DNB17 v Minister for Immigration; DYT17 v Minister for Immigration
[2018] FCCA 3320
•6 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DNB17 & ORS v MINISTER FOR IMMIGRATION & ANOR and DYT17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3320 |
| Catchwords: MIGRATION – procedural fairness – Tribunal’s non-compliance with recommendations of expert psychological report regarding treatment of Applicant who had been gang-raped in Italy – practical injustice established – family unit – dependent Applications – relief granted and writs issued. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994, Sch. 2, cl. 866.22(13) |
| Cases cited: Applicant M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176 Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 SCAR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1481 |
| First Applicant: | DNB17 |
| Second Applicant: | DNC17 |
| Third Applicant: | DND17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 59 of 2017 |
| Applicant: | DYT17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 70 of 2017 |
| Judgment of: | Judge Neville |
| Hearing date: | 20 March 2018 |
| Date of Last Submission: | 4 April 2018 |
| Delivered at: | Canberra |
| Delivered on: | 6 December 2018 |
REPRESENTATION
| Solicitors for the Applicants in proceedings CAG 59 of 2017 and CAG 70 of 2017: | Sean Kikkert |
| Solicitors for the Respondents in proceedings CAG 59 of 2017 and CAG 70 of 2017: | Clayton Utz, Canberra |
ORDERS
IN PROCEEDINGS CAG 59 of 2017
The decision of the Administrative Appeals Tribunal is to be brought into this Court, and a writ of certiorari is to issue to quash the decision.
A writ of mandamus shall issue and the matter is to be re-determined according to law.
The First Respondent is to pay the Applicant’s costs in accordance with Schedule 1 Part 3 of the Federal Circuit Court Rules 2001.
IN PROCEEDINGS CAG 70 of 2017
The decision of the Administrative Appeals Tribunal is to be brought into this Court, and a writ of certiorari is to issue to quash the decision.
A writ of mandamus shall issue and the matter is to be re-determined according to law.
The First Respondent is to pay the Applicant’s costs in accordance with Schedule 1 Part 3 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 59 of 2017
| DNB17 |
Applicant
DNC17
Second Applicant
DND17
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
CAG 70 of 2017
| DYT17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam, at [37], Gleeson CJ said:[1]
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
[1] Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 (“Lam”).
These reasons apply to two separate but related proceedings: CAG 59 of 2017, and CAG 70 of 2017. The First Respondent Minister accepts and acknowledges the inter-relationship between the two matters and relies upon the submissions in CAG 59 of 2017 also for the purposes of CAG 70 of 2017. See First Respondent’s Outline of Submissions, filed 13th March 2018 in DYT17 v Minister for Immigration and Border Protection CAG 70 of 2017, pars.2 - 3.
Although in dissent in the result, his Honour’s succinct statement of principle has been cited with approval regularly since. For example, in Minister for Immigration and Border Protection v SZSSJ, at [82], the High Court said, by specific reference to the comments of Gleeson CJ in Lam (internal citations omitted; emphasis added):[2]
… compliance with an implied condition of procedural fairness requires the repository of a statutory power to adopt a procedure that is reasonable in the circumstances to afford an opportunity to be heard to a person who has an interest apt to be affected by exercise of that power. The implied condition of procedural fairness is breached, and jurisdictional error thereby occurs, if the procedure adopted so constrains the opportunity of the person to propound his or her case for a favourable exercise of the power as to amount to a "practical injustice".
[2] Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 (“SZSSJ”).
And in Minister for Immigration and Border Protection v WZARH, in the joint judgment of Gageler and Gordon JJ at [58] and [60], their Honours noted (internal citations omitted; emphasis added):[3]
[58] … What must be shown by a person seeking to establish a denial of procedural fairness will depend upon the precise defect alleged to have occurred in the decision-making process.
[60] Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.
[3] Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 (“WZARH”). In the same decision, see also the plurality judgment of Kiefel, Bell and Keane JJ at [30]. In Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38, at [188], Gageler J noted the important precept articulated by Gleeson CJ in Lam, whereby procedural fairness “requires the avoidance of “practical injustice.””
In the current matter before the Court, the Applicant Wife was gang-raped in Italy in 2009. In consequence, she suffered, and continues to suffer, from post-traumatic stress disorder and general distress, as outlined in a psychological Report provided to the Administrative Appeals Tribunal (“the Tribunal”). The occurrence of the rape and her trauma have never been challenged.
The Applicant’s assessing psychologist strongly recommended that, in the light of the Applicant’s rape and consequent distress, any interview or inquiry should not be conducted by a male.[4] There was the further recommendation that, if possible, the person conducting the inquiry should be well-versed in dealing with persons who are affected by trauma. Directly contrary to this clear counsel, if not therapeutic directive, remarkably (in my view), the Tribunal was, in fact, constituted, and the hearing conducted, by a man. Unsurprisingly, as foreshadowed by the Applicant’s psychologist, the Applicant Wife became further distressed during the hearing. Unsurprisingly too, this adversely impacted on the Applicant’s ability to give evidence to, and to conduct her Application before, the Tribunal.
[4] Details from the Applicant’s psychological report are set out later in these reasons.
In my view, on the brief facts outlined above, canvassed in more detail later in these reasons, there was a clear breach of what was necessary to avoid what Gleeson CJ in Lam, the Full Court of the High Court in SZSSJ, and Gageler and Gordon JJ in WZARH, all described as “practical injustice” in relation to the conduct of the hearing involving the Applicant Wife. Accordingly, Ground 4 of the Applicant Wife’s Application, filed 14th July 2017, is made out.
The clear, practical and common-sense recommendations of the Applicant’s assessing psychologist, Ms Martin, were that (i) the Applicant not be questioned about her rape, and (ii) if possible, the Tribunal not be constituted by a male. In my view, as a matter of procedural fairness to the Applicant Wife, these recommendations should have been scrupulously followed. Plainly, they were not; the Wife was questioned about the gang-rape, and she was questioned by the Tribunal, which was constituted by a man. In my view, the consequence of not following the psychologist’s advices relevantly tainted (a) the conduct of the hearing, and (b) the ability of the Applicant Wife to give her evidence.
In the course of written submissions, the Minister acknowledged that if the Wife’s Application was successful, by virtue of (a) the operation of sub-clause 866.22(13) to Schedule 2 of the Migration Regulations 1994 (which confirm that the protection visa Applications of DNC 17 and DND 17 are dependent on the outcome of the Application of DNB 17), and (b) unchallenged Federal Court authority, it would follow that the outcome of a dependent Applicant’s Application for judicial review is determined by the outcome of the primary Application.[5]
[5] See Applicant M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA176. That dependent Applicant Application is the subject of an Application in this Court, DYT17 v Minister for Immigration and Border Protection, CAG 70 of 2017.
Accordingly, the relief sought by the Applicants, in both matters – CAG 59 of 2017, and CAG 70 of 2017, should be granted, and the matters should be remitted to the Tribunal to be determined according to law. The Applicants should have their costs.
Background Facts
The multiple Applicants in this matter, who are all from the one family, are nationals of Albania. In 1996, the family moved to Italy. They arrived in Australia in April 2010. Because of some significant historical involvement by the maternal Grandfather and by her Husband (also an Applicant before the Tribunal) in anti-Communist activity in Albania, the parent Applicants fear persecution if they are forced to return to Albania. It is acknowledged and accepted that they cannot return to Italy because their residence permits expired after having been out of the country for more than 12 months.
Summarily, the first-named Applicant Husband’s claims and relevant history, were as follows:[6]
(a)He is a member of the Christian Democratic Party of Albania (PDK);
(b)He is a Roman Catholic who is actively involved in the Church;
(c)He is the founder of the Mother Theresa Catholic Albanian Association in Adelaide;
(d)He fears Muslim extremists in Albania; and
(e)He and his family are anti-Communist.
[6] See Tribunal Reasons at pars.16 & 22 – 23. The Applicant Husband bears the impersonal descriptor “DNB17.”
The Applicant Husband was born and raised in Shkoder. His family was always anti-Communist. He maintained that his Father was regularly under surveillance from authorities in Albania. At the end of the Communist regime in 1992, he joined the Christian Democratic Party (PDK). He said that the main parties in Albania are the Socialist Party and the Democratic Party; he thinks the Democratic Party is really Communist. He was an organiser for the PDK, which meant promoting the party and getting people to join and vote in elections.
The Applicant Husband said he was seen as anti-Muslim because of his membership of the PDK. He said he was attacked in 1992 – 1993 before the elections where 3 or 4 people hit him with wooden sticks when he was coming home from a meeting. He said that he knew his assailants to be Muslim neighbours of his.
He moved to Italy in 1996. In 1997 he said that some people went to his house in Albania looking for him, which frightened his Wife. He said sometimes people shot guns into the air outside their house in Albania. He also said that when he was in Italy, he was still involved in the PDK by making donations of 1000 Euros each election and by organising for the party. He said he continued to travel to Albania for elections, and went back twice each year.
He said that when living in Italy, he helped organise Masses and that he had a close relationship with Priests. He said that from 2005, he began receiving threatening letters that said “if you keep going with this you will die. Your wife will be a prostitute on the streets.” He said the letters arrived once a fortnight until the family left Italy. He said he was physically attacked in November 2009 outside a bar by 4 or 5 people; again he said he recognised his attackers. He did not go to the police in relation to any of these incidents because he said he did not have sufficient proof.
Summarily, the Applicant Wife’s claims and relevant history, were as follows:[7]
(a)The Applicant Wife said that she feared significant harm in Albania because she is a Catholic and her family is anti-Communist and because her husband’s enemies seek to harm her in order to get at her husband;
(b)She fears that if she were required to return to Albania, she would face significant harm because she was subjected to a gang rape in 2009, which has impacted on her mental health;
(c)Her mental health problems, she said, cannot be effectively treated in Albania;
(d)The family no longer have a right to reside in Italy; and
(e)She and her family will be stigmatised because she is a victim of rape.
[7] See Tribunal Reasons at pars.17, 18 & 24 – 30. The Applicant Wife’s impersonal descriptor is “DNC17”.
She said that her family had a long history fighting against Communism and that problems began for members of the PDK in 1993, including her husband, who suffered from random attacks. She confirmed that her husband moved to Italy in 1996 and that she and the two children of the relationship followed in 1998. They were granted Italian residence visas in June 1999. They bought a house in Italy in 2002.
The Wife said that threats started in around 2005. The family received letters under their door telling them to leave. In 2007, clergy and religious came to their house; the wife said that Muslim-Albanians saw this as a political act, after which the threats increased. She said that her husband was beaten and told to stop his involvement with the Catholic Church and with the PDK. She said that she suffered anxiety and panic attacks and was hospitalised in October 2007, December 2008 and June 2009.
In June 2009, she was driving when her car was deliberately hit from behind. The person driving said to her “this is just the beginning.” She said she reported the incident to police who spoke to the other driver, who denied hitting her deliberately.
Also acknowledged and accepted is that the Applicant Wife was gang raped in Italy in October 2009. The Tribunal records the sexual assault as being in November 2009.[8] The Tribunal recorded that on 28th November 2009 (in her Affidavit, filed 30th October 2017, the Applicant Wife deposed that the relevant date was 28th October 2009) her car was stopped and she was forced into another vehicle by 3 men. She was taken to a quiet part of town and raped. She heard her assailants speaking in Italian and Albanian. They said to her “this is what you deserve” and “this is how you get treated.” The Applicant Wife and her husband went to the hospital. She did not tell the doctor about the rape, saying only that she had fallen down the stairs. Nor did she report her assault to the police. She has suffered flashbacks and nightmares ever since, and as a result, the couple decided they could no longer stay in Italy and decided to move to Australia.
[8] See Reasons of the Tribunal at par.65 ff. The Tribunals reasons are at Court Book (“CB”) 605 – 628.
The Wife contends that her sexual assault occurred as a warning to her family due to their involvement, and that of her Husband’s involvement in particular, in anti-Communist activity in Albania.[9] She contends that her assailants stated that the assault on her was to be taken as a warning of greater retribution, should her family’s anti-Communist activity continue.
[9] The detail of these matters is set out in an Affidavit from the Applicant Wife, filed 30th October 2017.
Upon coming to Australia, the Applicant Wife obtained a psychological report from Ms Martin, dated 30th October 2011.[10] In the course of her Report, Ms Martin stated that the Applicant Wife was suffering from “severe post-traumatic stress disorder”, and that there were symptoms of depression. Among other treatment proposals, Ms Martin said that the Applicant Wife required “intense treatment with an experienced psychologist/trauma counsellor.” At the conclusion of her Report, Ms Martin commented as follows:[11]
I wish to raise my concerns about how [the Applicant Wife’s] evidence will be managed at the Tribunal hearing … I do not consider that it would be appropriate for her to answer specific questions about the rapes in the presence of several others, particularly males. …
Given the severity of the trauma there is also a strong likelihood that she will not be able to retrieve the details from implicit memory nor discuss them. The reaction she had in my rooms strongly suggests that she is likely to react in a similar way under questioning and this will retrigger more of the traumatic memories that she desperately seeks to avoid. Once triggered these could take days to settle to a more manageable level. I would not be able to vouch for her emotional well-being/safety under these conditions.
If possible her evidence needs to be heard by a female with experience in dealing with cases of trauma. I would also recommend that prior to giving evidence she has some sessions with an experienced psychologist/trauma counsellor who can teach her how to control the levels of activation so she can utilise these during questioning. With this in mind she will require regular breaks during the hearing in which to do this.
[10] A copy of this Report is at CB 92 – 103.
[11] See CB 102 - 103.
The Tribunal’s Decision
The Delegate of the First Respondent Minister determined not to grant the Applicants a Protection Class XA Subclass 866 Visa. On 16th June 2017, the Administrative Appeals Tribunal (“the Tribunal”) affirmed the Delegate’s decision for the following reasons.
The Tribunal considered the following “factual bases” upon which the Applicants, and particularly the first named Applicant (the Husband; DNB17) and the second named Applicant (the Wife; DNC17), claimed to be at risk of significant harm, were they to return to Albania.
Earlier in these reasons I have set the respective claims by the Husband and Wife as recorded by the Tribunal. I do not need to repeat those matters here.
The Third Applicant (“DND17”) relied upon the grounds submitted by the First and Second-named Applicants, applying as a member of the family unit (par. 19).
A separate application was made by the first and second named Applicants’ other son (DYT17). This Applicant relied on the same grounds of review put forward by the other Applicants, claiming that his fear of persecution stemmed from his membership of the family unit (par. 24 of DYT17 Decision Record)
In considering these claims, the Tribunal was not satisfied that the Applicants were persecuted for their anti-communist beliefs and religious affiliations after they left Albania in 1996 (par.61). The Tribunal dismissed the first named Applicant’s assertions that he had been the victim of intimidation, assault and “regular threatening letters” while in Italy, regarding it as incredulous that he would not raise any of these matters with the authorities (pars.57 and 60). Furthermore, the Tribunal noted that the Applicants’ claims that they faced continued persecution, following their move to Italy, to be inconsistent with the fact that they continued to make annual visits to family in Albania (par.59).
While the Tribunal accepted that the Wife was the victim of a serious and violent sexual assault in 2009 in Italy, and was involved in a car accident in June 2009, the Tribunal did not consider that either of these incidents was the result of the family’s political or religious affiliations (pars.97 and 98).
Given that the Applicants no longer have residential rights in Italy, the consideration for the Tribunal was whether they would face a risk of significant harm, due to their continued catholic faith and past political activity should they return to Albania. The Tribunal found that there was no real risk that the Applicants would face significant harm on this basis if they were to return to present-day Albania (par.113).
In dealing with the various harms that the second named Applicant alleged she would face upon return to Albania, as a victim of rape, the Tribunal concluded that there was no risk of significant harm, stemming either from the social stigma that the Applicant would face, or the alleged shortcomings in the Albanian health system. Given the Tribunal’s rejection of the claim that the attack was in any way politically motivated, the Tribunal found that the Applicant was only possibly going to experience feelings of shame and stigmatisation, as opposed to falling subject to any relevantly intentional (and therefore “significant”) harm from the community (pars.121-128). Moreover, the country information on Albania, evidences that psychiatric medication would be available to the Applicant Wife (par.118).
Grounds of Review
The Grounds of Review, as set out in the Applicant’s Amended Application, filed 3rd August 2017, were as follows:
1. The Tribunal denied the Applicants procedural fairness by not allowing the Applicants’ migration agent to make submissions regarding evidence that the Applicants wished to rely on and put before the Tribunal.
Particulars
1.1 At the hearing on 4 April 2017, the Applicants’ migration agent attempted to put documents before the Tribunal which related to the second Applicant’s family history of persecution.
1.2 The Applicants’ migration agent attempted to make submissions on the relevance of those documents.
1.3 The Tribunal prevented the Applicants’ migration agent from making submissions regarding those documents.
2. The Tribunal denied the Applicants procedural fairness by not allowing the Applicants to place documents on the Tribunal record.
Particulars
2.1 At the hearing on 4 April 2017, the Applicants’ migration agent attempted to submit documents which related to the second Applicant’s family history of persecution.
2.2 The Applicants’ migration agent indicated that those documents were relevant.
2.3 While the Tribunal initially indicated that those documents could be handed to the hearing attendant, the Tribunal changed its mind and did not accept those documents into its records at that time.
2.4 Although the Tribunal indicated that it would revisit this evidence later in the hearing, the Tribunal did not subsequently accept those documents into its records.
3. The Tribunal fell into jurisdictional error by failing to take into account a relevant matter, namely the documents demonstrating the Applicants’ family history of persecution.
Particulars
3.1 The Tribunal did not accept the documents referred to above into its records
3.2 The Tribunal did not allow the Applicants’ migration agent to make submissions on the relevance of this evidence.
3.3 As a result of not accepting those documents into its records, the Tribunal failed to take into account a relevant matter, namely the evidence contained in these documents
4. The Tribunal committed a jurisdictional error as the second Applicant was not in a fit state to present evidence before the Tribunal. As such, the Applicants did not receive a fair hearing and the decision was not a bona fide attempt to exercise the Tribunal's power.
Particulars
4.1 The second Applicant was a victim of serious sexual assault in Italy in 2009.
4.2 The second Applicant was extremely traumatised as a result of this sexual assault, and was subsequently diagnosed with Severe Complex Post-Traumatic Stress Disorder in 2011.
4.3 The Tribunal questioned the second Applicant about her sexual assault at the hearing on 18 May 2017.
4.4 The second Applicant become so distressed at being questioned about her sexual assault that she did not have a genuine opportunity to put her case forward.
The Applicant’s Primary Submissions
The Applicant’s written submissions, filed 6th March 2018, were as follows (with original emphasis):
1) The Applicants are seeking review of the decision of the Second Respondent (Administrative Appeals Tribunal), dated 16 June 2017, affirming a decision of a delegate of the First Respondent (Minister) not to grant the Applicant a Protection visa.
DYT17
2) The Applicant is seeking review of the decision of the Second Respondent (Administrative Appeals Tribunal), dated 9 August 2017 affirming a decision of a delegate of the First Respondent (Minister) not to grant the Applicant a Protection visa.
Grounds of judicial review
DNB17 & ORS
3) The Applicants are pressing the following grounds of judicial review:
1) The Tribunal denied the Applicants procedural fairness by not allowing the Applicants’ migration agent to make submissions regarding evidence that the Applicants wished to rely on and put before the Tribunal.
2) The Tribunal denied the Applicants procedural fairness by not allowing the Applicants to place documents on the Tribunal record.
3) The Tribunal fell into jurisdictional error by failing to take into account a relevant matter, namely the documents demonstrating the Applicants’ family history of persecution.
4) The Tribunal committed a jurisdictional error as the second Applicant was not in a fit state to present evidence before the Tribunal. As such, the Applicants did not receive a fair hearing and the decision was not a bona fide attempt to exercise the Tribunal's power.
DYT17
4) The Applicant presses the same grounds of judicial review as DNB17 & Ors as outlined at [3] above. It is submitted that the Tribunal’s errors in in 1600397 (DNB17 & Ors) also carried over to its decision in 1600398 (DYT17). It is clear that the Tribunal’s decision in 1600398 relied on DNB17, DNC17 and DND17’s evidence in assessing DYT17’s claims. At [24] OF the DYT17 Decision Record, the Tribunal stated:
“Although [DNB17] and [DNC17] did not give evidence at the Applicant’s hearing their claims form the foundation of the Applicant’s claim that he fears persecution for reason of his membership of a particular social group that consists of family.”
5) Furthermore at [73] of the DYT17 Decision Record, the Tribunal indicated that it had “regard to [DNB17]’s evidence given during his protection hearing” (please also see [74]).
6) In a letter, dated 7 July 2017, that the Tribunal sent to DYT17 prior to the decision under review being made, the Tribunal wrote:
“On 16 June 2017 the Tribunal made a decision affirming the Department’s decision refusing to grant [DNB17], [DNC17] and [DNC17] protection visas. Please find attached a copy of the Tribunal’s decision. . .
In refusing the claims made by [DNB17] and [DNC17], the Tribunal made a number of findings which are relevant in assessing your claims for a protection visa.” (DYT17 Court Book, p. 577-578).
Transcript of Proceedings and audio recording for 1600397
7) The Applicants filed affidavits annexing two CDs containing parts of the audio recordings for 1600397 on 30 October 2017 for DNB17 & Ors and 21 November 2017 for DYT17. Both affidavits, which were sworn by Sean Kikkert, contained the following statement:
“I have made enquiries with the Respondent’s representative about whether the Minister is willing to obtain the transcripts of this hearing and provide it to this Honourable Court and the parties. I am awaiting a response to my request.”
8) As the Respondent subsequently indicated that it did not wish to obtain the transcript, the Applicants have obtained a transcript. In addition to the audio recording, the Applicants would also like to rely on two affidavits of Sean Kikkert, sworn on 6 March 2018. These affidavits annex excerpts of the transcript of proceedings for 1600397. As such the Applicants would please like to seek this Honourable Court’s leave to rely on these excerpts of the transcript at the hearing for these matters.
9) It is submitted that leave should be granted noting that:
a) The audio recordings were served in time, and as such, the Respondent had access the evidence contained in the transcript in audio form since October 2017; and
b) The transcript was emailed to the Respondent’s legal representative on 21 February 2018, with an updated version (with the spelling of Mrs Le’s name corrected) provided on 22 February 2018.
10) Even if leave is granted to rely on the transcript, the Applicants still wish to play an excerpt of the recording at the hearing (the part covered on p. 7, lines 2-27 of the transcript, at approx. 14:00 – 17:14 of the recording on Disc B), as the recording reveals just how distraught the second Applicant was during the hearing. This recording is relevant to ground 4 of these two applications.
Submissions
Ground
11) It is submitted that the Tribunal denied the Applicants procedural fairness by not allowing the Applicants’ migration agent, Mrs Marion Le AM, to make submissions regarding evidence that the Applicants wished to rely on and put before the Tribunal.
12) At the hearing on 4 April 2017 for DNB17 & Ors, Mrs Le attempted to put documents before the Tribunal which related to the second Applicant’s family history of persecution. This family history of persecution had always been part of the Applicants’ claims and had been referred to previously.
13) [DNC17], the Second Applicant, outlined her family history of persecution in paragraphs [1]-[6] of her Statutory Declaration dated 21 November 2011 (p. 54 of the DNB17 & ORS Court Book, p. 61 of the DYT17 Court Book). [DNC17] also highlighted this family history of persecution in her psychological assessment with Ms Naomi Martin, which Ms Martin referred to on page 3 of her psychological report as follows:
“I was advised that the persecution was particularly directed to those who had a family member who fought against the Communist regime, even more so if a family member escaped from the country. [DNC17] had an uncle who escaped the USA and there were family members who stood up to the regime. I was informed that their family suffered considerably and were “watched” constantly.” (p. 94 of DNB17 Court Book, p. 71 of DYT17 Court Book).
14) [DNC17] explained the significance of her family history of persecution in paragraph [4] of her affidavit of 27 October 2017 (for DNB17 & ORS) and 8 November 2017 (for DYT17). She stated as follows:
“. . . in Albania, the reputation and history of a person’s family is considered very important. In Albania, a person might be persecuted because of what their parents or grandparents have done. I believe that part of the reason why Tonin and I suffered political and religious persecution is because of our family’s anti-communist background. This was the reason that I was so keen to put evidence before the Tribunal regarding my family’ history.”
15) Considering how central this family history of persecution was to the Applicant’s case, it is not surprising that the Applicants wished to provide further supporting evidence of this family history of persecution. And so, at the hearing on 4 April 2017, Mrs Le AM advised the Tribunal that she had other documents that she considered relevant, and she “only got them yesterday” (see transcript p. 3, line 15 & 19).
16) Following some discussion about these documents, the Tribunal began to say “Well, there’s no point for me ‑ ‑ ‑“. Mrs Le then began to provide submissions to explain “the point of” these documents (see transcript p. 4, l. 24-26).
17) Ms Le was in the process of saying “So, if you look on the backs of those envelopes, you will see that they’re written over … “ (p. 4, l. 29-30) when she was stopped by the Tribunal saying her name (p. 4, l. 32). Ms Le replied “Sorry” to which the Member said “You’re not giving evidence in this matter.” (p. 4, l. 36). Ms Le then replied saying “Sorry, but I’m just explaining” (p. 4, l. 38) to which the Tribunal said “Okay. Well, then you should have put this in writing before the hearing” (p. 4, l. 40-41). When Ms Le tried to explain why she couldn’t have put this in writing prior to the hearing, the Tribunal said “I’ve adjourned this hearing already once, okay.” (p. 4, l. 46). Ms Le then responded “I’m not asking for an adjournment, Member.” (p. 5, l. 1)
18) By not allowing Ms Le to make submissions about documents relating to [DNC17]’s family history of persecution, the Tribunal denied the Applicants procedural fairness. It was not reasonable for the Tribunal to expect Ms Le to have put these submissions in writing prior to the hearing in circumstances when she had only been provided with these documents the day before.
19) In light of the Tribunal’s reference to the previous adjournment, it is important to note that this adjournment was requested and granted in extraordinary circumstances. Mrs Le had only just taken over this matter at a late stage when her very close friend of 40 years sadly passed away. To make matters more tragic, Mrs Le was told at about the same time that her sister-in-law was expected to pass away very shortly (p. 466- 467 of the DNB17 & Ors Court Book). Mrs Le’s request was very polite and apologetic, and Tribunal’s records the following phone call after the adjournment was granted: “Mrs Le wished to thank the Presiding Member for agreeing to her hearing postponement request. She said she was very grateful” (p. 468 of the DNB17 & Ors Court Book, p. 496 of DYT17 Court Book). Mrs Le had very good reasons to seek an adjournment, and she certainly did not take it for granted. No adverse inference should be drawn from the fact that an adjournment was requested and granted.
20) It is also apparent that Mrs Le felt that she was constrained as far as what she could say on behalf of the Applicants throughout the remainder of the hearing. At the end of the hearing, when the Tribunal stated “Ms Le?”, Mrs Le’s response was “I can’t say anything else, obviously.” (transcript, p. 6, l. 29). The Tribunal did nothing to dispel Mrs Le of this impression, but rather proceeded to finalise the hearing.
21) In Shrestha v Migration Review Tribunal (2015) 229 FCR 301, the Full Court (Mansfield, Tracey and Mortimer JJ) stated that it is axiomatic that the requirements of fairness include the provision of a reasonable opportunity for the appellant to present evidence and make submissions. At [53] the Court noted that this is crucial, even where the workload pressures are high. While it is unclear why the Tribunal prevented Mrs Le from making submissions regarding relevant documents to the hearing, whether due to high workload and insufficient resources or for some other reason (the Tribunal did note at p. 6, l. 22 of the transcript that it was “conscious that the interpreter has got constraints”), the Applicants were denied a reasonable opportunity to present their case as a result.
22) In Shrestha the Court then went on to note at [54] that “Much is at stake for an individual litigant in the migration jurisdiction in the sense of fundamental rights, including her or his liberty in Australia by reason of the mandatory detention regime in the Act. High volumes of cases should if anything give rise to extra caution to ensure no injustices are being done because of judicial workload pressures.”
23) SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 shows that what is required by procedural fairness is a fair hearing, not a fair outcome. The issue accordingly is the fairness of the procedure adopted, not the fairness of the decision produced by that procedure [25]. It is the Applicants’ submission that there was an issue with the procedure adopted, and that the Applicants’ did not receive a fair hearing as a result.
24) In International Finance Trust Company Ltd v New South Wales Crimes Commission (2009) 240 CLR 319 French CJ stated that procedural fairness or natural justice requires a court (and we would submit that this also applies to Tribunals) to “provide each party to the proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it. . . ” (at [54]). By denying Mrs Le the opportunity to make submissions on what the Applicants very much considered to be a central piece of their evidence, the Tribunal denied the Applicants the opportunity to advance their case through argument. It is also the Applicant’s submissions that the Tribunal denied the Applicants the opportunity to advance their case through evidence by not allowing the Applicants to place the documents referred to above on the Tribunal record. Which leads us into the second ground of review.
Ground 2
25) The Tribunal denied the Applicants procedural fairness by not allowing them to place the documents referred to above on the Tribunal record, despite the Tribunal initially agreeing to accept these documents on to the Tribunal record.
26) The Tribunal initially said in regards to these documents “Okay, well, if you could hand them to the hearing attendant, and then we will make sure that we have a record of them. Do you want them copied and returned?” (Transcript, p. 3. l. 33-35). Mrs Le then stated that the documents were “very fragile” and “very special” (p. 3, l 37, 46) and the Tribunal stated that he would “get the hearing attendant to carefully photocopy them” (p. 4, 1).
27) However, the Tribunal did not proceed to accept these documents onto its record, but rather changed its mind. At [p. 5, l. 3-7] of the transcript, the Tribunal stated:
“Okay. What we’re going to do is I’m not ask you to photocopy these yet. We might have an adjournment and, [DNC17], I will get you to talk about these at the hearing, when I take evidence from you, okay? So, we will just take it one step at a time. I’m conscious that they’re not translated?”
28) Although the Tribunal did later on in the hearing question the second Applicant ([DNC17]) about these documents and provide her with the opportunity to comment on them, it did not officially accept these documents into its records or ask the hearing attendant to photo copy them. As a result the Tribunal did not have the opportunity to refer to these documents or consider them once it had reserved its decision.
29) Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 [48] and [105] per McHugh & Gummow JJ is authority that a public decision-maker should have regard to any promise (express or implied) or regular practice adopted by the decision-maker in the making of particular decisions when a failure to do so may result in some unfairness in the procedure now adopted. The following cases are also all authorities confirming the principle that a public decision-maker should ordinarily continue to comply with any procedural promise or representation (express or implied) or regular practice unless the proposed change is first put to the affected person and an opportunity for that person to put a response as to that proposed change is allowed: Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648; Attorney-General (NSW) v Quin (1990) 170 CLR 1; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6. It is submitted that the Tribunal made a procedural promise that it would photocopy these documents and formally accept them into the Tribunal records, and yet failed to comply with this procedural promise.
Ground 3
30) The Tribunal fell into jurisdictional error by failing to take into account a relevant matter, namely Mrs Le’s submissions regarding the documents demonstrating the Applicants’ family history of persecution. Furthermore, as a result of not accepting those documents into its records, the Tribunal didn’t have the opportunity the review these documents following the hearing, and as such failed to take into account a relevant matter, namely the evidence contained in those documents.
31) We have already indicated above how central this family history was to the Applicants’ claims. Newal v Minister for Immigration & Anor (2017) FCCA 1237 is authority that a Tribunal must give “proper, genuine and realistic consideration” to an Applicant’s claims, and that the term “consideration:” implies that the Tribunal must “view or contemplate attentively….examine…scrutinize…fix the mind upon…or reflect upon” the information provided by the Applicant (SZTIF v Minister for Immigration & Anor). And the Tribunal’s decision must reflect awareness on the part of the Tribunal of “consciousness of the contents” of the materials on which the Applicant seeks to rely, and also an evaluation of the materials and a “process of weighing evidence and preferring some over the other” (Minister for Immigration and Border Protection v MZYTS). By not allowing Mrs Le to provide submissions on these documents, the Tribunal was not able to have regard to this part of the Applicants’ claim.
Ground 4
32) The fourth ground is that the Tribunal committed a jurisdictional error as the second Applicant ([DNC17]) was not in a fit state to present evidence before the Tribunal. As such, the Applicants did not receive a fair hearing and the decision was not a bona fide attempt to exercise the Tribunal's power.
33) [DNC17] has made it abundantly clear that her rapes were extremely traumatic to her, and any references to her rapes needed to be treated sensitively. In her sstatutory declaration, dated 21 November 2011, [DNC17] stated:
“. . . I have to say that talking about this incident makes me feel physically unwell and I am very reluctant to talk about it. I understand that I have to talk about it because my lawyer says it is very important to our claims. I am only willing to talk about this incident if I am with females. I do not want to talk about this incident to any males at all and would prefer not to discuss the incident at great length. . .” (para 35, p. 57 of DNB17 Court Book, p. 64 of DYT17 Court Book, emphasis added)
34) And yet, despite clearly indicating that she did not want to speak about her rapes “to any males at all”, the Tribunal, with a male member presiding, asked [DNC17] a number of questions about her rapes (this line of questioning lasted about twelve minutes). Just how traumatic this would have been for [DNC17] can be understood when one considers that she does not even discuss her rapes with her friends, with the exception of her sister-in-law, Mrs Ana Ducaj, who she is very close to and understands her because she is also an Albanian woman (para 49, p. 60 of the DNB17 Court Book, p. 67 of DYT17 Court Book). Apart from Mrs Ducaj, [DNC17] “can’t talk to anyone within our community about the issues” (Ibid.)
35) In fact, so deep is her trauma that she can’t even speak to health practitioners or counsellors about her rapes (para 50-51, p. 60 of the DNB17 Court Book, p. 67 of DYT17 Court Book). If [DNC17] can’t even speak to friends or health professionals about her rapes, one wonders how could manage to speak about her rapes in such a formal setting as the Tribunal hearing with a male member presiding?
36) [DNC17] even struggled to talk about this when appearing before Naomi Martin, Psychologist, as noted in her report of 30 October 2013. Ms Martin reported on page 93 of the DNB17 Court Book (p. 70 of DYT17 Court Book):
“[DNC17] displayed signs of severe anxiety when she sat down at the beginning of the interview. She was wringing her hands and her facial expression was of a woman in a considerable amount of distress. Her sister-in-law confirmed she was highly anxious, and had been for some days prior to the appointment. She also informed me that [DNC17] had been crying all morning prior to the interview.”
37) Mrs Martin further noted that, during the interview “ [DNC17] became tearful and stated that she was feeling sick, a symptom commonly associated with anxiety” (p. 93 DNB17 Court Book). Her anxiety worsened when Ms Martin spoke to her about her rapes. Ms Martin reported:
“At this point she became what I can only describe as ‘absolutely distraught’. Her face developed a frozen expression that changed to one of considerable fear, and her hand wringing became extreme. When asked, [DNC17] managed to say she was wanting to vomit. She was then unable to talk.
I had to cease the interview at this point to assist [DNC17] to move from her emotional state of terror and hyperarousal into a more calm state. This took several minutes and whilst less agitated she remained highly distressed throughout the remainder of the interview.
Mrs Ducaj then begged me not to talk about the rapes as she knew from experience that her sister-in-law would remain in this highly distressed state “for days”. She reported that [DNC17] sometimes curls into a foetal position when highly distressed. Mrs Ducaj becomes extremely worried about her mental state at such times and needs to make sure she is not left alone.
Under ‘Opinion’ I have detailed why I did not pursue any further questioning about the rapes” (p. 96).
38) Ms Martin concluded that [DNC17] has “severe complex Posttraumatic Stress Disorder (PTSD)”, and stated that her “presentation was one of the most serious I have encountered in more than 20 years of private practice. She displayed extreme levels of anxiety and terror which was so significant that she was unable to speak.” (p. 100).
39) It is significant that Ms Martin had no doubt about [DNC17]’s truthfulness. Ms Martin stated: “I have no doubt that she is telling the truth. It would not be possible to feign the level of distress displayed by [DNC17] when the issue of the rapes were raised” (p. 101).
40) Ms Martin went on to express her concerns about how [DNC17]’s evidence might be managed at the Tribunal as follows:
I wish to raise my concerns about how [DNC17]’s evidence will be managed at the Tribunal hearing which I assume will take place in the coming weeks. I do not consider that it would be appropriate for her to answer specific questions about the rapes in the presence of several others, particularly males. I note she has commented on a similar situation in her Statutory Declaration.
Given the severity of the trauma there is also a strong likelihood that she will not be able to retrieve the details from implicit memory nor discuss them. The reaction she had in my rooms strongly suggests that she is likely to react in a similar way under questioning and this will retrigger more of the traumatic memories that she desperately seeks to avoid. Once triggered these could take days to settle to a more manageable level. I would not be able to vouch for her emotional well-being/safety under these conditions.
If possible her evidence needs to be heard by a female with experience in dealing with cases of trauma. I would also recommend that prior to giving evidence she has some sessions with an experienced psychologist/trauma counsellor who can teach her how to control the levels of activation so she can utilise these during questioning. With this in mind she will require regular breaks during the hearing in which to do this.” (p 102-2013)
41) The Tribunal did not heed these recommendations. The matter was heard by a male member who had questioned [DNC17] for twelve minutes about the rapes and who did not provide her with any breaks. As a result, Ms Martin’s fears were realised. [DNC17] explained the impact that this question had on her in her affidavits of 27 October 2017 (for DNB17) and 8 November 2017 (for DYT17). She stated as follows:
“When the Tribunal began to question me about my rapes, it distressed me so much that I wasn’t able to concentrate for the rest of the hearing, say what I wanted to say, or present my case. I felt like I was not really present at the hearing. I felt like I had withdrawn into myself.
My distress was made so much worse because it was a man asking me questions about my rape.
Near the end of the hearing, I tried again to plead our case to the Tribunal, but by then it was too late. I felt like I had really missed the opportunity to present my case. As I tried to speak, I became very emotional. I broke down into tears, and wasn’t really able to get the words out or say what I wanted to say.”
42) The recording of the Tribunal hearing at approx. 14:00 - 17:14 of Disc B (documented in p. 7, l. 2-27 of the transcript) reveals just how distraught and emotional [DNC17] was by this point.
43) In many ways this case is comparable to SCAR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1481. In that case, the Applicant’s father had passed away and was suffering from extreme distress as well as other physical and mental symptoms. He attended his hearing in this state, and the Court found that the hearing was unfair.
44) At [30] of the judgment, O’Loughlin J noted that there was “unchallenged evidence that the Applicant was not in a fit state to represent himself when the Tribunal considered his application. Because of his emotional and medical condition, he was treated (albeit innocently) unfairly. When an Applicant is treated unfairly by a decision-maker, I do not think that it could be said that the decision was a bona fide attempt to exercise the Tribunal's power.”
45) This is the case even where the Tribunal is not aware of the condition of the Applicant. At [26] O’Loughlin J noted:
“Nothing in these proceedings could possibly suggest bad faith on the part of the Tribunal; nor could it be said that the Tribunal was biased against the Applicant. Indeed the Tribunal conducted itself in a most exemplary manner. Nevertheless, the fact remains that the Tribunal innocently failed to have regard to a most important matter when it conducted its review of the Applicant's case; it innocently failed to have regard to the Applicant's distressed state of mind. If, knowing that an Applicant was emotionally distressed and not in a fit state to present his or her case, the Tribunal forged ahead, one could say, arguably, that a consequential adverse decision was not a bona fide attempt by the Tribunal to exercise its power. Why then should not a similar conclusion be reached in a like case where the Tribunal was unaware that the Applicant was emotionally distressed and unable to present his or her case? It seems to me that the personal circumstances of an Applicant are as important as the personal circumstances of the decision-maker when the time comes to determine whether the decision was a bona fide attempt to exercise power. In my opinion, a decision cannot be bona fide if it innocently or knowingly fails to have regard to a material consideration.” (emphasis added)
The First Respondent’s Primary Submissions
The First Respondent’s primary submissions, filed 13th March 2018, were as follows:
A Introduction
1) The Applicants seek judicial review of an Administrative Appeals Tribunal (Tribunal) decision made on 16 June 2017, by which it decided to affirm the decision of the Minister's delegate (Delegate) not to grant the Applicants Protection Class XA Subclass 866 visas (protection visas) pursuant to section 65 of the Migration Act 1958 (Cth) (Act).
2) These submissions respond to the Applicants' submissions filed on 6 March 2018 (Applicants' submissions) in accordance with the orders made by the Court on 28 August 2017.
3) To assist the Court, these submissions first set out a summary of the procedural background and the Tribunal's decision before turning to address each of the grounds pleaded by the Applicant set out in the amended application filed on 3 August 2017.
B Procedural background
4) The Applicants are citizens of Albania. DNB17 is the husband of DNC17 and father to DND17. The protection visa applications of the DNC17 and DND17 are dependent on DNB17's application on the basis that they are members of the same family unit.
5) On 29 February 2012, the Refugee Review Tribunal (First Tribunal) affirmed a decision of the Minister's delegate to refuse to grant the Applicants a Protection Visa.
6) On 30 September 2013, the Applicants were permitted to make a second protection visa application (following SZGIZ v MIAC (2013) 212 FCR 235) that was to be assessed on the basis of the complementary protection criteria (thus overcoming the bar on making a further protection visa application in section 48A of the Act).
7) On 24 June 2014, the Applicants' migration agent at that time provided further information in support of their applications and in relation to matters discussed at an interview with the Departmental officer on 14 May 2014.
8) On 16 December 2015, the Delegate refused the Applicants' second protection visa application.
9) On 12 January 2016, the Applicants applied to the Tribunal for review of the Delegate's decision.
10) On 18 May 2017, the Applicants attended a hearing to give evidence and present arguments with the assistance of a migration agent and an Italian interpreter.
11) On 5 June 2017, the Applicants' migration agent provided post-hearing submissions and evidence.
12) On 16 June 2017, the Tribunal affirmed the Delegate's decision not to grant the Applicants a Protection visa.
C Summary of Tribunal's decision
13) At paragraphs [16] to [31], the Tribunal set out a detailed consideration of the Applicants' claims and evidence.
14) At paragraph [16], the Tribunal summarised the factual bases upon which DNB17 claims to be at risk of significant harm if he were returned to Albania as follows:
a) he is a member of the Christian Democratic Party of Albania (PDK);
b) he is a Roman Catholic who is actively involved in the church;
c) he is the founder of the Mother Teresa Catholic Albanian Association in Adelaide, South Australia (the Mother Teresa Association);
d) he fears Muslim extremists in Albania; and
e) he and his family are anti-communist.
15) At paragraphs [17] to [18], the Tribunal summarised the factual bases upon which DNC17 claims that she would face significant harm if returned to Albania as follows:
a) she is Catholic, her family is anti-communist and her husband's enemies will seek to harm her in order to get at her husband;
b) she was subjected to a gang rape in 2009 which has impacted on her mental health;
c) the mental health problems cannot be effectively treated in Albania;
d) the family no longer have a right to reside in Italy; and
e) she (and her family) will be stigmatised because she is a victim of rape.
16) At paragraphs [32] to [71], the Tribunal set out a summary of the matters discussed at hearing.
17) At paragraphs [72] to [132] the Tribunal set out its findings. The Tribunal was not satisfied that the Applicants face a real risk of significant harm if returned to Albania having regard to relevant country information and the Applicants' claims and evidence because:
a) having regard to Albania's political transformation to a democratic republic from a communist dictatorship, the Applicants' actual or imputed political opinions and family background do not put them at risk of significant harm. On this issue, the Tribunal accepted that the Applicants are Roman Catholics, that DNB17 was a member of the Catholic Church in Albania and that his involvement with the Mother Theresa Association in Australia is genuine. The Tribunal also accepted that DNB17 and DNC17 come from anti-communist Catholic families and their families suffered persecution under the communist regime in Albania;
b) DNB17's evidence in relation to his political profile and the country information relevant to that claim did not provide substantial grounds on which to conclude he would be at risk of significant harm. The Tribunal accepted that DNB17 had some level of involvement with a political party but that this did not put him at risk as the party was minor and political circumstances had changed. In assessing DNB17's profile, the Tribunal also noted that it found certain aspects of his evidence to be vague and inconsistent and therefore lacking in credibility;
c) while the Tribunal accepted DNC17 was the victim of a sexual assault, the Tribunal did not accept that this attack was targeted as claimed (largely due to concerns about the credibility of DNB17's evidence of threats). The Tribunal also rejected the Applicants' related claim that they would be at real risk of significant harm in Albania due to the assault which occurred in Italy (at paragraph [115]); and
d) it was not accepted that the Applicants would be perceived as anti-Muslim and face harm on this basis for the reasons claimed, which included involvement with the Catholic church in Italy and the establishment of the Mother Theresa Association in Adelaide (at paragraphs [101]-[113]. The Tribunal also found that the Applicants would be free to practice their Catholic faith in Albania.
D Summary of Minister's submissions
18) All four of the Applicant's pleaded grounds assert a denial of procedural fairness. Despite this, the Applicants' submissions entirely fail to contend with the applicable procedural code set out in the Act. Section 425 of the Act is the procedural obligation of primary relevance to this case. Pursuant to section 425, the Tribunal is obliged to invite the Applicant to appear before it to present evidence and arguments in support of his application. The Applicants have failed to demonstrate that the Tribunal’s procedure was insufficient to discharge its obligations under Part 7 Division 4 of the Act, and that the extent and consequences of any departure from those rules affected jurisdiction.
19) The Minister submits that the Tribunal's reasons demonstrate that the Applicants were afforded a meaningful opportunity to present evidence and make arguments regarding the issues arising in relation to the review for the reasons set out below.
20) Accordingly, the Minister submits that the Applicants' pleaded grounds are misconceived and reveal no error on the part of the Tribunal. The application should be dismissed with costs.
E Submissions
Ground 1
21) It is alleged that the 'Tribunal denied the Applicants procedural fairness by not allowing the Applicant's migration agent to make submissions regarding evidence that the Applicants' wished to rely on and put before the Tribunal'. The 'evidence' the Applicants refer to in support of this ground is 'five aerogram letters in the Albanian language' (untranslated documents).
22) The Minister submits that ground 1 reveals no error. It is immaterial that the Applicants' migration agent did not make submissions at the hearing about the content of the documents because the Tribunal plainly considered the claims that the documents are said to support and took evidence from the DNC17 in relation to those documents. This is evidenced by the decision record. At paragraphs [63] to [64] the Tribunal states that DNC17 produced the untranslated documents at the hearing. As the Applicants' submissions acknowledge, the Tribunal questioned DNC17 about the relevance of the documents to her application which, in summary, was that the documents supported her claim that her family was anti-communist (at [63]-[64]). This claim was in fact accepted by the Tribunal (at [80]).
23) Further, the Minister notes that even in the event that DNC17 was somehow denied procedural fairness (which is denied), the Applicants' migration agent provided post-hearing submissions and evidence on 2 and 5 June 2017 which were clearly considered by the Tribunal. The Applicants did not provide submissions in relation to the untranslated documents nor did they provide translated copies of those documents. The Minister submits that it was open to the migration agent to put on submissions about the untranslated documents after the hearing and it can be inferred that the Applicants' decision not to address this issue in those post-hearing submissions indicates that the Applicants' had no further submissions to make.
Ground 2
24) It is alleged that 'the Tribunal denied the Applicants procedural fairness by not allowing the Applicants to place documents on the Tribunal record''. The 'documents' the Applicants refer to are the untranslated documents.
25) The Tribunal was under no obligation to take copies of the documents into evidence, particularly where those documents could not be understood by the Tribunal, as there is no general duty on the Tribunal to obtain translated copies of documents or accept untranslated copies of documents: X v Minister for Immigration & Multicultural Affairs [2002] FCAFC 3; MZXTZ v Minister for Immigration & Citizenship [2009] FCA 888; CPD15 as litigation guardian for CGE15 v Minister for Immigration and Border Protection [2016] FCA 475 (CPD15).
26) In CPD15, the Applicant alleged a denial of procedural unfairness on the basis that the Tribunal refused to accept untranslated documents at the hearing. The primary judge found that the Tribunal did not fall into error by refusing to accept untranslated documents. In support of this finding the primary judge found that the Tribunal had allowed the Applicant's mother a chance to submit the documents with an explanation of why they were relevant, and as such there was neither procedural fairness or jurisdictional error on the Tribunal's part. In this case, the Tribunal questioned DNC17 about the contents and relevance of the documents to her claims and accepted post-hearing submissions. Accordingly, ground 2 reveals no error.
27) As to the Applicants' submission that the Tribunal erred by failing to fulfil a 'procedural promise', the Minister submits that the Tribunal did not fail to fulfil a 'promise' (which is not a requirement in any case) as it indicated a potential course during the hearing (to copy the documents) and as the hearing progressed, it adopted a different course (which was to provide DNC17 with an opportunity to comment on the documents). It was open to the Tribunal to take this course where the documents were not translated and the Tribunal fulfilled the requirement to accord DNC17 procedural fairness through providing an opportunity to comment. Further, and importantly, the change in procedure did not have the effect of denying the Applicants' procedural fairness in circumstances where the Applicants' claims were considered and ultimately accepted.
Ground 3
28). It is alleged that the 'Tribunal fell into jurisdictional error by failing to take into account a relevant matter, namely the documents demonstrating the Applicants' family history of persecution'. This grounds is expressed at paragraph [30] of the Applicants' submissions in a different manner, with the relevant 'matter' particularised as 'Ms Le's submissions regarding the documents demonstrating the Applicants' family history of persecution'.
29) The matters that the Tribunal was required to consider are expressed in subsection 36(2A) of the Act where the criteria for the grant of a visa on the basis of the complementary criteria are prescribed. The Tribunal's decision record demonstrates that it clearly applied the correct test in reaching the conclusion that it was not satisfied the Applicants' would be at real risk of significant harm on the basis of their claims and evidence.
30) Insofar as ground 3 contains a complaint that the Tribunal failed to consider the Applicants' claims, the Minister submits that the decision record discloses no error for the reasons set out below. It is trite that the Tribunal must correctly construe and consider each claim (including each element or integer of each claim and the cumulative effect of each claim) made by an Applicant: Dranichnikov v Minister for Immigration [2003] HCA 26; (2003) 197 ALR 389 at 393–4 [22]–[24], [27] (Gummow and Callinan JJ), 407 [88]–[89] (Kirby J), 408 [95] (Hayne J) (Dranichnikov); NABE v Minister for Immigration (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at 18–20 [58]–[61] (Black CJ, French and Selway JJ) (NABE).
31) The Minister submits that the Applicants have not demonstrated a failure to address a particular claim either expressly or impliedly. The Minister repeats paragraph 22 above which sets out the parts of the decision record that establish the Tribunal questioned the First Dependent Applicant about the substance of the claim said to be supported by the untranslated documents.
32) The Tribunal's decision record clearly demonstrates that the Tribunal took the Applicants' family history of persecution into account in its assessment of their claims. In fact, the Tribunal accepted that DNB17 and DNC17 come from anti-communist Catholic families and their families suffered persecution under the communist regime in Albania (at [80]). However, having regard to Albania's political transformation from a communist dictatorship to a democratic republic by looking to the available country information, the Tribunal did not accept that the Applicants' actual or imputed political opinions and family background put them at risk of significant harm (at [87]). The Tribunal was entitled to make this finding on the information and evidence before it.
Ground 4
33) It is alleged that the Applicants were denied a fair hearing because DNC17 was not in a fit state to give evidence. The particulars supplied in support of this ground fail to identify with precision what aspect of the DNC17's evidence could not be put forward.
34) The Minister submits that the Tribunal complied with its procedural obligations to accord DNC17 procedural fairness. In particular, the Minister submits that the Tribunal complied with its obligations under sections 424A and 425 of the Act, including by having regard to the medical evidence supplied by the Applicants.
35) Relevantly, any evidence to support a finding that section 425 was breached on the basis that an Applicant was unfit to present evidence must be clear and unambiguous. In Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 (SZNCR), Tracey J summarised the standard as follows at [30]:
Following [Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41] an Applicant who has a diagnosed mental impairment which does not render him or her "entirely unfit" to attend a Tribunal hearing and answer questions cannot be held to have been denied a "real and meaningful" opportunity to participate in the appeal hearing. It must be demonstrated that the Applicant was unfit (in the sense of being unable) to give evidence, present arguments and answer questions in the course of the hearing.
36) In the present case, the most recent medical evidence in relation to DNC17's fitness to give evidence was the psychologist report of Naomi Martin dated 30 October 2011 (2011 report). The 2011 report, which was prepared for the purposes of a hearing before the First Tribunal and was the only available relevant medical evidence relied upon, reported a diagnosis of severe post-traumatic stress disorder at that time and stated:
I wish to raise concerns about how [the First Dependent Applicant's] evidence will be managed at the Tribunal hearing which I assume will take place in the coming weeks. I do not consider that it would be appropriate for her to answer any specific questions about the rapes in the presence of several others, particularly males.
37) The 2011 report did not state that DNC17 was entirely unfit but rather that specific questions should not be asked about the rapes in the presence of 'several others, particularly males'.
38) The Tribunal's decision record demonstrates that it plainly had regard to the most recent available medical evidence (which did not render DNC17 "entirely unfit") and adhered to the recommendations therein in its questioning of DNC17 and for this reason, its approach discloses no procedural unfairness. At paragraph [115], the Tribunal accepted that DNC17 was the victim of a sexual assault. Paragraphs [65] to [71] of the Tribunal's decision record set out the Tribunal's summary of its questions to DNC17. These paragraphs indicate that, consistent with the 2011 report, DNC17 was not questioned directly about the assault (at [65]) but rather was asked to articulate the relevance of the assault that occurred in Italy to her claim to fear harm if returned to Albania. The fact of the sexual assault was not at issue. The issue before the Tribunal was how the assault was connected to the Applicants' claims to be at risk of significant harm if returned to Albania because of the assault.
F Conclusion
39) For these reasons, the Minister submits that the Tribunal’s decision does not reveal any jurisdictional error. The amended application for judicial review filed on 3 August 2017 should be dismissed with costs awarded in the amount of $7,328.
Specific Questions
In the course of the hearing on 20th March 2018, based on the facts of the matter and the Court’s possible “concerns” about the detail of them, the Court made Orders directing the parties to file further written submissions regarding the following three matters:
a) The Respondent’s duty to make arrangements for a female Tribunal member to preside over the Applicants’ Hearing and particularly the questioning of DNC17, in light of the recommendations in the Report of Ms Martin (Court Book, pp. 102-3);
b) The extent of the deterioration of a witness’s psychological state during questioning that would qualify as preventing a witness from being given a real and meaningful opportunity to give evidence;
c) The inter-relationship between the Applicants’ Applications and specifically whether, if the Court found in favour of, for example, Applicant DNC17 the Court is bound to find for the others, or whether it is possible for the Court to treat each of the Applicants separately.
The Applicant’s Supplementary Submissions
The Applicant’s supplementary submissions, filed 20th March 2018, were as follows (with original emphasis):
Supplementary Submissions for the Applicants
1) On 20 March 2018 this Honourable Court ordered that the parties provide submissions by close of business of 3 April 2018, addressing the following three matters:
a) The Respondent’s duty to make arrangements for a female Tribunal member to preside over the Applicants’ hearing and particularly the questioning of DNC17, in light of the recommendations in the Report of Ms Martin (Court Book, pp. 102-3);
2) Ms Martin’s recommendation that “[i]f possible [DNC17’s] evidence needs to be heard by a female with experience in dealing with cases of trauma” mirrors DNC17’s own request, expressed in her statutory declaration of 21 November 2011, that “I am only willing to talk about this incident if I am with females. I do not want to talk about this incident to any males at all and would prefer not to discuss the incident at great length. . .” (para 35, p. 57 of DNB17 & Ors Court Book, p. 64 of DYT17 Court Book). DNC17 meets the definition of a vulnerable person under the AAT’s Migration and Refugee Division: Guidelines on Vulnerable Persons, as she is someone who has experienced “physical or psychological abuse and trauma” and who “continue [s] to experience significant anxiety and depression (please see guideline 7). The guidelines accordingly provide guidance on how the AAT should treat DNC17, including, according to [28], “determin[ing] if a person is competent to give sworn evidence” and, in line with [43] ensuring that a person who has experienced “sexual violence or other traumatic incidents” are not “further traumatised by the process of giving evidence”, even if this requires an adjournment or second hearing. In regards to the Tribunal’s duty to provide a presiding member of a specific gender, [94] indicates that “[t]he tribunal can consider requests for matters to be heard by Members of a particular gender. . .” While the word ‘may’ is used here in the guidelines, this phrase must be considered and balanced with the context of the case in order to determine if a duty is imposed on the Tribunal. In the context of an unchallenged serious sexual assault which could affect an Applicant’s ability to present her case and answer questions, we submit that a duty arises. There is no evidence that this request for a female member by either Ms Martin or DNC17 herself was even considered by the Tribunal.
3) The Migration and Refugee Division: Guidelines on the Assessment of Credibility likewise stipulate, at [24] that “Claims relating to. . . sexual assault. . . require particularly sensitive investigation”.
4) Furthermore, we submit that the duty to make arrangements for a female member to preside falls within the overarching duty to provide a fair hearing (as established in Kioa v West), particularly in circumstances where there was such strong evidence that DNC17’s ability to give evidence could be adversely impacted if she was to be questioned by a male. In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam, Gleeson CJ stated that ‘fairness is not an abstract concept’ and that the ‘concern of the law is to avoid practical injustice’ Furthermore, it is submitted that DNC17 had a legitimate expectation that the recommendations in Ms Martin’s report (or alternatively that her own request) would be followed, and if this legitimate expectation was not going to be followed, then the Applicants should have been notified beforehand in accordance with Teoh.
5) Even if a duty to ensure a female tribunal member did not arise prior to the hearing, it would have become apparent during the course of the hearing that DNC17’s distress and her inability to sufficiently state her case would have meant that a fair hearing could not be reached. Therefore, a duty would have arisen at this time, if it had not arisen prior to this.
6) However, even if a duty did not arise, SCAR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1481 shows that an error arises where an Applicant is treated unfairly, even when the Tribunal is unaware of this unfairness.
b) The extent of the deterioration of a witness’s psychological state during questioning that would qualify as preventing a witness from being given a real and meaningful opportunity to give evidence.
7) It is submitted that it is not only the deteriorating that occurred during the Tribunal’s questioning DNC17 about her sexual assaults that is relevant, but also her deterioration for the rest of the hearing, including when she gave her final submissions (please see p. 7 of the transcript annexed to the affidavit of Sean Kikkert, sworn on 6 March 2018). This is because DNC17 was in a distraught state from the time of this questioning and for the remainder of the hearing
8) Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 is authority that a claim of 'unfitness' requires that the Applicant be unable to give evidence, present arguments and answer questions before the Tribunal, and not merely be unfit to some lesser degree: (at [30]-[34], please also see BQC15 v Minister for Immigration and Border Protection [2016] FCCA 966). This current case is distinguishable from BQC15 as in that case there was no evidence of the Applicant’s depression, and the Applicant was given breaks. This can be contrasted with this case where DNC17 suffered from “severe complex Posttraumatic Stress Disorder”, the “most serious” she had encountered in “more than 20 years of private practice.” (DNB17 Court Book, p. 100)
9) It is clear from DNB17’s evidence that her deterioration led to her being unable to give evidence, present arguments and answer questions before the Tribunal. In her affidavits of 27 October 2017 (for DNB17) and 8 November 2017 (for DYT17), DNC17 stated that “[w]hen the Tribunal began to question me about my rapes, it distressed me so much that I wasn’t able to concentrate for the rest of the hearing, say what I wanted to say, or present my case.” DNC17 stated that she felt like she “was not really present at the hearing” and had “withdrawn into [her]self”. While she tried to again plead her case at the end of the hearing, by then it was “too late”. DNC17 stated “I felt like I had really missed the opportunity to present my case. As I tried to speak, I became very emotional. I broke down into tears, and wasn’t really able to get the words out or say what I wanted to say.”
10) It is significant that the Respondent did not dispute DNC17’s evidence of her deterioration and her mental impairment at the hearing, nor did the Respondent request to cross-examine her. As such, it must be inferred that the Respondent does not challenge this evidence from DNC17. Similar to SCAR there was “unchallenged evidence that the Applicant was not in a fit state to represent himself when the Tribunal considered his application.” (O’Loughlin J at [30]). The recording of the Tribunal hearing at approx. 14:00 - 17:14 of Disc B (also documented in p. 7, l. 2-27 of the transcript) corroborates DNC17’s account, as it reveals just how distraught and emotional DNC17 was by this point.
c) The inter-relationship between the Applicants’ Applications and specifically whether, if the Court found in favour of, for example, Applicant DNC17 the Court is bound to find for the others, or whether it is possible for the Court to treat each of the Applicants separately.
11) DNB17, DNC17 and DND17 applied as a family unit on one application. As such, it is submitted that this Honourable Court is not able to treat these Applicants separately, and finding in favour of one Applicant binds the Court to find in favour of the other Applicants.
12) In paragraphs [24], [73] and [74] of the DYT17 Decision indicate that the evidence provided in DNC17 and DNB17 was considered by the Tribunal in assessing DYT17’s claims. Furthermore, in a letter, dated 7 July 2017, that the Tribunal sent to DYT17 prior to the decision, the Tribunal wrote:
“In refusing the claims made by [DNB17] and [DNC17], the Tribunal made a number of findings which are relevant in assessing your claims for a protection visa.” (DYT17 Court Book, p. 577-578).
13) As such, these matters are extremely interconnected, and a denial of procedural fairness to one amount to a denial of procedural fairness to all. For example, had Mrs Marion Le AM been allowed to provide submissions in regards to the documents establishing DNC17’s family history of persecution and how the family unit continued to be persecuted, it might have satisfied the Tribunal that there was a real risk that each Applicant would suffer significant harm if returned to Albania. Likewise, had these documents being accepted into the Tribunal record, this evidence might likewise had satisfied the Tribunal that there was a real risk that each Applicant would suffer significant harm if returned to Albania. The same is the case in regards to the Tribunal failing to take into account a relevant matter. Finally, had DNC17 not deteriorated so significantly during questioning by a male member, she might have been able to satisfy the Tribunal that she was sexually assaulted because her whole family unit was being targeted. Once again, this would have established that there was a real risk that each Applicant would suffer significant harm if returned to Albania.
The First Respondent’s Supplementary Submissions
The First Respondent’s supplementary submissions, filed 4th April 2018, in response to the Court’s three specific questions were as follows:
1) These submissions are provided in accordance with the Court's orders of 20 March 2018. Questions (a) to (c) identified in the orders are addressed in detail below.
2) Where it is alleged that an Applicant has been denied a real and meaningful opportunity to participate in a hearing, in determining whether there has been a breach; each case will turn on its own facts. In summary, the Respondent submits that in the circumstances of this application the Tribunal did not err in its approach to the hearing and that DNC17 was treated respectfully and carefully by the Tribunal at all times. In support of this submission, the Respondent notes that the Applicants were represented at all times, did not raise the issues addressed by questions (a) or (b) prior to, during, or after the Tribunal hearing, and the Tribunal accepted post hearing submissions.
(a) The Respondent’s duty to make arrangements for a female Tribunal member to preside over the Applicants’ Hearing and particularly the questioning of DNC17, in light of the recommendations in the Report of Ms Martin (Court Book, pp. 102-3);
3) The Respondent submits that the Tribunal was not under a duty to make arrangements for a female tribunal member to preside over the hearing in circumstances where:
a) no explicit request was made for a female member either prior to or at the hearing by any of the Applicants or their migration agent nor was it suggested during the hearing that the gender of the member affected DNC17's capacity to give evidence Relevantly, the recommendations of the Martin report did not suggest that only a female Tribunal member could hear DNC17's evidence.(see MZZFU v Minister for Immigration and Anor [2014] FCCA 212 (MZZFU) and BPP15 v Minister for Immigration and Anor [2016] FCCA 3350 (at [14] to [15] in particular). In MZZFU, the Court considered how the Tribunal dealt with the Applicant's response to a section 424A letter in which it was suggested that the Applicant should have been questioned by a female (at [44]). The Tribunal considered this letter and noted that ". . . no such request [for a female interpreter] was made by or on behalf of the Applicants at any time before the letter from the second representative was received. Nor did the Applicants or the representative state during the hearing that they felt the gender of the presiding member affected the Applicants’ capacity to give evidence in relation to the claimed sexual assault.” At [51], Burchardt J concluded that the Tribunal had not erred in its approach and observed that “[the Applicant's representative's letter] never went so far as to request that a female member of the Tribunal hear the case. As already indicated, no such application was ever pressed either before or at the hearing, and there is nothing in the materials before the Court to suggest that there was a request that the matter be heard by a female after the hearing was concluded";
b) while it is accepted DNC17 became distressed while giving evidence, DNC17 was clearly able to understand and respond to the Tribunal's questions and her assertion that she was denied an opportunity to give evidence is nothing more than that: DNC17 had not addressed what further evidence she might have given had she not been distressed (See MZFFU at paragraphs [47] to [48]);
c) the Tribunal did not ask any questions of DNC17 about the fact or nature of the assault and was in fact conscious to explain to her that those matters were not in issue. The Tribunal's questions were in line with the recommendations of the Martin report regarding how DNC17's evidence should be handled in that specific questions were not asked about the assault; and
d) there was no evidence that DNC17 wished to provide further information in relation to her claims. This is in contrast to the facts of Applicants M16 of 2004 v Minister of Immigration and Multicultural and Indigenous Affairs (2005) FCA 1641(M16 of 2004), where the Court found that the Tribunal erred by failing to facilitate the Applicant giving evidence (by either asking males to leave the room, asking for further details about the alleged assault or explicitly giving the opportunity to provide submissions in writing) where it was clearly aware that the Applicant had further evidence to give and that the Applicant was uncomfortable disclosing that further information to a male (at [50] to [51]). In the circumstances of the current application before this court, the Tribunal had before it DNC17's 2011 statutory declaration and the Martin report which did not suggest that DNC17 had further information to provide. In further contrast to M16 of 2004, the Tribunal did not refuse a request to provide post-hearing submissions and in fact, as set out in the Respondent's principal submissions, the Applicants provided post-hearing submissions which were taken into account and could have set out further information in relation to DNC17's claims if desired.
(b) The extent of the deterioration of a witness’s psychological state during questioning that would qualify as preventing a witness from being given a real and meaningful opportunity to give evidence;
4) While the Respondent accepts that DNC17 was distressed while giving evidence, it submits that DNC17 was not denied a real and meaningful opportunity to give evidence in the circumstances of this case where:
a) the Tribunal's decision record indicates that DNC17 was able to understand and respond to its questions (see paragraphs [65] to [71]). In AYU15 v Minister for Immigration & Anor (No. 2) [2016] FCCA 2309, the Applicant claimed that he suffered from a medical condition which denied him a real and meaningful opportunities to present evidence and make submissions (summarised at [17]). The Court found that the Tribunal did not err in its approach and relevantly observed at [19]: "In my opinion, whether an Applicant has been denied a real and meaningful opportunity to participate in the hearing is to be determined by applying the words “real and meaningful” to the circumstances of the case. Attention will need to be given to what is required for a person to have a real and meaningful opportunity to participate at a hearing. At the very least, that would require the Applicant to be able to understand the questions asked of him and her, and to answer such questions. It will also require the Applicant to understand words and sentences spoken by the Tribunal member, and to be able to communicate answers by the construction and uttering of meaningful sentences."
In support of this submission, the Court is also referred to Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41(SZNVW) at [22] where the Court observed ' '. . . In those cases where the Applicant is not disabled by his psychological deficits from giving evidence and presenting arguments, the hearing required by s 425 of the Act is not nullified by a mere failure by an Applicant to present his case in the best possible light".
b) the Tribunal's decision record indicates that it stopped questioning DNC17 at the appropriate time and heeded the findings of the psychologist.
5) Further, in support of the above submissions, while the Respondent does not consent to the Applicant being granted leave to file the second transcript provided to the Respondent and the Court a day prior to the hearing on 19 March 2018, it is submitted that the second transcript evidences the fact that DNC17 was able to understand and respond to the Tribunal's questions and that the Tribunal did not question the fact and/or nature of the assault and ceased all questioning associated with the assault at the appropriate time.
(c) The inter-relationship between the Applicants’ Applications and specifically whether, if the Court found in favour of, for example, Applicant DNC17 the Court is bound to find for the others, or whether it is possible for the Court to treat each of the Applicants separately.
6) The protection visa applications of DNC17 and DND17 are dependent on the protection visa application of DNB17: Subclause 866.221(3) to Schedule 2 to the Migration Regulations 1994 (Cth). There is no general authority on or relating to this issue however the Courts have previously found that the outcome of a dependent Applicant's application for judicial review is to be determined by the outcome of the primary Applicant's application: see for example Applicant M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176 at [2]. The Respondent submits that this is the correct approach.
Disposition
7) For the reasons set out above and for the reasons set out in the first respondent's principal submissions, it is submitted that the amended application for judicial review filed on 3 August 2017 should be dismissed with costs awarded in the amount of $7,328.
Consideration & Disposition
The evidence relied upon by the Applicant was:
(a)An Affidavit sworn by the Applicant on 27th October 2017 (filed 30th October 2017);
(b)An Affidavit sworn by the Applicant’s solicitor (Mr Kikkert) on 30th October 2017 (filed 30th October 2017);
(c)An Affidavit sworn by Mr Kikkert on 6th March 2018 (filed on the same date); and
(d)An Affidavit sworn by Mr McCulloch on 19th March 2018 (filed in Court on 20th March 2018).
The Affidavits of Mr Kikkert and Mr McCulloch annex or attach (i) Compact Discs (CDs) that contain a recording of the initial hearing before the Tribunal on 4th April 2017, and the later hearing on 18th May 2017, and (ii) extracts of a transcript of the [principal] hearing before the Tribunal dated 18th May 2017.
None of the deponents, and in particular the Applicant Wife, was required to give any oral evidence at the hearing before me.
Summarily:
(a)The evidence of the Applicant was to the effect that (i) she continues to suffer from severe, complex post-traumatic disorder, (ii) she continues to suffer from panic attacks, which have led, at times, to her hospitalisation, and to be prescribed medication to help her cope with anxiety and stress (but with side-effects from the medication), (iii) during the hearing before the Tribunal she became distressed when she was questioned about the rape such that she was unable to concentrate for the rest of the hearing and was unable to present her case, and (iv) her distress at the hearing was made worse by being questioned by a man;
(b)The Affidavit of Mr Kikkert, filed 6th March 2018, annexed to it an extract from the Transcript of the hearing held on 18th May 2017. Among other things, that excerpt recorded that (i) the Applicant’s agent (Ms Le) provided documents to the Tribunal (which she received only the day prior to the hearing), which related to the Applicant’s family history, including that the Applicant’s Grandfather was an Australian citizen; (ii) the Tribunal said (p.3) that “we will make sure that we have a record of them” [i.e. the documents provided by Ms Le] and that “I’ll get the hearing attendant to carefully photocopy them” (p.4); (iii) it is unclear what, if anything, was actually done with the documents presented by Ms Le on behalf of the Applicant(s), and (iv) the Tribunal stated … “I understand that you are a victim of a rape, and that also is a claim in its own right, and I will assess that in that regard …”
(c)The Affidavit of Mr McCulloch, filed in Court on 20th March 2018, also annexed to it an extract from the Transcript of the hearing before the Tribunal on 18th May 2017. The entirety of that extract was as follows (emphasis added):
EXTRACT OF TRANSCRIPT PROCEEDINGS
[FILE 2: 0.53.25 - 1.06.00]
I have to ask you some questions now on a different topic. This evidence is sensitive, and I'm not sure whether you want everybody to be present in the hearing room when you give evidence.
INTERPRETER: Yes, my son, I would like him to be elsewhere.
MEMBER: Yes. So if people would like to - if you would like to give this evidence and you feel more comfortable about it then maybe you can ask - I'm leaving it up to you to decide that, INTERPRETER, you're representative.
INTERPRETER: I'm sorry, member, can you repeat that question? MEMBER: I'm leaving up to you - - -
INTERPRETER: To answer?
MEMBER: - - - to decide - - -
INTERPRETER: Yeah.
MEMBER: - - - who stays in the hearing room and who you want to leave. INTERPRETER: Okay. So, yeah - - -
MEMBER: I'll give you the chance to do that.
INTERPRETER: Okay. I'd just like my son to go out.
MEMBER: Okay, thank you. I've been - or the previous tribunal was presented with a report, a psychologist's report - not psychiatrist, psychologist.
INTERPRETER: Psychologist, I'm sorry.
MEMBER: Do you have any other reports for me?
INTERPRETER: No.
MEMBER: Okay. That report and your statement document that you were a victim of a rape, sexual assault, and that was in Italy in 2009. So that is a very sensitive topic, and I don't need to know the details about what happened to you. It was accepted by the previous tribunal that you were a victim, and the previous tribunal relied on the report from an expert. So I have no reason to depart from those findings and I also accept, based on the report, that you were a victim of a rape in 2009. The difficulty that the previous tribunal had, and what I need you to explain to me is how it is relevant to this application. How is it relevant to your fear of significant harm in Albania?
INTERPRETER: I'm always afraid. Well, first of all, obviously if I were to go back to see the place where this event took place it would really make me afraid all over again, and the fear that this could happen again.
MEMBER: What I understand was claimed first of all was that you suggested that it was associated with your husband's political opinion. Why have you come to that conclusion, that the rape was somehow linked to your husband's political opinions?
INTERPRETER: Because there was a lot of things happening to him. There were letters sent to him. About six months before this event, somebody, you know - somebody's car impact with the back of my car and then somebody got out the car and just said to me, "Oh, that's just the - this is just the beginning ." You know, the actual car accident wasn't a serious car accident but by the time that guy had come out and threatened me I was, ah - I was beside myself so I called an ambulance because I was feeling really, really scared and unwell.
MEMBER: Did you report the sexual assault to the police?
INTERPRETER: No, no, I was too scared, and the shame. I was also afraid that they will judge me wrongly. I was afraid of the hurt that I could feel from them passing, you know, critical judgment on me.
MEMBER: Okay. You mentioned that you went to a hospital with your husband after the incident. Why did you not tell the people, the doctor what happened?
INTERPRETER: I was afraid.
MEMBER: But this is different. You're not dealing with - - -
INTERPRETER: We've grown up with fear, and this is a mindset that started from communist times. The fear that if you talk, you know, something bad could happen.
MEMBER: But this - - -
INTERPRETER: And you know, you just - I was still afraid.
MEMBER: Okay.
INTERPRETER: Yeah.
MEMBER: So let's look to the future. We're now in 2017, you mentioned that thinking about the incident and going back to where it occurred is very upsetting; this application is about you returning to Albania, not to Italy, so why is that going to be a problem for you?
INTERPRETER: If these people hurt me so much in Italy, who can guarantee that they're not going to hurt me in Albania?
MEMBER: Well, I have to look at that statement and assess what are the real chances of that happening. I accept that from a subjective point of view, having gone through that incident you have anxiety and fear, but I must look at the foreseeable future and determine why this would happen again. So you've been in Australia now for seven years, life has moved on; I have to assess that claim in that context. What would you like to say about that?
As the Minister’s primary submissions make plain, at par.18, “all four of the Applicant’s pleaded grounds assert a denial of procedural fairness.” I agree. I note the following.
First, in relation to Grounds 1 – 3 of the Applicants’ Application, each and all of which turn on what the Tribunal did, or allegedly did not, do regarding the documents provided by the Applicants, I agree with and accept the Minister’s submissions. In particular, I find that the documents, and the family history they contained, were provided by the Applicants during the hearing and that, post – hearing, the Applicants were provided with the opportunity to make submissions on them. That being the case, there can be no complaint that the Applicants were not given the opportunity to provide submissions or to make such comment on them as they considered appropriate. There was no procedural unfairness visited upon the Applicants. Accordingly, Grounds 1 – 3 must be dismissed.
Secondly, in relation to Ground 4, and in addition to the comments noted at the outset of these reasons by Gleeson CJ in Lam (and the other cases there cited), regarding the centrality and importance “to avoid practical injustice”, I note the following:
(a)The Minister’s submission (primary submissions (pars.33 – 38) that the Tribunal “plainly had regard to the most recent available medical evidence (which did not render DNC17 “entirely unfit”)”, should be rejected. This is because such a submission, like the Tribunal itself, ignored the recommendations of the psychologist regarding the risk to the Applicant Wife if questioned about her rape and likewise if she was to be questioned by a man, both of which occurred. These failures, in my view, plainly breached basic procedural fairness requirements;
(b)Likewise, the Minister’s supplementary submissions (pars.3 & 4), also should be rejected. It was accepted that the Applicant became distressed while giving evidence. It was also submitted that the Applicant Wife was not asked questions about “the fact or nature of the assault.” But these matters, in my view, are not to the point. The issue, in my view, is the procedural integrity of the hearing. That integrity was inherently compromised for the reasons already given, namely (a) the asking of questions (irrespective of their detail) regarding the rape of the Applicant Wife, and (b) that the questions were asked by a man, when the clear recommendation from Ms Martin was that these two things should be avoided because of the risks that they necessarily posed to the Applicant Wife, including her ability to give evidence.
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs, at [25], the High Court said (internal citation omitted; emphasis added):[12]
Counsel for the respondent Minister correctly submitted, at the outset of his argument of the appeal to this Court, that "what is required by procedural fairness is a fair hearing, not a fair outcome". As Brennan J said, in Attorney-General (NSW) v Quin:
"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."
It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision.
[12] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.
The Applicants relied upon the first instance decision in the Federal Court of Australia in SCAR v Minister for Immigration and Multicultural and Indigenous Affairs, where O’Loughlin J referred, at [26] and [30], to the importance of a decision-maker having proper regard to whether the Applicant was in a fit state to give evidence, including the Applicant’s “distressed state of mind.”[13] His Honour’s judgment was upheld on appeal, in the course of which the Full Court said, at [41] – [42]:[14]
[41] Given the findings of fact made by the primary judge that the respondent was not in a fit state to represent himself before the Tribunal it is clear that the invitation he received under s.425 of the Act was not a meaningful one. Through no fault of the Tribunal it was not aware of this. Even so, the Tribunal did not comply with s.425 of the Act. It did not extend a meaningful invitation to the respondent. The respondent did not receive the fair hearing required by the Act. Consequently the Tribunal made a `jurisdictional error.'
[42] The result is that the decision of the Tribunal was invalid. This is the result reached by the primary judge, although for different reasons. As his Honour's decision was correct the appeal must be dismissed.
[13] SCAR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1481.
[14] Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; (2003) 198 ALR 293 (“SCAR”).
In a later decision, Minister for Immigration and Citizenship v SZNVW (“SZNVW”), the Full Court referred briefly to the decision in SCAR.[15] For example, in SZNVW Keane CJ (as his Honour then was) said, at [37]:
The present case falls well outside the authority of this Court’s decision in SCAR. The further evidence subsequently adduced before the magistrate was not apt to, and was not found to, demonstrate an unfitness to "give evidence and present arguments" at the hearing. Nor was this a case where the integrity of the hearing under s 425 was subverted by a want of an appreciation on the part of the Tribunal that the respondent’s presentation of his case might have been adversely affected by an impaired mental state of which the Tribunal was oblivious.
[15] Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575.
In my view, both aspects referred to by Keane CJ in SZNVW were present in the current hearing: (a) the evidence prior to, and at, the hearing was that the Applicant Wife was so traumatised by the gang rape perpetrated upon her, and by being asked questions about it during the hearing by a man, caused her to become so distressed as to be unable properly to present her case, and (b) in consequence, and by not adhering to the recommendations of the Applicant Wife’s psychologist (Ms Martin), the integrity of the hearing was relevantly compromised.
For the reasons given, the relief sought by the Applicant in the Application filed 3rd August 2017, should be allowed in the following terms, together with an Order for costs fixed in the sum of $7467.00 as per Schedule 1 Part 3 of the Federal Circuit Court Rules2001. Thus,
(a)A writ of certorari shall issue to remove the record of the Tribunal into this Court and its decision quashed;
(b)A writ of mandamus shall issue to direct the Tribunal to [re-] determine the matter according to law.
I have already expressed agreement with the Minister’s supplementary submission, filed 4th April 2018 (par.6). For ease of reference I set it out again:
The protection visa applications of DNC17 and DND17 are dependent on the protection visa application of DNB17: Subclause 866.221(3) to Schedule 2 to the Migration Regulations 1994 (Cth). There is no general authority on or relating to this issue however the Courts have previously found that the outcome of a dependent Applicant's application for judicial review is to be determined by the outcome of the primary Applicant's application: see for example Applicant M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176 at [2]. The Respondent submits that this is the correct approach.
Following that submission, which unfortunately does not refer at all to the related Application of DTY17, the relief sought in relation to each of the related family Applications of DNC17, DND17 and DYT17 should be granted and re-determined by the Tribunal according to law.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 6 December 2018
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