AZAAY v Minister for Immigration

[2010] FMCA 903

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AZAAY v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 903

MIGRATION – Judicial review of Refugee Review Tribunal decision affirming decision not to grant the applicant a protection visa – alleged jurisdictional error by the Tribunal – failure to inquire about matters relating to verification of statement purporting to be corroborative of applicant’s claims – application refused.

Migration Act 1958 (Cth), ss.414, 474 and 476

Craig v The State of South Australia [1995] HCA 58
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Khant v Minister for Immigration & Citizenship (2009) 112 ALD 241
SZLGP & Anor v Minister for Immigration & Citizenship (2009) FCA 1470
Minister for Immigration v MZYCE (2010) 116 ALD 156
SBLF v Minister for Immigration & Citizenship & Anor (2008) FCA 1219
Appellant S20 of 2002 [2003] HCA 30
Minister for Immigration & Citizenship v SZNSP [2010] FCAFC 50
Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51
Abebe v Commonwealth of Australia 197 CLR 510

Applicant: AZAAY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 52 of 2010

Judgment of: Lindsay FM

Hearing date: 5 October 2010

Date of Last Submission: 5 October 2010

Delivered at: Adelaide

Delivered on: 19 November 2010

REPRESENTATION

Counsel for the Applicant: Mr Ower

Solicitors for the Applicant: McDonald Steed McGrath Lawyers

Counsel for the Respondents: Mr d'Assumpcao

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That the Application for Judicial Review filed on 5 March 2010 be refused.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADG 52 of 2010

AZAAY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for Review of a decision of the Migration Review Tribunal (“the Tribunal”) of 2 February 2010 in which the Tribunal affirmed the decision of the delegate of the first respondent Minister not to grant the applicant a protection visa.

2. The application for a protection visa was made on 12 May 2009 and refused by the delegate on 7 August 2009.

3. The application is one made pursuant to s.476 of the Migration Act 1958 (“the Act”). It is a privative clause decision in terms of s.474 of the Act and therefore a review will not succeed unless I am satisfied that the second respondent made a jurisdictional error when carrying out its responsibilities to review the decision of the delegate of the Minister. Jurisdictional error is a legal concept best explained in cases such as Craig v The State of South Australia [1995] HCA 58 and in respect of migration cases by Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR.

4. In this case there is one ground of review promoted and that is that the Tribunal committed jurisdictional error by constructively failing to exercise its jurisdiction in the way in which it dealt with a signed statement of a priest (whom I will refer to hereafter as “DSB”) dated 9 November 2009.  The letter, which appears at CB80, has subsequent to the decision on review, been incorporated in an affidavit and the process by which it came to be sworn has been explained in the proceedings before me by an affidavit from the applicant’s solicitor.  I received that affidavit of the solicitor and the affidavit of DSB which is annexed to it (which annexure the parties agree I should regard as being in sworn form) de bene esse after the respondents’ counsel objected to the tender of the document at the hearing before me.

5. I need to say something about the application for the protection visa to enable the statement of DSB to be understood contextually.

6. The applicant is an Albanian national who arrived in Australia in April 2009 on a false Italian passport.  He made his application for a protection visa less than a month later.  The application, which was prepared by a Migration Agent and which appears at CB1, is based upon his experiences in being attacked outside a nightclub in Firenze shortly prior to his leaving Italy in April 2009 (he left Italy approximately two weeks after the attack and travelled to Paris and thereafter to Australia). 

7. The protection visa application included a transcript of what was described as the “applicant’s story” as given at an interview in Canberra in relation to the attack.

8. The applicant’s Migration Agent said in the same document submitting the protection visa application that it was her belief “that the key to this young man’s problems may lie in the story of his sister”.  Apart from that enigmatic reference to the sister no other reference to the sister’s experiences were referred to in the protection visa application.  The sister has been promoting her own application for a protection visa the refusal of which I was told is currently on appeal to the Full Court of the Federal Court of Australia.

9. The delegate refused the application on 7 August 2009 and the review was instituted on 25 August 2009. 

10. The applicant enlarged the basis of his claim for a protection visa in two significant ways before the Tribunal. 

11. Firstly, he submitted through his Migration Agent a letter from the DSB referred to above who was a Catholic priest from a village in Albania known as Beltoje. That letter described difficulties the applicant’s father had with the police prior to the applicant leaving Albania for Italy. His father was imprisoned in Shkoder for two or three months. The problems were associated with his being accused of a break in at an ambulance station. He was arrested and beaten (and so was the applicant) and he was subsequently imprisoned. An amount of money was paid to the authorities on his behalf and he was released. The father has not been in trouble with the authorities since his release in 2004. The letter from the priest went on to say following the father’s release from prison his family (including the applicant) were the subject of repeated threats. These commenced after the applicant’s sister fled Albania. The circumstances in which she is said to have fled Albania were provided to the Tribunal via the provision of copies of decisions of the Tribunal in her own matter. The sister’s circumstances were the second way in which the applicant’s claim was enlarged before the Tribunal.

12. His sister had left Albania before him. She had left Albania to travel to Italy in 2003 with a man who delivered her up to persons who obliged her to work as a prostitute in Italy. She escaped and returned to Albania but subsequently left again. She met up with her husband in Florence. They spent some time in the United States and ultimately she came to Australia. The experiences of the father and of the sister were linked, if I apprehend the history accurately, in that threats to the father and to the family generally continued after and may have been related to, the applicant’s sister leaving home.

13. The applicant’s sister gave evidence to the Tribunal in his matter. The applicant left the hearing room when the evidence was being given. He did not want to know what happened to his sister. The Tribunal went to the extent of redacting its account of his sister’s evidence in its Reasons so that information was not disclosed to the applicant as to her experiences. The applicant’s sister clearly thinks that her father’s problems in Albania are related to her leaving Albania.

14. DSB’s statement of 9 November 2009 canvasses the experiences of the applicant’s family and in general terms provides testimonial support for them with a particular emphasis on the experiences of the father in prison.

15. The Tribunal rejected the applicant’s claim on credibility grounds. It specifically rejected him as a witness of truth and found that he had “created his claims in order to obtain the visa he sought” (see [79] of the Reasons).

16. The Tribunal was specifically concerned that none of the information about his father and he being beaten and the father being imprisoned had made its way into his original application and it did not accept his explanations for the absence of those matters from that document.

17. The Tribunal was also unable to accept and found implausible his account of remaining in Italy for two weeks following his beating outside the nightclub. He spent those two weeks in hiding and yet claimed to be working. The claim as to his being in hiding was not to be found in his original application.

18. The Tribunal was not prepared to accept that the applicant’s father had undergone the experiences of arrest, detention and release by payment of a fine and was not prepared to accept that the applicant’s family had been the victims of any threatening phone calls.

19. The Tribunal did not believe the applicant was attacked or harmed by anyone in Italy and found that even if it had been so satisfied that, on the applicant’s account, the attack did not occur for reasons related to the matters that are addressed in the Refugees Convention.

20. The Tribunal was also not satisfied that the applicant was liable to be harmed by anyone because of the experiences of his sister.

21. In relation to the unsigned letter by DSB the Tribunal said this at [93]:

    A letter ‘Statement’ and signed DSB dated 9 November 2009 was submitted to the Tribunal. The author claims to be the parson of Beltoje. The statement supports the claims of the applicant in relation to threats made to his family, arrest and imprisonment of the applicant and his father. There is no address or telephone number on this document which is purportedly from the parson of the church in Beltoje. There is insufficient information to verify the identity of the author of the letter. As I do not accept the applicant is a witness of truth and as I am satisfied that the applicant has created his claims in order to obtain the visa sought, I am satisfied that his credibility is so damaged that I place no weight on this document.

22. The Tribunal notes the absence of an address or telephone number on the document and concludes that there is insufficient information to “verify” the identity of the author. That is the first point to be made about the way the Tribunal deals with the letter. It then goes on to find that because of the rejection of the applicant as a credible witness and because of the finding that he had “created his claims” in order to obtain the visa, that no weight is placed on the document. That would seem to be a discrete ground for rejection to the verification issues.

23. The applicant’s counsel placed considerable reliance upon a passage from a decision of the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39. That case involved the Tribunal’s acceptance of a letter from a Muslim association in Australia which served to undermine the claims of the applicant. In that case, an Appeal to the Federal Court for judicial review was successful. The High Court allowed the Appeal by the Minister from that decision and in the circumstances of the case found that no further inquiry by the Tribunal would have yielded a useful result. The plurality judgment contains this passage at [25]:

    Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a ‘duty to inquire’, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error…

24. Those dicta have been accepted and applied in Khant v Minister for Immigration & Citizenship (2009) 112 ALD 241 and SZLGP & Anor v Minister for Immigration & Citizenship (2009) FCA 1470.

25. In Minister for Immigration v MZYCE (2010) 116 ALD 156 Gray J whilst deciding that the Tribunal had not failed to carry out an inquiry in a way that manifested jurisdictional error nevertheless identified this issue as one which goes to the question as to whether the Tribunal has discharged its statutory function at [36).

26. Mr Ower, for the applicant, says that in this case the inquiry was an obvious one of asking the Migration Agent or the applicant whether DSB could be contacted by telephone and then the further inquiry of contacting DSB and asking him whether the statement was his. Further, he said, that the inquiry concerned the critical fact of whether there was truth in the applicant’s claims as to the threats to his father, the arrest of his father and himself and the imprisonment of his father. Finally, it is said that the making of such inquiry would have affected the outcome of the Review.

27. It was in respect of the latter aspect of the matter that the applicant sought to tender an affidavit of his solicitor which demonstrated that DSB did indeed author the statement and adopted it on his oath when given an opportunity to do so.

28. Because the affidavit of Ms McGrath is capable of establishing a fact which could serve to establish the ground of appeal I think it should be admitted and I will admit it in evidence before me. The nature of the exercise before me involves determining whether the Tribunal fell into jurisdictional error. If there was no evidence that DSB would have adopted the unsigned statement then the ground could not be made out. It is not a question of admitting material which was not otherwise before the Tribunal or embarking upon my own merits review. The admission of the affidavit in the proceedings before me is for the purpose of ascertaining whether jurisdictional error can be identified, in the way in which the Tribunal failed to make inquiries that it is said it should have made.

29. Gray J in SBLF v Minister for Immigration & Citizenship & Anor (2008) FCA 1219 allowed a review of a Tribunal’s decision in part because at the hearing the Tribunal rejected an unsigned letter of the applicant’s mother which was generally supportive of his claim. The statement had not been signed nor even checked by the applicant’s mother (so it was conceded). His Honour noted that the Tribunal could rely on evidence that was not sworn and was not bound by the rules of evidence. That statement had to be given such weight as it merited and could not be rejected on account of the form in which it came in before the Tribunal. Importantly, his Honour took this to be an index of a failure to carry out the review required by s.414(1) of the Act.

30. Because the statement of DSB fulfilled the SZIAI (supra) criteria the Tribunal ought to have caused these elementary inquiries to be made which would have ended up in it satisfying itself of the authorship of the document and that, in turn, may have enabled the Tribunal to come to a different view of the applicant’s credibility. So runs the argument. The jurisdictional error it is said, is in the failure to make the inquiry which can be in turn seen as a general failure to conduct the review.

31. As is sometimes the case with Tribunal decisions, passages which in another forum attract scrutiny can be seen as having been expressed with language of less than ideal clarity.

32. Whilst [93] is the only part of the Reasons that deals with DSB’s statement the Reasons note the Tribunal’s questioning of the applicant about the statement at [49] and [54].

33. The first thing to be noted about [93] is that the observations it makes about the statement are accurate. The document does not have an address or telephone number of the author on it. It does not contain information which would enable the identity of the author to be verified.

34. Secondly, in evaluating the ground advanced by the applicant it should be noted that the Tribunal was aware of the ways in which the information in the statement, if accepted, were capable of corroborating the applicant’s claims. The Tribunal notes that the statement purports to corroborate the claims in relation to the threats made to the applicant’s family and the arrest and imprisonment of the applicant and his father (and the father’s subsequent imprisonment). It is not a case where corroborating material has been rejected with the Tribunal not knowing whether and in what way the material it contained was supportive of the applicant’s case.

35. The observations made about the inability to verify the document are not themselves used as a basis for not giving any weight to the statement. That might be implicit in what the Tribunal says. It is somewhat uncertain. What is clear is that the Tribunal placed no weight on the document because it considered the applicant’s credibility to have been damaged beyond repair. It is also clear that if the verification problems were a basis for not giving any weight to the statement, that they constituted a separate ground for rejection, quite distinct from the rejection of the document because of the applicant’s credibility problems.

36. In Appellant S20 of 2002 [2003] HCA 30 the High Court was dealing with an appeal from a decision of the Full Court of the Federal Court refusing a review of a decision of the Tribunal to grant the applicant a protection visa. One of the grounds advanced was what was said to be the illogicality and irrationality of the Tribunal’s decision and that was based upon a contention that no weight was given to the evidence of a witness corroborative of the applicant’s claims as to how he had been treated by the authorities in his country of origin.

37. The Tribunal referred to the fact that it was not, on account of the lack of credibility of the applicant, “satisfied” with the corroborating evidence of the witness and that it gave no weight to it (see [11] of the judgment of the High Court).

38. Gleeson CJ had this to say at [12] in relation to the findings set out at [11] (supra);

    It was contended that this passage shows that the tribunal member adopted a flawed approach to her evaluation of the evidence, failing to assess the evidence of the applicant/appellant in the light of the corroborating evidence, and giving no weight to the evidence of the corroborating witness for reasons that had nothing to do with the quality of that evidence. The essence of the complaint is that the tribunal failed to consider the evidence as a whole, but first considered, and disbelieved, the evidence of the applicant/appellant, without taking account of the corroboration, and then considered and rejected the corroboration because of the rejection of the evidence of the applicant/appellant. I do not accept that this is a fair criticism of the tribunal’s reasons. In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant’s story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering. The member could have expressed herself more clearly. It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apparent from the reasons given for disbelieving the principle witness.

39. To similar effect it is the judgment in the case of Minister for Immigration and Multicultural Affairs [2003] HCA 30 by McHugh and Gummow JJ at [49];

    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.

1. The relevant ground of jurisdictional error advanced in S20 (supra) was irrationality. That is not the ground pursued in this case. The general credibility findings of the Tribunal are not attacked as indicative of jurisdictional error. The ground advanced relates to the failure to make inquiries and hence not to conduct the review it was obliged to conduct. Had it done so, it is suggested, the Tribunal may have come to different conclusions as to the credibility of the applicant. In that sense, the attack upon the credibility finding is collateral to the ground advanced.

2. The first difficulty in making that argument is that the Tribunal did not appear to have rejected the document on account of verificational difficulties and, even if it did, such a rejection was quite distinct from the rejection that was grounded on the applicant’s lack of credibility. In other words, a fair reading of the relevant passage indicates, that, although not expressed in clear terms, the Tribunal’s decision to give no weight to the corroborative statement is one made on the basis of the statement not necessarily having been rejected. I have already noted that the observations the Tribunal makes as to the verificational difficulties associated with the statement are accurate and at the point at which those remarks are made the Tribunal has not indicated that it would not give any weight to the statement or in some sense disregard it.

3. Mr d’Assumpcao, for the respondents, referred me to two recent decisions of the Full Court of the Federal Court which found that the Tribunal does not fall into jurisdictional error because it fails to express its reasons for rejecting corroborative evidence with total clarity; and that it was open to the Tribunal to assess the credit of an applicant and then in the light of that assessment consider what weight should be given to material advanced which is said to be corroborative (see Minister for Immigration & Citizenship v SZNSP [2010] FCAFC 50 at [33] and Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51 at [26]).

4. Those cases, and the passages from S20 (supra), make it clear that no jurisdictional error would be involved in giving no weight to the statement here, even if, hypothetically, there were no verificational difficulties associated with it and the Tribunal had expressed itself in the way in which it had in the last sentence of [93].

5. The appellant’s argument, however, is that had the Tribunal, in accordance with s.414(1) of the Act, conducted the review as it ought to have and inquired of the applicant or his agent as to the contact details of the author of the statement, and satisfied itself of the authorship of the statement, that the statement would then have been given weight and that in turn would have caused a revision, favourable to the applicant, of the Tribunal’s findings as to his credibility.

6. The difficulty for the applicant is that the Tribunal appears to have proceeded in exactly the opposite way than that which is contended. That is, it did not reach a decision as to the applicant’s credibility after rejecting the statement (on account of verificational difficulties or otherwise). It gave the statement – about which it had already observed there were verificational difficulties – no weight because, for reasons it had already given in detail, it rejected the applicant – comprehensively it must be said – as a witness of truth.

7. Even if contrary to the view I have expressed the Tribunal used the verificational difficulties to first reject the document before evaluating its worth as corroborative of the applicant’s account, it is clear that there are limits to the extent to which the dicta relied upon from SZIAI (supra at [23]) can be relied upon as creating an obligation on the Tribunal to make inquiry.

8. There is no doubting proceedings before the Tribunal are inquisitorial. The meaning of that expression is explicated in SZIAI (supra) itself at [18]. As Gummow & Hayne JJ expressed in Abebe v Commonwealth of Australia 197 CLR 510 at [187];

   The proceedings before the Tribunal are inquisitorial and the Tribunal is not in a position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.

9. I have already indicated that I am prepared to assume that DSB would have adopted his statement if given the opportunity to do so. I make that assumption on the basis of my receipt of Ms McGrath’s affidavit. But there is no basis for me to make any assumptions as to why it was that the statement in the first instance did not include contact details for the author of the statement or why the applicant or his agent did not invite the Tribunal to contact him. The applicant chose to rely upon a statement in the form in which it was presented and did not seek to call any oral evidence of the author of the statement. I am not criticising the applicant for making those decisions but I do not think the Tribunal fell into error, let alone into jurisdictional error, by not taking it upon itself to make the inquiries as to the contact details for the author. The inquiry can perhaps be categorised as an obvious inquiry in the same way that the inclusion of contact details on the statement might be thought to be an obvious inclusion. I also accept that the contact details would have been easily ascertained. But I do not think the contact details were a critical fact in the sense in which that expression is used in SZIAI (supra) and neither do I think that those details or the confirmation of the authorship of the statement or the ascertainment of those details which such confirmation would have entailed, are critical facts in the sense in which that expression is used in SZIAI (supra).

10. Neither do I think that they would supply a sufficient link to the outcome of the hearing so as to constitute a failure to review. This is because the Tribunal had already reached a point of comprehensive rejection of the applicant’s account on credibility grounds and whether the authorship of the statement was confirmed or unconfirmed was not a matter, on any fair reading of the Tribunal’s Reasons, which was going to make any material difference to the way in which the Tribunal discharged its obligation to review.

11. For these reasons the application for review is refused.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Date:  19 November 2010