CJZ21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 747
Federal Circuit and Family Court of Australia
(DIVISION 2)
CJZ21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 747
File number(s): PEG 154 of 2021 Judgment of: JUDGE LUCEV Date of judgment: 8 September 2022 Catchwords: MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – Protection (Class XA) visa – citizens of Pakistan – whether Tribunal failed to comply with s 424A – whether the Tribunal failed to consider relevant corroborative material – whether jurisdictional error – writs issued Legislation: Migration Act 1958 (Cth) ss 36, 424A, 424AA, 425, 430, 476 Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
Baker v Minister for Immigration and Citizenship [2012] FCAFC 145
DYI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCASL 203
DYI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 612
Khan v Minister for Immigration and Citizenship [2011] FCAFC 21; (2011) 192 FCR 173
Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507; (2009) 83 ALJR 1029; (2009) 258 ALR 448
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 213 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41
MZYFH v Minister for Immigration and Citizenship [2010] FCA 559; (2010) 188 FCR 151; (2010) 115 ALD 409
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 79 ALJR 1009; (2005) 215 ALR 162; (2005) 83 ALD 545
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 84 ALJR 507; (2010) 267 ALR 204; (2010) 115 ALD 493
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1
SZGSI v Minister for Immigration and Citizenship and Another [2007] FCAFC 110; (2007) 160 FCR 506; (2007) 97 ALD 39
Division: Division 2 General Federal Law Number of paragraphs: 39 Date of last submission/s: 24 November 2021 Date of hearing: 24 November 2021 Place: Perth Counsel for the Applicants: Mr M Kenneally via CISCO Webex Solicitor for the Applicants: WLW Migration Lawyers Counsel for the First Respondent: Mr T Reilly via CISCO Webex Solicitor for the First Respondent: Minter Ellison Lawyers For the Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 154 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CJZ21
First Applicant
CKA21
Second Applicant
CKB21 (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
8 September 2022
THE COURT ORDERS THAT:
1.That the name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.A writ of certiorari issue quashing the decision of the second respondent made on 21 October 2021.
3.A writ of mandamus issue requiring the second respondent to rehear the application for review made by the applicants on 17 July 2017 and determine it according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
Introduction
The originating application in these proceedings is an application for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”) (“Judicial Review Application”), filed by the applicants, CJZ21, CKA21, CKB21, CKC21, CKD21 (“the applicants”) on 26 July 2021. On 21 October 2021 the applicants filed an amended Judicial Review Application (“Amended Judicial Review Application”). The Amended Judicial Review Application seeks review, pursuant to s 476 of the Migration Act, of a 30 June 2021 decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), to affirm the Delegate’s Decision to refuse each of the applicants the grant of a Protection (Class XA) visa (“Protection Visa”). The Amended Judicial Review Application contains two grounds of review, set out at [6] (ground 1) and [22] (ground 2) below.
On 21 October 2021 the Court made an order granting the applicants leave to file and serve a further Amended Judicial Review Application and affidavits on or before 25 October 2021. No further Amended Judicial Review Application was filed, however, two additional affidavits were filed on 25 October 2021.
The following materials are before the Court:
(a)a Court Book (“CB”) in two volumes, numbering 637 pages in total (“Exhibit 1”);
(b)a Supplementary Court Book (“SCB”), numbering 111 pages (“Exhibit 2”);
(c)the affidavit of CJZ21 sworn 26 July 2021 (“First CJZ21 Affidavit”);
(d)the affidavit of Tony Tran affirmed 21 October 2021 (“Tran Affidavit”) annexing the transcript of the Tribunal hearing (“Tribunal Hearing Transcript”);
(e)the affidavit of CJZ21 sworn 25 October 2021 (“Second CJZ21 Affidavit”);
(f)the affidavit of CKA21 sworn 25 October 2021 (“CKA21 Affidavit”);
(g)the applicants’ written submissions filed 25 October 2021 (“Applicants’ Submissions”); and
(h)the Minister’s written submissions filed 15 November 2021 (“Minister’s Submissions”).
Background
The relevant background to the Amended Judicial Review Application is as follows:
(a)the applicants are a family who are citizens of Pakistan. CJZ21 (wife), CKA21 (husband) and their first child CKB21 arrived in Australia on 25 May 2010 as holders of student visas. CKC21 and CKD21 are two children born after the arrival of CJZ21, CKA21 and CKB21 in Australia: CB 307-308 at CB 611 at [2]. CJZ21, CKA21, CKB21 and CKC21 applied for Protection Visas on 9 April 2015: CB 18, on the basis of harm feared in Pakistan due to their Shi’a religion;
(b)on 7 July 2017 the Delegate’s Decision was to refuse to grant CJZ21, CKA21, CKB21 and CKC21 Protection Visas: CB 228. CKD21 applied for a Protection Visa separately on 24 September 2018: CB 244, which was refused by a delegate of the Minister on 28 June 2019: CB 307;
(c)the applicants claimed that CJZ21’s grandmother was the head of the Imambargah (a Shi’a shrine) in Karachi: CB 488 at [3]. CJZ21 had performed duties at the Imambargah since she was a child: CB 488 at [3]. As an adult CJZ21’s role involved security: CB 488 at [2]. In 2008 CJZ21 foiled an alleged attempted bomb attack by two women entering the Imambargah. The women threatened CJZ21: CB 489-490 at [9]-[12]. Shortly afterwards CKA21 was attacked by men in the street who called him an “infidel”: SCB 97 at [8]; CB 495-496 at [8]-[9]. The applicants suspect the two events were related: CB 496 at [13]. The applicants claimed the family lived at various locations from 2008 to 2010: CB 497 at [14]-[16];
(d)on 26 March 2010 CJZ21 was granted a student visa, and in May 2010 CJZ21, CKA21 and CKB21 relocated to Australia: CB 307-308;
(e)CJZ21, CKA21, CKB21 and CKC21 returned to Pakistan in 2015 because CJZ21’s grandmother was unwell. While visiting Pakistan they received two letters, demanding money and threatening to harm their family: CB 499-500 at [29]-[31];
(f)CJZ21, CKA21, CKB21 and CKC21 left Pakistan early and returned to Australia and applied for a Protection Visa on return: CB 308 and 324;
(g)CJZ21 and CKA21 claimed that CKB21 and CKC21 and CKD21 would be at risk of harm in Pakistan because of their association with them as their parents and because they have lived most of their lives in Australia;
(h)on 7 July 2017 the Delegate’s Decision was to refuse to grant CJZ21, CKA21, CKB21 and CKC21 Protection Visas: CB 227-239; and
(i)the applicants sought review in the Tribunal, and provided submissions and further evidence to the Tribunal on 28 April 2021: CB 464-558. A hearing took place on 5 May 2021 (“Tribunal Hearing”). On 18 May 2021, the applicants provided post-Tribunal Hearing submissions: CB 570-601.
Tribunal Decision
In Tribunal Decision the Tribunal:
(a)accepted that the applicants were practicing Shia Muslims, that CJZ21 volunteered at the Imambargah, and that CJZ21’s grandmother had previously been in a leadership position at the Imambargah: CB 625 at [101];
(b)found that CJZ21 and CKA21 were not truthful or credible witnesses: CB 621 at [77];
(c)found that the delay by CJZ21, CKA21, CKB21 and CKC21 in leaving Pakistan and in applying for Protection Visas after arriving in Australia were strong indications they did not fear harm: CB 621-622 at [78]-[81];
(d)found that CJZ21’s and CKA21’s evidence about the foiled alleged attempted bombing in 2008 and subsequent events was confused and unpersuasive: CB 622 at [82]-[83];
(e)found that CJZ21’s claim about the subsequent attack on CKA21 was implausible: CB 622-623 at [84]-[85];
(f)found that claims by CJZ21 and CKA21 about their movements after the attack in 2008 to be confusing and unconvincing and set out various concerns with that evidence: CB 623 at [86]-[88];
(g)did not accept the claims made by CJZ21 and CKA21 about the problems faced in Pakistan in 2008 or their reasons for leaving Pakistan in 2010, and found the claims were concocted: CB 624 at [89]-[90];
(h)did not accept that CJZ21, CKA21, CKB21 and CKC21 were subsequently threatened in Pakistan in 2015: CB 624 at [92]-[93], but further found that the evidence of CJZ21 and CKA21 was confused and unpersuasive: CB 624 at [94], identifying various deficiencies in their evidence, rejected the explanations given by CJZ21 and CKA21 and the evidence of CKA21’s brother, and concluded that the claims were manufactured: CB 624–625 at [95]-[100], and that CJZ21’s and CKA21’s involvement in their religion and with their family and friends did not give rise to a risk of harm: CB 625-626 at [101]-[106];
(i)on the basis of its findings:
(i)did not accept that the applicants would face a real chance of experiencing serious or significant harm: CB 626 at [108];
(ii)while accepting the applicants were Shi’as, it did not accept they would face harm for this reason or on the basis of any accusations of blasphemy: CB 626-627 at [109]-[115];
(iii)did not accept that the applicants would face harm because of their family relationships: CB 628 at [116]; and
(iv)found the applicants would not face harm on account of CKA21’s trip to Syria in 2009: CB 628-629 at [118]-[120];
(j)found that CKB21, CKC21 and CKD21 would not face harm because of their association with their parents, or because they have lived most of their lives in Australia: CB 629 at [121]-[124]; and
(k)for these reasons, was not satisfied that the applicants met the refugee criterion under s 36(2)(a) of the Migration Act or the complementary protection criterion under s 36(2)(aa) of the Migration Act: CB 629–630 at [125]-[128].
Amended Judicial Review Application
Ground 1
Ground 1 of the Amended Judicial Review Application is as follows:
1.The Second Respondent’s decision is invalid/affected by jurisdictional error due to its failure to comply with s 424A of the Act.
Particulars
a.The applicants claimed that the first applicant was threatened by extremists after she helped to stop an attempted terrorist attack at the Shi’a Imambargah in 2008.
b.The applicants claimed that a few weeks after the attempted terrorist attack the second applicant had been the victim of an attack in 2008 because he was Shia.
c.The applicants claimed that they went into hiding in 2008 as a result of these two incidents.
d.The first applicant gave oral evidence that she returned to the Imambargah a few months after the attempted terrorist attack.
e.The first applicant’s evidence was information that Tribunal considered “would be the reason, or a part of the reason, for affirming the decision that is under review”.
f.The Tribunal was required by s 424A to put the information to the other applicants in writing, or alternatively orally pursuant to s 424AA.
g. The Tribunal did not comply with s 424A or 424AA.
h.A failure to comply with s 424A is a jurisdictional error, or alternatively, the failure to comply with s 424A was material.
Applicants’ Submissions
The Applicants’ Submissions in relation to ground 1 are as follows:
(a)CJZ21 gave oral evidence at the Tribunal Hearing that she had attended the Imambargah three months after the incident: CB 616 at [41]; Tribunal Hearing Transcript, page 16, Lines 232-239. CJZ21’s oral evidence was inconsistent with the applicants’ claims they were in hiding after the attack on CKA21. CKA21 was not present in the hearing room when CJZ21 gave evidence at the Tribunal Hearing. The Tribunal expressly relied on CJZ21’s oral evidence as part of its reasons to find the 2008 incident did not occur: CB 622 at [83]; and
(b)the Tribunal was required by s 424A of the Migration Act to put that information in writing to CKA21, or orally pursuant to s 424AA of the Migration Act. The Tribunal did neither and as a result, the Tribunal Decision is affected by jurisdictional error;
(c)the Tribunal is required under s 424A(1)(a) of the Migration Act to give an applicant written notice of information that “would be the reason, or a part of the reason, for affirming the decision that is under review”. The Tribunal must pursuant to s 424A(1)(b) of the Migration Act ensure the applicant understands “why [the information] is relevant to the review, and the consequences of it being relied on”;
(d)for information to fall within s 424A(1) of the Migration Act it must “in its terms” amount to “a rejection, denial or undermining” of the applicants’ claims to satisfy the protection criterion in s 36(2)(a) or (aa) of the Migration Act: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 (“SZBYR”) at [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ;
(e)the obligation in s 424A(1) of the Migration Act is subject to exceptions in s 424A(3)(b) of the Migration Act in particular, information “that the applicant gave for the purpose of the application for review”. The exception does not apply to oral evidence given by a co-applicant in a hearing: SZGSI v Minister for Immigration and Citizenship and Another [2007] FCAFC 110; (2007) 160 FCR 506; (2007) 97 ALD 39 at [51] per Marshall J (with whom Moore and Finn JJ agreed);
(f)the High Court held that non-compliance by the Tribunal with s 424A(1) of the Migration Act renders any decision invalid by reason of jurisdictional error: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 79 ALJR 1009; (2005) 215 ALR 162; (2005) 83 ALD 545 (“SAAP”) at [77] per McHugh J, [173] per Kirby J, [206]-[208] per Hayne J. Materiality need not be established: DYI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 612 (“DYI16”) at [67] per Wheelahan J (and the Court notes that the High Court refused special leave to appeal DYI16: see DYI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCASL 203);
(g)should the Minister argue that SAAP and DYI16 are wrong or distinguishable, the applicants rely on the Second CJZ21 Affidavit and the CKA21 Affidavit in relation to materiality;
(h)CJZ21’s oral evidence was information that needed to be put to CKA21 under s 424A of the Migration Act as:
(i)the applicants’ claims for protection included a claim that they had to go into hiding to avoid harm from anti-Shia forces; and
(ii)CJZ21’s evidence that she attended the Imambargah undermined that claim;
(i)an essential aspect of the claims was that following the two attacks in 2008 CJZ21, CKA21 and CKB21 went into hiding. The claim was made expressly in CKA21’s statement to the Tribunal at CB 497 at [16]:
After the incidents I moved houses a few times and stayed temporarily in different places. I believe I stayed in 5 different locations during this time. I did not mention each individual address in my original application as they were not our permanent addresses. At one point we travelled to other states and stayed in each place for a short time. During this time, I used this opportunity to leave the country for a little while, I went to Syria for pilgrimage, and I left my wife and child at my cousin’s house. We have to move around until our visa to Australia was granted.
(j)the claim was repeated in the applicants’ post hearing submissions, which argued that the delay in departing Pakistan between March and May 2010 was not significant as CJZ21, CKA21 and CKB21 were “living in hiding”: CB 573;
(k)the fact that CJZ21, CKA21 and CKB21 were in hiding was essential to their claims to satisfy the statutory criteria for protection as it:
(i)demonstrated that they held a subjective fear of harm;
(ii)explained how they could avoid harm from 2008 to 2010; and
(iii)explained why they did not need to urgently leave Pakistan in March 2010;
(l)CJZ21’s evidence at the Tribunal Hearing that she continued to attend the Imambargah – the very place where she had been targeted for harm – undermined the claim that CJZ21, CKA21 and CKB21 were in hiding in its terms, and the information needed to be put to CKA21 pursuant to s 424A of the Migration Act;
(m)the Tribunal did not put CJZ21’s evidence that she returned to the Imambargah to CKA21, and the Tribunal therefore fell into jurisdictional error;
(n)if necessary to establish, the error was material. CKA21 could have provided evidence from himself or CJZ21, that CJZ21 only attended the Imambargah twice after the attempted terrorist attack, and took significant precautions on the first visit: Second CJZ21 Affidavit at [4]-[5]; CKA21 Affidavit at [3]-[4], and CKA21 could also have provided more details of the family’s movements between 2008 and 2010 to persuade the Tribunal the family were indeed moving to avoid harm: CKA21 Affidavit at [2]; and
(o)CKA21 could therefore have persuaded the Tribunal that CJZ21’s visit to the Imambargah was consistent with her subjective fear, and that the family were indeed in hiding from 2008 to 2010. The Tribunal may have, as a result, been satisfied the 2008 attempted terrorist attack occurred. If the Tribunal was so satisfied it may have given the applicants the benefit of the doubt in relation to the extortion letters in 2015, and found, on the basis of past harm they faced a real chance of persecution or significant harm on return to Pakistan.
Minister’s Submissions
The Minister’s Submissions in relation to ground 1 are as follows:
(a)ground 1 contends that the Tribunal erred because it failed to put adverse information provided orally at the hearing by CJZ21 (that she had visited the Imambargah at the time CJZ21 and CKA21 had claimed the family was in hiding) to CKA21 in breach of s 424A of the Migration Act;
(b)CJZ21 and CKA21 claimed they went into hiding after being the victims of two incidents in 2008. At the hearing CJZ21 gave oral evidence that she returned to the Imambargah a few months after the incidents (see Tribunal Hearing Transcript, Lines 231-237). The Tribunal stated at CB 622 at [83] (emphasis added):
I also note that applicant A [CJZ21] began to attend the Imambargah again about three months after the attack, 2008 albeit infrequently, which in my view indicates she was not in hiding and not fearful of further attacks.
(c)section 424A of the Migration Act applies to “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. The High Court has explained that this provision requires an assessment of whether the information contained “... in [its] terms a rejection, denial or undermining of the [applicants’] claims”: SZBYR at [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. Further, the High Court has explained that the question must be determined having regard to the Tribunal’s “consideration” of the information and that the provision speaks of information which “would”, not which “could” or “might”, be the reason or part of the reason for affirming the decision under review: Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507; (2009) 83 ALJR 1029; (2009) 258 ALR 448 (“SZLFX”) at [24]-[26] per French CJ, Heydon, Crennan, Kiefel and Bell JJ;
(d)the Tribunal’s rejection of the claims to have been in hiding (at CB 624 at [90]) was based on their CJZ21 and CKA21’s, confused and contradictory evidence as summarised by the Tribunal at CB 623-624 at [85]-[89]. There was there nothing mentioned about CJZ21’s evidence quoted at (b) above. In those circumstances, following SZLFX, there is no basis to suggest that evidence was “the reason or part of the reason” for the Tribunal rejecting CKA21’s claim that he was in hiding. Nowhere in the Tribunal Decision does the Tribunal provide a basis to infer that CJZ21’s oral evidence would be the reason or part of the reason for affirming the Delegate’s Decision in respect of CKA21;
(e)nor was CJZ21’s evidence “in its terms” a “rejection, denial or undermining” of CKA21’s claims to be hiding as required by SZBYR. At most it undermined CJZ21’s claim to be in hiding as the Tribunal noted at CB 622 at [83] in the passage quoted at (b) above; and
(f)the Minister submits that CJZ21’s oral evidence was not caught by s 424A of the Migration Act such that it needed to be put to CKA21.
Consideration – ground 1
Section 424A of the Migration Act provides as follows:
(1) Subject to subsections (2A) and (3) the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review, and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies by one of the methods specified in section 441A; or
(b)if the applicant is given in immigration detention by a method prescribed for the purposes of giving documents to such a person.
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite to the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(4)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
Section 424AA of the Migration Act provides as follows:
(1)If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
Section 424A of the Migration Act deals with “the provision of information more generally relevant and adverse, for comment”: Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 84 ALJR 507; (2010) 267 ALR 204; (2010) 115 ALD 493 at [42] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ; Khan v Minister for Immigration and Citizenship [2011] FCAFC 21; (2011) 192 FCR 173 at [40] per Buchanan J. The obligation which arises under s 424(1)(a) of the Migration Act is to put information which “would” be the reason, or part of the reason, for affirming the decision under review, here the Delegate’s Decision. The focus is on “the reason” for affirming the decision under review, and giving information which “would” be the reason, or part of the reason, and not only information which “could” or “might” be the reason or part of the reason: SZLFX at [25] per French CJ, Heydon, Crennan, Kiefel and Bell JJ; MZYFH v Minister for Immigration and Citizenship [2010] FCA 559; (2010) 188 FCR 151; (2010) 115 ALD 409 at [68] per Bromberg J. The use of the words “would be” in s 424(1)(a) of the Migration Act means that its “operation … is to be determined in advance – and independently – of the tribunal’s particular reasoning on the facts of the case”: SZBYR at [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ (with whom Hayne J agreed at [91]).
It is relevant to observe that the claim made by CKA21 indicates that:
(a)the groups from whom he fears harm are alleged to have made threats “against me and my wife”: CB 503 at [45];
(b)CKA21 believes that if the groups seeking to harm him and his wife locate “my wife and I” then “we will be captured, tortured and ultimately killed. … They hold a grudge against us because of my wife’s involvement in the arrest of two of their members as well as the fact that we are from a prominent Shia family”: CB 504 at [47]; and
(c)“… my wife was responsible for the arrest of two terrorists who attempted to detonate bombs” in the Imambargah and “[t]hey specifically made threats against my wife and my family because of this”: CB 504 at [49].
In summarising the claims made the Tribunal treated the claim as a joint one, thus at CB 612 at [15] the Tribunal wrote that (emphasis added):
They claim that they are at particular risk of harm because of applicant A’s [CJZ21’s] involvement in foiling an attempt to bomb a Shia shrine or Imambargah in 2008. They claim that applicant B [CKA21] was attacked in the street shortly after applicant A [CJZ21] foiled the bomb attempt and that they received threatening letters when they returned to Pakistan in 2015. They believe that these events were linked to their religion and to applicant A’s [CJZ21’s] involvement in preventing the bombing in 2008.
At the very least, therefore, the Tribunal recognised that the claim made in respect of the alleged attempted bombing of the Imambargah was one that affected CJZ21 and CKA21 jointly.
It follows from the description of the claim as made by CJZ21 and CKA21 and as summarised by the Tribunal that the claim was plainly that both CJZ21 and CKA21 (and their then only child CKB21) were all in hiding because of threats arising from the alleged bombing of the Imambargah. It follows that if one member of the family, and particularly CJZ21 who was allegedly directly involved in thwarting the alleged attempted bombing of the Imambargah, was not in hiding then that undermines the joint claim made that the then family of three was in hiding.
The applicants say that certain information, namely oral evidence from CJZ21, ought to have been put to the other applicants, notably CKA21, because it was information that the Tribunal considered would be the reason, or part of the reason, for affirming the Delegate’s Decision. The Minister says that is not so, and that the information was not part of the Tribunal’s consideration.
The relevant information was evidence from CJZ21 that, at a time at which it was said that CJZ21, CKA21, and their first child CKB21, were in hiding, CJZ21 attended the Imambargah, and that that undermined the claim that the applicants (CJZ21, CKA21 and CKB21) were in hiding at that time. The Minister says that the Tribunal’s rejection of the applicants’ claims to have been in hiding was based on implausible, confused and contradictory evidence given by CJZ21 and CKA21: see CB 623-624 at [85]-[90], and that there was nothing mentioned about CJZ21’s evidence in relation to her, albeit infrequent, attendances at the Imambargah in 2008 about three months after the alleged attempted bombing attack on the Imambargah. In the Tribunal Decision the evidence concerning CJZ21’s return to the Imambargah appears not only in the passage extracted at [8(b)] above, but also at CB 616 at [41] where in recounting CJZ21’s evidence the Tribunal writes that:
Later in the hearing she said that she had not returned to the Imambargah for about three months after the attempted bombing. Following that she attended briefly from time to time, but she no longer worked as a volunteer.
In its findings of fact in relation to the events of 2008 the Tribunal made findings that:
(a)at CB 622 at [82] that “the applicants’ account of the events of early 2008 and their activities and movements following these events [were] confused and unpersuasive”;
(b)at CB 622 at [83] as follows (emphasis added):
I also note that applicant A [CJZ21] began to attend the Imambargah again about three months after the attack, [in] 2008 albeit infrequently, which in my view indicates she was not in hiding and not fearful of further attacks
(c)at CB 623 at [86] that “their evidence regarding their movements after the 2008 attack on [CKA21] [was] confused and unconvincing”;
(d)at CB 623 at [88] that “More significantly, I found the applicants’ evidence regarding their employment and movements after 2008 confused and contradictory”;
(e)at CB 624 at [89] that “After considering all of the relevant evidence, I do not accept that the applicants have provided an honest or accurate account of the problems they faced in 2008 …”; and
(f)at CB 624 at [90] that it did not accept that:
(i)CJZ21 “was involved in preventing an attempt to bomb the Imambargah she attended in 2008”;
(ii)CJZ21 was “threatened by a woman who was arrested after attempting to bomb the Imamburg [sic]”; and
(iii)CJZ21, CKA21 or CKB21 “were in hiding … from early 2008 until they departed for Australia in 2010”.
It is trite to observe that the Tribunal Decision must be read as a whole, and against the background of the claims made. In this case, there was a joint claim made by CJZ21 and CKA21 that they (and their first child) were in hiding following the alleged attempted bombing of the Imambargah. The fact that the Tribunal found, as it did, at CB 622 at [83] that CJZ21 “was not in hiding” was therefore information that would be the reason, or part of the reason, for affirming the Delegate’s Decision in circumstances where the Tribunal had regard to “all of the relevant evidence” before finding that it did not accept that “the applicants were in hiding”: CB 624 at [89] and [90]. Plainly, the information, elicited orally at the Tribunal Hearing from CJZ21 that she had attended the Imambargah after the alleged attempted bombing, and was therefore arguably not in hiding, was information which ought to have been put to CKA21, either in accordance with s 424A or s 424AA of the Migration Act. That it was not put to CKA21 means that the Tribunal Decision was affected by jurisdictional error.
The Minister’s reading of the Tribunal Decision is too narrow. Whilst it might be the case that, in part, and perhaps substantial part, the conclusions reached were based on matters set out at CB 623-624 at [86]-[89], the Tribunal’s findings of fact in the Tribunal Decision with respect to the events of 2008 extend from CB 622 at [82] to 624 at [91], and thus include the finding that CJZ21 “was not in hiding”: CB 622 at [83], and that the Tribunal had considered “all of the relevant evidence”: CB 624 at [89], a consideration which evidently led to the conclusions at CB 624 at [90] including the conclusion that it did not accept that “the applicants were in hiding”, and not just that CJZ21 was in hiding.
For the reasons set out above, ground 1 is made out, and does establish jurisdictional error in the Tribunal Decision.
Ground 2
Ground 2 of the Amended Judicial Review Application is as follows:
2.The Tribunal constructively failed to consider the applicants’ claims and/or failed to provide the applicants with a real or meaningful hearing pursuant to s 425, as it failed to consider the cogent and relevant corroborative material from the first applicant’s psychologist in assessing whether the first applicant had suffered harm in the past.
Particulars
a.The applicants claimed that the first applicant was threatened by extremists after she helped to stop an attempted terrorist attack at the Shi’a Imambargah in 2008.
b.The applicants claimed that a few weeks after the attempted terrorist attack the second applicant had been the victim of an attack in 2008 because he was Shia.
c.The applicants claimed that when they returned to visit Pakistan in 2015, they received two threatening letters.
d.The first applicant provided three reports from a psychologist, Ms Mynard, that indicated: she had a diagnosis of PTSD; she feared returning to Pakistan; and that fear was based in part on the 2008 incidents and 2015 letters.
e.The evidence was capable of corroborating the first applicant’s claims as:
i.it showed the first applicant had a subjective fear of returning to Pakistan;
ii.the first applicant had detailed the same claims to the psychologist as she had to the Tribunal; and
iii.the first applicant had a mental health condition consistent with having had traumatic experiences in Pakistan.
f.The Tribunal considered the evidence of the psychologist only in assessing the first applicant’s capacity to give evidence.
g.The Tribunal failed to consider if the evidence of the psychologist corroborated the first applicants’ claims listed at particulars (a) – (c) above.
h.The evidence of the psychologist was cogent and relevant in the context of the review.
i.The failure to consider the evidence denied the applicants a realistic possibility of a successful outcome.
Applicants’ Submissions
The Applicants’ Submissions in relation to ground 2 are as follows:
(a)the applicants provided a series of reports from a psychologist, Ms Mynard, relating to CJZ21. The reports were dated 26 January 2021: CB 512-515, 4 December 2018: CB 518-521, and 26 June 2017: SCB 104-108;
(b)the Tribunal referred to the evidence of Ms Mynard, but only considered the reports in the context of assessing CJZ21’s capacity to give evidence: CB 612 at [13]-[14]. The Tribunal did not consider the substance of the reports in assessing whether CJZ21’s claims were true, and the failure to do so was a jurisdictional error;
(c)relevantly, Ms Mynard’s June 2017 report:
(i)provided some details of CJZ21’s claims regarding the attempted terrorist attack, the attack on CKA21, and the threats in 2015: SCB 105-106. Ms Mynard also provided a letter dated 26 April 2021 correcting errors in relation to the detailing of CJZ21’s claims in the June 2017 report and Ms Mynard noted that the purpose of therapy was not “fact finding”: CB 508;
(ii)stated that CJZ21 feared she was still at risk of harm because she stopped the attack on the “temple”: SCB 107;
(iii)stated that CJZ21 feared her children could be kidnapped: SCB 108; and
(iv)diagnosed CJZ21 with Post-Traumatic Stress Disorder (“PTSD”), Major Depressive Disorder, and Generalised Anxiety Disorder: SCB 107;
(d)the December 2018 report relevantly stated that CJZ21 had attended 22 counselling sessions with Ms Mynard between December 2015 and December 2018: CB 518, and otherwise noted that she continued to fear for her and her children’s safety: CB 519;
(e)Ms Mynard’s reports, while not providing a detailed narrative of the claims, were capable of corroborating CJZ21’s claims in three ways:
(i)in the June 2017 report Ms Mynard detailed claims broadly consistent with CJZ21’s claims made to the Tribunal;
(ii)Ms Mynard diagnosed CJZ21 as having a mental health condition – PTSD – consistent with having had traumatic experiences in Pakistan; and
(iii)each report corroborated CJZ21’s claims she had a subjective fear of return to Pakistan;
(f)the Tribunal is required to consider corroborative evidence, and a failure to consider corroborative evidence may constitute a constructive failure to consider an applicant’s claims, and therefore constitute jurisdictional error if the information is cogent and sufficiently relevant in the context of the review: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 213 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41 (“SZRKT”) at [111]-[122] per Robertson J;
(g)Ms Mynard’s reports were cogent: she documented her qualifications, history of working with CJZ21, and methods of assessment, and they were significant in the context of the review, especially as the Tribunal had doubted whether CJZ21 had a subjective fear of returning to Pakistan: CB 622-623 at [84]-[85];
(h)the Tribunal has a duty to provide reasons pursuant to s 430(1) of the Migration Act requiring it to make a written statement [of] “findings on any material questions of fact” and which “refers to the evidence” on which those findings are based. If a Tribunal does not refer to evidence, it may, depending on the circumstances, be inferred it was not considered: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [46]-[47] per French, Sackville and Hely JJ;
(i)it can be inferred the Tribunal did not consider Ms Mynard’s psychological reports as corroborative evidence of CJZ21’s claims because:
(i)the Tribunal Decision does not refer to the psychological reports in its substantive consideration of whether CJZ21’s claims regarding the 2008 incidents or 2015 letters were true; and
(ii)the Tribunal expressly referred to corroborative evidence it had considered from CKA21: CB 624-625 at [91] and [99], and the medical evidence relating to CKA21’s injuries to his knee and elbow from the 2008 attack: CB 624 at [91]; and
(j)the Tribunal’s failure was material: if the Tribunal had considered the psychological reports it may have given CJZ21 the benefit of the doubt in relation to her claims regarding the 2008 and 2015 incidents due to the strong evidence CJZ21 had a subjective fear of harm, the relative consistency of the claims recorded by Ms Mynard, and the existence of PTSD consistent with past trauma.
Minister’s Submissions
The Minister’s Submissions in relation to ground 2 are as follows:
(a)this ground contends that the Tribunal failed to consider CJZ21’s mental health diagnoses when assessing whether she faced harm in Pakistan. There is no basis to this ground and it should be dismissed. In particular, under the heading “the applicant’s mental health”, the Tribunal considered the nature and content of the relevant evidence with respect to CJZ21’s claims at CB 612 at [13] as follows:
Applicant A has provided psychologist’s reports dated 26 June 2017, 4 December 2018 and 26 January 2021 which states that the applicant tis [sic] suffering from Post Traumatic Stress Disorder, Major Depressive Disorder and Generalised Anxiety Disorder related to problems she faced in Pakistan and her conviction that she would be in danger if she returned.
(b)in the next paragraph, the Tribunal expressly stated that it had “taken the psychologist’s diagnosis ... into account when considering [CJZ21’s] evidence”: CB 612 at [14]. The Tribunal then considered the procedural fairness aspects of CJZ21’s mental health conditions finding that she was able to “engage meaningfully” at the Tribunal Hearing: CB 612 at [14];
(c)in circumstances where the Tribunal expressly referred to, and engaged with, CJZ21’s psychological evidence, the Minister submits there is no basis to conclude that it was overlooked: Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 at [43]–[45] per Nicholas, Yates and Griffiths JJ. The applicants’ submission to the contrary does not read the Tribunal Decision fairly;
(d)further, this evidence, which includes CJZ21’s self-reporting and the psychologist’s diagnoses, does not bind the Tribunal to make particular findings of fact. The Tribunal engaged with the evidence and did not reject the diagnoses. It was open for it to reject CJZ21’s claims despite taking into account the psychological evidence; and
(e)it has not been shown that the Tribunal disregarded the psychological evidence as claimed.
Consideration – ground 2
Section 425 of the Migration Act provides as follows:
(1)The Tribunal must 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.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Section 430(1) of the Migration Act provides as follows:
(1)Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based; and
(e)in the case of a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm the dismissal of an application--indicates that under subsection 426A(1F), the decision under review is taken to be affirmed; and
(f) records the day and time the statement is made.
In essence, the applicants claim that the Tribunal failed to consider the psychological reports from Ms Mynard, and as a consequence failed to consider cogent relevant corroborative material in relation to CJZ21. The Minister says that the Tribunal considered the nature and content of the psychological reports, and that there is no basis to conclude that they were overlooked.
The applicants’ lawyers’ submissions to the Tribunal were lengthy; running to 24 pages: CB 464-487, and were accompanied by 23 annexures running to some 67 pages: see CB 488.
The purpose for which the psychological reports were tendered is set out in the applicants’ submissions to the Tribunal at CB 468 where the applicants submitted that (original emphasis):
Vulnerability of the client
At the outset we would like to acknowledge the vulnerability of the applicant and ask that significant regard is given to her poor mental health and history of trauma when assessing her evidence. In this respect we refer to the following summary of psychological reports available to the Member for consideration:
•[CJZ21] has been diagnosed with Post Traumatic Stress Disorder, Majoir [sic] Depressive Disorder and Generalised Anxiety Disorder:
•[CJZ21] has been prescribed anti-depressants and that has had to be increased several times; and
•[CJZ21] experiences insomnia, constant fears, difficulty concentrating, nervousness and disturbing intrusive memories and images.
It is also evident from the extract quoted above that part of the purpose of tendering the psychological reports was to ask that regard be had to CJZ21’s mental health and history of trauma “when assessing her evidence”: CB 468.
The applicants’ submissions to the Tribunal do, however, make express reference to the psychologist’s reports otherwise than in relation to CJZ21’s vulnerability. At CB 483-487 the submissions deal with the question of relocation, and:
(a)assert that CJZ21’s mental health and the likelihood that she will not have access to treatment she needs in Pakistan mean that relocation is both unavailable and unreasonable for the applicants: CB 484;
(b)that “in light of the psychologist report provided it is clear that if [CJZ21] was forced to return to Pakistan her mental health would deteriorate significantly”: CB 484;
(c)refer to a case where an applicant was suffering from severe depression and severe post-traumatic stress disorder, “similar to … [CJZ21] in the present matter”, and went on to observe that the issue was not whether an applicant might be denied treatment for mental illness for a Convention reason but whether relocation within Pakistan would enable her to maintain herself “given the state of her health”: CB 484-485; and
(d)submitted that CJZ21 would be unable to receive treatment for her mental health condition in Pakistan, and that it would therefore not be likely that she would be able to maintain herself given the state of her health, and that the significant harm feared could not be avoided by internal relocation which was both unavailable and unreasonable for the reasons stated in the applicants’ submissions to the Tribunal: CB 487.
Each of the psychologist’s reports were prepared in relation to CJZ21’s mental health condition for the purposes of the Protection Visa claim: CB 512 and 518; SCB 104.
In the first psychological report dated 26 June 2017 the psychologist expressed her concern about CJZ21’s mental health and opined that she would not receive proper support or professional treatment intervention if she has to return to Pakistan, and that because of CJZ21’s concerns about continued persecution she would be likely to avoid her family, and therefore have little family support in circumstances where she was concerned about the safety of her children, and goes on to observe that Ms Mynard believes that CJZ21 will begin to recover from her mental health issues if she is allowed to stay in Australia and not have to face possible continued threats in Pakistan: SCB 107-108. In the second psychological report dated 4 December 2018 the psychologist says that if CJZ21 is returned to Pakistan then the psychologist believes that CJZ21 “will deteriorate further, given her severe mental health issues currently are based on her trauma experiences there” and that “[i]t is concerning that there may be a lack of services in Pakistan to support her mental health issues, and she will deteriorate in her mental health and her functioning”: CB 521.
The Minister argues that the psychologist’s reports are not corroborative of CJZ21’s claims as to what occurred to her in Pakistan, and that is no doubt, strictly speaking, the case. The psychologist’s reports are, however, corroborative of the fact that CJZ21 says she has the fears claimed, and of the alleged bases for those fears, and are also relevant to the question of whether or not it might be reasonable for the applicants (including CJZ21 as the wife and mother) to return to Pakistan, or to internally relocate within Pakistan (which is the context in which the psychologist’s report is referred to in the applicants’ submissions to the Tribunal: CB 484-487). At the very least, the psychologist’s reports were capable of corroborating the subjective fear of harm upon return to Pakistan claimed by CJZ21, and the psychologist’s reports were also relevant to CJZ21’s mental health condition in the context of possible return to, or internal relocation within, Pakistan, and, as such, the psychologist’s reports ought, at the very least, to have been considered by the Tribunal because they were possibly corroborative and relevant material in relation to CJZ21’s subjective fear of harm, and relevant material in the context of relocation.
In the Court’s view the Tribunal therefore failed to take into account material which was both possibly corroborative and relevant, and this constituted jurisdictional error: SZRKT at [111]-[114] per Robertson J.
In the circumstances, ground 2 is made out, and establishes jurisdictional error in the Tribunal Decision.
Conclusion and Orders
The Court has concluded that both grounds of the Amended Judicial Review Application have been made out and that the Tribunal Decision is affected by jurisdictional error. It follows that writs in the nature of certiorari and mandamus ought to issue quashing the Tribunal Decision and remitting the matter to the Tribunal for reconsideration and determination in accordance with the law. There will be orders accordingly.
There will also be an order that the name of the Minister be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 8 September 2022
SCHEDULE OF PARTIES
PEG 154 of 2021 Applicants
Fourth Applicant:
CKC21
Fifth Applicant:
CKD21
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