ARG15 v Minister for Immigration
[2016] FCCA 1086
•16 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARG15 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1086 |
| Catchwords: MIGRATION – Judicial review – refusal of grant of protection visa – issue of whether the number of mistakes made by the Tribunal member in the decision record amount to jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.42(1), 31, 36(1), 36(2), 91R |
| Minister for Immigration v Wu Shan Liang (1996) CLR 259 Abebe v Commonwealth of Australia (1999) CLR 510 at [168] SZJRW v Minister for Immigration and Citizenship [2008] FCA 959 Ex Parte Durairajasingham (2000) 168 ALR 407 Craig v South Australia (1995) 184 CLR 163 Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 NAHI v Minister for Immigration [2002] FCA 668 Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 164 |
| First Applicant: | ARG15 |
| Second Applicant: | ARH15 |
| Third Applicant: | ARI15 |
| Forth Applicant: | ARJ15 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1015 of 2015 |
| Judgment of: | Judge Harland |
| Hearing date: | 8 February 2016 and 11 April 2016 |
| Date of Last Submission: | 11 April 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 16 May 2016 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr Wood |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
The application filed 7 May 2015 is dismissed.
The Applicant pay the First Respondent’s costs in the sum of $9,825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1015 of 2015
| ARG15 |
First Applicant
| ARH15 |
Second Applicant
| ARI15 |
Third Applicant
| ARJ15 |
Forth Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants filed an application for a Protection (Class XA) visa on 21 February 2013. The delegate handed down a decision on 31 March 2014. The applicants reviewed that decision and the Tribunal handed down its decision affirming the delegate’s decision on 17 April 2015. The applicants filed an application for judicial review on 7 May 2015.
The primary applicant is the wife. The other applicants are the primary applicant’s husband and children. They did not make separate claims. The wife appeared before the Court with her husband. The wife had the assistance of an interpreter. At times the husband spoke on the wife’s behalf when she was having trouble expressing herself. Both were well-prepared and familiar with their material. The husband speaks English well.
The Tribunal proceedings
The applicants had the assistance of Ms Glass a lawyer and migration agent, to prepare their protection visas and the submissions and evidence before the Tribunal.
The applicants are citizens of Pakistan. The wife applied for a protection visa on the grounds that if she was forced to return to Pakistan there was a real chance that she would be harmed by her father-in-law or associates of her father-in-law in an honour killing. The application for the protection visa is dated 21 February 2013 and was prepared with the assistance of a legal practitioner. The covering letter from her lawyer indicates that the primary applicant and her child arrived in Australia on 5 July 2008 on student visas joining her husband who had already arrived on a student visa on 19 July 2006. She lodged her application for a protection visa before the student visas were due to expire on 15 March 2014. The wife and her husband prepared statutory declarations in support of their protection visas which appear at Court book (“CB”) 88 to 94.
The delegate’s decision commences at CB 324.
The delegate was satisfied that s.91R(1)(a) of the Migration Act 1975 (Cth) by reason of the applicant being a member of social group being a “women in Pakistan”. The delegate then went on to the time she feared amounting to persecution. The delegate was satisfied of that and then went on to consider whether or not it was well founded.
The Tribunal’s decision commences at CB 643.
The Tribunal member made several credibility findings against the applicants.
The legislation
The Full Court of the Federal Court in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 summarises the legislation at [65] to [72] as follows:
The Migration Act provides for the circumstances in which a person who is not a citizen of Australia (a non-citizen) may enter Australia.
It provides, subject to certain exceptions that are not here relevant, that a non-citizen must not travel to Australia without a visa that is in effect: s.42(1).
The Act provides for classes of visas: s.31. Visas may be permanent or temporary: s 30. One class of visa is a protection visa: s.36(1). The criterion for a protection visa is provided for in s.36(2). It relevantly provides:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …
Section 36(2)(a) relates to a claim for protection by a non-citizen relying upon Article 1A(2) of the Refugees Convention, which defines a refugee as a person who:
… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a political social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a non-citizen is a person who has a well-founded fear of persecution for a Convention reason and satisfies the other criteria of Article 1A(2) of the Refugees Convention, that non-citizen will be entitled to a protection visa and therefore to remain in Australia as a lawful non-citizen.
Section 36(2)(aa) was first introduced into the Migration Act on 24 March 2012. It recognises that a non-citizen, who is not entitled to a protection visa because the non-citizen cannot satisfy the criteria in Article 1A(2) of the Refugees Convention, may be entitled to a protection visa because of Australia’s other protection obligations under the CAT or the ICCPR.
If a non-citizen makes a valid application for a protection visa, s.36(2) envisages the Minister will proceed in the following order. First, the Minister will consider whether the non-citizen is a person to whom Australia has protection obligations under the Refugees Convention. If the Minister is so satisfied, the Minister will grant the non-citizen a protection visa. If the Minister is not so satisfied, the Minister will consider whether the non-citizen is a person to whom Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen’s removal from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. If the Minister is so satisfied, the Minister will grant the non-citizen a protection visa. If the Minister is not so satisfied, the non-citizen, subject to any rights of review, will have exhausted the non-citizen’s rights to obtain the grant of a protection visa.
Paragraphs (a) and (aa) of s.36(2) recognise that Australia has obligations to any non-citizen who satisfies one of those paragraphs to allow those non-citizens to remain in Australia free from the persecution or the harm that they would suffer by being returned to their country of nationality or any receiving country.
Proceedings before this Court
The application sets out the following grounds for review:
a)The decision of the Tribunal:
i)Is affected by an error of law; and
ii)Denied the applicant procedural fairness.
b)I have made an application for assistance through Victoria Legal Aid and am waiting for a decision.
Whilst the application itself does not provide any particulars as to the alleged errors made by the Tribunal, the primary applicant’s complaints are set out in the affidavits filed by her on 7 May 2015 and 4 August 2015. The applicant filed another affidavit sworn on 6 May 2015 which annexed the refugee review Tribunal’s decision.
The wife and her husband prepared their application and affidavits themselves and the applicants appeared without legal representation at the hearing. Unfortunately it is common for applicants in these matters to appear without legal representation. Migration law is a technical and complex area of law which is difficult for many self-represented litigants to understand. It is apparent from the documents the applicants prepared in support of their application that they have gone to some considerable effort to challenge the Tribunal’s decision.
In order to succeed the applicants must establish that the Tribunal has made errors of the type that amount to jurisdictional errors. Whilst the application itself does not provide any particulars as to the alleged errors made by the Tribunal, the applicant’s complaints are set out in their affidavits on 7 May 2015 and 4 August 2015. The applicant filed another affidavit sworn on 6 May 2015 which are annexed to the refugee review Tribunal’s decision. The applicants prepared a transcript they prepared at the hearing on 8 February 2016. The Minister’s counsel sought the opportunity to examine the transcript and to order an official transcript from Auscript. The hearing was adjourned to enable this to occur.
The role of this Court is limited to conducting a judicial review. The court does not have power to conduct a merits review and make its own assessment of the evidence.[1] This Court must consider the material placed before the Tribunal and the Tribunal decision in order to assess whether or not the Tribunal made a jurisdictional error.
[1] Minister for Immigration v Wu Shan Liang (1996) CLR 259; Abebe v Commonwealth of Australia (1999) CLR 510 at [168].
The High Court in Craig v South Australia (1995) 184 CLR 163 at 179 defined jurisdictional error in the following way:
“If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question. to ignore relevant material, to rely on irrelevant material or, at least in some circumstances. to make an erroneous finding or to reach a mistaken conclusion. and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”
Typographical and minor factual errors
The applicants, who are not lawyers, are understandably aggrieved by many factual errors made by the Tribunal member in her decision. Some of the factual errors include referring to the wrong date for when the protection visa was filed, referring to the applicant’s date of birth as 21 June 1983 when it was 21 January 1983 and other similar factual errors. These are the complaints the applicant wife refers to [2] and [12] of the Tribunal’s decision.
Further errors as to dates appear in [32] and [34]. I will not refer to all of the errors. They are set out in both parties written material. It is understandable, particularly given the number of errors, that the applicants lack confidence in the decision. However, the factual errors relate to non-contentious background matters and do not deal with issues which could have influenced the outcome of the decision.[2]
[2] SZJRW v Minister for Immigration and Citizenship [2008] FCA 959.
It is necessary to examine some of the other complaints outlined by the applicant wife set out in her affidavit sworn on 4 August 2015 to identify whether or not they disclose a jurisdictional error.
Other complaints of factual errors
There are other complaints by their factual errors which are more than minor errors about background matters. The wife complains that [18] of the Tribunal’s decision is incorrect when the Tribunal member says that her husband said that his father did not know of the marriage. She complains that the husband in fact said his father did not know anything about secret visits of his mother, sister and brother to the wife’s house.
The wife complains that the Tribunal member did not record all of the husband’s elder brother’s telephone evidence at [19] of the decision. The Tribunal member conceded that the husband’s brother Shafique’s evidence was not recorded.[3] The Tribunal member read out her notes of Shafique’s evidence. Ms Glass clarified a couple of things. The Tribunal member summarised Sharique’s evidence as being that he went to their wedding in secret as his father was against the wedding but his father turned up.
[3] See page 39 of the transcript annexed to the affidavit of Emily Wilde filed on 4 April 2016.
The wife complains that the Tribunal member mis-recorded the amount of dowry the wife received. A translated copy of their marriage certificate appears at CB 101. There is an error in the figures at [20]. She says she told the Tribunal member that she only received jewellery and the monetary amount was deferred. At [23] the Tribunal member states the wife sought to mislead the Tribunal about the dowry saying it was not paid when the marriage certificate states that she was paid a significant amount in gold jewellery. This is one of many adverse credibility findings the Tribunal member makes. Counsel for the Minister did not provide that part of the transcript. However it is an issue about credibility which is an issue for the Tribunal not this Court. It is not the only adverse credibility finding the Tribunal member made.
The wife’s complaint at [26] of the Tribunal decision is that she says she told the Tribunal member that she did not complete her first student dependent visa application rather her agent did and that she did not know what information was presented on and did not know that it referred to her father-in-law as being her financial sponsor. She says she signed the form. It is no answer to say that she did not know what information she was signing on her student visa application form. It is incumbent upon her to ensure all the information on her visa application is accurate. It is not an answer to say that her agent completed it without her knowledge of the contents of her student visa application form. At CB 382, the last page of the application form contains her signature. CB 397 sets out the declaration wherein the applicant certifies that the information supplied is correct.
The Tribunal member founds aspects of the parties’ evidence inconsistent and lacking in credibility. The findings the Tribunal made with respect of the parties’ marriage and the father-in-law’s sponsorship of their student visas was open to it on the evidence.
Honour Killings
In his affidavit filed on 7 May 2015 the husband complains that the Tribunal did not understand the evidence about honour killings and misapplied it. The husband includes extra information and internet links to country information about honour killing. The Court cannot consider the additional evidence which was not before the Tribunal.
The applicant then goes on to seek to provide further evidence with respect to the Jirga system in Pakistan. MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8] states that an appellant cannot ask the Court to admit new evidence to disagree with a factual conclusion the Tribunal reached. Further, SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 at [27] states a party is limited to material available to the Tribunal.
It is this Court’s task to assess whether or not the Tribunal made a jurisdictional error in coming to its determination. The Tribunal member had country information available to it and the applicant had ample opportunity to put material before the Tribunal and did so which included calling evidence of other family members.
The Court has considered the country information in the CB. At CB 143 honour killings are discussed and the reasons for the killings include women going against family wishes, property dispute and inheritance rights. This report records women being killed in the name of honour killings of which “illicit relations” was the reason in 595 of those cases and the demand to marry of their own choice is the reason in 219 cases. At page 149 the report noted that honour killings are more common in rural and tribal areas where jirgas still take place. At CB 160 the report continues referring to kala kari as being a form of premeditated honour killing occurs if a jirga is determined that adultery or some other form of honour crime has occurred. There are other references to honour killings relating to love marriages at CB pages 171, 173 and 557.
The delegate accepted that there was country information about honour killings but said at CB 336 “Country information however does not support the applicant’s claim that she and her husband fear harm because of their ‘love marriage’ ..” as she was not convinced that it was a love marriage or that it took place without parental consent. The delegate accepted that her father in law may not like her but did not accept that he wanted to harm her [this is expanded upon at CB 337].
The Tribunal discussed jirgas at [48] stating that they usually involve ‘sexual or romantic relationships’. The Tribunal found that the father in law and his family live in a city of 1million people, not remote village and that given this and his high level of education and position she did not accept that they would have called a jirga: see [52-53].
It is clear from the country information in the CB that this is broader than this. It is not clear what the Tribunal member meant by the reference to sexual or romantic relationships and whether or not she included the parties’ relationship which they describe as a love match. However on a fair reading of the decision it is quite clear that the Tribunal considered the country information before it and that the decision of the Tribunal did not rest on the country information alone. The real issue that the Tribunal member did not accept the applicant’s evidence that would give rise to any reason for the husband’s father to call a jirga. That is a critical issue either because of their marriage or because of the July 2011 incident.
The further submissions made on behalf of the applicants for the review hearing state that the applicants fear of the husband’s father carrying out an honour killing against the wife is not so much because their marriage was a love match but because of the incident in July 2011 when the applicant wife called the police when her father in law hit her: see CB [532]. The Tribunal dealt with this claim and put to the applicants that it had difficulty accepting this would be a reason for the husband’s father to call a Jirga he continued to stay with them for a another 3 months.
The issue of the weight and reliance the Tribunal puts on country information is part of the Tribunal’s fact finding function and not the Court.[4]
[4] NAHI v Minister for Immigration [2002] FCA 668 at [29].
However it is clear that the Tribunal found inconsistencies in many aspects of the applicant’s evidence which led it to find that it was unlikely the wife’s father in law had called a Jirga and the wife was likely to be killed if she returned to Pakistan.
Merit review complaints
The next category of complaints really invite this Court to engage in a merit review. The complaints about [34] and [36] of the Tribunal’s decision fall into that category.
Paragraphs [37] to [41] deal with the incident that occurred on 25 July 2011 with respect to the allegation that wife’s father-in-law assaulted her. She disagrees with the reliance the Tribunal member placed on the police records and clearly did not accept the applicant’s explanations. The transcript of the emergency call and the police records are included in the CB. It was open to the Tribunal member to use those records in the way that she did. It was exclusively for the Tribunal member and not this Court to assess the applicant’s credibility.[5]
[5] Ex Parte Durairajasingham (2000) 168 ALR 407
The complaint the applicant wife makes at [55] with respect to her mother’s evidence that the Tribunal member wrongly recorded that the husband’s brother called her and texted her to give evidence when her mother actually said her son-in-law texted her. Page 54 of the transcript records the mother saying her son-in-law called her. Nothing turns on this.
The respondent’s supplementary submissions address the husband’s complaint about the Tribunal member’s summary of his evidence about the father’s state of knowledge about his marriage. The extract of the transcript which the first respondent does not support the applicant’s complaints. The findings were open to the Tribunal.
The Respondent’s Position
The first respondent opposes the application. The first respondent submits that the Tribunal considered the wife’s claims and identified inconsistencies amongst the witnesses which had an adverse effect on the wife’s credibility.
Some examples include:
a)The wife claims that her father in law opposed the wedding. This is inconsistent with the wife’s evidence that he gave “grudging consent” to the wedding. Her evidence that her father in law attended the wedding was inconsistent with her brother in law’s evidence that the wedding was secret.
b)The Tribunal did not accept the evidence that the members of the husband’s family would have gone against her father in law’s wishes and given the wife an engagement ring if he was opposed to the marriage given the wife and her husband’s evidence that the husband’s father is violent and controlling.
c)The Tribunal found that the wife gave inconsistent evidence about her dowry stating that she did not receive anything when the marriage certificate recorded that she received jewellery.
d)The Tribunal did not accept the wife’s evidence that the father in law reacted with anger and hatred when she told him she was pregnant and applying for a student dependent visa application as this was inconsistent with the wife’s visa application which showed the father in law provided her with financial support.
e)The Tribunal also found the actions of the father in law in coming to Australia for 6 months on a tourist visa was inconsistent with his alleged hostility towards the wife. The Tribunal did not accept the wife’s and her husband’s evidence about this and did not accept the husband’s evidence that the unsigned letter from the husband supporting his father’s application for a tourist visa.
f)The Tribunal also referred to the 000 call and the alleged assault. The Tribunal did not find the wife’s evidence was credible as the police records were inconsistent with this and it was not credible that if the father in law now wanted to kill her that he would continue to stay with them for another 3 months.
g)The Tribunal did consider the wife’s mental health issues and took that into account when her assessing her evidence. This is dealt with at 60 to 62 of the CB. The Tribunal stated at [62] that it did not rely on minor inconsistencies or problems with recall that may have been attributable to the wife’s mental health. The Tribunal accepted that there are limited mental health services available in Pakistan but did not accept that this would mean that the wife would not be able to access those services and in any event the lack of mental health services would amount to persecution or significant harm.
The transcript of the Tribunal’s decision does not reveal a jurisdictional error. With respect to Shafique’s evidence the Tribunal gave the applicants and their representative a chance to correct her summary of his evidence before the Court. The applicant complains that the Tribunal member did not refer to the rest of his evidence. The Tribunal is not required to recite each piece of evidence. The Tribunal is required to refer to the evidence which is material to the findings it makes.[6]
[6] Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 164.
The other complaint arising from the transcript relates to the wife’s evidence and the Tribunal member referring to the husband’s brother called her whereas the transcript shows she said the husband called her. This error does not have an impact on the Tribunal member’s reasoning and as such does not amount to a jurisdictional error.
The applicants raised a new complaint at the resumption of the hearing which is that the Tribunal Member asked them three or four questions in a row and did not give them a chance to answer. The applicants had the assistance of their migration agent at the hearing and also had to opportunity to put on further submissions after hearing and did not raise the complaint. Only extracts of the transcript of the hearing is before me.
The Minister’s counsel pointed out that it is important to distinguish between the errors that do not amount to a jurisdictional error and those that do.
In MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123 the Full Court of the Federal Court observed at [86]:
“The Federal Magistrates Court instructed itself by reference to NABE and HTUN and concluded that, although the Tribunal had made a factual error, that error did not infect the Tribunal’s statutorily imposed duty to examine and deal with all the claims for asylum made by the appellant. It found that the Tribunal clearly understood the question it had to decide and, although it may have erred on its finding in one matter of fact, the Tribunal did consider the appellant’s claim and all its component integers.”
In Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 Robertson J made the following observations:
[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.”
[97] “Thus merely to ignore “relevant material” does not establish jurisdictional error. This is consistent with proper limits on judicial review so that fact-finding is a matter for the tribunal of fact while the Court is concerned with whether the tribunal has acted so as to warrant the conclusion that it was not performing the task conferred on it by the legislation.”
[111] “…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. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.”
The Minister’s counsel argued that the error about Sharifique’s evidence does not change the fact that the issue of concern was the inconsistency of Sharique’s evidence and the applicant’s evidence.
The applicants argue that when the Tribunal is making such an important decision every word counts. There are so many errors that this must amount to jurisdictional error.
The evidence of Sharique was short. Whilst it is unsatisfactory that his evidence was not recorded the evidence was not what the applicants case turned on.
The applicants complain that the Tribunal member overlooked CB 432 which is the statutory declaration of a friend of the father in law offering to sponsor his visit to Australia. They argue that this document is important in light of their allegation that the letter alleged to be from the husband, appearing at CB 433, is a fake.
Conclusion
The stakes are high for those seeking protection visas. They are entitled to have their claims assessed according to law. The number of typographical and other minor errors as well as the failure to record Sharifique’s evidence is most unfortunate and has reasonably caused the applicants to feel that their case has not been properly considered. However that is not sufficient for this Court to find jurisdictional error and to remit the matter to the Tribunal. This is because the errors which have been identified could not have affected the outcome of the decision.
At issue is whether or not the errors of the Tribunal are so serious that they amount to the decision-maker having gone outside its authority. I have considered whether or not the errors should be considered cumulatively to have amounted to the Tribunal failing to perform its function. The errors of the Tribunal for the most part fall within the category of typographical errors and minor factual errors. These do not amount to jurisdictional errors.
The failure to record evidence does also not amount to a jurisdictional error in the circumstances of this where no complaint can be made out that his evidence has been misstated and where his evidence was not influential in the outcome of decision.
The consideration of whether or not the Tribunal has made a jurisdictional error needs to be considered in the context of each case rather than simply by reference to a checklist of category of errors.
The applicants concerns in this regard are understandable but this Court can only remit the case for rehearing if the Tribunal made a jurisdictional error. I have carefully considered the court book, the Tribunal’s decision and the written and oral submissions. I am satisfied that whilst the Tribunal member was careless with respect to recording evidence and with attention to detail the errors do not amount to jurisdictional ones. Therefore I must dismiss the application.
The respondent seeks costs. It is usual for costs to be awarded to the successful party. I will order the applicant to pay the first respondent’s costs.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 16 May 2016
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