A failure to set forth the basis upon which adverse credit findings are made may expose jurisdictional error.

The findings in the present case - a denial of procedural fairness 24 In the circumstances of the present case, the account propounded by the two Appellants as to the genuineness of their relationship was supported by: their own evidence; four other witnesses who were relied upon by the Appellants and who in fact gave evidence before the Tribunal; three further Statutory Declarations of other persons who corroborated the account given by the Appellants but who did not give evidence before the Tribunal; and other documentary evidence, including photographs of the Appellants in a variety of social contexts, a residential tenancy agreement, and an ultra-sound in respect to the wife. But none of this evidence swayed the Tribunal. 25 The only relevant conclusion reached by the Tribunal was that the evidence of the Appellants and the other witnesses was not to be "believed". No other touchstone of credibility - such as inconsistencies between that oral evidence or inconsistencies in the accounts being propounded by different witnesses - was relied upon by the Tribunal. 26 In the circumstances of the present case, it is sufficient to conclude that there has been - as one of the two new Grounds of Appeal contends - a contravention of s 425 of the Migration Act and a denial of procedural fairness. 27 The Appellants were entitled to, but did not receive, a "sufficient opportunity" to advance their claims and to have those claims resolved in a procedurally fair way: cf. SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [44], (2006) 228 CLR 152 at 165. That which is required varies with the circumstances presented. Thus, for example, in SZBEL, Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ addressed as follows the consequences that may follow from a claim broadly expressed: [39] If the issues on the review of the delegate's decision by the Tribunal are identified no more particularly than by the question "is the applicant entitled to a protection visa?", rejection of some, or all, aspects of his account of the past events said to found his fears of persecution would self-evidently be a conclusion open to the Tribunal. The conclusion would be open because every aspect of the applicant's claim would be in issue in the Tribunal's review of the delegate's decision. But if the issues are to be identified more particularly, other questions arise. Their Honours then went on to address as follows those circumstances in which a claimant may be put on notice of the Tribunal's concerns as to the veracity of the account being provided: [47] First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, 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 the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. It is the concluding reference to "specific aspects" of the account being provided which presently assumes relevance. Before the Federal Circuit Court, the argument as to a contravention of s 425 of the Migration Act was rejected by that Court upon the basis that the Appellants were on notice that "the genuineness of the relationship was an issue on the review": [2015] FCCA 1380 at [10]. Before this Court the further Ground of Appeal focussed attention upon the "representations" referred to by the Tribunal in its reasons at para [31]. 28 On the facts of the present case it was common ground that the Tribunal had not disclosed, during the hearing or during its questioning of any witness, that there was any concern on its part as to the "representations" said to have been made by the Appellants to any of the other witnesses being "false". At no stage did the Tribunal by its questions inquire into the possibility that any of the witnesses may have been deceived by the Appellants as to the nature of their relationship. Had such an "aspect" of the evidence being adduced been disclosed by the Tribunal, it was common ground that for example: the Appellants could well have adduced further evidence as to their relationship, including further photographic evidence supportive of the genuineness of their relationship; and the other witnesses could well have given further evidence as to their observations of the Appellants and the basis of their respective beliefs as to the genuineness of that relationship and what had in fact been told to them by one or other of the Appellants. Importantly, had a question as to the "falsity" of the "representations" been raised by the Tribunal as a "specific aspect" of its concerns: the witnesses would have been given an opportunity to respond to that "specific" concern. 29 The Tribunal's assessment in the present case that "representations" made to the other witnesses were "false" cannot be characterised, to employ the language of Robertson J in SZRKT, as a "finding on credit on an objectively minor matter of fact". The finding was central to the reasoning of the Tribunal - at least in respect to the manner in which it assessed the evidence of the witnesses called by the Appellants to corroborate their claims. The finding was a "significant" part of its reasoning process: cf. MZZAS v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 757 at [19] per Mortimer J. 30 To so conclude says nothing as to the other of the two new Grounds. Although it is unnecessary to express any concluded view, there is much to be said for a conclusion that there has been a failure to give proper, genuine and realistic consideration to the evidence of the witnesses called on behalf of the Appellants. There is much to be said in support of the written submission advanced on their behalf by Senior Counsel that "the Tribunal proceeded on the basis its view as to the general credibility of the appellants was determinative and that the other material could be discounted in light of it".

CONCLUSIONS 31 The appeal should be allowed and orders made in accordance with the Short Minutes of Orders proposed by the parties. 32 The functions of the former Refugee Review Tribunal, it should be noted, have now been subsumed within the Administrative Appeals Tribunal. Although no order is made that any future reconsideration of the Appellants' claims should be heard by a Tribunal differently constituted, it remains a matter for the President of the Administrative Appeals Tribunal to now consider whether it may be more prudent for a fresh mind to be brought to bear upon those claims. The President may consider that the Tribunal as previously constituted should not be placed in the position of having to revisit its previous credit assessments, not only of the Appellants, but also the other witnesses relied upon. 33 The Court is indebted to Mr Webb SC who appeared pro bono on behalf of the Appellants. The Court is also indebted to Counsel for the Respondent Minister properly conceding that the decision of the Tribunal did expose jurisdictional error.

BY CONSENT, THE ORDERS OF THE COURT ARE:

1. The name of the Second Respondent is changed to 'Administrative Appeals Tribunal'.
2. Leave is granted to the Appellants to raise in the appeal new grounds that were not raised in the Application for Review in the Federal Circuit Court, being Grounds 3 and 4 of the Draft Amended Notice of Appeal.
3. The Draft Amended Notice of Appeal attached to the Appellant's Outline of Submissions dated 29 September 2015 stand as the Amended Notice of Appeal.
4. The appeal is allowed.
5. The orders of the Federal Circuit Court made on 26 May 2015 is set aside and in their place orders that: (a) a writ of certiorari issue directed to the Second Respondent, quashing the decision dated 13 August 2014; (b) a writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application made on 19 December 2013 by the Appellants for review of the decision of the delegate of the First Respondent to refuse to grant the Appellants protection visas; (c) the First Respondent pay the Applicants' costs, as agreed or taxed.
6. The First Respondent pay the Appellants' costs.

AND THE COURT NOTES THAT: The First Respondent accepts that the decision of the Second Respondent is affected by jurisdictional error in the form of a denial of procedural fairness, contrary to s 425 of the Migration Act 1958 (Cth), in that the Second Respondent did not give the Appellants a sufficient opportunity to give evidence, or present arguments, about the issue of whether the Appellants had misrepresented the nature of their relationship to other persons who gave evidence to the Second Respondent. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.