DZADQ v Minister for Immigration
[2014] FCCA 85
•22 January 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DZADQ v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 85 |
| Catchwords: MIGRATION – Review of decision by the Refugee Review Tribunal – refusal of protection visa – whether decision affected by jurisdiction – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.424, 425 |
| SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 MZTOI v Minister for Immigration and Citizenship [2012] FCA 868 HTUN v Minister for Immigration and Multicultural Affairs [2001] 194 ALR 244 WAEE v Minister for Immigration and Multicultural Affairs [2004] FCAFC 184 Minister for Immigration and Citizenship v Khadgi [2010] at FCAFC 145 SZRLO v Minister for Immigration and Citizenship [2013] FCA 825 WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 |
| Applicant: | DZADQ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | DNG 43 of 2012 |
| Judgment of: | Judge Harland |
| Hearing date: | 26 September 2013 |
| Date of Last Submission: | 26 September 2013 |
| Delivered at: | Darwin |
| Delivered on: | 22 January 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Solomon-Bridge |
| Solicitors for the Applicant: | Piper's Barristers & Solicitors |
| Counsel for the Respondents: | Ms Newman |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNG 43 of 2012
| DZADQ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Pakistan. He is a Shia Muslim. He left Pakistan on 6 November 2011 and travelled to Indonesia. In December 2011 he boarded a boat headed for Australia. The boat was intercepted by the Australian Navy. The applicant submitted a statement of claim as a refugee on 1 May 2012.
The Delegate of the Department of Immigration & Border Protection (“the Department”) handed down his decision on 15 June 2012. The Delegate was not satisfied that the applicant was a refugee. The Refugee Review Tribunal affirmed the Delegate’s decision on 9 November 2012.
The applicant seeks orders as set out in the second further amended application filed without objection on 26 September 2013. Essentially he seeks that the decision of the Tribunal be set aside. He relied on three grounds:
Ground One
The Tribunal Member (“TM”) denied the applicant procedural fairness and did not comply with its statutory duties by failing to put the applicant on notice of certain issues which arose during the course of the review which were other than those considered dispositive by the delegate. The applicant complained about two issues in particular being:
i)Whether or not the applicant’s cousin was killed by a land mine in November 2010;
ii)Whether or not the applicant witnessed the attack on the village next to the applicant where 90 Shia people were killed.
Ground Two
The TM denied the applicant procedural fairness or committed an error of law or failed to discharge its duty of review by failing to consider an integer of the applicant’s claims and/or by failing to take into account relevant considerations. He complains that the TM did not consider the applicant’s claim of harm in Parachinar from where he originates.
Ground Three
The TM denied the applicant procedural fairness or committed an error of law or failed to discharge its duty of review by failing to consider an integer of the applicant’s claims and/or by failing to take into account relevant considerations and/or failed to have regard to matters it was required to have regard to. The applicant complains that the reviewer did not properly consider the country information about specific dangers in FATA and/or Shia.
The first respondent resists the application.
The second respondent filed a submitting appearance.
I have considered the evidence contained in the Court Book, the transcript of the proceedings before the second Respondent and the written and oral submissions made by the applicant and the first respondent.
The transcript of the hearing before the TM shows that through the hearing the TM raised concerns about inconsistencies in the applicant’s evidence at several points with respect to various issues. It is not apparent from reading the material that the two incidents referred to above were dispositive to the TM’s decision.
The Delegate’s decision
It is clear from reading the Delegate’s decision that the following issues were dispositive of his decision:
a)The claims about his father being threatened and targeted by the Taliban;
b)The applicant being targeted by the Taliban. The applicant referred to an incident as being an attempted kidnapping. The delegate found that it was much more likely that the applicant “almost became the victim of criminal activity and not a persecutory action for a Refugees Convention reason”;
c)The Hazara massacre of November 2010. Whilst the Delegate was satisfied the applicant witnessed the massacre he was not satisfied that the applicant subjectively feared harm as a result because he delayed applying for a passport for three months and delayed leaving the country for eight months.
The Delegate stated on page 8 of his decision that he was not satisfied that the applicant was a reliable witness but did not believe he had “sufficient grounds to impugn all his evidence”.
The Delegate rejected the applicant’s contention that his fears of harm included an imputed political opinion but accepted he has a fear of harm because of his religion. He then considered whether or not his fear was well-founded.
At page 15 of his decision the Delegate accepted as plausible that the applicant’s cousin was killed by a land mine but noted that he was an unintended victim. The delegate said: “He happened to step on a landmine planted by the extremists. As such, whilst the incident is a tragic result of the Sumni-Shia conflict, I do not find this to be of much significance to the applicant’s claim. I therefore do not propose to make a further finding on this claim.”
The Delegate accepted the applicant’s claim that he witnessed the aftermath of the massacre and that afterwards the family could not leave their village because of a Taliban blockade. He did not accept that the blockade was specifically directed at the applicant’s family.
The Delegate accepted that the applicant has a real chance of being targeted because of his religion if he returned to his home in Pakistan. He then considered the applicant would not have a real chance of being subjected to persecution if he relocated within Pakistan.
The Review Tribunal’s hearing and decision
The transcript shows that the TM commenced the proceedings on 24 September 2012 by telling the applicant that the Tribunal is independent from the Department and that she had to consider whether or not he satisfied the requirements for the grant of a protection visa. She did not comment on his credibility at that stage. She also noted that there were a few new claims being made in his written submissions which she received half an hour before the proceedings.
After questioning the applicant and giving him the opportunity to raise any issues he wanted to raise the TM adjourned the hearing because she received the applicant’s submissions late and had not had the opportunity of considering it fully.
The TM questioned the applicant about the following issues:
a)His studies and sitting for an exam. She pointed out inconsistencies in his statement and evidence about this at page 7;
b)The alleged 2010 attempted kidnapping;
c)His failure to mention alleged threats made to him by telephone in his original statement, the department interview and the written submission by his representative;
d)Where he was living the months before living Pakistan;
e)Whether or not there were other places in Pakistan he could relocate to.
The TM said at page 9 that she was happy for the applicant to inform her of anything he wanted to raise but not mentioning significant claims earlier may cause her to doubt that they are true.
Throughout her questioning of the applicant the TM pointed out inconsistencies and omissions which caused her concerns. She then warned him on page 18 of the transcript saying:
“I have raised some concerns with your evidence, how you make significant claims to the department, and these inconsistencies and difficulties with your evidence may lead me to doubt that you have been truthful with your evidence and may lead me to doubt you and your family have been threatened as claimed.
…
With the inconsistencies in your evidence I may not accept that either you or your family have been targeted in Pakistan either because of your religion or because your father is a high ranking official.”
The hearing continued on 28 September 2012. The applicant had the opportunity to comment on the inconsistencies the TM raised on the first day of hearing.
The TM again warned the applicant that her concerns about his truthfulness may lead her to doubt that he is the son of a high ranking official and that there is a real as opposed to a remote change that he will suffer serious harm if he returns to Pakistan because of his religion. She again raised concerns about the inconsistencies in his evidence about his father’s work arrangements. “It may lead me to doubt that you have been truthful in your evidence about your circumstances in Pakistan, your reasons for leaving and your claimed fear of harm if you were to return…” [See transcript page 2, 28 September 2012].
She then raised the inconsistencies in his evidence about the attempted kidnapping. She warned him that these inconsistencies may lead her to doubt that he is a witness of truth and she may not accept that there was an attempted kidnapping. “It may lead the tribunal to not accept that you have given a truthful account of your circumstances in Pakistan, your reasons for leaving or your fear of harm if you were to return.” (See page 3, transcript 28 September 2012.)
The TM informed the applicant that he would have a further opportunity to make written submissions.
The TM gave the applicant a similar warning on page 5 of the transcript for 28 September 2012.
It is clear from reading the decision of the TM that there were several inconsistencies in the applicant’s evidence which lead to her findings that he was not a person to whom Australia owes protection obligations and does not meet the refugee criterions.
The findings are not limited to the two issues raised in ground one of the review application. The findings of the applicant not being truthful include: (The paragraphs refer to the paragraphs [103], [108] - 113], [115] - [117], [121] and [122] - [123] in the TM’s decision.)
a)Not referring to a threatening phone call in his original application or written submission at paragraph [103];
b)Inconsistencies in his evidence about where he lived and for what periods at paragraph [106];
c)The attempted kidnapping at paragraph [108] - [113]. The TM said at paragraph [113] “it is significant and adverse to the applicant’s claims that he has given inconsistent details about the attempted kidnapping …”;
d)Inconsistencies in his evidence about his studies and sitting an exam at paragraph [115] - [117];
e)Inconsistencies in his evidence and details about his father’s work. At paragraph [121] the TM says “it is significant and adverse to the applicant’s claims that he has given inconsistent details about his father’s work;”
f)Inconsistent evidence about what happened to his father in February 2010 at paragraph [122] - [123].
Paragraph [127] of the TM’s decision reads as follows:
“The Tribunal does not accept that the explanations offered for so many significant and relevant omissions and inconsistencies explain them or are credible. Considered in the context of the claims and taking account of the applicant’s particular circumstances it is the Tribunal’s view that the omissions and inconsistencies can only be explained by the fact that the applicant is not being truthful and finds that he is not a witness of truth.”
At paragraph [129] the TM states that she does not accept that the applicant’s father was a high ranking official and that the father or his family were targeted or threatened by the Taliban. The Tribunal does not accept that the applicant heard or witnessed a Shia massacre.
At paragraph [131] the TM refers to the father’s cousin being killed by a landmine.
“Having formed a view as to the applicant’s credibility, the Tribunal does not accept that his father’s cousin was targeted or killed in that way, that it has any connection to the applicant or his family or that there is a real change that the applicant will face persecution on this basis if he were to return to Pakistan now or in the reasonably foreseeable future.”
It is clear that the TM was more damning of the applicant’s credibility than the delegate.
Ground One
The applicant argues that he had no notice of these two issues in his claim being in contention because the Delegate had accepted them. He argues that because these were accepted by the Delegate he was entitled to rely on these as being an accepted aspect of his case and if there was a change of position he was entitled to be put on notice of this.
The first respondent argues that these two issues were not dispositive and that the applicant has incorrectly elevated their importance.
The first respondent argues that the dispositive issue was its finding that the applicant was not a witness of truth. (See Court Book page 300 [27].)
Both parties referred to the High Court decision of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63.
It is clear that procedural fairness is concerned with the process of the hearing, not the outcome.
In this case the TM fulfilled its obligations under section 425(1) of the Migration Act 1958 (Cth) (“the Act”) to invite the applicant to appear and present arguments relating to the issues arising in relation to the decision under review. The TM also sought additional information and gave the applicant more than one opportunity to place further submissions before it. The issue is whether or not the TM was obliged to draw the applicant’s attention to the two specific issues because they were issues arising in relation to the Review.
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs the High Court said at paragraphs [35] and [36]:
“The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.”
In SZBEL’s case the TM did not challenge what the appellant said to it. It did not reveal what were the live issues for it. This is not what happened in the present case. The TM questioned the applicant about many aspects of his evidence and gave him several warnings.
At paragraphs [47] and [48] in SZBEL the High Court said:
“First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.”
Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry[24]:
"the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.”
The transcript of the hearing before the TM shows that through the hearing the TM raised concerns about inconsistencies in the Applicant’s evidence at several points with respect to various issues. It is not apparent from reading the material that the two incidents referred to above were dispositive to the TM’s decision.
I accept the first respondent’s submissions on this point. The applicant and his advisor were warned several times that the applicant’s credibility was in doubt such that he was put on notice that his entire account was in issue.
I do not accept the applicant’s submissions that the issues of whether or not the Applicant’s father’s cousin was killed by a landmine and whether or not the applicant witnessed a massacre in the village neighbouring the applicant’s were issues arising in relation to the review. It is clear that the Delegate did not see these issues as being dispositive. Nor did the TM. Whilst the Delegate found these events occurred he did not find that there was a link to the applicant’s claim. The fact that the TM went further in doubting the events took place at all is not is not determinative of her decision. It was just two examples of many which she gave which lead her to her conclusions. They were not material to the findings made by either the delegate or the TM. In those circumstances the TM was not required to give specific notice of those two issues.
The applicant referred to the decision of Dodds-Streeton J in MZTOI v Minister for Immigration and Citizenship [2012] FCA 868. That case was an appeal from a decision of an Independent Merits Reviewer which is a different type of hearing from the one the TM conducted. My attention was drawn to paragraphs [15] and [61]. It is not particularly helpful here as I do not find that the two issues were determinative. It was clear from the warnings and the detailed questioning by the TM that the applicant and his representative were on notice about lack of credibility on the issues I outlined at paragraph [28] of these reasons.
Ground One must fail.
Ground Two
The applicant did not make oral submissions about Ground Two. The complaint here is that the TM failed to consider what would happen to the applicant if he returned to his home village. The TM only considered his return to Peshawar. The applicant is from the Parachinar area. His domicile certificate refers to his residence in Kurram Agency. The applicant complains that the TM only considered the narrow issue of whether or not he would be targeted due to his religion if he returned to Peshawar and did not consider whether or not he could return to Parachinar.
The respondent argues that the applicant’s own case was that he did not intend to live in Parachinar, had no connections there and had not lived there since he was 3 years old. The applicant’s own documents refer to Peshawar as being the home of his village and where he lived from 2005 until he left Pakistan in 2011.
I accept the respondent’s submissions that the relevant city for consideration by the Tribunal is Peshawar. Therefore there was no error in not considering Parachinar.
The applicant referred to the decision of HTUN v Minister for Immigration and Multicultural Affairs [2001] 194 ALR 244 and WAEE v Minister for Immigration and Multicultural Affairs [2004] FCAFC 184. They have no application here as the Tribunal did not commit the error alleged by the applicant.
Ground Two must be dismissed.
Ground Three
Section 424(1) of the Act refers to the tribunal’s obligation to have regard to information it receives which is considers relevant. The applicant refers to Minister for Immigration and Citizenship v Khadgi [2010] at FCAFC 145 where Stone, Foster and Nicholas JJ stated at paragraph [57] that ‘to have regard to’ requires the decision-maker to engage in ‘an active intellectual process’.
At paragraph [59] the Court in Khadgi said:
“Similarly, a decision-maker does not take into account a consideration that he or she must take into account if he or she simply dismisses it as irrelevant. On the other hand, it does not follow that a decision-maker who genuinely considers a factor only to dismiss it as having no application or significance in the circumstances of the particular case will have committed an error. A decision-maker is entitled to be brief in his or her consideration of a matter which has little or no practical relevance to the circumstances of a particular case. A court would not necessarily infer from the failure of a decision-maker to expressly refer to such a matter in its reasons for decision that the matter had been overlooked. But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision: Elias v Commissioner of Taxation (2002) 123 FCR 499 at [62] (p 512) (per Hely J). Whether that inference should be drawn will depend on the circumstances of the particular case.”
The applicant took me to the case of SZRLO v Minister for Immigration and Citizenship [2013] FCA 825. The respondent argues that this single judge decision is inconsistent with Full Court and High Court authorities on this point.
In WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 the Full Court of the Federal Court said at paragraphs [46] and [47]:
“It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
The Delegate discussed the country information at length in his decision including footnotes of the material he referred to. The applicant complains that the TM only briefly refers to country information material and includes footnotes of material which was not referred to by the delegate. The applicant complains that the TM did not actively engage considering the information before the Delegate.
The first respondent argues that the TM need only refer to the country information in a sentence in its decision.
There is nothing in the TM’s decision to suggest that she disagreed with the country information referred to by the Delegate. At paragraph [18] of her decision she refers to the states that she has had regard to the Department’s file and the material referred to in the Delegate’s decision in addition to other material. It was not necessary for her to go through the information again in her decision. The fact that she referred additional country information in her footnote is indicative of her actively engaging in issue had to determine as required by the authorities.
Ground three must also be dismissed.
Costs
Both parties seek costs if they are successful. I will order the applicant to pay the respondent’s costs in accordance with the scale of $6,646.
I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 22 January 2014
11
8
2