Haidari v Minister for Immigration
[2009] FMCA 1178
•4 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HAIDARI v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1178 |
| MIGRATION – Orphan relative visa – application for judicial review – credibility findings – where documents less persuasive evidence – whether jurisdictional error. WITNESSES – Whether Tribunal ought to have called witness requested by applicant. WORDS AND PHRASES – “living circumstances”. |
| Migration Act 1958 (Cth), ss.65(1), 361, 426, 476 Migration Regulations 1994 (Cth), regs 1.14(a) and (b), Schedule 2, cl.117.211, 117.212, 117.221–117.228 |
| Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 Merriam-Webster’s Medical Dictionary (2002 Merriam-Webster, Inc.) |
| Applicant: | ALI HAIDARI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 84 of 2008 |
| Judgment of: | Lucev FM |
| Hearing dates: | 5 December 2008 & 3 December 2009 |
| Date of Last Submission: | 3 December 2009 |
| Delivered at: | Perth |
| Delivered on: | 4 December 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr H Christie |
| Solicitors for the Applicant: | Henry Christie |
| Counsel for the Respondents: | Mr R L Hooker |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be upheld.
That a Writ of Certiorari issue directing the Second Respondent to quash the decision made by it in relation to the Applicant and handed down on 29 April 2008.
That a Writ of Mandamus issue directing the Second Respondent to determine the Applicant’s application dated 12 December 2007 to the Second Respondent for review of the Delegate’s decision of 15 September 2007 according to law.
That a Writ of Prohibition issue directed to the First Respondent preventing the First Respondent from acting on the Delegate’s decision of 15 September 2007 to refuse a protection visa to the Applicant.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 84 of 2008
| ALI HAIDARI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application filed on 3 June 2008 seeking judicial review under s.476 of the Migration Act 1958 (Cth)[1] of the Migration Review Tribunal[2] decision[3] refusing orphan relative visas to the younger brothers of the applicant, Mr Haidari.
[1] “Migration Act”.
[2] “Tribunal”.
[3] “Tribunal Decision”.
Procedural history leading to the application
The Visa Applicants are Hazaras,[4] citizens of Afghanistan and have, at material times, been residing in Pakistan. They each made separate, but factually similar, applications for orphan relative visas on 11 September 2006.
[4] Hazaras are a Persian-speaking ethnic group, overwhelmingly Shia Muslims with a Sunni minority, living mainly in central Afghanistan, but also found in large numbers, principally as refugees, in Pakistan, especially in the city of Quetta, and Iran. See: en.wikipedia.org/wiki/Hazara_people.
On 15 September 2007 a delegate[5] of the first respondent[6] refused the applications because the Minister was not satisfied that the Visa Applicants were orphan relatives of Mr Haidari.[7]
[5] “Delegate”.
[6] “Minister”.
[7] “Delegate’s Decision”; Court Book (“CB”) 115-120.
Mr Haidari applied to the Tribunal for merits review of the Delegate’s Decision on 12 December 2007.[8] The application was heard on 1 April 2008. The Tribunal Decision affirming the decision of the Delegate’s Decision was signed on 8 April 2008 and delivered on 29 April 2008.[9]
[8] CB 126-133.
[9] CB 229-239.
Grounds of Application
The applicant’s Amended Grounds of Application contain two grounds which, broadly put, allege jurisdictional error by reason of the Tribunal:
a)ground one – failing to:
i)have regard to relevant considerations;
ii)understand its task; and
iii)make its decision according to law; and
b)ground two – acting contrary to s.361 of the Migration Act in not allowing Mr Haidari’s wife[10] to give evidence.
There is some over-lap between ground one and ground two in relation to the Tribunal allegedly not allowing Mrs Haidari to give evidence.
[10] “Mrs Haidari”.
The exact grounds are set out in full below.[11]
[11] See paras.41 (ground one) and 52 (ground two) below.
Background Facts
Mr Haidari was the review applicant in the application before the Tribunal and the sponsor of his three younger brothers Hafizullah, Hussain Bakhsh and Jamshad, who had made applications for orphan relative visas.[12] The Tribunal considered all three applications.
[12] “the Visa Applicants”.
The application for orphan relative visas was supported by a statutory declaration from Mr Haidari[13] to the effect that:
a)his (and therefore the Visa Applicants’) father was missing having been taken by the Taliban immediately before the applicant fled Afghanistan in 2001;[14]
b)he had made contact with his remaining family in 2004 by which time they were in Pakistan;
c)in September 2005 he had gone to Pakistan, and in October 2005 had married Mrs Haidari (as she now is), as arranged by his mother;
d)after the wedding Mrs Haidari commenced living with his mother and the Visa Applicants;
e)his mother died suddenly of high blood pressure and a heart condition on 15 December 2005; and
f)he had returned to Australia on 21 January 2006, leaving his wife to look after the Visa Applicants.[15]
[13] CB 51-54; “1 July 2006 Statutory Declaration”.
[14] CB 54; 1 July 2006 Statutory Declaration at para.36.
[15] CB 52; 1 July 2006 Statutory Declaration at paras.13-20.
The Court Book also contains Mr Haidari’s application for a protection visa in 2001 and a number of statutory declarations made by him dated 19 September 2001,[16] 14 February 2002[17] and a later but undated declaration made in support of a subsequent application for a permanent protection visa.[18] These declarations give considerably greater detail of the circumstances in which Mr Haidari’s father was taken by the Taliban and the traumatic events that caused him to flee Afghanistan. At the time of the undated declaration Mr Haidari had had no contact with his family and knew only that they had left the home village in Afghanistan. These three statutory declarations were provided to the Tribunal as they are specifically referred to as enclosures in a review letter dated 12 December 2007 accompanying the application for review.[19] Also provided to the Tribunal at this time was a further statutory declaration dated 7 December 2007.[20]
[16] CB 98-99.
[17] CB 100-101.
[18] CB 102-108.
[19] CB 123.
[20] CB 157-158; “7 December 2007 Statutory Declaration”.
In the 7 December 2007 Statutory Declaration Mr Haidari again refers to his mother passing away on 15 December 2005.
Documents in support of the death of the mother on 15 December 2005 as provided to the Department were:
a)a letter from the Hazara Graveyard Committee in Quetta, Balochistan,[21] dated 25 December 2005, which stated that the mother had died on 15 December 2005 and that she was buried in the Hazara Graveyard and her funeral documents were entered in the Graveyard Register;[22] and
[21] Quetta is the largest city and provincial capital of the Balochistan Province of Pakistan, and sits near the Pakistani border with Afghanistan. The city has a dominant Pashtun majority and a Hazara minority. See generally: en.wikipedia.org/wiki/Quetta.
[22] CB 42 and CB 138-139 (“Hazara Graveyard Committee Letter”).
b)three medical reports from the Alamdar Road Quetta based medical practitioner for the mother:[23]
[23] CB 43-45 and CB 135-137.
i)the first two reports dated respectively 15 March 2005 and 20 August 2005 are in the form of current clinical notes and with a medical prescription, which:
(A)both prescribe medications to be taken, or continue to be taken, by the mother;[24]
[24] CB 43-44 and 136-137.
(B)both set out the mother’s diagnosis as “Essential Hypertension” and “Ischemia”;[25]
[25] CB 43-44 and 136-137. “Ischemia” is localized tissue anemia due to obstruction of the inflow of arterial blood (as by the narrowing of arteries by spasm or disease): Merriam-Webster’s Medical Dictionary (2002 Merriam-Webster, Inc.).
(C)in the case of the 15 March 2005 clinical notes, observe that the mother is “already on treatment”;[26]
[26] CB 43 and 137.
(D)in the case of the 20 August 2005 clinical notes, observe that the mother is “on Co-Renitec already”;[27]
[27] CB 44.
(E)both contain the phrase “AVOID SALT & FATTY FOODS” (presumably advice given to the mother in light of her blood pressure and heart condition);[28] and
[28] CB 43-44 and 136-137.
(F)both set out details of her blood pressure and weight in a pre-printed part of the clinical notes form, providing for entries to be made for “BP” and “Weight” respectively;[29]
ii)the final report dated 19 February 2006 does not specifically state that the mother had died, however it says:
(A)that the mother “had been a case of” hypertension and ischemia;[30] and
(B)“was my patiant (sic)”,[31]
and, perhaps significantly, does not prescribe any medication or dietary advice.
[29] CB 43-44 and 136-137.
[30] CB 45 and 135.
[31] CB 45 and 135.
Other documents obtained or provided after the Delegate’s Decision were:
a)a certificate from the Afghanistan Consulate General in Quetta dated 23 November 2007 verifying that the mother died on 15 December 2005 “due to high blood pressure”;[32]
[32] CB 153.
b)the 7 December 2007 Statutory Declaration, which refers to the death of the mother on 15 December 2005 and his attempts to obtain further evidence of her death and further evidence that his father is missing;[33]
[33] CB 157-158.
c)a letter dated 2 March 2008 from the Visa Applicants’ school which says it “confirms that the Visa Applicants’ father was missing and their mother had “passed-away”;[34]
[34] CB 193.
d)a “Dead Certificate” from Sandeman Provincial Hospital in Quetta dated 8 March 2008:[35]
[35] “Hospital Dead Certificate”.
i)which says that the mother:
A.had been admitted to hospital with hypertension and ischemia which could not be controlled, and
B.she had died on 15 December 2005; and
ii)which:
A.appears to have been signed, indecipherably, in the lower left hand corner;[36] and
[36] CB 204 and CB 222.
B.appears to contain some foreign script, of which no translation appears to have been done.
e)an undated letter from Mohammad Hussain Jafari, who states that:
i)he is a friend of Mr Haidari and had visited Pakistan in 2005 and 2006 at the same time as Mr Haidari and saw him there;
ii)that because he and Mr Haidari “were close friends for a long time I know everything about his life”; and
iii)he knows that Mr Haidari’s father is missing and the mother has passed away;[37]
f)a letter dated 10 March 2008 from Mustafa son of Ali Yawar, a resident of Alamdar Road in Quetta, who states that he is a neighbour of the Visa Applicants, and visits the Visa Applicants “always” and that he knew that their father was missing and “that bad luckily their mother was passed-away”;[38] and
g)a letter (the date is not clear in the Court Book) from Fatima daughter of Mohammad Ali, a resident of Alamdar Road in Quetta, who states that when Mrs Haidari left for Australia, she (Fatima) took over the general care and supervision of the Visa Applicants and she received payment for their care and supervision from Mr Haidari.[39]
[37] CB 207.
[38] CB 210.
[39] CB 212.
Transcript and recording of Tribunal hearing
A transcript of the Tribunal hearing is in evidence.[40] To the extent that is possible the Tribunal Hearing Transcript has been corrected by Mr Haidari in his affidavit sworn 25 September 2008.[41] It is common ground that the Transcript is not complete because part of what was said at the Tribunal hearing is unintelligible on the recording.
[40] Affidavit of Arran Niall Gerrard, sworn 18 September 2008 (“Mr Gerrard’s 18 September 2008 Affidavit”), Annexure ANG 1 (“Tribunal Hearing Transcript”).
[41] “Mr Haidari’s 25 September 2008 Affidavit”.
A recording of the Tribunal hearing was attached to Mr Haidari’s 25 September 2008 Affidavit. The Court has listened to that recording. As with a reading of the Tribunal Hearing Transcript, the recording of the Tribunal hearing demonstrates that the Tribunal member lacked subtlety, but not robustness, in his approach at the Tribunal hearing.
Tribunal hearing – evidence and submissions concerning the alleged death of the mother
Mr Haidari was sworn to give evidence before the Tribunal.[42] After his questioning by the Tribunal member had been going for some little time the following exchange occurred:
[42] Tribunal Hearing Transcript, page 4.
MR [TRIBUNAL MEMBER]: You told me your mother died in 2005. I don’t have any issue with that. Okay? I think the department had asked you for some documentation. They actually sent the letter to your brothers. They don’t read English, they didn’t get a reply, they rejected it. The sort of information they were looking for you’ve provided to me. You’ve got a statement from the consulate in [Quetta],[43] the Afghan Consulate in [Quetta]. There was a statement from the graveyard that she was buried there. I’m not sure that there’s too much more you can provide me with. I take it your mother and your brothers aren’t, or weren’t ---
MR HAIDARI: I saw now recently, I asked for one, another, like, death certificate from the hospital, the (unintelligible) hospital where my mother passed away there, so ---
MR [TRIBUNAL MEMBER]: Your mother ---
MR HAIDARI: --- the (unintelligible) ---
MR [TRIBUNAL MEMBER]: Your mother wasn’t a Pakistani resident, was she?
MR HAIDARI: No.
MR [TRIBUNAL MEMBER]: No.
MR HAIDARI: I’m not sure if – she just come there. I’m not sure – she just come there. She was an Afghani (unintelligible) ---
MR [TRIBUNAL MEMBER]: Yes, I now there are lots of Afghanis in [Quetta].
[43] The Tribunal Hearing Transcript refers throughout to “Qatar”, but obviously that is meant to be “Quetta”, and has been amended accordingly.
MR HAIDARI: Yes.
MR [TRIBUNAL MEMBER]: I know that. I have had some experience. I was involved in dealing with a lot of the claims for refugee status that people like yourself made a few years ago, so I have a relatively good knowledge of what happened there. Okay? So I don’t have any doubt that your mother’s dead.
MR HAIDARI: Yes.[44]
[44] Tribunal Hearing Transcript, pages 7-8 (emphasis added).
A few minutes later the Tribunal member in the course of questioning concerning the applicant’s three younger brothers stated as follows:
MR [TRIBUNAL MEMBER]: Subsequently, your mother has died. You’ve provided us with some documents to prove that she’s dead, so in respect of all the criteria, your brothers satisfy that criteria so far.[45]
[45] Tribunal Hearing Transcript, page 9 (emphasis added).
Thus, by the time the following lengthy exchange took place – in the course of Mr Haidari giving his sworn evidence – the Tribunal member had either expressly or by implication, said on three occasions that the Tribunal accepted the fact that the mother had died, and referred to her once in the past tense.
The following exchange then occurred:
MR [TRIBUNAL MEMBER]: I don’t have any evidence that those passports are fake or forged or anything like that, so clearly the Afghan authorities think these are their dates of birth. I don’t have any reason not to accept that. Okay? I just need to ask you the questions. Now, were you in Pakistan when your mother died?
MR HAIDARI: No. I came here, I came here after some time of my mother dying. So when I was there, I was just (unintelligible) and stuff.
MR [TRIBUNAL MEMBER]: So when did you go to Pakistan?
MR HAIDARI: The first time that I went it was – I don’t know, it was 10 or 11 September 2005, and then I come.
MR [TRIBUNAL MEMBER]: When did you come back to Australia that time?
MR HAIDARI: I was there three months and then I come back. I’m not exactly sure about that. I have to look at in my passport.
MR [TRIBUNAL MEMBER]: Well, you tell me when did you come back? Did you come back in October, in November, in December, in January or February? Do you remember how long you stayed, maybe?
MR HAIDARI: I can’t – December, December, I come back. December 2005. December 2005, yes
MR [TRIBUNAL MEMBER]: Do you remember what date?
MR HAIDARI: Exactly, no, I don’t remember, but I have to look into my passport. There is a visa in there and things, but if you want, I can probably provide that ---
MR [TRIBUNAL MEMBER]: Well, do you have that there? Do you have your passport there with you?
MR HAIDARI: Not really.
MR [TRIBUNAL MEMBER]: Not?
MR HAIDARI: Nothing.
MR [TRIBUNAL MEMBER]: When you were given ---
MR HAIDARI: Because I’m not using this passport. I’m an Australian citizen now. That’s why my ---
MR [TRIBUNAL MEMBER]: All right. Okay. Fair enough. So your (unintelligible) travel document, you don’t have that with you now?
MR HAIDARI: Yes.
MR [TRIBUNAL MEMBER]: But you’re certain that you weren’t in Pakistan when your mother died?
MR HAIDARI: Yes.
MR [TRIBUNAL MEMBER]: All right. I’m just going to look at some of the documentation that Mr O’Neill[46] has sent me, just to verify all of that. So you weren’t at your mother’s funeral.
[46] Mr O’Neill was Mr Haidari’s migration agent.
MR HAIDARI: I was here. I just come here, so I just was some work there, so I couldn’t go there. Excuse me, just made a mistake. Now, I remember that. I’m sorry, I just remember that everything is – you say the bit about the funeral and everything. The things happened around – when my mother died, it was between 15 December, so after I come here I (unintelligible) then and another thing I did of my mother when I come back to Australia.
MR [TRIBUNAL MEMBER]: Sorry?
MR HAIDARI: I was at the funeral there. I remember now. I was there and everything.
MR [TRIBUNAL MEMBER]: Well, you’ve just changed your evidence. You have just changed your evidence completely.
MR HAIDARI: I’m not ---
MR [TRIBUNAL MEMBER]: You have completely changed your evidence.
MR HAIDARI: I just remembered, yes, too much under this she was already – after those things, I came here.
MR [TRIBUNAL MEMBER]: Well, if that’s true, why did you lie to me? Why did you tell me you weren’t there? If you were there ---
MR HAIDARI: I wasn’t – I said to you I’m not – I said to you I was not sure when I come back. I have to look at those things. I didn’t remember that. I didn’t remember that. I have to locate those things. I look ---
MR [TRIBUNAL MEMBER]: Well, I ---
MR HAIDARI: But when you said about the funeral, I remember my mother that – well, I was there when she passed away. I was there at the very end of it, but that - remember that now.
MR [TRIBUNAL MEMBER]: All right. Look, Mr Haidari, I will put it to you this way: the question I asked you was were you in Pakistan when your mother died. You emphatically said, “No”. You said you had come back to Australia and then she died. That’s what you told me at that stage. Very clearly, very clearly told me you were not in Pakistan when your mother died.
MR HAIDARI: I, I ---
MR [TRIBUNAL MEMBER]: I didn’t talk to you about funerals ---
MR HAIDARI: I didn’t ---
MR [TRIBUNAL MEMBER]: I didn’t even – let me finish, and then you’ll have the opportunity. At that stage, I hadn’t asked you when you went to Pakistan. I just asked you a very simpl[e] question: were you in Pakistan when you mother died. I hadn’t asked you about when you went or when you’d come back. A very simple question, but I would expect someone in your position to know the answer to absolutely spot on. If you were in Pakistan when you mother died, I’d expect you to say, “Yes”, and if you weren’t, I’d expect you to say, “No”. I wouldn’t expect you to say, “I don’t remember”. There are some things you don’t remember. If I asked you which restaurant did you eat at, you might not remember, and I accept that. If you were in Pakistan when your mother died, it’s something I expect you to remember without any failure, without any problem, and to give me one consistent answer. You want to comment on that?
MR HAIDARI: Sorry, sir, but (unintelligible) a lot of thing that I have to think about. That’s my – I apologise about that. That’s the correct things that I – now I’m sure, but I mean, I didn’t remember when I came here because I got here two times. Two times I was in Pakistan. The first time that I went there, after I remember my mother dying, passed away and after that I came here to Australia. The second time I also went here, I saw – I don’t know how I can explain to you, but I know this is a big thing I have to think, but I was not ---
MR [TRIBUNAL MEMBER]: All right, I’ll put it to you this way: you have given me directly contradictory evidence about whether you were in Pakistan ---
MR HAIDARI: No, I was in Pakistan, sir.
MR [TRIBUNAL MEMBER]: --- when your mother died/
MR HAIDARI: I remember now, I ---
MR [TRIBUNAL MEMBER]: Now, let me finish.
MR HAIDARI: I remember that now.
MR [TRIBUNAL MEMBER]: Let me finish. Okay? You have given me two completely different sets of evidence today. The first time you said, no, you weren’t. Now you say, yes, you were. You told me, “Yes”, after I started looking through the paperwork, which also told me you were there. Now, the fact that you’ve given me this contradictory evidence gives me some concern that you mother isn’t dead, and that you’re lying about it.
MR HAIDARI: I’m not, I’m not lying about it at all. My mother is passed away and she is not alive, but the thing that you ask me, it’s – I was not, I was not sure about that time when I came here and then what’s happened, and the thing that’s changed in my mind and I was not sure about that, and the correct thing that – I remember that when you talk about the funeral and that stuff, I remember that at the funeral, I was there. So this is the thing that when you talk, then I remember that I was there. The funeral and the stuff.
MR [TRIBUNAL MEMBER]: Look, as I said to you, I would expect you – I would expect you to have a very clear recollection, a very clear recollection about whether you were in Pakistan when your mother died.[47]
[47] Tribunal Hearing Transcript, pages 11-14 (emphasis added).
Similar exchanges between the Tribunal member and Mr Haidari, and then Mr O’Neill, continue on for several pages in the transcript. Further relevant passages include the following:
MR HAIDARI: The thing that I tell you, I’m not a very relaxed person. I’m thinking all the time about the brothers, I have a lot of problems that I – I’ve got a lot of other problems, and I travelled a long hard way to come here, to get here to have a protection visa, not a permanent visa to be Australian citizen, and then work here to look after this, my wife and brothers and stuff, you know. I’m not sure about the other thing that – to give you evidence and spot on evidence, so you don’t know about the problem. I rarely even – I eat sometimes until I think about my brother, and then I cannot feel the real taste of the food when I eat because I think about them, and I’m not sure about – I think about my father. I think about them and everything.[48]
[48] Tribunal Hearing Transcript, page 15 (emphasis added).
.....
MR [TRIBUNAL MEMBER]: I’ll tell you what, I’m going to go away now and I’m going to weigh all of that up. I don’t have any other questions to ask you. When I asked you if you were in Pakistan when your mother died, that was actually the last question I had to ask of you today, and I clearly got an answer I wasn’t expecting, and I’ve now have very directly contradictory evidence, and as I raised with you, it gives me – it raises a lot of concern with me about whether your mother is actually deceased or not.[49]
[49] Tribunal Hearing Transcript, page 15 (emphasis added).
…..
MR HAIDARI: You have to look at the real thing that I said to you, but that’s the correct thing that I’m telling you, now. I have to remember and I have to think about it, and then I – and it’s the same thing that I was telling you. I said to you I was not sure when I come back here. I said this in the ---
MR [TRIBUNAL MEMBER]: No, you didn’t. I take issue with that. No, you didn’t. You were very, very, very, very clear. You told me when I asked you if you were in Pakistan when you mother died, you said, “No”. You said you came here and then she died. I asked you when you went to Pakistan. You said you weren’t sure, and then you said it was either 10 or 11 September 2005. I asked you when you returned, and you said again, you weren’t quite sure. You eventually said you thought it was around December 2005, and then you said you needed to look at your passport. I accept all that. Right? Then I said to you, I asked you clearly, are you certain that you were not in Pakistan when your mother died, and you said, “Yes”.[50]
[50] Tribunal Hearing Transcript, pages 15-16 (emphasis added).
…..
MR [TRIBUNAL MEMBER]: As I said to you, Mr Haidari, there are a lot of things I understand you cannot give direct answers to sometimes, but the issue we’re discussing is something that I would expect any person in your position to be able to give me a very clear, concise and categoric answer, and not to change that answer from no to yes within the course of five minutes. I’m going to weight it all up. I don’t know where I’m going to go with the decision. Really, that’s the only issue that I have to decide.
…Your evidence here today has caused me some concern which I’m going to have to weigh up. I have some documents. I have one from the graveyard, one from the hospital from the doctor, I think it is, and one from the consulate in [Quetta], and then I have what you’ve told me today. I’ve got to weigh that up, and I’ll have to make a decision as to whether your mother is alive or not.[51]
[51] Tribunal Hearing Transcript, page 17 (emphasis added).
…..
MR [TRIBUNAL MEMBER]: If I am satisfied that she dead, then they will be entitled to a visa. Okay? That’s really the nub of the question, now. That’s where we’re at. Okay? All the other issues are very clear. It’s this particular issue that your evidence today causes me some significant concern about. Is there anything else you want to tell me today, because I don’t have any other questions.
MR HAIDARI: (unintelligible) then you accept that, but about this issue that I was in Pakistan or I just – just came here, the thing that you said about my burial and about the funeral, is not and I remember that, sir. I remember that I was there. I know that that’s a big issue, and I think that the first question that you asked me, and I just without, I mean, thinking and stuff I said to you, and after that I remember that. I remember that I was there for the burial and stuff, for the funeral. I was there, that you talked to me, and the thing that I said to you – there are other things I do not have to tell you, but I swear to God that I think my mother passed away.
My mother passed away and she is not alive.[52]
[52] Tribunal Hearing Transcript, page 18 (emphasis added).
…..
MR [TRIBUNAL MEMBER]: There’s one issue that’s at stake, and that’s an issue where the evidence was very, very, very, very directly contradictory and has caused me some concern.[53]
[53] Tribunal Hearing Transcript, page 19.
…..
MR [TRIBUNAL MEMBER]: Well, look, whatever it was, whatever it was, Mr O’Neill, as I said, I can’t read a person’s mind. All I can do is listen to what they tell me. Twice he told me very, very, very, clearly that he wasn’t in Pakistan when his mother died, and once he told me very, very clearly that he wasn’t at the funeral because he was here in Australia working. So that’s on three occasions he’s clearly told me that he wasn’t there when these events happened, and then as I was trying to frame my next question and flicking through the paperwork, that’s when he all of a sudden said, “No, no, no. I just remember. I remember when my mother died. I buried her, I was at the funeral and then I cam back to Australia”. That was the evidence I got. You can take the tape away, you can listen to it. If I’ve got in wrong, let me know. Okay?
MR O’NEILL: I’m not disagreeing ---
MR [TRIBUNAL MEMBER]: That’s how I have picked up the evidence today. I’ve taken very clear notes. I was listening intently. That’s how it happened.[54]
[54] Tribunal Hearing Transcript, pages 19-20 (emphasis added).
…..
MR [TRIBUNAL MEMBER]: As I said to you, this is the type of evidence that I would expect a very, very, very unequivocal, uncontradicted answer. It’s not something where I can accept that all of a sudden something might trigger a change or a memory. It’s the funeral of his mother that we’re talking about. It’s the death of his mother that we’re talking about. He was either in Pakistan, or he wasn’t. He can’t have it both ways. He’s told me he wasn’t, and then he’s told me he was.
MR O’NEILL: In a very short period, he did. You’re right, you’re correct ---
MR [TRIBUNAL MEMBER]: Well, I ---
MR O’NEILL: --- there’s no benefit either way. Either answer it ---
MR [TRIBUNAL MEMBER]: There’s extreme benefit, there is extreme benefit in consistency. There is extreme benefit in consistency.[55]
…..
MR [TRIBUNAL MEMBER]: Well, look, it’s directly contradictory. I’ve got to weigh it up against – as you say, there’s other evidence confirming what’s happened, stating what’s happened. I have to weigh it up. That’s my job. I have to now go and weigh up the paperwork that says one thing, and then I’ve got something of an official – real and official nature. The consulate in [Quetta] issued statements as ---
MR O’NEILL: It ---
MR [TRIBUNAL MEMBER]: --- it effectively witnesses peoples’ statements. The consulate in [Quetta] doesn’t tell us how it knows this person’s mother died. It tells us it witnesses the fact that this person is telling them she died. That’s what it says. That’s what the consulate does. The consulate’s not a body that issues death certificates. It’s operating in a foreign country. It doesn’t have the power to go out and examine deaths in Pakistan.[56]
…..
MR [TRIBUNAL MEMBER]: …The doctor’s documents don’t say the mother’s dead. Quite clearly, the doctor’s documents don’t say the mother is dead in any way, shape or form.[57]
[55] Tribunal Hearing Transcript, page 20 (emphasis added).
[56] Tribunal Hearing Transcript, page 21.
[57] Tribunal Hearing Transcript, page 22.
Tribunal hearing – a request for Mrs Haidari to give evidence
Mr Haidari argues that a request was made for Mrs Haidari to give evidence to confirm her knowledge of the mother’s death.
Mr Haidari had already stated in his statutory declaration that Mrs Haidari was living with Mr Haidari, his mother and the Visa Applicants at the time the mother was alleged to have died.[58]
[58] CB 52.
Mr Haidari, through his agent, had sent a Response to Hearing Invitation to the Tribunal on 10 March 2008. There was no request for the Tribunal to take oral evidence from any other person.[59] A letter sent to the Tribunal on 19 March 2008 requested that Mrs Haidari “be allowed to answer any questions at the Tribunal hearing that the Tribunal member considers important”. It said that Mrs Haidari “now believes that she can provide further evidence of the living circumstances of the Orphan Children on this visa application.”[60] A file note records that Mr Haidari’s representative “called to check if it was okay for wife to attend hearing today and provide evidence”. The Tribunal officer “advised rep that should be fine for wife to attend and give evidence although the Member will decide if this required.”[61]
[59] CB 172.
[60] CB 173 (emphasis added).
[61] CB 175.
Mr Haidari’s 21 August 2008 Affidavit purports to set out the events that occurred at the Tribunal hearing, but the Court has not had any regard to the relevant portions thereof,[62] as it adds nothing to the factual account evident from the relevant portions of the Tribunal Hearing Transcript set out below, and otherwise offers not facts but after the event rationalisations of why certain matters were put to the Tribunal in the way that they were during the Tribunal hearing.
[62] Mr Haidari’s 21 August 2008 Affidavit, paras.3 and 5.
The Tribunal Hearing Transcript records the following initial exchanges concerning the giving of evidence by Mrs Haidari:
MR [TRIBUNAL MEMBER]: We have with us in the room Mr O’Neill, your adviser. Welcome to you sir.
MR O’NEILL: Thank you, sir.
MR [TRIBUNAL MEMBER]: And we also have your wife, Mrs Haidari. Welcome to you, and your child is there as well, your baby child. Now, I’ll go through some preliminaries, but just to flag to you that I don’t really see any need for your wife to give evidence today. I don’t know, of course, what you want her to tell me, but I accept she’s your wife, I accept she has been living in Pakistan with your brothers for some time, and I obviously accept that she’s here now. I only have a small number of questions to ask you today anyway. I’m happy to hear from your wife if you think it’s necessary for me to do so, but ---
MR HAIDARI: I did not understand exactly what you said, sorry ---
MR [TRIBUNAL MEMBER]: Okay.
MR HAIDARI: --- about my wife.
MR [TRIBUNAL MEMBER]: If you want me to hear from her today, if you want me to take evidence from her, I’m happy to do so.
MR HAIDARI: Okay.
MR [TRIBUNAL MEMBER]: But I don’t have any questions of her and I’m not sure really what she will add to what we have to talk about today.
MR HAIDARI: Okay. The thing that I want her just to give evidence is okay then, yes?
MR [TRIBUNAL MEMBER]: All right, but you can tell me what you want her to tell me. What is it that you want her to tell me specifically?
MR HAIDARI: I just come here today and I have, you know, my three brothers, young brothers, are over in Pakistan and they (unintelligible) there, and I am living here and my wife also here, and they are over there and look after things, and I support their living over there, and I put in an application like when I have go to court and it was rejected, and that’s why I come here today ---
MR [TRIBUNAL MEMBER]: Yes.
MR HAIDARI: ---to ask for your help
MR [TRIBUNAL MEMBER]: I know that. I mean, that’s what I want to talk to you about today. I think it will be easiest if you and I just speak about it. Your wife can stay in the room whilst we speak, okay?
MR O’NEILL: (unintelligible).
MR HAIDARI: Okay (unintelligible).
MR O’NEILL: But she can stay here (unintelligible).
MR HAIDARI: Okay.
MR [TRIBUNAL MEMBER]: All right. You understand that?
MR HAIDARI: Yes.”[63]
[63] Tribunal Hearing Transcript, pages 2-4.
The Tribunal Hearing Transcript records the following exchange towards the end of the Tribunal hearing concerning the giving of evidence by Mrs Haidari:
MR O’NEILL: (unintelligible) and my other point was going to be clearly, you do have other evidence there which is stating one part which is what he’s saying now. There was some voluntary change in evidence. You also have a baby here who, obviously being in that situation and I now its (unintelligible) any questions for, but I wondered if you had an opportunity to question him, whether he was (unintelligible)---
MR [TRIBUNAL MEMBER]: I don’t – my issue here is the directly contradictory evidence from this review applicant.[64]
[64] Tribunal Hearing Transcript, pages 20-21.
In Mr Haidari’s 25 September 2008 Affidavit he says as follows:
3.I believe that the Transcript does not accurately record the passage where my agent Mr O’Neill requested that my wife give evidence. This is the paragraph at the bottom of Page 20 and at the top of Page 21 of the Transcript.
4.I believe that the Transcript of this Paragraph should read as follows:
“Mr O’Neill: My other point was going to be; clearly you do have other evidence there, which he is stating – one part of which is what he is stating now. There was some voluntary change of opinion. You also have a lady here who obviously lived in that situation, I know at the start you did not have any questions for her, I wondered if, if you had an opportunity to question him (her?) whether …..(unintelligible)”
5.In the context of the Transcript and of my recollection of the Hearing, the reference by Mr O’Neill to “he” in the above paragraph is a reference to myself. The reference by Mr O’Neill to “a lady” in the above paragraph was to my wife, who was sitting beside me and who the Tribunal Member had at the commencement of the Hearing indicated that he did not need to question. My recollection of the Hearing is that it was at the passage set out above that Mr O’Neill requested that my wife be questioned by the Tribunal and thereby give evidence to the Tribunal. As I have previously stated, my wife was living with my mother at the time my mother died.”[65]
[65] Mr Haidari’s 25 September 2008 Affidavit, paras.3-5.
The Tribunal member in discussing the issue of the mother’s death with Mr Haidari said:
“… that’s the one issue I now need to still determine. Okay? Which is what I’m going to do when I go away from the hearing. I’ll look at all the evidence”[66]
[66] Tribunal Hearing Transcript, page 19.
Tribunal Decision
On 8 April 2008 the Tribunal affirmed the Delegate’s Decision to refuse the orphan relative visa applications.
The Tribunal made the following findings of fact which are not contentious in this application:
a)the Visa applicants were each under 18 at the time of the application (although the eldest has since turned 18), and, therefore the Visa Applicants met the requirements of regulation 1.14(a)(i) of the Migration Regulations 1994 (Cth);[67]
b)the Visa Applicants did not have spouses and therefore met the requirements of regulation 1.14(a)(ii) of the Migration Regulations;[68]
c)the Visa Applicants are the brothers of Mr Haidari, who is an Australian citizen for the purposes of regulation 1.14 generally, and specifically under sub-regulation (a)(iii) of the Migration Regulations;[69] and
d)the evidence led to a conclusion that the Visa Applicants’ father was either dead or of unknown whereabouts. Accordingly, it was found that the Visa Applicants could not be cared for by their father because he is either dead or of unknown whereabouts, in partial satisfaction of reg.1.14(b) of the Migration Regulations.[70]
[67] CB 237; “Migration Regulations”.
[68] CB 237.
[69] CB 237.
[70] CB 237-238.
The Tribunal summarised the evidence given by Mr Haidari relevant to the claim that the mother died in 2005.[71] The Tribunal observed that Mr Haidari had given directly contradictory evidence about whether he was in Pakistan at the time of his mother’s claimed death and funeral, which gave rise to serious concerns about whether the mother was actually deceased as claimed. Although Mr Haidari gave an explanation for the discrepancies in his evidence, the Tribunal did not accept that explanation and found that Mr Haidari was not a witness of truth in relation to the claims concerning the mother’s death and that his evidence lacked credibility.[72]
[71] CB 235, 236 and 238.
[72] CB 238.
The Tribunal considered documentary evidence provided in support of the claim that the mother had died on 15 December 2005. Specifically the Tribunal considered:
a)clinical notes provided from the mother’s treating doctor,[73] on which the Tribunal placed no weight in the absence of any statement in them that the mother was deceased as claimed;
b)statements made by “Mustafa, son of Ali Yawara”[74] and “Mohammad Hussain Jafari”[75] on which the Tribunal placed no weight in the absence of any direct account or surrounding explanation of how they came to their assertion that the mother was deceased;
c)the Hospital Dead Certificate,[76] on which the Tribunal placed no weight because the statement did not appear to the Tribunal to be signed and also because it was partly typed and partly handwritten with no explanation for this, nor any explanation as to who wrote the statement and how the person came to know that the mother was deceased; and
d)statements from the Hazara Graveyard Committee[77] and the Afghan Consulate General in Quetta, Pakistan[78] on which the Tribunal placed some weight, and which the Tribunal regarded as persuasive evidence in relation to the alleged death of the mother.[79]
[73] CB 135-137.
[74] CB 210.
[75] CB 207.
[76] CB 204.
[77] CB 138.
[78] CB 153.
[79] CB 233-234 and 238.
The Tribunal however found that the directly contradictory oral evidence from Mr Haidari about whether he was in Pakistan when the mother died and whether he attended her funeral in Pakistan outweighed the statements from the Hazara Graveyard Committee and the Afghan Consulate General. On the totality of the evidence before it, the Tribunal was not satisfied that the mother was deceased as claimed. There being no evidence to indicate that the mother was incapacitated in any way, or that her whereabouts were unknown, the Tribunal found that the requirements of reg.1.14(b) of the Migration Regulations remained unsatisfied.
Statutory provisions – orphan relative visa
The Migration Act and Migration Regulations provide for child (migrant) (Class AH) visas of certain subclasses. The only subclass in respect of which any claims have been advanced is subclass 117 (orphan relative).
The criteria for a subclass 117 visa are set out in part 117 of Schedule 2 to the Migration Regulations. By cl.117.211, the primary criteria requires that, at the time of application, the visa applicant is either an “orphan relative” of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen or a person who is not an orphan relative only because the applicant has been adopted by an Australian relative.
The term “orphan relative” was defined in reg.1.14 of the Migration Regulations, at the relevant time, as follows:
1.14 Orphan relative
An applicant for a visa is an orphan relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if:
(a)the applicant
(i) has not turned 18; and
(ii) does not have a spouse; and
(iii) is a relative of that other person; and
(b)the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts; and
(c)there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant.
The application of reg.1.14(b) of the Migration Regulations was critical to the determination on merits review by the Tribunal. In applying that definition to the facts as found by it, the Tribunal was not satisfied that the mother was, in fact, dead.
Statutory provisions – witnesses
Section 361 of the Migration Act provides as follows:
Applicant may request Tribunal to call witness and obtain written material
(1) In the notice under section 360A, the Tribunal shall notify the applicant:
(a) that he or she is invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review; and
(b) of the effect of subsections (2) and (2A) of this section.
(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(2A) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain:
(a) written evidence from a person or persons named in the notice; or
(b) other written material relating to the issues arising in relation to the decision under review.
(3) If the Tribunal is notified by an applicant under subsection (2) or (2A), the Tribunal must have regard to the applicant's notice but is not required to comply with it.
(4) This section does not apply to the review of a decision covered by subsection 338(4).
Jurisdictional error
A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error.[80] An error by an administrative tribunal, such as the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[81]
[80] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[81] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ.
It is for an applicant to advance whatever evidence or argument he wishes to advance in support of a contention of having a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.[82]
[82] Abebe v Commonwealth (1999) 197 CLR 510 at 576 per Gummow and Hayne JJ; [1999] HCA 14 at para.187 per Gummow and Hayne JJ; SZDJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 214 at para.11 per Jacobson J.
Section 65(1) of the Migration Act requires the Tribunal to refuse the Appellant's application for a visa in circumstances where the Tribunal is not affirmatively satisfied that the facts required to be established to satisfy the criteria for the grant of the visa have been established.[83]
[83] SZGZQ v Minister for Immigration and Multicultural Affairs [2007] FCA 62 at paras.13-14 per Greenwood J; SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at para.15 per Ryan, Jacobson and Lander JJ; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at para.17 per Black CJ, Sundberg and Bennett JJ; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
Ground one
Ground one of the amended grounds of application is as follows:
1. GROUND ONE: The Tribunal failed to have regard to relevant considerations, to understand its task and to make its decision according to law. It thereby made a jurisdictional error and its decision was void when it determined that it was not satisfied that the Applicant’s mother had died and that there was no evidence that she was incapacitated or her whereabouts were unknown and that the visa applicants thereby did not qualify for orphan visas.
2. Particulars:
3. The Tribunal accepted that it had credible and persuasive written evidence that the Review Applicant’s mother had died, but held that the Applicant’s oral evidence before the Tribunal where the Applicant had contradicted himself lacked credibility and that he was not a witness of truth. The Tribunal then relied on the fact that the Applicant’s evidence lacked credibility to outweigh the evidence that the Tribunal otherwise considered persuasive.
4. The Tribunal failed to have regard to a hospital report that stated that the Applicant’s mother had died on the basis that the report was unsigned, when in fact the report was signed.
5. The Tribunal failed to place any weight on 2 further written statements that the Applicant’s mother was dead on the basis that they did not state the source of their knowledge.
6. The Tribunal failed to have regard to evidence that the 3 principal visa applicants were being looked after by a neighbour as evidence in support of the claim that the Applicant’s mother was dead or incapacitated or of unknown whereabouts and therefore could not look after the visa applicants.
7. The Tribunal refused to take evidence from the Applicant’s wife who was present at the hearing and who had personal knowledge of the Applicant’s mother’s death and who had stated that she could confirm the Applicant’s evidence.
Consideration of ground one
Mr Haidari made the following submissions on ground one:
a)the crucial issue that the Tribunal was ultimately required to determine, in determining whether the Visa Applicants were orphan relatives, was whether the mother was dead, was of unknown whereabouts or was incapacitated from caring for the Visa Applicants;
b)that there was considerable evidence, both direct and indirect, that the mother had died;
c)against the evidence of the death of the mother, some of which the Tribunal accepted as persuasive, was the fact that at the hearing the Tribunal noted that Mr Haidari had stated twice that he was in Australia when his mother died and had repeated that he was in Australia when asked if he had attended his mother’s funeral, which he then corrected and said that he was in Pakistan for his mother’s death and funeral, this being consistent with his previous statutory declarations and his dates of travel;
d)the Tribunal made no finding that the Certificates of the Hazara Graveyard Committee or the Afghan Consulate documents were false or fraudulent, merely finding that in relation to Mr Haidari’s claims whether or not he was in Pakistan at the time of his mother’s death and whether he attended her funeral that he was not a witness of truth and that his evidence lacked credibility;
e)where a witness’ evidence lacks credibility the Tribunal is entitled to disregard it and not place reliance on it. However where there is other evidence, which is persuasive, that evidence should in the normal course be relied upon, unless the Tribunal concludes that that evidence is fabricated;
f)in relation to the Tribunal’s Guidelines on the Assessment of Credibility:
i)they in particular note that anxiety and past traumatic events can impinge on an applicant’s ability to give evidence;
ii)there is no indication in the Tribunal Decision as to whether or not the Tribunal had regard to the guidelines, as it was bound to do; and
iii)a failure to follow the guidelines may be both a breach of natural justice and also a failure to have regard to relevant considerations;
g)the documents, which the Tribunal found were persuasive, were not merely corroborative evidence. They established, if accepted to be true, that the mother had died on 15 December 2005 and was buried in the Hazara Graveyard. This was not a case where the unreliable evidence of Mr Haidari could not be saved by other persuasive evidence. The documentary evidence accepted by the Tribunal as persuasive (along with other evidence as to identity which was not in dispute) was by itself sufficient to establish the death of the mother;
h)the Tribunal found that Mr Haidari’s evidence at the hearing was inconsistent in that he had given evidence contrary to his prior written statements and then reverted to his original position as to whether he was in Australia or in Pakistan at the time of his mother’s death;
i)the task for the Tribunal, properly understood, was whether the inconsistencies:
i)were temporary mistakes made under the pressure of giving evidence in the stressful situation which caused Mr Haidari to have a temporary mental blank and to misstate the true position;
ii)were such as to make the evidence unreliable and therefore not credible (i.e. unworthy of belief in itself) and therefore could not be relied upon by the Tribunal; or
iii)went further than this and undermined otherwise credible and persuasive evidence which on its face was unconnected to Mr Haidari;
j)the Tribunal as the ultimate fact-finding body could have found that the material was tainted by Mr Haidari’s evidence and should be rejected on that account. However the Tribunal did not express itself in those terms. The documents were not found to be contrived or fake consequent on disbelief of the oral evidence. If that were the case the Tribunal was required to have stated that fact; and
k)the Tribunal was left with evidence from Mr Haidari which, because of its inconsistencies, the Tribunal treated as not credible and the documentary material which the Tribunal considered to be persuasive. In dismissing the application for review and therefore the Visa Applicant’s application in the face of this persuasive evidence and without rejecting such evidence as being untrue shows that the Tribunal misunderstood its task in assessing the material and making its determination. There is no jurisdictional foundation for the decision.
The Minister made the following submissions on ground one:
a)the Tribunal’s approach to the assessment of Mr Haidari’s evidence and the documentation before it was one it was fairly entitled to undertake;
b)the balancing of its findings concerning the credibility of Mr Haidari and the weight it attributed to the documentation was a fact-finding task within its jurisdiction;
c)any grievance as to the Tribunal’s conclusion, or as to the weight attributed to any particular document or piece of oral evidence, or as to its conclusion concerning the requirements of reg 1.14(b) of the Migration Regulations, is a grievance as to the merits of the Tribunal Decision;
d)a ground of judicial review concerning a failure to have regard to relevant considerations requires demonstration of a consideration that the decision-maker is bound to take account of. Where a statute is silent as to considerations which must be taken into account, it will be necessary to determine which considerations are impliedly specified by the statute. That task will require regard to be had to the subject matter, scope and purpose of the legislation;
e)findings of fact, findings in relation to credibility, and the allocation of weight to the evidence before it are matters for the Tribunal;
f)where an applicant's claims suffer from a lack of credibility, those findings are likely to negate allegedly corroborative material;
g)nothing in the particulars to ground one, or the Tribunal’s process of reasoning, discloses that the Tribunal failed to have regard to relevant considerations or misunderstood its task as requiring a genuine review of the merits of the Delegate’s Decision. Merely to take a particular view regarding certain aspects of the evidence of factual material on review, and thereby to reason to a conclusion on credibility, does not constitute error, let alone jurisdictional error.
The submission that the Tribunal did not have regard to its own Guidelines on the Assessment of Credibility cannot be sustained. The Tribunal took into account in making its decision the nature of the events in issue, some past difficult and traumatic events, the natural nervousness of witnesses and the fact of their often imperfect recall.[84]
[84] CB 236 and 238.
Initially the Tribunal member took the view that there was no doubt that Mr Haidari’s mother was dead. Nevertheless, the Tribunal member asked Mr Haidari whether he was in Pakistan when his mother died. Mr Haidari’s reply was:
No. I came here. I came here after some time of my mother dying. So when I was there …
The Tribunal member would, later in the Tribunal hearing, focus on the “No” part of Mr Haidari’s answer, neglecting what was subsequently and immediately said as part of the same answer, from which it could be inferred that he was actually in Pakistan at the time of his mother’s death. However, Mr Haidari would then subsequently reiterate, not once, but twice, that he was not in Pakistan at the time of his mother’s death or funeral, before changing his evidence to say (as he had prior to the Tribunal hearing) that he was in Pakistan at the time of his mother’s death and funeral. Notwithstanding the Tribunal member’s less than subtle approach during the Tribunal hearing to Mr Haidari’s difficult and self-imposed dilemma, there can be no doubt that an evidentiary foundation existed for the Tribunal to make adverse findings about Mr Haidari’s credit and truthfulness in relation to whether he was in Pakistan at the time of this mother’s death and whether he attended her funeral.[85]
[85] CB 238.
In this case the Tribunal came to conclusions concerning Mr Haidari’s credibility on the basis of his oral evidence, which it found, as it was entitled to do, was “directly contradictory”.[86] The various documents to which the Tribunal did refer were weighed up, and notwithstanding that there was no finding of fraud or forgery in respect of any of those documents, the Tribunal considered them to be less persuasive in assessing the fundamental issue (whether Mrs Haidari was dead) than its conclusions drawn from the directly contradictory evidence of Mr Haidari on that issue.
[86] CB 238.
Assessments of weight to be given to particular evidence, and the rationalisation of incongruities in that evidence, especially as between oral and documentary evidence, are manifestly matters for the Tribunal. In Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002[87] it was said that:
In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.[88]
[87] (2003) 77 ALJR 1165; [2003] HCA 30 (“S20/2002”).
[88] S20/2002 ALJR at 1174 per McHugh and Gummow JJ; HCA at para.49 per McHugh and Gummow JJ. See also WAKK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 225 at paras.70-71 per Marshall, Mansfield and Siopis JJ; WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 at paras.35-36 per French J.
In the circumstances, there is nothing in ground one generally related to the approach of the Tribunal’s assessment of the credibility of Mr Haidari which constitutes jurisdictional error.
With respect to the other “particularised” grounds of ground one, the Court finds as follows:
a)the Tribunal placed no weight on the Hospital Dead Certificate. It did so for a number of reasons, but including the fact that although it was headed “Dead Certificate” it contained “no details … as to who actually wrote the statement or how that person came to know that the mother was actually deceased.”[89] Those parts of the Dead Certificate which are not written in English, and which might have disclosed more detail in relation to its author, purpose and authenticity, were not translated, or at least a translated version was not provided to the Tribunal. In those circumstances, the Tribunal had little choice but to give that document no weight;
b)the Tribunal also placed no weight on the statements made by “Mustafa son of Ali Yawar” or by Mohammad Hussain Jafari concerning the mother’s death because neither of them stated how they came to know that the mother was deceased, whether they were present in Pakistan at the time of her death, or how they knew that she was deceased and whether it was from their personal knowledge or by other means.[90] The letters were relevant matters to be considered by the Tribunal, but the weight to be given to them was exclusively a matter for the Tribunal.[91] Having regard to Mustafa’s assertion that he was “a neighbour” of Mr Haidari’s brothers in Quetta, others might have placed some weight on his assertion of the death of a neighbour. However, as indicated above, that was a matter for the Tribunal. Therefore, the Tribunal’s reasons disclosed no error in failing to place any weight on the letters from Mustafa and Mohammad Hussain Jafari;
c)the Tribunal referred to Mr Haidari’s evidence that the Visa Applicants were being looked after in Pakistan by a lady called Fatima,[92] however it did not consider this evidence in any way and made no mention of it in its “Findings and Reasons”.[93] This was relevant material which ought to have been considered by the Tribunal. If the Tribunal had had regard to this evidence it may have treated it in the same way as the other “corroborating” documentary evidence. Alternatively, and relevantly, the Tribunal may have asked itself why the Visa Applicants were being cared for by a lady who lived in their street to whom Mr Haidari made monthly remittances. Answers to that question might have included that it was because the mother was:
i)dead,
ii)of unknown whereabouts; or
iii)incapacitated.
To that extent the material concerning Fatima and the living and caring arrangements for the Visa Applicants was relevant material which was simply not considered by the Tribunal. Although it might be thought unlikely, given the Tribunal’s disposition of the other matters it considered, it remains a possibility that had the Tribunal considered this material it might have given it some weight. That weight might still have led it to find that the mother was not dead, but even then two other possibilities (unknown whereabouts and incapacitation) remained open as possible findings which, if made, might have resulted in the grant of an orphan relative visa to the Visa Applicants. In those circumstances, the failure to consider the material concerning Fatima and the living and caring arrangements for the Visa Applicants constitutes jurisdictional error.
[89] CB 238.
[90] CB 238.
[91] Minister for Immigration and Multicultural Affairs v Singh and Others (2000) 98 FCR 469 at 474 and 480-481 per Black CJ, Kiefel, Sundberg, Katz and Hely JJ; [2000] FCA 845 at paras.12 and 46 per Black CJ, Kiefel, Sundberg and Katz JJ; VBAM of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 504 at para.47 per Gray J (“VBAM”).
[92] CB 234.
[93] CB 236-239.
The Court has not considered particular 7 of ground one under ground one as it sits more comfortably, in the Court’s view, with ground two.
Ground two
Ground two of the amended grounds of application is as follows:
Ground 2 The Tribunal in not allowing the request made by the Applicant through his representative for the Applicant’s wife to give evidence failed to have regard to the Applicant’s notice that the Applicant’s wife give evidence contrary to Section 361.
As indicated above under this ground the Court will also consider particular 7 of ground one.
Consideration of ground two
Mr Haidari argues that the request for Mrs Haidari to give evidence was not allowed by the Tribunal apparently without consideration and without regard to Mr Haidari’s wishes.
The applicant argues that:
a)the Tribunal initially decided that Mrs Haidari’s evidence was not necessary because the evidence was not in dispute, that is there was no doubt as to the mother’s death;
b)when the situation changed and the Tribunal reached the view that Mr Haidari’s evidence was inconsistent and lacked, or might lack, credibility the Tribunal was bound under s.361 of the Migration Act to have regard to the request made (thereby reactivating the original notice) to have Mrs Haidari give evidence, the circumstances having changed and the Tribunal’s initial reasons for concluding that there was no need for Mrs Haidari to give evidence being no longer applicable;
c)the Tribunal did not have regard to Mr Haidari’s request at the hearing, or in the Tribunal Decision. The Tribunal thereby failed to comply with the procedures required under the Migration Act;
d)the Tribunal’s failure to accede to the request by Mr Haidari to call Mrs Haidari as a further witness who could give direct and relevant evidence of the key issue that Mr Haidari’s mother had died was not merely a breach of natural justice but rather demonstrated that the Tribunal had a false appreciation of its task, and the failure was therefore within Ground 1 as well as within Ground 2;
e)the failure to respond to and to grant the request for Mrs Haidari to answer questions in relation to the issue in dispute, namely whether the mother had died also comes within ground one of the review, because the Tribunal deprived itself of the opportunity to consider relevant evidence having the capacity to corroborate the appellant's claims in a material respect;
f)the Tribunal’s response that: “my issue is the directly contradictory evidence from the review applicant” was based on the misconception of what the Tribunal had to decide, which was not whether Mr Haidari had given contradictory evidence, but the ultimate issue, which involved one of the criteria of the orphan relative application, namely whether the mother was dead (and, it might be added, if she were not dead whether her whereabouts were unknown or she was incapacitated);
g)the evidence of Mrs Haidari was highly relevant to the ultimate issue because:
i)Mr Haidari gave evidence that his wife was with the mother when she died; and
ii)therefore Mrs Haidari arguably had firsthand knowledge of the mother’s death, and she could give direct and relevant evidence that the mother had died;
h)the Tribunal’s response was an immediate refusal, apparently without any consideration;
i)ground two must also be considered in the context of the course of the actual hearing, namely, that the only issue that was exercising the Tribunal’s mind was the issue as to Mr Haidari’s inconsistencies concerning whether he was in Australia or Pakistan at the time of the mother’s death and funeral, and in that context there was clearly a request[94] for Mrs Haidari, who was living with the mother at the time that she died, to give evidence, in the sense of being questioned by the Tribunal in relation to the issue in dispute, because that is the process the Tribunal follows. There could be no other reason for the request. It was the only issue in dispute.[95]
[94] Tribunal Hearing Transcript, pages 20-21.
[95] Shortly before handing down judgment the Court raised with the parties whether or not the Tribunal had considered Mr Haidari’s travel documents (titre de voyage at CB 64-67) in relation to this issue. Mr Haidari’s Counsel was of the view that the Tribunal’s reasons showed that this material had been considered. There was no demur from that proposition by the Minister’s Counsel. The matter therefore went no further.
The Minister argues that:
a)although Mr Haidari said that he wanted Mrs Haidari to give evidence, he was unable to point to anything she could say on oath material to the issues;[96]
b)taken at its highest, Mr Haidari’s agent merely asked again whether the Tribunal member had any questions for Mrs Haidari;
c)there was no request for Mrs Haidari to give evidence, nor any indication of what Mrs Haidari might say or how it might be relevant to the review; and
d)it constitutes no error for the Tribunal, when asked if it had any questions for Mrs Haidari, to respond that it did not have any such questions.
[96] Tribunal Hearing Transcript, page 3.
The evidence indicates that when the request for Mrs Haidari to give evidence was first made it was for her to give evidence “of the living circumstances” of the Visa Applicants.
The “living circumstances” of children (here the Visa Applicants) must include with whom they live, and particularly whether they live with their parents, or not, and if not, why, including whether it is because the parents are dead, or their whereabouts unknown. The “living circumstances” of children include who cares for them. Where parents are traditionally carers the parents’ capacity, or degree of capacity, or incapacity will obviously impact upon the “living circumstances” of children of those parents.
The Court therefore considers that a request to give evidence about the “living circumstances” of the Visa Applicants was a request to give evidence relevant to the Tribunal’s considerations in this matter. The evidence shows that the first request for Mrs Haidari to give evidence was rendered unnecessary by the view initially held by the Tribunal member at the Tribunal hearing, that is, that the mother was dead. However, the evidence shows that the Tribunal member’s view that the mother was dead was thrown into doubt by Mr Haidari’s evidence. The Tribunal member made it apparent, as is set out above, that the mother’s death was the sole contentious issue for determination by the Tribunal. Mr O’Neill made it clear that there was “other evidence there” which related to what Mr Haidari “is stating now”, that is, that his mother had died while he was in Pakistan, and that evidence was able to be given about that by “a lady [Mrs Haidari] here who obviously lived in that situation”.
In the Court’s view it is plain enough that this second request was a reiteration of the first request for Mrs Haidari to give evidence about the living circumstances of the Visa Applicant’s, and in particular the mother’s death.
In W360/01A v Minister for Immigration and Multicultural Affairs[97] the Tribunal refused to allow the appellant to call a witness to testify about the appellant’s alleged illegal departure from Iran, asserting that even if the appellant established that he had departed illegally that would not assist him “because of other “problems” with his evidence” [98] and because the penalty for illegal departure would not amount to persecution for relevant purposes.[99]
[97] (2002) 124 FCR 449; [2002] FCAFC 211 (“W360/01A”).
[98] W360/01A FCR at 450 per Lee and Finkelstein JJ; FCAFC at para.3 per Lee and Finkelstein JJ.
[99] W360/01A FCR at 454 per Carr J; FCAFC at para.19 per Carr J.
In allowing the appeal in W360/01A the majority of the Full Court of the Federal Court observed that:
If it formed the view that the appellant was not a witness of truth, in all probability it would not accept the asserted facts. In order to decide whether it was satisfied of the truth, or possible truth, of the asserted facts, one would ordinarily expect the Tribunal to look at each claim made by the appellant because, in arriving at a conclusion as to the truthfulness of certain asserted facts, the Tribunal might be assisted by knowing that other facts were true. That is to say, if the appellant was telling the truth about asserted fact A that might suggest that he was also telling the truth about asserted facts B and C. On the other hand, if it were shown that the appellant was dishonestly asserting the existence of asserted fact D, that would be taken into account when the Tribunal decided whether it should be satisfied that other asserted facts were true, or might be true. So, for example, if the Tribunal accepted the appellant's assertion that he had left Iran illegally, the Tribunal would be obliged to take that into account when considering whether it should accept as true, or as possibly true, the balance of the appellant's claims. Moreover, a finding that the appellant had left Iran illegally would also require the Tribunal to consider why the appellant had done so. There may be a variety of explanations. One explanation might be that the appellant feared for his safety. If the Tribunal formed the view that this was the reason why the appellant left Iran illegally, it would necessarily take that into account in deciding how to deal with the appellant's account of past events. Accordingly, for the Tribunal to say that it would be unassisted by the evidence of the witness whom the appellant wished to call, shows that the Tribunal had a false appreciation of its task. (See generally: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559).[100]
[100] W360/01A FCR at 450-451 per Lee and Finkelstein JJ; FCAFC at para.3 per Lee and Finkelstein JJ.
The other judgment in W360/01A (with which the majority judgment agreed) also found that the appeal should be upheld, and observed that:
29 Its reasons disclose, in my opinion, that the Tribunal, having reached credibility findings against the appellant on other matters, sought to reconstruct what might have been the evidence given by Mr Ramezani and has stated that that evidence would not overcome the problem with the appellant's evidence which it had earlier identified.
30 In my opinion, in doing so the Tribunal so misconducted itself as to have fallen into jurisdictional error. It deprived itself of the opportunity to consider relevant evidence having the capacity to corroborate the appellant's claims in a material respect, cf W412/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 432 at [19], and W396/01 v Minister for Immigration and Multicultural Affairs [2002] FCA 455.
31 The Tribunal should have heard the evidence from Mr Ramezani about the appellant's illegal departure from Iran. It should have decided whether it was going to believe that evidence or not. If it did accept that the appellant had left Iran illegally, it would have had to have considered why he would have done that.
32 The significance of the illegal departure was not simply that the most likely penalty that the appellant would face would be a fine. His illegal departure was an inherent part of the appellant's claims to have been persecuted and to have left Iran clandestinely for that reason.[101]
[101] W360/01A FCR at 456 per Carr J; FCAFC at paras.29-32 per Carr J.
In W360/01A it emerged that the Tribunal had erred in finding that although the appellant had requested that a witness be called, the appellant had not provided any details of the witness.[102] In fact when a complete copy of the relevant form was tendered it showed that the appellant had written that the witness was to speak about the appellant’s illegal departure from Iran.[103]
[102] W360/01A FCR at 456 per Carr J; FCAFC at para.27 per Carr J.
[103] W360/01A FCR at 454 per Carr J; FCAFC at para.23 per Carr J.
The Minister sought to rely upon VBAM. However, the witnesses who swore affidavits in that matter were unable to show that they had any actual firsthand knowledge of threats received by the applicant. More relevant to the circumstances in the present case, there was no refusal to allow witnesses to give evidence. It does not even appear that an issue such as that presently before this Court even arose. VBAM is therefore not relevant, and of no assistance to the Court.
STBB v Minister for Immigration and Multicultural and Indigenous Affairs[104] does not support the Minister’s argument. The Federal Court observed that there is no unlimited right (under the statutory provision, s.426 of the Migration Act applicable to the Refugee Review Tribunal, which has its Tribunal equivalent in s.361 of the Migration Act) to request the Tribunal to call witnesses.[105] The Federal Court said that the question was whether the failure to call a witness resulted in practical injustice.[106] In STBB the Federal Court held there was no practical injustice because the Tribunal had considered the possibility that STBB had left Iran illegally (on a false passport) - which was the matter about which the witnesses were said to be able to give evidence - and the Tribunal rejected the applicant’s claims, even assuming he had left illegally.[107] Significantly, the Federal Court said that it was “not a case where it can be said that the RRT has fallen into error in failing to avail itself of evidence which might corroborate the applicant’s claims”.[108]
[104] [2004] FCA 1587 (“STBB”).
[105] STBB at para.57 per Lander J; see Migration Act, ss.361 and 426.
[106] STBB at para.59 per Lander J.
[107] STBB at para.60 per Lander J.
[108] STBB at para.60 per Lander J.
In dealing with a request to call a witness the Tribunal was obliged to:
a)give the request genuine consideration;
b)have regard to matters such as the:
i)relevance and potential importance of the proposed evidence to the outcome of the review;
ii)sufficiency of any written evidence already provided; and
iii)length of time necessary for an applicant to properly put their case;
and
c)not act capriciously.[109]
[109] W360/01A FCR at 450 per Lee and Finkelstein JJ; FCAFC at para.3 per per Lee and Finkelstein JJ; Minister for Immigration and Multicultural Affairs v Maltsin & Anor (2005) 88 ALD 304 at 316-317 per Kenny and Lander JJ; [2005] FCAFC 118 at para.38 per Kenny and Lander JJ; SZCSC v Minister for Immigration and Multicultural Affairs [2007] FCA 418 at para.46 per Mansfield J; Minister for Immigration and Citizenship v Le and Others (2007) 164 FCR 151 at 172-176 per Kenny J; [2007] FCA 1318 at paras.60-67 per Kenny J.
In the case of the present application the Tribunal, by the time the second request was made for Mrs Haidari to give evidence:
a)knew, because it had evidence before it in the 1 July 2006 Statutory Declaration (to which it had otherwise referred), that:
i)Mrs Haidari was in Pakistan at the time the mother was alleged to have died, and
ii)she had subsequently (until she later came to Australia) cared for the Visa Applicants in Pakistan;
b)had before it conflicting evidence from Mr Haidairi about his whereabouts at the time of his mother’s death and funeral;
c)had before it evidence from the Hazara Graveyard Committee and the Afghan Consulate in Quetta which it regarded as persuasive evidence of the mother’s death;
d)had an interpreter present; and
e)had Mrs Haidari present, and seemingly willing and able to give evidence concerning the death of the mother, which would not have occupied any significant period of time.
For reasons set out above there was a request for Mrs Haidari to be called as a witness in relation to the death of the mother said to have occurred on 15 December 2005, that is, at a time when Mrs Haidari was living in Pakistan with the mother, the Visa Applicants, and, on one version of Mr Haidari’s evidence, Mr Haidari. It is difficult to imagine evidence that would be:
a)more prone to corroborate one version of Mr Haidari’s evidence, and the version that he ultimately sought to have the Tribunal believe, namely, that his mother was dead; and
b)more central to what the Tribunal said was the single outstanding issue, that is whether the mother was dead.
A moment of genuine reflection by the Tribunal member must surely have illuminated the necessity for Mrs Haidari to give evidence about what she knew about the alleged death of the mother. The haste and lack of any cogent reason for refusing, or, alternatively, simply not determining the second request for Mrs Haidari to give evidence, evidences capriciousness on the part of the Tribunal.
On the principles established in the cases cited above, the Tribunal should have heard the evidence of Mrs Haidari, and should have decided whether to believe the evidence or not. Had the Tribunal done so, and had:
a)Mrs Haidari given evidence that the mother was dead; and
b)the Tribunal believed her,
the evidence might have led the Tribunal to believe that the mother was dead, and to grant the Visa Applicants their orphan relative visas.
The Tribunal’s failure to allow Mrs Haidari to be called as a witness therefore constituted jurisdictional error.
Conclusions and orders
The Court has concluded that:
a)the Tribunal’s failure to consider the material concerning Fatima and the living and caring arrangements for the Visa Applicants is a failure to have regard to relevant material; and
b)the Tribunal’s failure to allow Mrs Haidari to be called as a witness,
therefore constituted jurisdictional error.
The Tribunal’s decision is therefore affected by jurisdictional error. It follows that the application must be upheld and appropriate prerogative relief granted. There will be orders accordingly. It would be proper for the remitted matter to be heard by a differently constituted Tribunal.
The Court will hear the parties as to costs.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: S. Gough
Date: 4 December 2009