AZACK v Minister for Immigration

[2013] FCCA 1366

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZACK v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1366

Catchwords:
MIGRATION – Application for a protection order – whether the decision of the Tribunal is vitiated by bias or a perception of bias – whether a fair minded informed lay observer might reasonably apprehend that the Tribunal had a closed mind – perception of bias not made out.

Legislation:  

Migration Act 1958 (Cth)

Minister for Immigration & Anor v SGLB (2004) 207 ALR 12
Re: Minister for Immigration & Multicultural Affairs; ex-parte Durairajasingham (2000) 158 ALR 407
Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594

Applicant: AZACK

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 207 of 2012

Judgment of: Judge Simpson

Hearing date: 12 April 2013

Date of Last Submission: 3 June 2013

Delivered at: Adelaide

Delivered on: 17 September 2013

REPRESENTATION

Counsel for the Applicant: Mr Ower

Solicitors for the Applicant: Winters Solicitor

Counsel for the Respondents: Mr Tredrea

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Application is dismissed.

2. The applicant shall forthwith pay the first respondent its costs fixed in the sum of SIX THOUSAND, EIGHT HUNDRED DOLLARS ($6,800).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 207 of 2012

AZACK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. I have before me an application filed on 19 September 2012 in which the applicant seeks constitutional writs in respect of a decision (“the Decision”) of the second respondent, the Refugee Review Tribunal (“the Tribunal”), dated 9 September 2012.

2. By the Decision the Tribunal affirmed a decision of a delegate of the Minister (“the Delegate”) not to grant the applicant a protection visa.

Background

1. The applicant claimed and was found to be a citizen of Albania.  He was born on 28 June 1992.  He arrived in Australia on 29 February 2012 on a false Australian passport.

2. On 7 March 2012, he lodged an application for a protection visa.

3. In support of his application, the applicant claimed that:

   a)While at High School in Albania in 2010, he met a Muslim girl and commenced a relationship with her;

   b)After the relationship became sexual, he started receiving threatening anonymous telephone calls warning him about the relationship;

   c)Seven or eight months into the relationship (ie late 2010 to early 2011) it became a sexual one;

   d)He believes that if he were to return to Albania, he would be killed, not only because of the relationship with the Muslim girl but also because he owes money to the person or persons who provided him with his false passport;

   e)The applicant says that he fears persecution in Albania for two reasons: firstly, because he is a Catholic, and secondly, by virtue of his membership of a particular social group comprising persons in a mixed Muslim/Christian relationship;

   f)The applicant subsequently left Albania on a false Italian passport;

   g)He believes and fears that if he were to return to Albania, he might be killed by either those making the threatening phone calls or by the person or persons from whom he purchased the passport;

   h)He believes that the Albanian authorities are unable to provide him with protection.

4. In a submission to the Tribunal by the applicant’s migration agent, it was said that the applicant’s fear was for reasons within the meaning of the Refugee Convention on the basis of his religion and on the basis of his membership of a particular social group.

5. On 25 May 2012, the Delegate refused the applicant’s application principally on credibility grounds.  On 1 June 2012, the applicant sought review by the Tribunal.

6. On 4 September 2012, the Tribunal affirmed the Delegate’s decision and dismissed the applicant’s application for review.

7. The Tribunal’s findings and reasons indicated that the Tribunal comprehensively disbelieved the applicant’s claims in their entirety.  The Tribunal concluded as follows:

   “The Tribunal finds that as his claims are fabricated, the applicant does not subjectively fear harm of any type, for any reason, in Albania.  As a result, the Tribunal finds that the applicant does not have a well-founded fear of persecution now or in the reasonably foreseeable future if he were to return to Albania.  For the same reason, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Albania, there is a real risk that he will suffer significant harm.”

Material relied upon

1. In addition to the material in the Green Book, the applicant relied on an affidavit of Tom Radbone, a solicitor with the applicant’s firm of solicitors.  The affidavit annexed a copy of the transcript of the proceedings before the Tribunal in Melbourne on 27 June and 18 July 2012.  Also provided was an audio CD of the hearings referred to.  The hearings took a total of three and half hours.  At the request of counsel for the parties, I have listened to all of the audios for both hearings.

Applicant’s case

1. In his application filed on 19 September 2012, the applicant sought an order from this Court quashing the Tribunal’s decision.  There were five grounds of challenge asserted which were as follows:

   That the Tribunal committed jurisdictional error;

   Ground 1

   1.By failing to afford the Applicant fairness in eliciting the evidence of the Applicant.

   Particulars

   1.1The Tribunal invited the Applicant to make changes to his claims;

   1.2The Tribunal determined that the evidence of the appellant lacked credibility because he changed his claims.

   Ground 2

   2.By failing to act upon the request of the Applicant to take corroborative evidence.

   Particulars

   The Tribunal declined to contact a witness in Albania nominated by the Applicant as a person able to provide information with respect to the Muslim female with whom the Applicant asserted he had had the relationship which precipitated his claims before the Tribunal.

   Ground 3

   3.By so misconstruing medical evidence as to reach a conclusion with respect to the Applicant’s state of mind (and consequent credibility) that was without foundation and injurious to the Applicant’s case.

   Particulars

   The Tribunal unreasonably read a medical report obtained from a medical practitioner in Albania as supporting a finding that he was not affected by fear at the time when he left Albania.

   Ground 4

   4.By characterising the Applicant’s conduct in such a way as to wholly discount his evidence, which characterisation was unreasonable in fact and untenable at law.

   Particulars

   The Tribunal found the Applicant to have engaged in conduct constituting “a pattern of dishonest behaviour designed to deceive”.

   The conduct referred to was the Applicant’s inability to recall significant dates.

   Ground 5

   5.The Tribunal’s conduct of the review as detailed in grounds 1 – 4 above constituted:

   5.1a failure to afford the Applicant procedural fairness;

   5.2circumstances reasonably giving rising [sic] to a perception of bias.

   Particulars

   The Applicant repeats the particulars given with respect to grounds 1 – 4.

2. At trial, counsel for the applicant indicated that the matter could proceed on the basis that the sole ground of review was that the Tribunal exhibited a perception of bias and that, as a result, this amounted to jurisdictional error.

3. The applicant points out that the Tribunal received material and evidence from the applicant on five occasions:

   i.Firstly, there were written submissions provided on 26 June 2012;

   ii.On 27 June 2012, there was an oral hearing (the first hearing) pursuant to s.425;

   iii.On 17 July 2012, there was a further written submission provided by the applicant;

   iv.On 18 July 2012, there was an oral hearing (the second hearing) before the Tribunal; and

   v.On 30 July 2012, the applicant provided a written response to a letter sent to him by the Tribunal pursuant to s.424A.

4. Counsel for the applicant submitted that throughout this process of receiving evidence the Tribunal must be careful not to give an appearance of bias. 

5. Counsel for the applicant then identified, in particular, the following passages from the transcript of the second hearing which, they submit, establish a prima facie case of bias:

   “TRIBUNAL MEMBER: …

   The issue, though, for you, (the applicant’s name), is whether I believe your story about having been in a relationship with a Muslim girl and her family being after you.  And I asked you earlier about this last time and I need to ask you again something.

   APPLICANT (THROUGH INTERPRETER): Yes.

   TRIBUNAL MEMBER: When I was considering everything that you’ve said – and just listen to what I have to say – in your application for the visa, you write:

   “In 2010, while I was still at high school, I met a girl named …”

   And you give her name:

   “… at a friend’s birthday party.”

   At the last hearing when I asked you when you met the girl, you first said it was a New Year’s Day party.  Then, you said it was a birthday party in October or November 2009.  Just let me finish.  When you spoke to the delegate at interview, you told the delegate that you met the girl when you started university, when you were a first-year university student, around October 2010.  So, we’ve got – you’ve given various events or various versions of when you met the girl.  So, this may lead me to doubt your credibility about having met this girl.  Can you explain?

   APPLICANT (THROUGH INTERPRETER): I’ve never mentioned New Year’s Eve.  I have never said that it was New Year’s Eve.  That could have been – that was the mistake of the interpreter.

   TRIBUNAL MEMBER: All right.  Let’s say I accept it’s the mistake of the interpreter.  How can you – how can you explain that in your application for the visa you said, “In 2010 while I was at high school”, and then you said to me in October or November 2009?

   INTERPRETER: sorry, the last one was?

   TRIBUNAL MEMBER: October or November 2009.

   APPLICANT (THROUGH INTERPRETER): I’ve never mentioned the first year of high school.  I’ve never mentioned it was first year of high school.  I’ve always said it was the last year of high school, in Year 12.

   TRIBUNAL MEMBER: If I’ve misled you, I didn’t mean to.  In your visa applications you’ve said, “In 2010, while I was still at high school”.

   APPLICANT (THROUGH INTERPRETER): But I never mentioned first year high school.  Everything happened in fourth year, in the last year where this happened.

   TRIBUNAL MEMBER: So, what year was that?

   APPLICANT (THROUGH INTEREPRETER): It was – so, 2009/2010, because it was school year.

   TRIBUNAL MEMBER: Now, the problem, (applicant’s name), is that you’ve continued to give evasive answers.  When did you meet the girl?

   APPLICANT (THROUGH INTERPRETER): No, no, November 2009 is the time.  After seven or eight months, I had sexual intercourse with the girl.  And then that’s when the threats started.  But I don’t know what the other interpreter may have said.

   TRIBUNAL MEMBER: Okay. Well, all I can say to you is what you have written in your application for the visa.  You have said:

   “In 2010, while I was still at high school, I met a girl named Naima Hodjer at her friend’s birthday party.”

   And you’ve changed your evidence to say it’s now October or November 2009?

   APPLICANT (THROUGH INTERPRETER): I’ve been very stressed and I’ve been through a lot.  And all the stress that I have been under has had its impact on me.

   TRIBUNAL MEMBER: You see, what I think you’ve done is you’ve changed your evidence because your claims that you’ve applied for student visas to come to Australia, which we discussed last time, because you were afraid don’t match up with your evidence about when you met the girl.  So, I think you’ve actually lied to me by changing the day you met the girl so that the chronology of your applying for your student visas, after having had sex with the girl, works?

   APPLICANT (THROUGH INTERPRETER):  November 2009. I never mentioned New Year’s Eve, and I’m surprised that it comes up.

   TRIBUNAL MEMBER:  Well, I accept your explanation, and that may have been a mistake in the interpretation.

   APPLICANT (THROUGH INTERPRETER):  And I’ve never mentioned first year of high school.

   TRIBUNAL MEMBER:  No. You said “while I was still at high school in 2010”.

   APPLICANT (THROUGH INTERPRETER):  I didn’t – at that point in time, I wasn’t focused on dates.

   TRIBUNAL MEMBER:  Well, I’d like to now move on to the documents that were provided to me yesterday which you’ve now read.  And I think you’ve arranged for your father to either have false documents made, or a false report made to the police if the documents are genuine, to try and shore up your story?

   APPLICANT (THROUGH INTERPRETER):  It is true.  If you don’t believe me, I don’t know what to do.  You may say I don’t have a heart, but I can’t cut my heart out and show it to you and put it on the table to you.  How can I bring Albania here to you? You can check.  I mean, I’m in this – I’m in such a lot of stress.  Every night I take tablets to sleep.

   TRIBUNAL MEMBER: I think you are under a lot of stress because you’re being found out in what is a fabricated story.

   APPLICANT (THROUGH INTERPRETER):  I’ve come to you for help.  It’s up to you.  It’s in your hands to decide.  I can’t explain it any more.  I’m in your hands.

   TRIBUNAL MEMBER:  Are there any other things you would like to say to me?

   APPLICANT (THROUGH INTERPRETER):  Maybe if you had a son who was in my position in another part of the world.

   TRIBUNAL MEMBER:  The issue is then, (the applicant’s name), I don’t think you are in the position that you say you are in.  And I’ve given you the opportunity to tell me the truth.

   APPLICANT (THROUGH INTERPRETER):  I told the truth.

   TRIBUNAL MEMBER:  You’ve changed your evidence – you’ve changed your evidence.  So, what am I supposed to make of that?

   APPLICANT (THROUGH INTERPRETER):  I’m not sure the interpreter understood what I was saying.  I never mentioned New Year’s Eve.  I never mentioned the first year.

   TRIBUNAL MEMBER:  No, no, okay.  I accept that.  I accept that that may have been a mistake.  But we’ve got a fundamental issue here as to the timing of when you met the girl.

   APPLICANT (THROUGH INTERPRETER):  In November 2009.”

6. Counsel for the applicant pointed out that the Tribunal concluded near the end of its reasons that, “due to the inconsistency in, and shifting of his evidence and the provision of false material, the Tribunal finds that the applicant is not truthful.”  It was submitted on behalf of the applicant that this perceived inconsistency, shifting of evidence and provision of false material appeared to have three components, namely:

   ·       “First, that the applicant initially claimed that he had met the Muslim girl in 2010 while at High School.  He stated that, in response, he had made two applications for a student visa about 8 – 9 months after meeting her.  During an interview with the Delegate, he had claimed that he had met her while at University.  Subsequently, the Delegate put to him that the first student visa application was made on 27 May 2010.  The applicant claimed that he had made a mistake.  To the Tribunal, the applicant stated that he met the Muslim girl in October or November 2009.  The applicant finished middle school in June 2010, and commenced university in October 2010.  Nevertheless, the Tribunal found that the applicant had changed his evidence as to when he met the girl.

   ·       Secondly, as part of the second written material provided on 17 July 2012, the applicant provided police reports made by the applicant’s father and a friend of the family.  The Tribunal rejected them as not genuine and being, “self serving”.

   ·       Thirdly, the Tribunal used a medical report dated 30 May 2012 to infer that the applicant did not have a subjective fear when he left Albania.”

7. In relation to the discrepancies in the applicant’s evidence and material about his relationship with the Muslim girl, the applicant submits that the initial statement by the applicant about when he first met the Muslim girl (ie in 2010 at High School) and his later statement (ie October/November 2009) was minor.  The Tribunal nevertheless based its entire decision on that single fact. 

8. Counsel for the applicant referred to a passage in the case of Minister for Immigration & Anor v SGLB[1] by Kirby J concerning the difficulties that asylum seekers may have in presenting themselves as credible witnesses and the importance for Tribunals to obtain the best possible understanding of the facts.  The passage states:

   “There was some suggestion during the hearing of this appeal that inconsistent statements by asylum seekers might suggest fabrication of evidence, and might justifiably lead to negative conclusions as to credibility.  While such a conclusion is sometimes justified, refugee cases involve special considerations where credibility is an issue.  There is no necessary correlation between inconsistency and credibility in such cases.  Many factors may explain why applicants present with the appearance of poor credibility.  These include: mistrust of authority; defects in perception and memory; cultural differences; the effects of fear; the effects of physical and psychological trauma; communication and translation deficiencies; poor experience elsewhere with governmental officials; and a belief that the interests of the applicants or their children may be advanced by saying what they believe officials want to hear.  The Tribunal must be firmly told – if necessary by this Court – that the process is one for arriving at the best possible understanding of the facts in an inherently imperfect environment.  It is not to punish or disadvantage vulnerable people because they have made false or inconsistent statements, or are believed to have done so.”

   [1] (2004) 207 ALR 12 at [73].

9. The applicant submits that in the present case, a fair minded, properly informed lay observer might come to the conclusion that during the review process, the Tribunal was incapable of being persuaded to the contrary and that there was nothing that the applicant could say or do to change the Tribunal’s preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa.  For reasons that I will come to later, I do not accept this submission.

10. A further component of the applicant’s case concerns the written material provided to the Tribunal the day before the hearing on 17 July 2012.  The documents included one that purported to be a translation of a report dated 27 June 2012 from a police officer in Albania concerning an incident involving the applicant’s father alleged to have occurred on 27 June 2012 (ie the day of the first hearing before the Tribunal) at about 4.45pm.  The report suggested that the father, while driving his car, had been stopped by two people who threatened him with guns but eventually let him go.  The report goes on to say that the police officer wanted to know if he or any member of his family “… have any conflict, and if yes, with whom and what was the cause of that conflict?”  The document stated that the applicant’s father then told the police officer about the conflict the applicant has been alleging in these proceedings. 

11. The Tribunal did not accept this evidence as true, as the following passage from its reasons shows.  The Tribunal gave a detailed and logical explanation for coming to the conclusion that the applicant and his family members had confected the police statements and that the applicant had been untruthful in his evidence before it:

    “The applicant claims that his father, whilst driving the applicant’s car in Albania, was stopped and questioned by strange men.  At the hearing, he said he had learned about this from a telephone call from his father the day before the first hearing.  The applicant then said his brother had also told him the day before the hearing, but then he shifted his evidence and said that his brother and father were re-emphasising what had happened when they spoke the day before, and he knew what had happened to his father ‘some days’ before.  The day before the second hearing, the applicant provided copies of police reports by his father and a friend about being stopped whilst driving the applicant’s car by strange men and questioned about the applicant under gunpoint.  The Tribunal does not accept that this evidence is genuine.  Whilst the father and the friend may well have made police reports, and the documents provided may be copies of police reports, in the Tribunal’s assessment they are self-serving statements designed to bolster the applicant’s fabricated claim about him being at risk from the family of a Muslim girl.  It is too convenient, in the Tribunal’s assessment, that the father reported being stopped on 27 June 2012, the same date as the first hearing.  The applicant was too quick to tell the Tribunal at the second hearing that this was the second time his father had been stopped, because he had already said at the first hearing that it had happened prior the first hearing. The applicant’s explanation as to why the father did not state in the police report that this was a second incident was because this time it was more serious because they had a gun.  The Tribunal does not accept this explanation.  In the Tribunal’s assessment, the applicant and his family have confected the police statements, and the applicant, realising that his account at the first hearing of his father being stopped prior to 27 June 2012 is inconsistent with the date in the police report, has attempted to deceive by claiming this was the second time that his father had been stopped whilst driving his car.”

    The applicant nevertheless submits that the Tribunal’s rejection of these further documents from the father and the friend is an indication of a mind closed to persuasion.

1. The applicant submits that the fact that the Tribunal declined to make an enquiry when invited to do so by the applicant is another indication that the Tribunal had prejudged the matter.  The person that the applicant invited the Tribunal to contact was a friend of the Muslim girl in issue.  The applicant said that this friend who lives in Albania had told the Muslim girl in a telephone conversation that the applicant should not return to Albania. 

2. The final component of the applicant’s case is that the Tribunal is said to have used a medical report apparently prepared in Albania and dated 30 May 2012 to infer that the applicant did not have a subjective fear when he left Albania.  The Tribunal said:

   “The Tribunal notes the medical report submitted by the applicant at the first hearing, dated 30 May 2012, which was obtained by his father.  This reports that when checked in January 2012 (the month prior to his departure for Australia):

   “His situation is getting improved.  The anxiety status is getting stabilised and his humour is much more stable.”

   This runs contrary to the applicant’s contention that he was in a state of fear at the time he left Albania.”

3. Counsel for the applicant submitted that as a result of the provision of the medical report, the Tribunal determined that the applicant had no subjective fear at the time when he left Albania.

4. It was submitted that on the basis of this finding, perceived bias on behalf of the Tribunal is made out.

Conclusions

1. In my opinion and for the reasons that follow, none of the matters raised in the applicant’s case reveal bias or a perception of bias.  I would dismiss the application.

2. The Tribunal did not have to accept the applicant’s claims at face value.  It was for the Tribunal to assess the applicant’s claims and evidence and to form a view about whether the applicant was giving truthful evidence.  A finding by the Tribunal that it did not believe an applicant does not require reason, detailed or otherwise.  The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.[2]

   [2]     Re: Minister for Immigration & Multicultural Affairs; ex part Durairajasingham (2000) 158 ALR 407 at para 67.

3. The factual conclusions made by the Tribunal were neither unreasonable nor untenable.  This is particularly so in relation to the credibility finding.  The inconsistencies in the applicant’s evidence were by no means slight.  The applicant gave no less than three different and inconsistent versions of when he met the Muslim girl in question.  It was open to the Tribunal to find that the applicant had “engaged in a pattern of dishonest behaviour designed to deceive” given the finding as to credit.

4. As mentioned earlier in these reasons, I have listened to and read the Tribunal transcript of evidence for 27 June and 18 July 2012.  I did not notice any significant change of tone or tenor in the Tribunal member’s voice that would indicate or suggest a decision-maker who had prejudged the matter.  The decision-maker in question politely and patiently, in my view, put his questions and allowed the applicant to give his answers and to provide other information.  An interpreter was used throughout.  I did not notice any difficulties with translation.  The decision-maker sometimes put questions to the applicant that may have indicated concerns that the decision-maker had with the applicant’s case, but those questions resulted in the applicant being able to provide further and fuller information on these topics.

5. The conclusion that the Tribunal came to in relation to the police reports made by the applicant’s father was logical and open to the Tribunal to make.

6. So far as the criticism that the applicant makes about the Tribunal’s failure to seek the additional information from the person in Albania is concerned, I consider this to be without merit.  The Tribunal gave the following reason for declining to make telephone contact with this person:

   “Due to the adverse assessment of his credibility and the conduct of his case, the Tribunal has not contacted the person in Albania, as in the Tribunal’s view, this person’s evidence, even if he did corroborate the claim, would fall within the same type of unreliable self-serving evidence that the applicant has already put (his father’s and father’s friend’s police reports) in an attempt to shore up his claim.  In other words, the applicant has recruited another person known to him to say what he wants them to say.  The Tribunal finds, therefore, the enquiry invited is not an obvious enquiry about a critical fact.”

7. The Tribunal’s decision to not contact the person in Albania cannot be said to be any indication of a closed mind.  No jurisdictional error is shown.

8. The Tribunal had no duty to investigate or obtain further evidence whether or not that further evidence might enhance, detract from, or otherwise be relevant to information which is already received.[3]

   [3]     Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594.

9. For the above reasons, I consider that the application is without merit and should be dismissed.

1. I make the orders to be found at the beginning of these reasons.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date:  17 September 2013