AMB15 v Minister for Immigration and Border Protection & Anor [2019] HCATrans 110 (17 May 2019)

Last Updated: 23 May 2019

[2019] HCATrans 110

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S359 of 2018

B e t w e e n -

AMB15

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 MAY 2019, AT 12.37 PM

Copyright in the High Court of Australia
MR J.F. GORMLY: May it please the Court, I appear for the applicant. (instructed by Sydney West Legal)

MR G.J. JOHNSON: If the Court please, I appear for the first respondent. (instructed by Sparke Helmore Lawyers)

BELL J: There is a submitting appearance for the second respondent. Yes, Mr Gormly.

MR GORMLY: In this case the question of public importance is as to the standard of appellate review applicable to an appeal by way of rehearing where the grounds of appeal were that the primary judge erred in failing to find the administrative decisionmaker, in this case the RRT, did not afford procedural fairness. The standard of appellate review employed by the appeal judge is apparent in his decision at paragraph 19, application book 56.

Despite the complaint before it that the Tribunal’s reasoning and conclusion on the lack of credibility was affected by procedural fairness and was unreasonable, the appeal judge simply found the primary judge’s conclusion on the same grounds reflected no error, as he put it. The appeal judge said at 19:

The role of fact finding and the weight to be placed on materials put before the Tribunal are not matters that can generally be revisited on appeal when the question of law is whether there has been jurisdictional error.

The submission is that this standard amounts to a neglect of the appeal court’s jurisdiction in the circumstance of a ground of appeal which pleads that procedural fairness had not been afforded to the appellant before the appeal court. Procedural fairness admits of one correct answer, or unique outcome to the question of whether it had been afforded. So the appropriate standard of appellate review was correctness, requiring the appeal court not to defer to what the primary court had held, as his Honour appears to have done, but to come to its own conclusion on what procedural fairness required in the circumstances of the case and whether it had been afforded.

BELL J: Just to understand what happened, Mr Gormly, his Honour was dealing with an unparticularised ground that:

The Tribunal fell into jurisdictional error –

by denying the appellant:

procedural fairness by reason of there being a reasonable apprehension of bias and/or legal unreasonableness.

That was the ground before Justice Burley. His Honour I think took the view, the applicant being unrepresented, that particulars of that ground were to be understood by reference to the particulars that are set out in the reasons of the Federal Circuit Court. Is that the way his Honour approached the matter?

MR GORMLY: Yes, the applicant does not complain of that approach – with that approach.

BELL J: So that when, in paragraph 19 his Honour refers to the factfinding of the Tribunal on the materials that were before it, that is a reference to some of these – to the particulars of the complaint respecting

MR GORMLY: Procedural fairness, yes.

BELL J: Well, yes, it is

GAGELER J: Paragraph 19 reads, to me, as Justice Burley exercising the appellate jurisdiction of the court, determining for himself whether the conclusion reached by the primary judge was correct. Are you saying we should read it some other way?

MR GORMLY: No, it should not be read that way because his Honour has failed to – or does not engage with the circumstances pleaded of the procedural fairness. All his Honour seems to have done is to identify error or to say that he can see no error in the primary judge’s approach, without himself coming to his own conclusion about whether or not procedural fairness had been afforded. So he has just not exercised his jurisdiction and the requisite standard to decide that question. So this case is a vehicle for the Court to say more on the standard of appellate review in these types of appeals when the issue is procedural fairness. Does the determination of procedural fairness admit of a unique outcome or is it a discretionary matter because of the nature of procedural fairness that will vary from case to case and is subject to – as it is subject to the procedural requirements before it.

BELL J: Mr Gormly, when you speak of procedural fairness, as I understand paragraph 19, his Honour is expressing a conclusion about the ground that was particularised before the Federal Circuit Court as particular (b), and am I right in thinking that related to – particular (b) one sees on page 35 of the Federal Circuit Court’s reasons. I am just trying to identify what the complaint is.

MR GORMLY: Yes.

BELL J: Is this the complaint: that the documents which were provided by the applicant were not the subject of a finding by the Tribunal as to whether they were genuine or not? Is that the burden of it?

MR GORMLY: Well, there are three parts to the procedural unfairness. Firstly, the approach – we would call it an S20 approach to gather or to come to a comprehensive credibility finding against the applicant and then, on the basis of that, to afford no weight to the corroborating material. We say that that was an unreasonable approach in the circumstances of the case, that the accumulation of inconsistent matters did not bring it within that kind of case that S20 deals with.

The next level of procedural unfairness again concerning the documents was that the Tribunal did not give the applicant notice that it would reject these documents. These documents were all from a variety of official sources from which further proof could be given. They were highly corroborative of a claim which was not of itself inherently implausible.

The basic claim was that this fellow had – sorry, the applicant had left Sri Lanka illegally six months after the end of the war in 2009. He was intercepted, taken back into custody where he was tortured by beating, as he put it, held in custody, and the detention order under which he was held described him as being held on suspicion of being an LTTE member, not surprising given the time that he had left the country. Then he was placed on remand by a magistrate. Another document was from the Red Cross confirming that the Red Cross had visited this person in detention and that he had been released on a certain date.

BELL J: The Tribunal ultimately said it was not giving weight to those documents, is that the

MR GORMLY: Yes, because it had made these large comprehensive credibility findings which were

BELL J: Yes. Now, Mr Gormly, accepting, as I think the respondent acknowledges, there is an apparent inconsistency in a part of the Tribunal’s reasons relating to whether or not the applicant was on probation in 2010, the Tribunal reasoned that it did not accept as credible the account of events in 2012 for reasons that the Tribunal gave, including the improbability of the applicant fearing that the arrival of the members of the CID was a precursor to killing him.

MR GORMLY: Yes. We say that that – that the two thousand – well, there are other bases. But, even if that was a basis for finding that he was not a credible witness or not a witness of truth, nevertheless there was still, because of the nature of that, that it was afforded an insufficient probative basis to conclude that the corroborative – there was no procedural fairness requirement to put to the applicant that the Tribunal was going to find, in effect, that these documents were either not genuine or that they were inaccurate.

It appears that the inconsistency that your Honour referred to – it comes as a proof that the Tribunal seemed to have been in one mind at one stage and that through the hearing the Tribunal was prepared to rely on the documents and to give them some weight, and in fact it did in the course of its decision refer to a couple of the documents as proof that the applicant’s account was inaccurate. The Tribunal was not saying, “Well, here is the inconsistent evidence that you have provided”. The Tribunal was saying, “Well, here is the document that is good to prove that what you are saying is incorrect”. So the applicant, because of that, could not have been said to have been on notice that the Tribunal was going to say, “Well, I am going to afford no weight to these documents”. That is the guts of the procedural fairness claim.

In relation to the S20 scenario, the accumulation of minor inconsistencies did not provide a legitimate articulable basis for the adverse credibility finding. It was not a case where the well of credibility was poisoned beyond redemption. The applicant’s account of leaving Sri Lanka illegally and being retaken was not inherently implausible in itself.

GAGELER J: Going back to your procedural fairness point so I understand it, are you saying that procedural fairness requires the Tribunal to indicate to an applicant that evidence being tendered might be given no weight?

MR GORMLY: In the circumstances of this case, yes, because the Tribunal had relied on those documents and in the delegate’s decision, the delegate had made specific findings that these documents were genuine, and had actually relied on those documents as evidence of an accurate date of when this fellow had been detained. So that is an SZBEL argument for that. Then in addition to that is that the Tribunal, as I said, relied on the documents, putting them to the applicant as if they were an accurate account of their contents. So the applicant was taken by surprise with this credibility finding.

What the Tribunal seems to have had in mind is that if you can make comprehensive enough credibility findings against a person to find they are not a witness of truth, disbelieve every claim that has been put before it, then they are entitled because of the case S20 to not give weight to corroborating evidence. As a general formula, it just does not apply to all
cases. It did to S20 because the applicant’s account in that case was inherently implausible. I think the Chief Justice described it as impossible to believe. But that is not the case here. All that is here is an accumulation of minor inconsistencies and some implausibility in relation to a later account, and together that is just not a sufficient basis to make these credibility findings. It is not a sufficiently articulable basis to undermine those – to make those comprehensive credibility findings.

So, as a result, the appeal court should have engaged with these matters and looked at the documents themselves, which it apparently did not. Instead it has looked at the Tribunal’s reasons, it is said, in the context of the material before it. But it has not engaged and come to its own conclusion about whether or not procedural fairness had been afforded. The question of law – of public importance then is whether the appeal court was obliged to come to its own conclusion in the way that it would have for a ground of unreasonableness as the Court had decided in SZVFW. Those are my submissions, your Honours.

BELL J: Yes, thank you, Mr Gormly. Yes, Mr Johnson.

MR JOHNSON: Your Honours, if I can first address the argument advanced by my learned friend in relation to paragraph 19 of the appeal judge’s reasons at page 56 of the application book. In my submission, his Honour’s reasoning in that paragraph does not expose any error in relation to the standard of appellate review that his Honour was required to employ. As your Honour the presiding Judge put to my friend, the context in which the appeal judge was confronted with the appeal grounds was that he had before his Honour some relatively unparticularised grounds relating to procedural fairness and an appellant who was not either in the Federal Court or below able to articulate any more than he did in writing what the basis of the procedural fairness breach was.

So the Federal Circuit Court judge, to put it in manner, had reasonably little to work with in assessing whether there was, as alleged, a breach of procedural fairness or the other errors that were contended, and when the matter came on appeal the appeal judge was tasked with reviewing whether there was any identified error by the Circuit Court in its analysis of the grounds that were before that court.

BELL J: The ground before Justice Burley contended, as I say, in an unparticularised way the denial of procedural fairness and there was a complaint of legal unreasonableness and what his Honour did was to pick up the particulars that had been alleged before the Federal Circuit Court.

Can I just raise this with you, Mr Johnson. As I understand the approach the Tribunal took, it had regard to the documents to which Mr Gormly had referred us and appeared at one point in its reasons both to accept that the applicant had been arrested and indeed then released on probation, and it relied on the documents as a reason for its adverse credibility finding because it said, “Well, look at the Red Cross discharge document. That shows the applicant was released in January and yet he gave evidence suggesting that he was not released until February”.

So it appeared to place some reliance on the documents; certainly no suggestion that it considered them bogus. But then later it determined that it was placing no weight on those documents and one of them did, as Mr Gormly points out, describe the applicant as a person who was suspected of being a terrorist member of the LTTE. Having at one point accepted that indeed he had been arrested and detained for a period and released on probation, later it would seem the Tribunal rejected all those claims. Now, as I understand your submissions you say, well, that is just immaterial. Could you develop why that is so?

MR JOHNSON: Yes. I would like to say four things in response to what your Honour has just raised. First in relation to what appears to be an inconsistency – and I do not wish to be devious about it, but to put it in a way that it is not necessarily clear from reading the decision record that what the Tribunal was doing was engaging in inconsistent findings, but certainly on a fair reading that may well be the case. This arises from paragraphs 41 and 47 of the reasons at pages 14 and 16 of the application book. From 14 over to 15 the Tribunal expresses itself in this way, that it acknowledges that the applicant was detained on the street in April and was still in a probation period from early 2010.

Now, whether the Tribunal was supposed to indicate that it was acknowledging that that was a claim, not that it was acknowledging that it accepted that claim is one question, but not one for your Honours to determine. But even accepting on its face that it was accepting those matters as facts then when it comes to paragraph 47 it engages – and the Minister places weight upon the final conclusions – it engages in a wholesale rejection of the particular claims, including that the applicant indeed attempted to leave Sri Lanka in 2009 unlawfully, that he was imprisoned and that he was put on probation. So those particular matters are dealt with as isolated of the findings in paragraph 47 and the Minister accepts that on one view that reads somewhat inconsistently with 41.

BELL J: Yes.

MR JOHNSON: The point made is that, particularly for the purposes of raising special leave questions, as is now sought to be done, what comes of that may be at worst that it indicates some sloppy reasoning. But in relation to the special leave questions that are put and one of them focuses upon
the approach of the Tribunal in relation to the assessment of the corroborative documents – that particular finding, in my submission, does not take the applicant very far.

To address another point your Honour raised in relation to the Tribunal’s reliance upon some of these documents when assessing the credit of the applicant’s claims – it did this I think particularly in relation to the Red Cross document – that particular reasoning process or the engagement with the Tribunal during the hearing with those documents does not indicate the Tribunal was accepting those documents to be genuine or for the contents of them to be accurate, but simply presented inconsistencies with what the applicant had said. For instance, perhaps the applicant in his oral evidence was telling the truth, then the documents might be false, or vice versa.

But all the Tribunal was doing was putting to the applicant material it had that raised a concern that what the applicant was saying was not accurate and the Tribunal, with respect, was entitled to engage in that process. It certainly indicated, in my submission, that the Tribunal was engaging with the content of the corroborative material, at least in relation to the documents it identified and in that sense, noting what this Court has said in Applicant S20, it has not ignored the corroborative material. It has engaged with it but it has given those documents no weight because of its expressed conclusions of the applicant not being in its view a witness of truth, which was a factual conclusion for the Tribunal to make. If the Court pleases.

BELL J: Thank you, Mr Johnson. Mr Gormly.

MR GORMLY: The basis of the special leave question was that the court had not discharged the appropriate standard of appellate review. Even if these documents at 14 and 15 were used in the sense of a means to demonstrate inconsistent evidence which would, I agree, render their use there unobjectionable, there remains that there was insufficient notice for the applicant to be aware that the documents themselves would be found to be either not genuine or inaccurate. So there remains that question of procedural unfairness. So there are two questions: whether the standard was discharged and, secondly, if leave was granted the Court would need to decide that question whether procedural fairness had been afforded.

The remaining strength of the procedural fairness claim is that the delegate had made a positive finding that the documents were genuine three of the documents were genuine. There was an additional document before the Tribunal which was called a charge sheet which was in effect an account of the magistrate’s disposal of the 131 people before him who had been charged with illegal departure. But because of the probative nature of
the documents, that they could be proved by other evidence each was an official record procedural fairness required that the applicant be given notice and following that the appeal judge was required to come to his own conclusion about whether procedural fairness had been afforded in those circumstances, and he did not do that.

BELL J: Thank you. In our opinion, the Federal Court did not fail to apply the appropriate standard of appellate review. Special leave is refused with costs.

MR JOHNSON: As the Court pleases.

BELL J: Now, would you adjourn the Court to 10.00 am on Wednesday, 12 June in Canberra.

AT 1.07 PM THE MATTER WAS CONCLUDED