Federal Court: Saak held that decision-makers should be cautious before making adverse credibility findings based on the fact that a person who arrived by sea omitted a claim at an initial interview carried out just days after arrival and only made that claim later on as part of a protection visa application. Can SAAK operate much later, when the claim is first made in writing with the assistance of an RMA? Is SZTAL authority for the proposition that “no matter how poor the conditions [are] found to be” in the non-citizen's country's prisons, "they will be necessarily irrelevant to Australia’s complementary protection obligation"? Is AAT allowed to ignore claim that is not an applicant's prime focus or is contained in voluminous amount of material? Should AAT or courts consider evidence of content of foreign law? If so, can Wikipedia be used for that purpose?
The questions to the Federal Court (FCA) were as follows:
Question 1: Can the principles in SAAK continue to operate at a much later point in time, when the claim is first made in writing with the assistance of a migration agent?
Question 2: Is SZTAL authority for the proposition that “no matter how poor the conditions [are] found to be” in the non-citizen's country's prisons, "they will be necessarily irrelevant to Australia’s complementary protection obligation"?
Question 3: Can it be said that, "because the prime focus of [the Appellant’s] concern when he appeared before the Tribunal was that he was at risk of the imposition of the death penalty, his alternative claims that he would otherwise face (at least) a period of prolonged pre-trial imprisonment were capable of being dismissed or disregarded"?
Question 4: Can it be said that although "material can be taken to have been before the Tribunal because it was before the Delegate" by reason of s 418 of the Migration Act 1958 (Cth), "where a voluminous amount of material was before the Tribunal only by reference", "it lay ill in the mouth of the Appellant to complain that materials had been overlooked when he had not drawn the Tribunal’s attention to those materials at the hearing"?
Question 5: Is it "for the Court to evaluate the plausibility of the country information ... which was before the Tribunal [and which the Court has found to have been ignored by the Tribunal]"? In other words, would the FCA be engaging in impermissible merits review if it assessed the plausibility of the country information?
Question 6: Could the Appellant or the Minister have adduced evidence in Court about the definition of "active service" under the foreign law?
Question 7: If the answer to Question 6 is "yes", should a court have regard to an article from Wikipedia for the purposes of ascertaining the content of the foreign law?
The FCA answered those questions as follows:
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