AZACT v Minister for Immigration

[2013] FCCA 1221

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZACT v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1221

Catchwords:
MIGRATION – Judicial review of Refugee Review Tribunal decision to affirm decision of delegate of Minister not to grant applicant a protection visa – no jurisdictional error.

Legislation:  

Migration Act 1958 (Cth), ss.425, 474, 476 & 477
Commonwealth Constitution, s.75(v)

1951 Convention Relating to the Status of Refugees and its 1967 Protocol

Craig v The State of South Australia [1995] HCA 58
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Applicant: AZACT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 313 of 2012

Judgment of: Judge Lindsay

Hearing date: 14 August 2013

Date of Last Submission: 14 August 2013

Delivered at: Adelaide

Delivered on: 15 August 2013

REPRESENTATION

Counsel for the Applicant: Mr Ower

Solicitors for the Applicant: McDonald Steed McGrath

Counsel for the Respondents: Mr d’Assumpcao

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Application for Review do stand dismissed.

2. The applicant pay the respondents’ costs of and incidental to these proceedings fixed in the sum of SIX THOUSAND, SIX HUNDRED AND FORTY-SIX DOLLARS ($6,646.00). 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 313 of 2012

AZACT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before me yesterday was an Application for Review of a decision of the Refugee Review Tribunal (“the Tribunal”) which decision affirmed the decision of the delegate of the Minister not to grant the applicant a protection visa. The relevant Tribunal decision is that of 13 November 2012. The application is made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) which gives this Court the same jurisdiction in relation to migration matters as the High Court has under paragraph 75(v) of the Constitution of the Commonwealth of Australia, but the jurisdiction is granted only in relation to “migration decisions” as that expression is carefully defined under the Act, and for the purposes of this Act, that effectively means a privative clause decision or purported privative clause decision under s.474 of the Act.

2. The decision of the Tribunal in this case falls within that description, and given those definitions, a review will only lie if I am satisfied that the decision of the Tribunal was vitiated by jurisdictional error.  Jurisdictional error is a concept best explained perhaps by a decision such as that of the High Court of Australia in Craig v The State of South Australia [1995] HCA 58 and in another High Court decision of Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 which dealt specifically with applications of this kind from Tribunals for review under the Act. So it is a question of being able to identify some way in which the Tribunal acted in excess or for want of jurisdiction in making the determination that it did.

3. The determination was to affirm the delegate’s decision that the applicant was not someone to whom Australia owed protection obligations under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. 

4. The applicant is an Albanian citizen with a right of permanent residency in Italy.  Those facts appear at least to be clear and uncontroverted. 

5. I should note that the application has been brought within time pursuant to s.477 of the Act.

6. The applicant is someone who has been resident in Italy since 1996, although he returned to Albania in 2010, on his account, some 14 and a half years after his entry into Italy.  As I have indicated he is a permanent resident of Italy.  His difficulties arose, on his account, after he returned to Albania and his difficulties were associated with the fact that a cousin – a member of his family – had, as he puts it – six months ago – that is six months ago relevant to the Tribunal hearing – eloped with a Muslim girl from another family.

7. This, it is said, had caused some difficulties for him and for his family in Albania and had the consequence of he and his family having received death threats.  These matters are summarised in both the delegate’s decision and the Tribunal decision.  Neither the delegate nor the Tribunal, it should be noted at this point, were satisfied that the applicant’s evidence as to the threats to he and his family was credible or given as part of a truthful account of his experiences.

8. It is that experience, that risk of death or serious injury at the hands of the Muslim family, coupled with the absence of State protection in the form of recalcitrant police responses to the predicament of he and his family, that he says gave rise to a fear of persecution for a Convention reason, the relevant social group presumably being membership of his family.  That is the gravamen of the reason he gives for his entitlement to refugee status, as to why Australia owes him protection obligations.

9. The ability to have his account of his experience accepted was compromised further by the circumstances which are discussed in some detail by the delegate and they relate to his attempts to enter Australia in 2011 and 2012.  In very summary form there had been four attempts during that period to enter Australia.  The first was in 2011 and was essentially a visa relating to an opportunity to visit his family.  It was rejected because of a lack of evidence of financial capacity, as was a second attempt in 2011 to obtain a visa, this time a student visa.

10. That was rejected because he was found not to be a genuine applicant for entry and stay in Australia as a student.  In February 2012 he had tried to gain entry via Sydney airport on an Italian passport with what was found to be a fraudulently entered bio-data page.  He was held briefly in immigration detention and removed from the country.  He tried again in May 2012 entering via Melbourne airport.  Once again his Italian passport was examined and it was found to obtain a fraudulent bio-data page and once again he was refused immigration clearance.

11. On this occasion, on this fourth occasion, he was interviewed by DIAC officers and that is when he made his claim for the protection visa upon the grounds which I have identified.  The application before the Court is in an amended form and I also admitted into evidence for the purposes of the determination of the application an affidavit of his solicitor, which annexed a transcript of the hearing before the Tribunal. 

12. In its amended form the application only promoted one ground of review and it was essentially a procedural fairness ground.  It contends that the way in which the Tribunal dealt with his application denied him procedural fairness in that his application was rejected on account of matters that he was not given an opportunity to make submissions about or in respect of which he was not given an opportunity to expand upon the submissions that had already been made.  I have indicated that the problems associated with the acceptance of his account for refugee status on credibility grounds.

13. I have mentioned the difficulties again pertaining to credibility which arise from his attempts to enter Australia in 2011 and 2012 and they were significant matters, but perhaps dwarfing those was the even more significant matter that arose before the delegate in respect of the problems associated with his return to Albania after 14 and a half years of residence in Italy during which he acquired permanent residence in Italy.  It was put to him that his return to Albania in those circumstances was inconsistent with his having a fear of persecution for a Convention reason.

14. One of the responses to that came via his migration agent, who indicated in a post-hearing submission that part of the explanation at least for his having returned to Albania was that there was a tradition there – whether an Albanian tradition or a tradition associated with the part of Albania from which he came – that he would be secure - he would be unharmed, the threats against him would not be realised, for so long as he was to stay in his own home.

15. That was the post-hearing submission of his migration agent, and in response to that submission the Tribunal returned to some evidence he had given during the course of the conduct of the Tribunal hearing at which he would indicate his regular attendances in the town of Shkoder; that is his regular absences from what on his account would have been the security or sanctity of his home to attend in Shkoder for recreation purposes to have a coffee or to do some shopping.

16. In evaluating that part of his response to the difficulties that confronted him on his account of having returned to Albania, the Tribunal considered his response to that and found the agent’s purported explanation or part-explanation to be inconsistent with that earlier evidence. This is said to ground an entitlement – the way in which the Tribunal dealt with this issue is said to ground his entitlement to review and that arises, it is said, because of the terms of s.425 of the Act, which appears in Division 4 of Part VII of the Act and deals in the way in which the Tribunal is to deal with applications of this kind. Section 425 of the Act provides in subsection (1):

    That the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues –

    and then this is the key expression –

    arising in relation to the decision under review.

17. The expression that appears in s.425 of the Act was given very careful consideration by the High Court of Australia in the decision of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, a decision that related to a claim for refugee status by a sailor, an Iranian national on an Iranian ship harboured at Port Kembla in New South Wales whose claim for refugee status was based upon his having converted to Christianity in Iran and the fact that members of his crew and the captain, in particular, having become aware of his conversion and he being at risk of persecution in Iran on account of his apostasy from the Muslim faith.

18. It is clear from the High Court’s consideration of the way in which the delegate and then the Tribunal dealt with the issue that the delegate in that case found that the fact that his conversion was not regarded as credible was highly significant – his conversion to the Christian faith to be determinative.

19. The Tribunal in that case, on the other hand, rejected his account because of a miscellany of credibility issues relating to the way in which information about his conversion became available to crew members and, subsequently to the captain.  I do not need to go into that in detail but the High Court was satisfied that, in respect of at least two of those three credibility matters relating to that topic, the applicant had not been given the opportunity to provide a response or to expand upon his response in a way which would have accorded him procedural fairness. 

20. They key passage of that decision of the High Court in SZBEL, the ratio decidendi of the case, is to be found at paragraph [36] where the High Court say this:

    It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant’s favour.  Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal’s invitation to appear knowing that it is not persuaded by the material already before it to decide the review in the applicant’s favour.

    That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it.  It may be based on nothing more particular than a general unease about the veracity of what is revealed in that material.  But unless the Tribunal tells the applicant something different the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision. 

21. The conclusion the High Court reached is described at paragraph [44] of the Judgment, where their Honours say:

    The Tribunal did not accord the appellant procedural fairness.  The Tribunal did not give the appellant a sufficient opportunity to give evidence or make submissions about what turned out to be two of the three determinative issues arising in relation to the decision under review. 

22. Having delivered the decision, the Court then goes on in paragraph [47] to make what it describes is this general point.  It says:

    First, there may well be cases, perhaps many cases, where either the delegate’s decision or the Tribunal’s statements or questions during a hearing sufficiently indicate to an applicant that everything he or she says in support of the application is in issue.  That indication may be given in many ways.  It is not necessary and often would be inappropriate for the Tribunal to put to an applicant in so many words that he or she is lying, that he or she be accepted as a witness of truth or that he or she may be thought to be embellishing the account that is given of certain events. 

23. So in light of the decision of the High Court in that case the question posed here by the applicant and the question to be answered by this court is whether the rejection of the agent’s contribution to the explanation by the applicant of the circumstances of his return to Albania being inconsistent with fears of persecution for a convention reason, whether the rejection of the agent’s account amounts to a denial of procedural fairness.  In other words, in the circumstances of this case, should the applicant have been given the opportunity to adduce further evidence or provide further answers or expand on the answers already given in relation to that topic.  My conclusion is that he should not have been.

24. In my view the Tribunal did not move beyond the issues identified by the delegate in rejecting the applicant’s account. The issues identified by the delegate remain, to use the language of s.425 of the Act, the issues for determination on review. The issues before the delegate that, in my view, remained the issues before the Tribunal and which the applicant would have known remained the issues for determination by the Tribunal were, firstly, his credit generally; the credibility of his account of the entirety of his experiences generally was a matter that was in issue and that encompassed, of course, his multiple attempts to get into Australia in 2011 and 2012.

25. The evidence in that regard, I must say, would have been confronting to the delegate, confronting to the Tribunal and it is, to a certain extent, confronting evidence in relation to this court. It has a number of aspects which undermine the credibility of the applicant’s account of his experiences.  Firstly, of course, it is startling evidence of earlier opportunities to make a claim for entitlement to refugee status not taken.  Secondly, it is an indication of his promotion of attempts to get to Australia by telling lies to the immigration authorities and relying upon forged documentation. Thirdly, of course, his conducting himself in this way is inconsistent with what he purports to say are his genuine fears of persecution for convention reasons. 

26. That was the first issue, the credibility of his account that was before the delegate and, which, in my view, remained a core issue before the Tribunal and which he would have well known remained a core issue.

27. The other issue that arose in the decision under review and that remained an issue for the Tribunal was his return to Albania after fourteen and a half years of residence in Italy and the inconsistency of that return with his having the state of mind and the apprehensions that he indicated that he did have.

28. In dealing with this issue the Tribunal did no more, in my view, in the passage to which my attention was drawn at [94] of the Tribunal’s reasons, than respond to what was an implausible answer to that difficulty which had been posited by the applicant’s agent in a post-hearing submission.  In dealing with that argument or that response, in evaluating it, the Tribunal did not move beyond, in my view, any of the issues on review which had been adumbrated by the delegate’s decision itself.  As I indicated to Mr Ower during his submissions if I were to hold otherwise it would create the difficulty for the proper determination of these applications on review of there being a relentless round of arguments evaluated by consideration of material put before the Tribunal by the applicant then requiring opportunity for further submissions or expansion of submissions, then requiring further evaluation and so on. 

29. The risk of such a situation arising is, in my view, properly addressed by understanding that the way in which the Tribunal had dealt with the issues that are discussed in [94] is no more than the process of evaluation of the issues already identified as being the issues on review. 

30. I am unable to identify any legal error, let alone any jurisdictional error, associated with the way in which the Tribunal dealt with this issue. 

31. It is the only matter that is agitated upon the review in the amended application and for that reason the application for judicial review pursuant to s.476 of the Act is refused.

32. In these circumstances it is unnecessary for me to deal with the other matter that was raised by the Minister’s representative relating to s.36(3) of the Act and the difficulties said to arise for the applicant on account of his not availing himself of a right to remain in Italy where he had permanent residence.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Lindsay.

Associate: 

Date:  4 September 2013