AZAED v Minister for Immigration and Border Protection

[2015] FCA 982

FEDERAL COURT OF AUSTRALIA

AZAED v Minister for Immigration and Border Protection [2015] FCA 982

Citation:	AZAED v Minister for Immigration and Border Protection [2015] FCA 982
Appeal from:	AZAED v Minister for Immigration and Border Protection [2015] FCCA 1026
Parties:	AZAED v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
File number:	SAD 134 of 2015
Judge:	WHITE J
Date of judgment:	4 September 2015
Catchwords:	MIGRATION – appeal against dismissal by Federal Circuit Court of application for judicial review of a Refugee Review Tribunal decision – Tribunal upheld decision of Minister’s delegate to reject application for protection visa – procedural fairness – whether Tribunal failed to put appellant on notice as to critical matter in application – whether Tribunal’s decision affected by jurisdictional error – whether Tribunal erred in placing no weight on corroborative evidence
Legislation:	Migration Act 1958 (Cth) ss 36, s 425, 476
Cases cited:	Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152
Date of hearing:	25 August 2015
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	41
Counsel for the Appellant:	Mr S Owers
Solicitors for the Appellant:	McDonald Steed McGrath
Counsel for the Respondents:	Mr K Tredrea
Solicitors for the Respondents:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 134 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

AZAED
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	WHITE J
DATE OF ORDER:	4 SEPTEMBER 2015
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

(1)The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 134 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

AZAED
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	WHITE J
DATE:	4 SEPTEMBER 2015
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. A judge of the Federal Circuit Court dismissed the appellant’s application under s 476 of the Migration Act 1958 (Cth) for review of a decision of the Refugee Review Tribunal (the RRT): AZAED v Minister for Immigration and Border Protection [2015] FCCA 1026. The appellant now appeals against that dismissal.

2. The appellant contends that the primary Judge should have found jurisdictional error by the RRT in the manner in which it had dealt with evidence in the form of a statement provided by his mother and in its failure to put him on notice that it regarded the length of a period of imprisonment he said that he had served in Albania as being critical to its assessment. 

   Background

3. The appellant is a citizen of Albania.  He arrived in Australia in July 2012 using a false passport.  He was then 20 years old.  On 30 August 2012, McDonald Steed McGrath Lawyers (MSML) made an application on his behalf for a protection visa. 

4. The basis of the application was set out in a letter from MSML, the departmental application form and a statutory declaration from the appellant.  These indicated that the appellant and his family are of the Catholic faith; that the appellant had developed a relationship with an Albanian woman (AI) who was Muslim; that this relationship had developed without the knowledge of AI’s family who were “conservative” Muslims; that the appellant and AI had become engaged to be married; that AI had then informed her family of the relationship; that AI’s family had become angry on learning of the appellant’s Catholicism and one of her brothers had warned him, backed up by a threat, not to see AI again; that three days later, AI’s brothers had requested a meeting with the appellant at which they had threatened and physically assaulted him, resulting in injury; that AI’s family had then reported the appellant to the Albanian police who, possibly as a result of being bribed, had arrested him on 24 March 2011 and charged him with assault and kidnapping; and that he had been imprisoned until being taken before a Court six months later when he was released.  Material provided subsequently indicated that some three months later the appellant had gone to Italy; that after a short time he had returned to Albania; and that subsequently he had come to Australia using a false passport. 

5. The appellant said that he feared harm from AI’s family if he returned to Albania because of their opposition to his relationship with AI and the proposed marriage.  He also said that he was unable to seek the protection of the authorities in Albania because of their willingness to accept bribes from AI’s family who were wealthy.  The MSML letter indicated that the appellant’s claims were founded on a fear of persecution for reasons of his Catholic faith and on a fear of harm based on his membership of particular social groups, which were said to be Albanian men who are involved in mixed religion relationships, Albanian men who are involved in mixed Catholic–Muslim relationships, Albanian men who are involved in a mixed religion relationship with women from religiously conservative families, and Albanian men who are involved in mixed Catholic–Muslim relationships with women from conservative Muslim families.

6. In effect the appellant claimed a failure of state protection against non‑state actors. 

7. On 29 January 2013, a delegate of the Minister refused the application for a protection visa.

8. The appellant then sought review by the RRT.  After some postponements of a hearing at the request of the appellant, the RRT conducted a hearing on 5 July 2013.  The appellant was represented at that hearing by Ms McGrath from MSML. 

   The RRT decision

9. The RRT affirmed the delegate’s decision. It concluded that the appellant’s claims were not genuine or truthful and, accordingly, was not satisfied that he was a person to whom Australia had protection obligations, as required by s 36(2)(a) of the Migration Act. It also concluded that the appellant did not satisfy the criteria in s 36(2)(aa) of the Migration Act.

10. The RRT gave detailed reasons for rejecting the appellant’s claims.  These can be summarised as follows:

    (a)The appellant’s use of a fraudulent identity document to enter Australia and his possession of another false document, being a United Kingdom Driving Licence containing the appellant’s photograph but the name of another;

    (b)The implausibility of AI being a member of a strict and devout Muslim family but nevertheless having sufficient opportunity to develop a longstanding relationship with the appellant, including a sexual relationship;

    (c)The implausibility of the appellant agreeing to meet AI’s brothers by himself only three days after having been threatened by one of them;

    (d)The implausibility of the appellant’s claim that he had been detained in custody for six months without a court appearance in the light of the information concerning bail and pre‑trial arrangements in Albania.  That information indicated that, if the appellant’s account was true, he would have been taken before a court reasonably quickly;

    (e)The implausibility of the appellant’s claims given country information indicating that mixed religion marriages are common and that Albania is generally a religiously tolerant society;

    (f)The appellant’s failure to provide documentary evidence said to be available to support his claim of having been imprisoned in the circumstances he claimed.  The RRT concluded that the documents were not provided because they did not exist;

    (g)The implausibility of the appellant having remained in Albania for three months after his release from prison, and having later returned to Albania from Italy, if his claims were true;

    (h)The improbability that AI’s family would maintain a wish to harm him, given that she had since married another man and had given birth to a child.

11. The RRT considered the evidence in the form of a statement from the appellant’s mother to which I will refer shortly.  It then concluded that it did not accept any material particulars of the appellant’s claim.  In particular, it said that it did not accept his claim that he had been arrested and held imprisoned for six months without appearing in Court.

12. The appellant’s claim under s 476 of the Migration Act for judicial review of the RRT decision was rejected by the Circuit Court Judge.

13. There are three grounds of appeal, raising in substance two matters. 

    Notice that the period of imprisonment was in issue

14. The appellant submitted that the RRT had erred in not putting him on notice that the length of the claimed period of imprisonment was in issue and had thereby contravened s 425 of the Migration Act. That section requires the RRT to “invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”.

15. The issues to which s 425 refers are those identified by the Minister’s delegate as well as any additional issues identified by the RRT itself: SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152 at [35]. When the RRT regards issues not identified by the delegate as being critical to its decision, it must give notice of those issues to the applicant: SZBEL at [35]‑[36]. If the RRT does not identify any additional issues, then ordinarily an applicant is entitled to regard the issues identified by the Minister’s delegate as being the critical issues: SZBEL at [42]‑[44].

16. Accordingly, it may be accepted that a failure by the RRT to identify any additional issue which it regards as critical will amount to a denial of procedural fairness warranting an order by way of judicial review.  

17. The appellant submitted, correctly, that the reasons given by the Minister’s delegate did not indicate that she regarded the length of the appellant’s claimed imprisonment in Albania as a critical matter.  However, I do not accept that the RRT had not identified sufficiently to the appellant its concern about his claim to have been imprisoned in Albania for a period of six months before being brought before a court.  There are a number of indications that this was so.  In addition, it is apparent that the appellant’s legal representative understood that the RRT regarded this as a critical matter. 

18. First, on 4 July 2013, the day before the hearing in the RRT, MSML provided to the RRT an unsigned statement which, with the assistance of an interpreter, Ms McGrath had taken by telephone from the appellant’s mother.  This statement included the following:

    [22][AZAED] spent about six months in jail before he was finally released.  I was at home when the police came to arrest [AZAED]. 

    [23]On the day of the arrest my husband and I just thought that the police would ask [AZAED] some questions and then release him, but this didn’t happen. 

    [24]It is my belief that [AI’s] family had family members in the police force who took action to prevent [AZAED’s] release.  It is just not normal or right for a young man to spend six months in jail after having received a terrible beating at the hands of his fiancée’s brothers. 

    [25]We did get a lawyer who tried to get [AZAED] out of jail but the connection of [AI’s] relatives with the authorities was too strong and there was nothing that could be done.

    MSML informed the RRT that a signed version had been sent and was “apparently in Australia” although it had not yet been received.  They said that the signed version would be provided to the RRT upon its receipt. 

19. As can be seen, the statement referred expressly to the appellant’s claimed imprisonment for six months, and sought to corroborate his account.

20. At the commencement of the hearing in the RRT, the legal representative informed the RRT that AZAED was still waiting for the signed statement from the appellant’s mother and other documents “to confirm his incarceration in Albania”.  This suggests an awareness of the importance of this issue.

21. The RRT member asked AZAED why he was unable to produce documents relating to his imprisonment in Albania, given that he had claimed to have such documents at the time he lodged his application for a protection visa.  AZAED answered by saying that he thought the documents were in Perth but would be in Adelaide within three days.  The following exchange then occurred:

    Tribunal member:                  I’m a little surprised, you are represented by a very competent migration agent, I’m sure it was not indicated to anyone that these documents would not be essentially relevant to your case. 

    Legal representative:              No, they are relevant, the comments he is making about the delivery are due to problems with the courier service, not with him asking for them to go to Perth.

    ...

    Tribunal member:                  If your case comes to circumstances of arrest for six months of detention, there are documents, and I do not understand why they wouldn’t have been provided to the Department first. 

    (Emphasis added)

22. As can be seen, the RRT member identified documents relating to the appellant’s imprisonment and, by implication, the alleged imprisonment itself, as being “essentially relevant” to his claim.  In my opinion, in this part of the examination, the RRT member made plain his concern about the absence of documentary evidence concerning a claim which was “essentially relevant” to the appellant’s claim.

23. The RRT member then asked AZAED a number of questions about the claimed imprisonment in Albania including about his legal representation, and any steps taken by his Albanian lawyer to obtain his release. 

24. Counsel for the appellant emphasised on the appeal that the RRT member did not later in the examination, when identifying a number of matters bearing upon the appellant’s credibility which he regarded as of concern, include the claimed imprisonment for a period of six months.  However, in my opinion, it is evident that this was attributable to the RRT having already been told that this was a matter which would be addressed in the foreshadowed documentation.  Ms McGrath confirmed again that the RRT would be provided with the signed statement from AZAED’s mother “and the other documents relating to his incarceration in Albania”.  Later, the RRT member asked expressly:

    Am I also going to be receiving Albanian court and police documents?

    He said that he wished to see those documents but warned the appellant and Ms McGrath that, having regard to doubts about the authenticity of some documents emanating from Albania, there may be limitations on the weight which could be attached to them.

25. Finally, at the end of the examination, the RRT told the appellant:

    I do have a question mark as to why court documents relating to six months of arrest, which are essential to your claim, are only being provided to the Tribunal after its hearing.

    (Emphasis added)

26. Read as a whole, the various interchanges at the examination on 5 July 2013 served to put the appellant on notice as to the importance which the RRT attached to his claim of having been imprisoned for six months in Albania.

27. The subsequent correspondence from MSML indicates that Ms McGrath understood the Tribunal member’s concern relating to the claimed period of imprisonment in Albania.  By letter dated 19 July 2013, Ms McGrath informed the RRT that she had not yet received the requested documents and sought an extension of time in which to provide them.  The RRT granted an extension to 26 July 2013.  By letter of 26 July 2013, Ms McGrath sought a further extension explaining that, while she had received a document, it did not make sense to her and she was loathe to send it to the RRT without first obtaining an explanation.  Then, on 2 August 2013, MSML wrote to the RRT saying (relevantly):

    Unfortunately I am not in a position to provide the Tribunal with any further documentation regarding [AZAED’s] detention in Albania. 
    ...
    The Tribunal thought it was strange that [AZAED] had not yet submitted any documents to prove that he was in jail in Albania, even though those documents seemed essential to his Protection claims.

    (Emphasis added)

28. Ms McGrath then went on to proffer a possible explanation for the circumstance that the promised documents had not been provided.

29. The material which I have summarised indicates, in my opinion, that the RRT member did put the appellant on notice that he regarded the claimed imprisonment for six months in Albania as a critical issue bearing upon the review, and, further, that the appellant’s legal representative understood that was so. 

30. I add that during the examination on 5 July 2013, the RRT member had informed the appellant that he regarded the appellant’s credibility as being “very much an issue”.  In context, this should be taken to include the credibility of his claim to have been imprisoned for six months.

31. In these circumstances, while the Circuit Court Judge did not refer to all the matters which I have summarised, he was nevertheless correct in concluding that the RRT had put the appellant on notice that his claim of having been detained for a lengthy period in Albania was an issue in the RRT’s consideration.  This claim of a denial of procedural fairness fails. 

    The mother’s statement

32. By its letter of 2 August 2013, MSML informed the RRT that they were unable to provide a signed statement by the mother and asked it to act on the basis of the unsigned copy previously provided.  In his reasons, the RRT member said that he accepted that the statement represented the evidence of the appellant’s mother.  However, after recounting the matters summarised above which caused him to regard the appellant as an unreliable witness, the RRT member said:

    I have also considered the evidence in the statement of the applicant’s mother.  I have noted that it restates aspects of the applicant’s claims.  I do not consider that the statement carries sufficient weight, of itself or in corroboration of the applicant’s evidence, to allay the cumulative concerns I have recounted above. 

33. The appellant complained on the appeal of this finding in a number of ways.  Counsel noted that the mother’s statement was corroborative of the appellant’s claim of having been arrested and detained in custody for six months, as it was independent of the person whose evidence is sought to be corroborated: Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 at [35]. Counsel submitted that, while it was open to the RRT to reject the corroborative evidence, it had to have a logical and rational basis for doing so as an administrative decision made in an illogical or irrational manner is affected by jurisdictional error: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611.

34. Counsel submitted that the absence of an explanation in the RRT’s reasons for the rejection of the mother’s evidence was, whilst not conclusive of jurisdictional error, evidence of irrationality.  He relied on Minister for Immigration and Citizenship v SZNSP at [36] in this respect.

35. The Circuit Court Judge dismissed this complaint, saying:

    [26]In my opinion, the Tribunal gave the evidence from the Applicant’s mother such weight as the Tribunal considered appropriate, as it was obliged to do.  There is, in my view, no substance to this complaint, as a proper interpretation of the Tribunal’s reasoning shows that weight was given to the mother’s statement, but the weight that the Tribunal gave was not sufficient to overcome the Tribunal’s other concerns regarding the Applicant’s credibility.  It cannot be said in this case that the Tribunal gave no weight to the evidence.

1. Counsel submitted that this was the Judge’s own justification for the RRT conclusion rather than one founded in the RRT’s own reasons. 

2. There is some basis for this submission if the passage in the RRT’s reasons concerning the statement of the appellant’s mother quoted earlier is considered in isolation.  Viewed in that way, the passage can be regarded as conclusionary rather than explanatory.

3. However, regard must be had to the context.  The passage appears in the RRT’s reasons immediately after the extensive reasons for the RRT member’s conclusion that the applicant was not a credible witness.  The RRT member can be understood as saying that there were so many reasons to regard the appellant as unreliable that the statement of his mother was not sufficient to alter the position.  The explanation, in other words, lies in the implausibility of the appellant’s account which the mother was seeking to corroborate.  It may have been preferable for the RRT to have spelt this out more fully, but, in my opinion, its reasons contain enough by way of explanation so that the rejection of the mother’s evidence should not be regarded as irrational. 

4. The Circuit Court Judge was correct to conclude that the RRT had given some weight to the mother’s statement, while not regarding it as persuasive.

5. Accordingly, I consider that the first and second grounds in the appellant’s Notice of Appeal which concerned the RRT’s dealing with the mother’s statement also fail.

   Conclusion

6. For the reasons given above, the appeal is dismissed.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.

Associate:

Dated:       4 September 2015