Migration – Page 6

The obligation to ‘have regard to’ an applicant’s wish to obtain further evidence

Section 426 of the Migration Act requires the Tribunal to ‘have regard to’ an applicant’s request to obtain further evidence from, or call, a particular witness. The Tribunal is not required to in fact do so.

However, the authorities are clear that the question of whether the Tribunal should is a discretion that must (therefore) be exercised reasonably.

In addition, the Tribunal cannot ‘merely go through the motions’–there must be a genuine consideration of whether to exercise the discretion: CBZH v Minister for Immigration and Border Protection [2014] FCA 1023.

Also, in BOL15 v Minister for Immigration and Border Protection [2016] FCCA 1994, Lucev J said:

Whether or not calling the Applicant’s Proposed Witness may have resulted in evidence being given which did not assist the applicant is not to the point, rather, the Court cannot preclude the possibility that such evidence might have assisted the applicant to establish his claims

Zealous findings of untruthfulness

In NRM Corporation Pty Ltd v Australian Competition and Consumer Commission [2016] FCAFC 98, the Full Court endorsed the (long-standing) proposition that one should be cautious in making active findings of witness untruthfulness.

[147] It should nevertheless be accepted at the outset that a finding that a witness has been “untruthful” attracts a necessary exercise of judicial caution: cf. Smith v New South Wales Bar Association (1992) 176 CLR 256 at 268. Justices Brennan, Dawson, Toohey and Gaudron there observed:

It is particularly important in disciplinary cases, where the honesty and candour of legal practitioners assume special significance, that the distinction between the rejection of a person’s evidence and a positive finding that he or she deliberately lied be observed. The mere rejection of evidence can neither justify a consequence over and above that which properly attaches to the matter charged, nor deprive the person of the benefit of personal considerations which might otherwise be taken into account. The matter was put succinctly, although in a different context, by Cussen J in R v Richmond ([1920] VLR 9 at 12):

It would certainly act as a deterrent even to an innocent man giving evidence, especially where there is a strong case against him, if he knew that if the jury does not accept his evidence he may receive a sentence heavier than otherwise would be imposed.

A finding that a person deliberately lied when giving evidence is, in effect, a finding of perjury and, thus, it ought not to be made on “the single oath of another man, without any confirmatory evidence.

…

[150] Where there has been “significant delay” [in providing reasons], it has been said that “it is incumbent upon a trial judge to inform the parties of the reasons why the evidence of a particular witness has been rejected”: Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189 at [72] per Carr, Emmett and Gyles JJ.

In Re Zheng and Minister for Immigration and Citizenship (2011) 121 ALD 372, Deputy President Forgie of the AAT referred to the obvious proposition that a witness being untruthful in one aspect of his or her evidence does not mean that the entirety of the witness’s evidence is untruthful. Similarly, there is an important distinction between evidence not being credible, and the witness not being credible. There was extensive discussion of this at [64]-[76].

These are important reminders of how decision-makers must not rush to condemn witnesses and applicants as outright liars, as is far too often the case. Whether misconceived, over-zealous findings of adverse credibility might lead to jurisdictional error is yet to be fully-explored, but questions of reasonableness appear to be relevant. In BTF15 v Minister for Immigration and Border Protection [2016] FCA 647, Katzmann J criticised a finding that witnesses fabricated evidence as ‘unreasonable’. At [56], her Honour said:

I am troubled by the Tribunal’s conclusion that the statements of the two witnesses were fabricated. It is one thing to find that evidence should not be given any weight. It is quite another to conclude that evidence is a fabrication. The High Court has said in a different context that “as a matter of logic and common sense, something more than mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence”: Smith v New South Wales Bar Association (1992) 176 CLR 256 at 268 (Brennan, Dawson, Toohey and Gaudron JJ). The Tribunal was entitled to find that the evidence of the two witnesses could not overcome the inconsistencies in the appellant’s account. It was unnecessary and inappropriate, however, for the Tribunal to go further and find that their evidence was a fabrication: Smith at 271–2 (Deane J). In the circumstances, that finding was unreasonable. It should not have been made.

About 11 years earlier, the Federal Court observed in Minister for Immigration & Multicultural & Indigenous Affairsv Maltsin [2005] FCAFC 118 at [54] that the damning of witnesses other than the applicant might be a jurisdictional error, in at least two distinct ways:

… It was, however, unfair in the circumstances to condemn as dishonest a group of individuals, some of whom had and some of whom had not prepared statements for the Tribunal, in circumstances where they had no chance at all to answer such an accusation, especially as the basis for the finding of dishonesty was not self-evident.

…

Mahon v Air New Zealand may also provide some support for the proposition that, where the rules of procedural fairness apply, they control the hearing before the relevant administrative body generally and, at least in some circumstances, may enure for the benefit of persons other than an applicant: see, however, the discussion in Re Hurd and Hewitt [1994] 120 DLR (4^th) 105, reversing Hurd v Hewitt (1991) 13 Admin LR (2d) 223. Although each of these authorities is distinguishable from the present case, each indicates that it is at least arguable that a denial of procedural fairness to a person other than an applicant before the Tribunal may in some circumstances impinge on the validity of the ultimate decision. Alternatively, this may be a case in which the Tribunal’s “web of deceit” finding so lacked any reasonable foundation that, to adopt the language of Allsop J in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 (“NADH of 2001“) at [136]:

“To assert conclusions of this kind in this way may be seen as not to engage in a reasoning process, but to assert conclusions by a process that is no more than an intuitive, arbitrary or capricious response to the task.”

In view of the errors already identified, however, it is unnecessary to determine whether a failure to act fairly as regards the respondents’ family and friends could amount to a jurisdictional error that would vitiate the decision, or an error of the kind described by Allsop J in NADH of 2001.

In Bax v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 55 the Full Federal Court observed at [16]:

The circumstances here were such as to make applicable what, in Mahon v Air New Zealand Ltd [1984] 1 AC 808, Lord Diplock identified as one of the rules of natural justice. His Lordship said at 821:

“The second rule requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result. (Original emphasis.)”

See also Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, at 116 [par 78], (Gaudron and Gummow JJ) and 121 [par 101] (McHugh J). In Aala (supra), at par [101] McHugh J said:

“One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person’s rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided.

The Full Federal Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 concluded:

It may be accepted that cases such as SZNPG and Smith do make the point that, unless it is strictly necessary, it is preferable not to reach a conclusion that an applicant is a “liar”. But while this is indeed sound practice, the remarks do not suggest that the Tribunal will have fallen into jurisdictional error if it does reach such a finding. There was ample foundation in this instance for the Tribunal to reach the conclusion that the appellant was not a witness of truth.

However, that observation does not preclude that sometimes a finding that a person has ‘lied’ might be unreasonable, and for that reason, a jurisdictional error.

Requirements for ‘no evidence’

In the context of migration decisions (but necessarily applicable to decision-making generally), a successful no-evidence submission requires:

demonstration that there was no evidence at all; and
the impugned fact being a jurisdictional fact.

Perry J referred to this in Maxwell v Minister for Immigration and Border Protection (2016) 149 ALD 604, [54]:

It is not the case that the “no-evidence” ground is established by a mere insufficiency of evidence to support a finding, even if the evidence is slight: VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]–[19] (Gray, Moore and Weinberg JJ). There must be no evidence at all on which the finding could have been based: ibid. … Secondly and in any event, a jurisdictional fact must be involved before a jurisdictional error based on the “no-evidence” ground can be established: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; 78 ALD 224; [2004] HCA 32 at [39] (Gummow and Hayne JJ, with whose reasons Gleeson CJ agreed at [1]). As Madgwick J held in SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 (SZAPC) at [57] in summarising the effect of the High Court authorities: “[a] “no evidence” attack will only suffice as such if it can be said that there is an actual ‘absence of any foundation in fact for the fulfilment of the conditions upon which, in law, the existence of a power depends’, that is, if there is no evidence to support a finding of a jurisdictional fact” (quoting Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; 73 ALD 1; [2003] HCA 30 at [36]).

There must literally be no evidence at all. ‘Flimsy’ evidence is sufficient for the finding to survive: Maxwell v Minister for Immigration and Border Protection (2016) 149 ALD 604, [54].

The need for the finding (alleged to be supported by no evidence) to be a jurisdictional fact was discussed by Bromberg J in Buchwald v Minister for Immigration and Border Protection [2016] FCA 101, [32]-[40]. In particular, his Honour referred at [40] to French CJ’s observations in Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [57]:

The term “jurisdictional fact“ applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be “a complex of elements“. When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court. The decision-maker’s assessment or evaluation may be an element of the criterion or it may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact.

The no-evidence ground often also factually overlaps with the illogicality ground: see SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 [55]-[70]. There may also be overlap with unreasonableness: see eg ABAR15 v Minister for Immigration and Border Protection (No 2) [2016] FCA 721 , [101].

The inappropriateness of relying on omissions of claims at entry interview

In MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80 the Court said at [56]:

some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.

Discounting evidence due to ‘conflicting evidence’ or ‘doubt’

In Re Minister of Immigration, Local Government and Ethnic Affairs v Gamdur Singh Dhillon and Marcelle Suzanne Maree Lievense Dhillon [1990] FCA 144 the Court said:

it is not correct to discount a factor favourable to an applicant by reference to conflicting evidence or doubts. A person affected by a statutory decision is entitled to have the case determined by reference to found facts, not suspicions or conflicts of evidence.

Abandonment of claims

The issue is discussed in MZZES v Minister for Immigration and Border Protection [2015] FCA 397.

Also, the mere fact that a claim on the materials before the Tribunal is not subject of oral submissions does not mean it is abandoned: SZVWF v Minister For Immigration & Border Protection [2016] FCCA 2532, [24]-[25]; SZTSM v Minister for Immigration and Border Protection [2015] FCCA 583, [25]; SZSRQ v Minister for Immigration [2014] FCCA 2205, [58]-[62].

What the AAT must do to actually ‘consider’ a claim

Perry J summarised them in SZSZW v Minister for Immigration and Border Protection [2015] FCA 562 at [15]-[19]:

Secondly, the requirement under s 414 of the Act to “review” the decision requires that the Tribunal consider the applicant’s claims. As Allsop J (as his Honour then was) held in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at 259 [42]:

To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. See also Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247, at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding.

Thirdly, as I recently explained in SZTDY v Minister for Immigration and Border Protection [2015] FCA 303 at [38] in determining whether a claim has been made attracting the obligation to consider it:

A failure to consider a contention amounting to a failure by the Tribunal to exercise its jurisdiction will relevantly arise where there has been a failure to consider a “substantial, clearly articulated argument” that, if accepted, might establish a well-founded fear of persecution for a Convention reason (Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26; (2003) 197 ALR 389 at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])); Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [90] (the Court); see also the helpful recent discussion of relevant principle in SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; (2014) 142 ALD 150 at [81]-[82] (Griffiths J). Equally, there will be a constructive failure to exercise jurisdiction if the Tribunal fails to consider a claim which “squarely” arises on the material before the Tribunal in the sense that “it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal”: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58] (the Court). In either case, the constructive failure to exercise jurisdiction may properly be seen as a failure to carry out the review required by s 414 of the Act: NABE at [55]; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42] (Allsop J with whom Spender J agreed at [1]).

(Abbreviations omitted.)

In the fourth place, the requirement to consider a claim or integers of a claim made by an applicant requires the application of an active intellectual process. As the Full Court held in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 136 ALD 547 (MZYTS) at 559 [38], “[t]hat task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant…”.

A sharp contrast between permissible ‘cherry-picking’ of evidence (the Court’s words, not mine) to arrive at a Minister-favourable conclusion and a failure to properly consider evidence is ABAR15 v Minister for Immigration and Border Protection (No 2) [2016] FCA 721. See [85]-[87], especially [86]-[87]:

Generally speaking, it may be open to the Minister (or, on review, the Tribunal) to cherry pick from among various sources of country information so as to form, by its own evaluation of the selected material, its own conclusions of fact. It may also be accepted that, as a general rule, an administrative decision that involves the weighing and evaluation of countervailing considerations is not a decision amenable to interference by a Court on judicial review merely because the Court might evaluate the considerations differently or accord different considerations more or less weight than that accorded by the Tribunal.

However, the material before the Tribunal did not contain conflicting statements as to the effectiveness of domestic violence laws in Vietnam so that the Tribunals’ decision could properly be viewed as one involving the preference of one body of evidence over another. The statements and opinions expressed in the reports concerning the effectiveness of the law were consistent, not countervailing. They were not contradicted by any other material to which the Tribunal referred.

The distinction between failure to take into account a “relevant consideration” or claim and a “mere failure to deal with evidence”

It is not the case that a failure to take into account evidence cannot amount to jurisdictional error. The Minister had often previously submitted that only a failure to consider a claim could amount to jurisdictional error, and that a ‘mere failure to deal with evidence’ could not.

In Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114, the Full Federal Court said at [64]:

The minister’s contention that any error was of a factual nature, not going to jurisdiction, was developed in large part by reference to a line of cases said to support a distinction between a “relevant consideration” or claim and a “mere failure to deal with evidence”. We are not persuaded the line is as bright, or the distinction as encompassing, as the minister submits.

Later, at [70] their Honours said:

With respect, we consider this is the conclusion reached by Robertson J in SZRKT, most directly expressed at [98], where his Honour states that the identification of jurisdictional error cannot “put out of account the actual course of decision-making by the tribunal” and cannot proceed “by reference to categories or formulas”, observing that “there are many ways, actual or constructive, of failing to consider the claim”. His Honour develops this at [111] by disavowing any jurisdictional/non-jurisdictional distinction between claims and evidence and instead finding, correctly in our respectful opinion, that the “fundamental question must be the importance of the material to the exercise of the tribunal’s function and thus the seriousness of any error”. We agree with his Honour’s analysis.

‘Errant fact finding’

In Htun there was a distinction drawn between failure to consider an integer of a claim and ‘errant fact finding’.

What ‘errant fact finding’ is was described in SZRHL (2013) 136 ALD 641; [2013] FCA 1093:

[23] In the case mentioned in the passage cited from SZQRW, MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441 ; [2010] FCAFC 123, the Full Court observed that (at [83]):

[83] A distinction is to be drawn between the failure to deal with a claim (a constructive failure to exercise jurisdiction) and what has been described as errant fact-finding: HTUN v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 ; [2001] FCA 1802 at [42] per Allsop J; cited with approval by the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 ; 219 ALR 27 ; [2004] FCAFC 263 where the Full Court discussed extensively errors of fact and jurisdictional error in the Tribunal. In Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 ; [2010] FCAFC 51 at [28] North and Lander JJ observed that an error of fact based on a misunderstanding of evidence in considering an applicant’s claims is not jurisdictional error so long as the error does not mean that the Tribunal has not considered those claims.

[24] That there is a difference between a failure to deal with the claim as made for a protection visa and dealing with a claim as made but making a wrong finding of fact in the course of so doing may be accepted. The boundaries of that difference may be elusive where the fact concerned is an integral part of the claim as made. Further, as Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 ; 73 ALD 321 ; 77 ALJR 1088 ; [2003] HCA 26 (Dranichnikov) illustrates, exactly what constitutes the nature and scope of the claim as made for a protection visa may itself be a subject upon which reasonable minds might reasonably differ. That is an ever present risk in cases of this kind where so often the protection visa application will be authored on behalf of, if not by, a person whose first language is one other than English.

[25] Yet further, a conclusion that the claim as made has been dealt with and that the error is to be regarded as “errant fact finding” does not, in itself, mean that there can be no jurisdictional error. The end result of that errant fact-finding may yet be that the tribunal has conducted its “core function” of review in a way that is unreasonable in the sense described by Gageler J in Li (at [105]):

[105] “It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason.” Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.

[26] Correctly apprehending the claim as made for a protection visa but determining that claim in a way that is so unreasonable that no reasonable person could so have dealt with it is just as much a failure to exercise a review jurisdiction according to law as not dealing with the claim as made. Even where an administrator has provided reasons which disclose an “evident and intelligible justification” (compare Liat [76] per Hayne, Kiefel and Bell JJ) for a decision those reasons may be intelligible only in the sense of making evident an illogical or irrational process of reasoning to an ultimate conclusion of fact.

Injunctions or court orders made without authority compared to administrative decisions affected by jurisdictional error

In DPP v Ty [2009] VSCA 226; 24 VR 705, the Victorian Court of Appeal unanimously restated the position that a Court order must be obeyed even if that order is invalid. The Court said at [27]:

an injunction must be obeyed ‘to the letter’ unless and until it is dissolved or set aside on appeal.[21] Breach of an injunction will be a contempt of court notwithstanding that the injunctive order is later quashed on appeal. The status of court orders – at least those of superior courts – is quite different in this respect from that of administrative decisions.[22] Even a court order which lacks constitutional (and therefore legislative) authority only ceases to have valid operation from the date of quashing.[23]

The proposition that an administrative decision affected by jurisdictional error is ‘no decision at all’ is famously articulated by Gaudron and Gummow JJ in Minister for Immigration v Bhardwaj (2002) 209 CLR 597:

There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all[33]. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged. A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition.

The proposition that Court orders stand unless and until set aside has implications for contempt. For example, it would seem that neither the Commonwealth or Minister for Immigration can argue that they are entitled to move a person from one place of detention to another (for example, from Perth Immigration Detention Centre to Christmas Island) on the basis that a decision to make such a move is a privative clause decision under the Migration Act. If an injunction exists to prohibit the move, that injunction must be obeyed even though the Minister thinks that the Court has no power to make such an injunction. The injunction must first be set aside. It follows that disobeyance of the injunction may be a contempt of Court.