AZAAJ v Minister for Immigration
[2008] FMCA 1680
•19 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AZAAJ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1680 |
| MIGRATION – Judicial review of Refugee Review Tribunal decision – application for protection visa rejected on credit grounds – material corroborative of one aspect of applicant’s account not considered at all – whether jurisdictional error – application allowed. |
| Migration Act 1958 (Cth), ss.422B, 424A, 474 & 476 |
| Craig v The State of South Australia (1995) 184 CLR 163 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SBLF v Minister for Immigration and Citizenship [2008] FCA 1219 Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80 SBTF v Minister for Immigration & Citizenship [2007] FCA 1816 Abebe v Commonwealth of Australia [1999] HCA 14 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 260 CLR 323 |
| Applicant: | AZAAJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | ADG 109 of 2008 |
| Judgment of: | Lindsay FM |
| Hearing date: | 12 August 2008 |
| Date of Last Submission: | 12 August 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 19 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Charman |
| Solicitors for the Applicant: | Westside Community Lawyers |
| Counsel for the Respondents: | Mr D’Assumpcao |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue directing the second respondent to quash the decision made by it in relation to the applicant dated 9 April 2008.
A writ of prohibition issue directed to the first respondent prohibiting him from acting upon, giving effect to or proceeding upon the decision of the second respondent of 9 April 2008.
A writ of mandamus issue directing the second respondent to re-determine the applicant’s visa application according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 109 of 2008
| AZAAJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (“the Act”) for orders by way of certiorari, prohibition and mandamus relating to a decision of the Refugee Review Tribunal (“the Tribunal”) of 9 April 2008. The decision of the Tribunal affirmed the decision of the delegate of the Minister not to grant the applicant a protection visa.
The decision of the Tribunal is a privative clause decision pursuant to s.474 of the Act and therefore is not liable to be set aside unless the decision can be demonstrated to have been vitiated by jurisdictional error as that concept was explained by the High Court in cases such as Craig v The State of South Australia (1995) 184 CLR 163.
The applicant arrived in Australia in May 2007 and made his application for a protection visa in June 2007. The delegate refused to grant the visa on 17 September 2007.
The applicant is a citizen of Bahrain.
He says that he is entitled to a protection visa because he will be persecuted if he returns to Bahrain on account of his previous participation in political activities and especially in demonstrations in that country.
He claimed to have been imprisoned in Bahrain for over twelve months in 1996/1997 and to have been mistreated in prison. He says that upon his release from prison he was not able to work until 2004 because of the impact the imprisonment had had upon his psychological condition. Government authorities continued to question his family such that in early 2006 his fears were of such magnitude that he felt required to go into hiding for a period of two months.
He obtained his visa to visit Australia in May 2006 but he did not utilise it until a further twelve months had elapsed.
He says that he participated in a demonstration in Bahrain to coincide with Formula 1 Grand Prix in the period of 13 to 15 April 2007. He was beaten and required hospitalisation on 15 April 2007.
His application was heard “back-to-back” with an application by an associate of his who claimed to have been involved in the same demonstration in April 2007 and who had taken the applicant to hospital on 15 April 2007.
In an unusually brief decision the Tribunal rejected his account on credibility grounds. In particular the Tribunal was concerned about his not having utilised his Australian visa for a period of twelve months despite being subject to the persecution he claimed during that period. The Tribunal specifically rejected the explanations he provided for his failure to utilise his Australian visa for that period.
The Tribunal rejected his claim to have participated in the events he described of April 2007. The Tribunal said that the country information available to it indicated that the demonstration organised in Bahrain to coincide with the Grand Prix race was one organised specifically for Friday 13 April 2007 and not for any other day in the period of 13 to 15 April 2007 as the applicant claimed. Furthermore, the account the applicant gave of the size, nature and purpose of the demonstration in which he is said to have participated was inconsistent with a press account he himself provided in his written submission to the Tribunal.
The Tribunal was concerned about his claim that the demonstration he attended was in the main street of Karzakan which was where the Formula 1 race had transpired, whereas in fact the Tribunal was satisfied that the Formula 1 was on a purpose-built track some several kilometres from Karzakan.
The Tribunal was concerned about the applicant’s uncertainties as to whether he had participated in another demonstration in respect of an earlier Formula 1 race in either 2005 or 2006. He could not say which.
At CB 437 the Tribunal says:
As a result, I do not find credible the applicant’s evidence as a whole and particularly as to the events of April 2007. I do not accept that he participated in the demonstration of the kind in which he claimed to have been involved. Neither do I accept that he was injured as a result of participating in such a demonstration. As a result, I do not accept his explanations for not leaving Bahrain in May 2007. I find that, at that time and since, he did not have and does not have a genuine fear of persecution in Bahrain.
And at CB 438:
As a result of my findings regarding the applicant’s claim as to what happened to him in 2006 and 2007 I find the applicant’s general credibility adversely affected. I therefore do not accept his account of earlier incarceration, mistreatment and the continual harassment of himself and his family.
The written submission that was made to the Tribunal on behalf of the applicant on 4 December 2007 included as an attachment a medical report which was set out at CB 386. The report is from the Kingdom of Bahrain Ministry of Health and is dated 15 April 2007 and has an imprint of a bar-coded identification document in the applicant’s name with a serial number superimposed over the top of it. Next to the heading ‘Brief History & Diagnosis’ it refers to contusions of the back which led to unconsciousness and bruising to the body and both legs. Next to the heading ‘Management’ it refers to some treatment by way of nasal pack with adrenaline and next to the hearing ‘Reason for Report’ it says: “a demand from the attacked person”.
At CB 387 there is a document signed and sealed by Doctor Waleed Al-Mana from the Kingdom of Bahrain Ministry of Health confirming that:
…all medical reports, letters and other communications related to Ministry of Health in the kingdom of Bahrain are written in English …
The provision of that document was no doubt in response to the rejection of the medical report as fake by the delegate of the Minister as described at CB 337. One of the reasons given by the delegate for the rejection of the authenticity of the report is the fact that it is expressed in English and not in the national language of Bahrain, which is said to be Arabic.
Mr Charman, who appeared on behalf of the applicant before me, promoted three separate grounds of review, although the second ground was jettisoned during the course of the hearing. That was an appropriate concession for the applicant to make. That ground had suggested that certain matters relied upon by the Tribunal as reasons for rejecting the applicant’s claim were not addressed in a s.424A letter sent to the applicant, which appears at CB 413 and 414. However, before me the applicant conceded that s.424A(3)(b) and (ba) of the Act caught the material that was referred to in the promotion of this ground. In other words, it was material provided by the applicant himself and therefore not material required to be the subject of a s.424A notice. It may be that the newspaper article that appears at CB 388 and 389 is covered instead by s.424A(3)(a).
To the extent that some procedural fairness point is also essayed in respect of the Tribunal’s failure to give the applicant proper notice of these matters that argument is met by the terms of s.422B of the Act. The effect of that section has been conclusively determined by two separate Full Court decisions, namely, Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62, the doubt expressed by Gray J in SBLF v Minister for Immigration and Citizenship [2008] FCA 1219 at [33] notwithstanding.
It is most convenient to deal with ground three next. Mr Charman contended that the Tribunal fell into jurisdictional error by not considering an integer of the applicant’s claim, namely that of serious harm, being psychological harm, in the event of his return to Bahrain. Reliance was placed upon the decision of Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 and SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80.
The evidence of psychological harm was said to arise from a psychological report of the Hurstville Psychology and Therapy Centre that was provided to the Tribunal by the applicant’s advisers; a submission made on behalf of the applicant to the delegate; and a report provided by the New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors dated 2 August 2007 supplied by the delegate on behalf of the applicant.
Some reliance was placed on the decision of Lander J in SBTF v Minister for Immigration & Citizenship [2007] FCA 1816 where, on an appeal from a decision of a Federal Magistrate, His Honour was of the view that there was sufficient evidence before the Tribunal to alert the Tribunal to the fact that an issue of psychological harm was raised by virtue of the contents of a psychological report. In that case, however, the Tribunal had accepted that the applicant concerned had been incarcerated and tortured. He was an adherent of a particular brand of Islam which was subject to persecution in his county of origin, Bahrain. Moreover, he had previously been arrested, detained and tortured.
The Federal Magistrate had accepted the applicant’s subjective fear of persecution and that it had psychological ramifications for him. But he did not consider that it addressed the problem for his application in that the fear was not objectively well-founded. Lander J was satisfied that the Federal Magistrate had erred in failing to find that the Tribunal was under an obligation to consider whether, if the appellant were to return to Bahrain, he would, as a result of the discrimination which members of his faith suffered in Bahrain, suffer serious harm in the form of psychological harm.
In this case, of course, the contentions as to incarceration in 1996 were rejected on credibility grounds. The Tribunal did not accept that the applicant had been jailed and tortured and so, logically, no issue arose of psychological harm having been inflicted on account of it or of any aggravation or recrudescence of that harm arising in the event of a return to Bahrain. Once the aspect of the claim suggesting that he had been persecuted for political activities had been rejected, the claim that he suffered psychological harm as a result of such persecution became logically irrelevant. In this regard, the observations of the High Court in Abebe v Commonwealth of Australia [1999] HCA 14 per Gleeson and McHugh JJ at [85] are relevant:
Once the Tribunal was unable to find that she had been arrested as claimed, her further claims of detention and rape became logically irrelevant. The Tribunal, having found that it could not rely on her evidence of arrest, was not then required to act on her allegations of detention and rape, allegations which were dependent on her claim of being arrested and taken into custody for reasons of political opinion. The Tribunal was not bound therefore to make any express finding as to whether she had been raped. Nor given the nature of her claim and the Tribunal's finding that she was not a credible witness was it required, as it might have been in other circumstances, to determine whether there was a real chance that she had been arrested as she claimed.
The High Court there was speaking of different chronological elements of a story of persecution being rejected but the remarks apply with equal force to a suggestion that there is a need to consider the sequelae of persecutory acts where there has been a finding that the persecutory acts themselves have not occurred because the applicant is disbelieved.
Ground one is that which raises the matter which in my view establishes jurisdictional error on the part of the Tribunal.
The applicant, in reliance upon Yusuf’s case (Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323), contended that the Tribunal came to its conclusion about the applicant’s credibility without having regard to, or making findings about, four aspects of the applicant’s claim. It is as well to set out the well-known passage from Yusuf (supra) relied upon in the making of this submission (at [82]):
It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia (1995) 184 CLR 163 at 179, if an administrative tribunal (like the 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.”
“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive (cf Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82). Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law (Craig (1995) 184 CLR 163 at 179).
As far as the rejection of the claim on credibility grounds was concerned a reliance was placed by the applicant on the decision of the Full Court of the Federal Court in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 at [26] and [27]:
26. The Tribunal determined the matter adversely to the appellant by disregarding the documents it had been directed to consider by the order made by consent in this Court, stating that the documents “do not overcome the problems I have with the applicant’s evidence”.
27. Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See: S20/2002 per McHugh, Gummow JJ at [49]). Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error. (See: Minister for Immigration & Multicultural Affairs v Yusuf …).
The four corroborative matters not taken into account were said to be:
a)a report from the Hurstville Psychology and Therapy Centre dated 27 August 2007 relating to the applicant’s psychological condition, taken together with the report from the New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors dated 2 August 2007 (these appear at CB 316 to 320 and CB 46 respectively);
b)the medical report relating to injuries said to have been sustained by the applicant on 15 April 2007, which appears as CB 386 to 387;
c)the newspaper article confirming the incident of 15 April 2007, which appears as CB 388 to 389; and
d)the evidence of the applicant’s witness, who is the applicant in the hearing heard back-to-back with that the application of the applicant before the Tribunal and whose review was also before me with this review.
The answer made by the counsel for the Minister in relation to this submission was to say that the material offered up as corroborative material did not have to be given any weight because of the position the Tribunal had already reached to not accept on credibility grounds the fundamentals of the applicant’s claim as to having suffered persecution. Reliance is placed upon the decision of McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49]. Though only a portion of that paragraph appears in the Outline of Argument filed on behalf of the Minister, the paragraph is worth citing in full:
In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s.430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.
I think that the Minister’s submission in that regard deals with items one, three and four comprehensively. For the same reasons as ground three was rejected, it seems to me that the Tribunal can not be criticised for having failed to give specific attention to the evidence of post-traumatic stress disorder if it did not consider that the incidents giving rise to such disorder had occurred in the first instance. The symptoms described in the reports to which reference was made in this regard are all, in the end, based upon self-reporting by the applicant. Once the applicant’s contentions to the Tribunal - as to the cause of the disorders - have been rejected, the medical reports as to those disorders have no utility.
The contention with respect to the newspaper article can not be sustained because in fact it was referred quite specifically by the Tribunal at page 437 of its reasons. The problem for the applicant was that it contained a report of the demonstration that was inconsistent with the account that the applicant had given to the Tribunal in other circumstances.
Certainly, the evidence of the witness of the applicant is referred to very briefly at CB 431. The difficulty I have in evaluating the submission that the consideration of that issue gave rise to jurisdictional error is that no transcript of the evidence of the witness was made available to me at these proceedings, notwithstanding such opportunity being provided in the orders made by the Registrar of 5 June 2008 (see paragraph 4 of those orders).
However, the medical report arising from the alleged attendance at the medical complex on 15 April 2007 is not referred to at all in the process by which the Tribunal determined the application, although it may be referred to indirectly as being amongst the material attached to the Statutory Declaration dated 4 December, which is referred to at CB 431.
I have already noted that the delegate of the Minister rejected the medical report as corroborative material for reasons that were given at that time, which included the fact that the report was expressed in English. That was a matter that was addressed by a further document that was provided with the Statutory Declaration. It was not the only ground upon which the report was rejected as corroborative.
But the Tribunal has given no indication as to whether it accepted or rejected the medical report as evidencing the attendance of the applicant (with his witness) at the hospital on 15 April 2007. It may be that, as with the delegate, the Tribunal would have rejected the corroborative value of the medical report because it referred to events of 15 April 2007 (consistently with the applicant’s own accounts) whereas the country information indicated that the principal demonstration had occurred on 13 April 2007. But that issue was not addressed.
Unlike the material relating to disorders that are said to have arisen from a detention the account of which has been rejected in its fundamentals, it does not seem to me to be open to the Tribunal if acting rationally to have overlooked this corroborative material at all at that earlier stage. That is to say, the reports should have been taken into account, weighed and accepted or rejected and, if accepted, given weight, at that stage of decision-making which involved a determination as to whether the events had occurred. It is surely capable, if accepted, of providing corroboration of the applicant having sustained injuries in the manner described by him on 15 April 2007. There may be a whole host of reasons as to why it is unreliable information in that regard but it purports to be corroborative and unless and until the Tribunal engaged in the weighing exercise (which the delegate of the Minister had involved himself in) it does not seem to me to be open to the Tribunal to disregard the material. It can be considered and then disregarded but it cannot simply be ignored. It was always open to the Tribunal to give the matter no weight after it had been taken into account in determining whether the events occurred as the applicant alleged, but it does not seem to me to be open to the Tribunal, if it is to be taken to be acting rationally, to fail to take the report into account at all.
The Tribunal was surely obliged to make some finding of fact in relation to the corroboration that was offered as to the events having occurred in the form of this medical report. If it was not accepted as genuine, that would have been the end of the matter. If it was accepted as genuine, then it might have been of no consequence in the sense that it did not cause any re-evaluation of the other material that had been found to be so damaging to the acceptance of the applicant’s account of the events of 13 to 15 April 2007 or in the light of the broader problems with the applicant’s case.
It could only help the applicant, in the first instance, in having the Tribunal accept his account of events of 13 to 15 April 2007. If it did that, then it might have influenced a re-evaluation of the broader claims of the applicant which had already been rejected - that is the account of events in 1996 and subsequently. It might not have.
But before the entirety of the applicant’s case (including 1996, 2007 and the intervening years) is rejected, the Tribunal surely had to have determined whether the medical report had a bearing on its acceptance as to whether or not the 2007 events had occurred.
There will be accounts which are so seriously impugned in some particular or particulars on credit grounds that no corroborative material offered on another particular or on other particulars can rescue. This was not necessarily such a case.
An error of this kind - a failure to consider at all material capable of providing corroboration of an important part of the applicant’s case - must be taken to be one of a jurisdictional character. For that reason, the application should be allowed.
My orders reflect that determination.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate: Ms N. Julius
Date: 19 December 2008
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