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AEO15 v Minister for Immigration & Anor [2016] FCCA 97 (10 February 2016)

Last Updated: 17 February 2016

FEDERAL CIRCUIT COURT OF AUSTRALIA

AEO15 v MINISTER FOR IMMIGRATION & ANOR


Catchwords:
MIGRATION – Protection visa application – review of decision of Refugee Review Tribunal – whether the Tribunal considered all of the applicant’s claims – whether the Tribunal failed to meet its obligations under s.425 of the Migration Act 1958 (Cth) – whether the Tribunal committed jurisdictional error by failing to invite a witness to the hearing to be questioned – whether the Tribunal failed to consider witness statements – whether the Tribunal failed to consider corroborative evidence – jurisdictional error – writs issued.


Legislation:


Appellant S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71; 216 CLR 473
Minister for Immigration & Border Protection v CZBP [2014] FCAFC 105
Minister for Immigration & Citizenship v SZRKT [2013] FCA 317; 212 FCR 99
NABE v Minister for Immigration & Multicultural Affairs (No. 2) [2004] FCAFC 263; (2004) 144 FCR 1
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; 228 CLR 152
SZRHL v Minister for Immigration & Citizenship [2013] FCA 1093
SZUZE v Minister for Immigration & Border Protection [2015] FCCA 1767 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117

Applicant:
AEO15

First Respondent:
MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:
ADMINISTRATIVE APPEALS TRIBUNAL

File Number:
SYG 698 of 2015

Judgment of:
Judge Smith

Hearing date:
22 October 2015

Date of Last Submission:
22 October 2015

Delivered at:
Sydney

Delivered on:
10 February 2016


REPRESENTATION

Counsel for the Applicant:
Ms T. Baw

Solicitors for the Applicant:
Sarom Solicitors

Counsel for the First Respondent:
Mr J. Kay Hoyle

Solicitors for the Respondents:
Clayton Utz

ORDERS

(1) The name of the second respondent be amended to “Administrative Appeals Tribunal”.
(2) A writ of certiorari issue directed to the second respondent quashing the decision of the Tribunal dated 16 February 2015.
(3) A writ of mandamus issue directed to the second respondent requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 7 March 2014 in accordance with the law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 698 of 2015

AEO15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

  1. The applicant is a citizen of Fiji who claims asylum in Australia in connection with events that occurred to him in his time as a member of the Fijian police force. The Refugee Review Tribunal[1] affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa. The applicant seeks judicial review of the Tribunal’s decision.
  2. For the reasons that follow the Tribunal failed to complete its statutory duty to review the delegate’s decision and so fell into jurisdictional error. The Tribunal’s decision will be set aside and the matter will be remitted to it for it to consider the application for review according to law.

Background and claims

  1. The applicant arrived in Australia on 3 July 2013 and applied for a protection visa on 21 August 2013. The following summary of the claims made by him are largely taken from the first respondent’s written submissions:
    1. the applicant was a member of the Fijian police force and part of a team that investigated the involvement of Frank Bainimarama in the deaths of soldiers of the Fijian military in the Counter Revolutionary Warfare (CRW) unit in 2000;
    2. he was framed by the military in relation to the murder of a prisoner. He was a witness to the murder and when he attempted to stop the military personnel from mistreating the prisoner he was taken to a military camp. There, he was beaten until he agreed to accept the blame and not to expose those persons responsible. He was told not to talk about the incident. The military told him that if he did not take the blame he would be shot and his family murdered;
    1. the applicant accepted blame for the incident and in 2007 was charged with one count of being an accessory after the fact in relation to the murder of the prisoner. He was tried, convicted and sentenced to imprisonment for two years. He was released after serving 11 months in prison. When he asked to return to the Fijian police force, he was refused due to the conviction; and
    1. he was under police and military surveillance while in prison. The military were concerned that he would expose them and accuse them of causing the death of the prisoner. When the applicant was released he filed successive appeals to the Fiji Court of Appeal which were unsuccessful. He claimed that the Fijian legal system and courts were corrupt and that his case had been perverted.
  2. The applicant provided two witness statements to support his claims. The first, dated 8 June 2013 (at CB pg.80) was by a village headman who claimed to have witnessed the applicant being taken away by military officers in 2009. The second, dated 19 July 2010 (at CB pg.82), and on the letterhead of the Fiji Police Force, was from an Inspector of Police who corroborated the applicant’s claim to have been framed in connection with the murder of a prisoner.
  3. On 7 March 2014 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The applicant applied to the Tribunal for review of that decision.
  4. The applicant submitted a number of statutory declarations to the Tribunal in support of his application for review. The first was from a Mr F who claimed he was in the Fijian police force at the same time as the applicant. He gave evidence about the military involvement in the applicant’s court case and his beliefs, as a former prosecutor, that the court system had been overtaken by the military. He also gave evidence about the murder of the CRW soldiers that the applicant claimed to have been involved in investigating.
  5. The next statutory declaration was by a Mr R, who had worked in the prison in Fiji with the applicant had been incarcerated.
  6. The third declaration was by Mr D, a police officer from Fiji who had worked with the applicant. This officer gave evidence about the investigation into Bainimarama’s case that started in 2000.
  7. The applicant was invited by the Tribunal to attend a hearing and did so on 17 October 2014. One of the applicant’s witnesses also gave evidence.
  8. On 16 February 2015 the Tribunal made a decision to affirm the delegate’s decision.

The Tribunal’s decision

  1. The Tribunal accepted that the applicant was convicted as accessory after the fact to the murder of a prisoner and that he was sentenced to imprisonment for 2 years and had served 11 months in prison. It accepted that he could not return to the Fijian Police Force.
  2. The Tribunal next dealt with the evidence given by others in support of the applicant. It gave no weight to the letter from the Inspector of Police because, according to the Tribunal, it was written in a private capacity and because the author was not prepared to testify to the veracity of its contents in the applicant’s appeal. It found the evidence of the witness who gave oral evidence at the hearing unreliable because of an apparent conflict in that evidence about the timing of a particular event. As to the other police officer’s evidence, the Tribunal did not give weight to it because it did not have the opportunity to question the maker of the declarations. Finally, the Tribunal appears to have made no conclusive finding in respect of the village headman but rather seems to have implicitly accepted what was said in his statement.
  3. The Tribunal accepted that, prior to the 2006 coup, the applicant was involved in investigations regarding Mr Bainimarama’s involvement in the deaths of mutinous CRW unit soldiers in 2000.
  4. The Tribunal could not make a confident finding that the applicant’s account was not credible (at [55] and [56]) and so assessed his claims on the basis that it was possible that:
    1. the applicant did attempt to intervene in the treatment of the murdered prisoner;
    2. he was taken by the military to the camp beaten before returning home;
    1. he had not protested his innocence at the first hearing on legal advice, hoping for a favourable outcome; and
    1. he received threats from the military in 2009 against exposing the military officers whom he believed were responsible for the prisoner’s death.
  5. The Tribunal found that the applicant was no longer of any interest to the military in Fiji as there had been no further incidents with the military since 2009. It dismissed as speculative the applicant’s claims that he had been monitored, and rejected the claim that he was on a blacklist on the basis that the applicant was of no further interest to the military. For those reasons, the Tribunal found that the applicant would not face harm upon return to Fiji and affirmed the decision on review.

Consideration

Ground 1 – Applicant’s involvement in the team of police investigating the murder of soldiers in 2000

  1. The first ground in the application is that the Tribunal failed to consider the applicant’s claim to fear harm on account of his having been a member of the team of police investigating the murder of soldiers in 2000.
  2. It is well-established that the Tribunal will fall into jurisdictional error if it fails to consider a claim which, if accepted, might be dispositive of the application for review, so long as that claim is expressly made by the applicant or clearly arises on the material before the Tribunal or the facts found by it: see for example NABE v Minister for Immigration & Multicultural Affairs (No. 2) [2004] FCAFC 263; (2004) 144 FCR 1.
  3. In this case there is no question that the applicant made a claim based upon his involvement in the investigative team in 2000. In order to determine whether the Tribunal considered that claim, it is necessary to understand the parameters of it. The applicant explained at the Tribunal hearing that at the time of the investigation, Mr Bainimarama was still head of the Army. When asked why he would still fear harm on the basis of the investigation the applicant said that the subjects of the investigation were aware that one of the inspectors was still in possession of software of the investigation and that if it came up, Mr Bainimarama would be charged. He also explained that he had not said anything publicly about the results of the investigation because he was worried about his life and that this was part of the reason why he was later targeted by the military in connection with the murder of the prisoner.
  4. The applicant claimed that he was not terminated from his employment but put under surveillance in December 2006, shortly after the coup. He said that in the time between December and the death of the prisoner in June the following year, he was suspicious that he was being followed around and that he always saw military officers in civilian clothing standing and staring at him.
  5. The claim concerning Mr Bainimarama was thus put on the basis that it was an independent reason for which the applicant feared harm. It was one of the reasons for which he was specifically targeted, being framed for the death of the prisoner but also had an ongoing relevance outside of that particular incident. That was because the applicant said that there was evidence still in possession of one of the investigative team that could potentially implicate Mr Bainimarama in the death of the soldiers in 2000. With that understanding of the claim in mind, it is necessary to see how the Tribunal dealt with it, if at all.
  6. First, at [46] of its reasons, the Tribunal expressly found that the applicant had been involved in investigations regarding the deaths of CRW soldiers in 2000. Secondly, at [57] to [63] of its reasons, the Tribunal explained why it concluded that the applicant did not have a well-founded fear of persecution in Fiji. The first matter relevant to this conclusion was the Tribunal’s concern as to why the military would still be interested in monitoring the applicant from 2009 to 2014. The single reason given by the Tribunal, for its finding that the applicant was no longer of any interest to the military, was that the applicant had continued to appeal his convictions until 2011 and yet had not experienced any further incidents with the military: see [59].
  7. That reasoning process did not, on its face, grapple with the applicant’s claim that the President of Fiji (Mr Bainimarama) continued to fear exposure for his involvement in the murder of soldiers because of the existence of electronic records of the investigation into that murder. Although, at one level, the claim concerning Mr Bainimarama might have been able to be dealt with by focusing solely on the military’s interest in the applicant, in my view, on a proper understanding of the claim, the threat to the applicant was more specific in nature than that considered by the Tribunal and, because the claim had an independent existence, could not rationally be disposed of solely by reference to the incident concerning the murder of the prisoner in 2007.
  8. Having concluded that the applicant was no longer of concern to the military, the Tribunal noted that, in spite of the applicant’s claim to be on a blacklist, the applicant had been able to leave Fiji. At this point, the Tribunal referred again to the investigation against Mr Bainimarama. The question is whether that reference is sufficient to establish that the Tribunal not only had that claim in mind when making its findings about the military, but also that it properly dealt with that claim. In my view, although the Tribunal may have had the claim in mind at this point in its reasons, it did not properly deal with it. That is principally because the only reason given by the Tribunal finding that the applicant was not on a blacklist as claimed, was that the applicant was of no further interest to the authorities. Leaving aside the obvious circularity of this reasoning, it is apparent that the only reason for rejecting the blacklist claim was that the applicant had been involved in appeals against his conviction and yet had not been harmed by the military. In other words, none of the Tribunal’s reasoning concerned or engaged with the claim about the investigation into the murders of soldiers in 2000.
  9. For those reasons, I conclude that the Tribunal failed to consider the applicant’s claim to fear harm as a result of his involvement in investigations into Mr Bainimarama in connection to the murder of soldiers in 2000. It is also arguable that the Tribunal failed to consider whether the fact that the applicant had not been targeted by the military since 2009 was only because he had not spoken out during the course of his appeals, and that the reason that he had not spoken out was his fear of being harmed by the military. That type of error was discussed in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71; 216 CLR 473 but is not necessary for me to determine it in light of my earlier conclusion.

Ground 2 – Failure to consider the applicant’s claims cumulatively

  1. The second ground in the application is that the Tribunal failed to consider the totality of the applicant’s claims and their cumulative effect. This ground, in effect, is another way of expressing the first ground and it must succeed for the same reasons that I have given in respect of that ground.

Ground 3 – The Tribunal denied the applicant a meaningful opportunity to participate in the hearing

  1. Grounds 3 to 6 involve the way in which the Tribunal dealt with the evidence of the applicant’s witnesses. Ground 3 concerns the evidence of the witness, Mr F, who had been a police officer with the applicant in Fiji and who had made a statutory declaration on 11 July 2014. The gist of the complaint is that the Tribunal, without notice to the applicant, gave no weight to this witness’s evidence, simply on the basis that it did not have the opportunity to question him.
  2. The ground is framed by reference to a breach of s.425 of the Migration Act 1958 (Cth). That section provides:
  3. It was not disputed, and nor could it be, that that provision requires the Tribunal to provide the applicant with a meaningful opportunity to present evidence and arguments about his or her claims or, more accurately, about the issues arising in relation to the decision under review: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; 228 CLR 152. The Minister argued that there was no breach of s.425 because there was no adverse conclusion about the question which the evidence of this particular witness supported, namely that the applicant was not involved in the murder, did try to intervene and was harmed and threatened by the Fijian military as result.
  4. The Minister argued that the Tribunal correctly identified the essence of this witness’s evidence as being his belief that the applicant was not involved in the murder. Further, the Minister argued that the Tribunal properly rejected that evidence because an assertion of honest belief, without more, is unlikely to be probative and in the absence of the witness could not be properly tested.
  5. In my view, the fact that the Tribunal “did not have the opportunity to question” the witness was neither correct nor a rational basis for giving no weight to the entirety of that witness’s evidence. In addition, I accept the applicant’s argument that to do so without indicating to the applicant at the hearing or at some prior time, that it might reject the evidence unless and until the witness appeared to give evidence, was a breach of s.425.
  6. The Tribunal is not a court and is not bound by the rules of evidence or any strictures of legal procedure: s.420. It is entitled to, and very often does, rely on material that would not be inadmissible in a court of law. It relies on reports about a country’s circumstances that are second and third hand hearsay, including newspaper reports and reports from unnamed individuals within government departments of foreign countries. Why then, it might be asked, could it reject evidence simply because the maker of the statement did not appear at the hearing? The statutory declaration was, on its face, detailed and cogent. It was made by a person who said that he not only knew the applicant, but was an eyewitness to various events relied upon by the applicant. He gave an address in Sydney. In those circumstances, to deal with the evidence in the way in which the Tribunal did was capricious and in effect denied the applicant the opportunity to rely on the evidence, failed to give him the opportunity to argue that the statutory declaration should be given weight and constituted a failure to complete the review of the delegate’s decision: see Minister for Immigration & Border Protection v CZBP [2014] FCAFC 105 at [91] – [96].
  7. I would add that it cannot be argued that the error was immaterial to the Tribunal’s decision. Although, as the Minister argued, at a high level of generality the Tribunal did not make findings which were inconsistent with this witness’s evidence, the Tribunal did not make a confident finding concerning the applicant’s credibility: see [55]. In light of that, the Tribunal assessed the risk of future harm occurring to the applicant only on the basis that it was possible that certain events had occurred. Further, it rejected the applicant’s claim that he had been under surveillance by the military as speculation. It is possible that, if the witness’s statutory declaration had been accepted, then the Tribunal might have more readily accepted the credibility of all of the applicant’s claims. It is not for the Court to judge whether this would have been the case because to do so would be to enter into the merits of the decision. However, it is sufficient in order to find jurisdictional error that such an outcome be at least possible.

Ground 4 – Adverse finding of the evidence of a witness

  1. The fourth ground concerns the evidence of Mr D, the police officer in a statutory declaration made on 31 May 2014 and given orally at the Tribunal hearing. The Tribunal set out this evidence:
  2. The applicant argues that the Tribunal misunderstood the evidence of the witness and so its rejection of his evidence had no rational basis. The critical passage in the Tribunal hearing was as follows:
  3. The applicant argues that the Tribunal overlooked the fact that the witness’s evidence was consistent with the applicant’s evidence because, as shown from this excerpt from the transcript, he said that it was dark at the relevant time. However, I think that this argument relies on too close a reading of the Tribunal’s reasons. Properly understood, in the passage set out above, the Tribunal was referring to the witness’s evidence that the events took place between 3pm and 5pm even though that evidence was later changed in response to the Tribunal’s questions. Understood in that way, the Tribunal was correct to find that the applicant’s evidence was inconsistent with that of the witness in this respect and so there was a rational basis for its conclusion in respect of that evidence. This ground is rejected.

Ground 5 – No weight given to the Inspector of Police’s letter

  1. The fifth ground concerns the letter from the Inspector of Police. The applicant argues that the Tribunal’s finding in respect of this letter also lacked a rational basis. The Tribunal found:
  2. The applicant argues that in this passage the Tribunal did not accurately reflect what the applicant had said about this letter. I agree. First, the transcript of the hearing reveals that the applicant did not in fact say that the letter was written in the author’s personal capacity. The applicant did say that the letter was handed to him “personally”, but that is quite a different matter. Indeed, as the applicant points out, the letter was on the letterhead of the Fiji Police Force and signed by the author as Inspector of Police. In any event, the author claimed to be the Inspector of Police and a District Intelligence Officer. As such, the matters stated in the letter would clearly have been within the author’s own knowledge. For that reason, I cannot understand why the capacity in which the letter was written has any rational bearing upon its credibility.
  3. Secondly, in relation to the question as to why the author did not give evidence at the appeal, was a distortion of what was said at the Tribunal hearing. The Tribunal did ask the applicant why the author did not testify at the trial:
  4. However, when discussing the appeal there was no issue raised about giving evidence:
  5. The Tribunal could not be said to have confused the appeal with the trial because the letter was not written until after the trial.
  6. The Minister argues that there was no misunderstanding of the evidence and that it was clear that the Tribunal had considerable concerns about the authenticity of the letter. However, that is beside the point. The Tribunal’s reasons reveal that the only concern that the Tribunal had were in relation to the applicant’s evidence, first, that the letter was written in a personal capacity; and secondly, that the author of the letter had not given evidence on appeal.
  7. The only real issue in this ground is whether the failure to deal properly with this evidence amounts to jurisdictional error. In that respect, the applicant relies upon the decisions in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 and SZRHL v Minister for Immigration & Citizenship [2013] FCA 1093. I reviewed those and other relevant authorities in SZUZE v Minister for Immigration & Border Protection [2015] FCCA 1767 at [21] – [32] I need not repeat what I said there. The test to be applied in determining whether an error in dealing with evidence amounts to jurisdictional error is that described by Robertson J in Minister for Immigration & Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 130-131 (“SZRKT”) [111]-[112]:
  8. The Minister argued that the alleged error could not have had any bearing on the Tribunal’s decision because, in effect, it accepted all of the applicant’s claims concerning the case against him. I disagree for the same reasons that I gave in respect of the first ground. In this case, a person saying that he is the Inspector of Police stated that the military not only charged the applicant, but arrange for their own judge to preside over the case. In circumstances where the Tribunal could only tentatively accept the aspect of the applicant’s claims concerning the false charges and where it dismissed the possibility of future harm against that background and on the basis that, in its view, the military had no further interest in the applicant, this letter could have played a very important part in the Tribunal’s decision.

Ground 6 – The Tribunal’s failure to consider corroborating evidence

  1. The sixth ground is that the Tribunal failed to give genuine consideration to the following evidence:
    1. the statutory declaration of the former prison warder;
    2. the letter from the village headman; and
    1. other letters in support of the applicant’s good character
  2. The second of these documents was expressly referred to in the findings made by the Tribunal: [45]. The Tribunal noted that the applicant gave evidence that he had been taken to a military camp in 2009 and threatened with death if he revealed those responsible for the prisoner’s murder. However the letter in question went further and gave explicit detail of the way in which the applicant was dragged out of his house with blood covering his face and that he was tortured and handcuffed. Yet, in spite of this evidence, and without further referring to it, the Tribunal stated that it could not make a confident finding that the applicant’s account was credible and said that it was only possible that the applicant “received threats from the military in 2009 against exposing the military officers whom he believed were responsible for [the prisoner’s] death”. Nowhere does the Tribunal reject the evidence of the village headman or purport to give it any weight. I conclude that the Tribunal did not in fact consider it in the sense of analysing it or undertaking any intellectual process in respect of it.
  3. The first and third of these are in a different category. The first, a statutory declaration by a former prison warder, only concerns the way in which the applicant was treated in prison. Although the witness stated that he was under instructions not treat the applicant well the evidence, on any view, was not sufficiently important to the Tribunal’s reasoning to suggest either that the Tribunal overlooked the evidence or that, if it did so then it fell into jurisdictional error: SZRKT. The third particular in this ground relates to character references which, broadly speaking, had little, if any, bearing upon the factual basis for the applicant’s claims and so I am not satisfied that the failure by the Tribunal to refer to them meant that it failed to have regard to them.

Conclusion

  1. The Tribunal fell into error in a number of ways. Essentially, it did not complete the statutory task of reviewing the delegate’s decision and so constructively failed to exercise its jurisdiction. There will be a writ of certiorari issued and a writ of mandamus addressed to the second respondent requiring it to complete its review of the delegate’s decision.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 10 February 2016

[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

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