BZADJ v Minister for Immigration

[2013] FCCA 1493

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZADJ v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1493

Catchwords:
MIGRATION – Application for protection visa – Protection (Class XA) Visa –  whether the Tribunal’s decision was infected by jurisdictional error – whether the Tribunal should have made further investigations about a critical fact – whether an absence of critical information ought have stopped the Tribunal from making an adverse finding – Tribunal properly rejected evidence of the applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.351, 424A

Meadows v Minister for Immigration and Multicultural Affairs [2000] FCA 960

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: BZADJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 1002 of 2012

Judgment of: Judge Burnett

Hearing date: 26 April 2013

Date of Last Submission: 26 April 2013

Delivered at: Brisbane

Delivered on: 2 October 2013

REPRESENTATION

Counsel for the Applicant: Ms A. Julian-Armitage

Solicitors for the Applicant: No Borders Legal Advocates

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. That the title to the proceedings be amended by substituting the name “Minister for Immigration and Border Protection” for the name “Minister for Immigration and Citizenship” as the name of the First Respondent.

2. That the amended Application filed on 15 February 2013 be dismissed.

3. That in the absence of any other application made within seven (7) days of this order direct the applicant pay the respondent’s costs of and incidental to the application to be fixed in the sum of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1002 of 2012

BZADJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Amended)

Introduction

1. By a decision recorded 11 October 2012 the Refugee Review Tribunal affirmed a decision made by a delegate of the First Respondent, the Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection), on 24 February 2012 not to grant the applicant a Protection (Class XA) Visa. By an application brought within time in this Court, the applicant seeks a declaration that the Tribunal’s decision is void, has no effect and requests a writ of mandamus issue directed to the Tribunal requiring it to consider and determine the applicant’s application according to law.

Background Facts

1. The applicant, who at that time was not in Australia, first applied for a Subclass 309 Partner Visa on 11 May 2004. That application was refused because the Department of Immigration and Citizenship (now Department of Immigration and Border Protection) was not satisfied that she was in a genuine spousal relationship with her sponsor. Subsequently, the applicant’s sponsor for that visa, Mr Ernest Mann, was successful in an application for review of that decision. Accordingly, the applicant arrived in Australia on 8 November 2005 as a holder of a Subclass 309 Partner Visa granted on 26 October 2005.

2. On 20 February 2008 the Department refused to grant the applicant a Subclass 100 Partner Visa because it was not satisfied that, at the time of the decision, she was in a genuine spousal relationship with Mr Mann. She sought review of that decision, which was refused, and the decision was affirmed. She remained in Australia unlawfully from 27 April 2009 to 13 October 2009.

3. On 2 November 2009 she then lodged a request for Ministerial intervention under s.351 of the Migration Act 1958 (Cth) (“the Act”). On 14 September 2011 the Minister declined to exercise his powers under s.351 of the Act to substitute a more favourable decision.

4. On 9 November 2011 the applicant applied for a Protection (Class XA) Visa. In that application she claimed that she was an Albanian citizen who feared returning to Albania as she had left there following a ten year abusive relationship with a person named Ardjan Gaci. She stated that she was fearful that if she was to be returned to Albania he would track her down and kill her because she believed that the authorities would not protect her as Albanian women are expected to live with one man all their life, no matter how poorly a woman may be treated in such a situation.

5. The applicant’s statement to the delegate included evidence that her sister, Violetta Vasaj entered Australia with a Subclass 200 (Refugee) Visa on 4 July 1991. On 7 June 2002, Pjeter Dani applied for a Subclass 309 (Spouse) Visa with his three children, [A], [B], and [C], who were included as dependant visa applicants sponsored by Ms Vasaj. In that application Mr Dani had claimed in interview that he had met Ms Vasaj twenty years earlier and again in 1996, when they started an illicit affair (he was then married). He claims that his wife (Mrs Vitore Gjon Dani) subsequently died, Ms Vasaj divorced and the two were married in 2001. He subsequently entered into a de facto relationship with the applicant (Ms Vasaj’s sister).

6. Senior officers from the Department’s Athens office visited the Shkoder Civil Registry in Albania on 7 March 2011 to verify the death certificate of Mrs Vitore Gjon Dani. The death certificate proved to be bogus.

7. The officers then also requested information on the records of marriage between the applicant and Mr Dani. The electronic register indicated that the applicant and Mr Dani were married and that they had three children: [A], [B] and [C].

8. Ultimately, the delegate determined in the face of denials by both the applicant and Mr Dani that they were in fact married and that the children were their biological children. [1]

   [1] Tribunal’s decision at [78].

9. The Tribunal asked the applicant’s representative to address these concerns in a letter written pursuant to s.424A of the Act. The applicant was afforded an opportunity to address those matters but did not do so satisfactorily. That led to the finding noted above.

10. It is important to note that the Tribunal recognised the significance of those findings. At [77] it observed:

    “The reasons why the Tribunal has reached strong adverse findings as to the applicant’s credit and rejected each material particular of her claim are three-fold. Each reason of itself justifies the Tribunal’s findings, and the combination of these reasons further reinforces the Tribunal’s findings.”

11. The three reasons included,

    a)A finding that the applicant was married to Mr Dani, who she now fraudulently represents as her de facto partner and that they had three children who she now fraudulently represents as the children of Mr Dani and another;

    b)The fact of the applicant’s marriage to Mr Dani is wholly inconsistent with the applicant’s claims to have been in a long-term de facto relationship with the alleged former violent partner in Albania; and

    c)The migration history of the applicant, particularly her failure to raise any fear of harm in relation to Albania before all other avenues of continued lawful stay in Australia had been exhausted.

Grounds of Application

1. The applicant contended that the Tribunal fell into jurisdictional error upon three grounds. At the commencement of the hearing the applicant abandoned grounds 1 and 3. It pursued its application solely on the second ground. That ground provided:

   “The decision to refuse a protection visa was infected by Jurisdictional Error in that the First and Second Respondents asked themselves the wrong questions the issues of the Protection owed to the Applicant pursuant to 1951 Convention relating to the Status of Refugees and/or that the Applicant does not fall within the Complementary Protection Criteria, particulars to be provided.

   PARTICULARS

   2.1 The Applicant provided the First and Second Respondents evidence showing substantial grounds showing that, should the Applicant be removed from Australia to Albania, it is reasonably foreseeable that she will suffer significant harm at the hands of her former partner without being able to rely on the Albanian authorities to prevent such harm.

   2.2 The First and Second Respondents, and in particular, the Second Respondent, as an inquisitorial body, failed to enquire as to the existence of Ardjan Gaci when it was apparent that the First Respondent had made queries of a similar nature without issue and upon such information obtained, place more weight than it should have when making a determination as to the Applicant’s credibility. ”

2. The thrust of the applicant’s complaint was that the Tribunal failed to make further enquiries as to the existence of Ardjan Gaci, the applicant’s alleged former de facto. It was said that the basis for the Tribunal’s findings was that Gaci did not exist was not founded in any evidence, as neither the Department’s officer nor the Tribunal enquired of his existence, either with the Shkoder Civil Registry or any official Albanian body. For the applicant it was contended that this omission was one in respect of an inquiry which ought to have been obvious and that the omission was in respect of the critical fact, the existence of which could easily be ascertained. In support of her contention, the applicant particularly relied upon the observations of the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429, where at 436 the majority (French CJ, Gummow, Hayne, Keifel and Bell JJ), with whom Heydon J made similar findings, observed:

   “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. It is not necessary to explore these questions of principle in this case …”

3. The applicant complained that the Tribunal did not inquire beyond questioning the applicant about the existence of Gaci. It was contended that proof of his existence was fundamental and formed the basis of the Tribunal’s decision. It was submitted that given her statement that he was alive, the Tribunal did nothing in the exercise of its power to substantiate this information where it was contended that the information was readily available and could have been easily ascertained from the Shkoder Civil Registry.

4. It was further contended that as the review process is inquisitorial rather than adversarial, the Tribunal, in undertaking the process of review, should have adopted a more inquisitorial approach rather than the adversarial approach taken by the Minister. It was submitted, for instance, that it was clear that the Athens-based officers who visited the Shkoder Civil Registry in Albania did so with the objective of merely verifying the non-existence of Vitore Gjon Dani, which allegedly implied that the “precise intent of the enquiries made was to refute the claims by the Applicant and not one of pure investigation.”[2]

   [2] Applicant’s submissions at [20].

5. The applicant contended that, consistent with the views expressed in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J, that:

   “… determinations made in the comparative informality of a process that does not have any of the accepted safeguards for fairness must be critically scrutinized, especially when the determinations depend wholly or in major part on findings of credibility.”[3]

   [3] Applicant’s submissions at [21].

6. The applicant argued that in a case such as this, where credibility was of such importance, the Tribunal ought to have exercised extreme caution in concluding its findings of fact and should have given the applicant the benefit of the doubt; Meadows v Minister for Immigration and Multicultural Affairs [2000] FCA 960.

7. In this instance the applicant’s contention was that the absence of  reasonable investigations regarding the existence of Mr Gaci, a fact critical to the determination of credit, ought to have made the Tribunal reluctant to make overall adverse findings against the applicant.

8. The applicant contended that it would not have been a difficult matter for the Tribunal to issue a summons to the Department directing it to produce the “source document” for the information relied upon by the delegate and that it could have easily requested the delegate to make appropriate inquiries of the existence or otherwise of Mr Gaci.

9. For the respondents it was contended that the applicant’s arguments were misconceived, and that the applicant’s contention that the Tribunal found that Mr Gaci did not exist was simply in error.[4]

   [4] Applicant’s submissions at [16].

10. It is plain that the respondents’ submissions on this point are correct. What the Tribunal found was stated at [74]. Before making that finding, it noted the applicant’s claim to fear of return to Albania because she had been in a violent de facto relationship with Mr Gaci and that he would harm her if she did so. The Tribunal noted:

    “[74] The Tribunal finds that the applicant was not in a violent and abusive de facto relationship with a Mr Gaci for 11 years. The Tribunal finds there was no de facto relationship with a Mr Gaci at all. The Tribunal finds that the applicant did not escape any such relationship. The Tribunal finds that the applicant holds no fear of harm from Mr Gaci in the reasonably foreseeable future if she were to be returned to Albania.

    [75] As to the applicant’s new claim that she fears harm from her family on account of being in a relationship with Mr Gaci, the Tribunal notes her evidence in the statutory declaration in this regard is inconsistent with her evidence to the Tribunal to the effect that her family was aware of the relationship at the time and [sic] not happy about it. The applicant had told the Tribunal, for example, that her father was a village chief and that was why Gaci had not harmed her when she had returned to her family. This inconsistency further reinforces the Tribunal’s adverse credibility findings, but in any event the Tribunal considers that the applicant’s new claim is subsumed by the Tribunal’s fundamental finding that there was no relationship with a Mr Gaci.”

11. Accepting that position, the respondents contend that there was no utility to be had in conducting inquiries of the kind which the applicant complains were not undertaken. As was argued, there was nothing to suggest that any search of the Shkoder Civil Registry (or, for that matter, any other registry) would necessarily contain a record of Mr Gaci. Significantly however, what was in issue was whether she was in a violent relationship with an individual, whether it be with Mr Gaci or some other person. That matter was determined against the applicant for the reasons outlined in the Tribunal’s decision, that is, it simply found her not to be a credible witness and refused to accept her evidence on this matter.

12. I accept the respondent’s submission that the question of Mr Gaci’s identity and the alleged failure to investigate his existence was not an obvious inquiry of a critical fact, the existence of which could be easily ascertained. The critical issue in this instance was whether or not she was in a violent relationship which had existed for a period of approximately ten years and in respect of which she was in fear of harm if she returned to Albania. For reasons identified by the Tribunal, it was satisfied that the applicant was never in any relationship with any other party than Mr Dani. It was satisfied that she was not in any violent relationship with Mr Gaci. Given that the Tribunal rejected her evidence, there is no basis to support the contention that there was a reasonably foreseeable risk of harm if she were to be returned to Albania. In reaching that conclusion, the Tribunal did not fail to make any inquiry it ought reasonably have made. Its findings were based upon a rejection of her evidence. No other evidence was available to support the applicant and the tribunal was not required in the circumstances to make further inquiry beyond matters presented by the applicant.

13. Ultimately, the applicant’s complaint is with the Tribunal’s findings as to her credibility and the consequent rejection of her evidence concerning the basis for her alleged fear of persecution.

Conclusion

1. In my view, the applicant has not demonstrated any jurisdictional error on the part of the Tribunal, and this ground is refused.

2. As the applicant has abandoned its complaints under grounds 1 and 3 and I have found against the applicant in respect of ground 2, the application fails and is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Burnett

Date: 2 October 2013

AMENDMENTS

1. Insert order 1 into Orders (Page 2).