MZACM v Minister for Immigration
[2016] FCCA 299
•16 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZACM & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 299 |
| Catchwords: MIGRATION – Application for judicial review of decision of Refugee Review Tribunal – no matters of principle. |
| Legislation: Migration Act 1958 (Cth), s.424AA |
| SZGOW v The Minister for Immigration and Anor [2006] FMCA 1687 NAOX and Anor v The Minister for Immigration and Anor [2008] FMCA 1467 |
| First Applicant: | MZACM |
| Second Applicant: | MZACN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 560 of 2014 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 27 November 2015 |
| Date of Last Submission: | 27 November 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 16 February 2016 |
REPRESENTATION
| Counsel for the Applicants: | Ms Nicholson |
| Solicitors for the Applicants: | Bardo & Erci Lawyers |
| Counsel for the First Respondent: | Ms Symons |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | n/a |
| Solicitors for the Second Respondent: | n/a |
ORDERS
The name of the Second Respondent be amended to the Administrative Appeals Tribunal.
The application filed 28 March 2014 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 560 of 2014
| MZACM |
First Applicant
| MZACN |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants are mother and son, the mother is the primary applicant. They are citizens of Lebanon.
The applicant came to Australia on 11 August 2012 on a sponsored family visa. On 2 November 2012 the applicant applied for protection visas for herself and her son.
The applicant argues that her claim is based upon four integers:
a)That she resided in a suburb of Tripoli, Lebanon, which is the location of intermittent armed conflict with the Alawi Group;
b)That her husband is a member of the Salafi Group, which is in conflict with the Alawi insurgents, and, therefore, places her at risk as his wife;
c)That her husband was controlling and had committed violence against her, and that the authorities in Lebanon would not intervene to protect her;
d)That her husband is entitled to force her to reside him and take custody of the second applicant (and prohibit her from seeing the second applicant) under the laws of Lebanon, and that the State would not intervene to prevent this from happening.
The Tribunal accepted that the applicants were citizens of Lebanon, and that there was intermittent armed conflict between the Salafi and Alawi insurgents during the time that the applicant claims to have resided in a suburb of Tripoli.
The overwhelming difficulty confronting the applicant in her application was that the Tribunal concluded that it would not accept her evidence, on the basis that she was not credible. The Tribunal did not simply make a statement that it found the applicant not to be a credible witness, but gave a detailed explanation as to why her credibility was rejected, including:
a)That her evidence at the hearing and the documentation on her sponsored family visitor file contradicted her claims to have lived in the relevant suburb in Tripoli;
b)At the hearing she was able to give little information about the areas of the relevant suburb or the conflict between it and another relevant suburb, despite having lived there, for example being unable to recount that one of the suburbs was on the top of a hill, and the other suburb below it, which is regularly referred to in news reports.
c)She appeared unfamiliar with the basic layout of relevant streets; and
d)She claimed that she left Lebanon without the knowledge or assistance of her husband, however on her sponsored family visitor file there is a statement from her husband and a signed form, indicating that he was aware of and consented to her leaving Lebanon with their son.
The Tribunal member had put the relevant documents to the applicant, pursuant to s.424AA, as recounted in the Tribunal decision (see paragraphs [31] and [35]), and also had regard to claims by the applicant that she was anxious and nervous at the hearing. Ultimately, the Tribunal member placed no weight on the evidence given by the applicant nor the documents supplied by her.
The Tribunal member concluded:
[47] …That the applicant is not separated or estranged from her husband, and has not suffered violence from him. I find that there is no real chance or real risk that the applicants will be harmed in the way set out above or any other way by the applicant’s husband, his family, Salafists or any one else on return.
The Tribunal rejected the claims with respect to harm from the Alawi, relying in particular upon the finding that the applicant had not lived in the relevant suburb of Tripoli.
Ground 1
In support of ground 1, the applicant alleges that the Tribunal failed to consider three integers of the applicant’s claim, namely:
a)That she was a Lebanese Muslim woman and a mother who resided in Tripoli, Lebanon;
b)That she was married to a member of the Salafi insurgent group;
c)She had suffered violence at the hands of her husband. In the amended application this was extended further to her fear that her husband would take custody of the second applicant and prohibit her from seeing the second applicant.
The submissions proceeded on the basis that the failure to deal with these integers was constituted by “Misconstruing or misunderstanding the applicant’s oral evidence”, failure to give weight to supporting documents, failure to provide appropriate interpreting services, failing to make inquiries about obvious and critical facts, and lastly failure to take relevant evidence into account.
It is appropriate to initially deal with the claim that the Tribunal failed to have regard to integers of the applicant’s claim. There is no question that the Tribunal squarely dealt with her claims to be at risk because she resided in a particular suburb of Tripoli, as set out at paragraphs [25] to [34] of the decision. Similarly, the claims with respect to her husband’s involvement with the Salafi Group and the risk from the Alawis is dealt with in that passage of the reasons. Finally, the Tribunal squarely dealt with her fear of harm from her husband at paragraphs [46] to [49]. The Tribunal has therefore squarely dealt with each of the integers of the applicant’s claim.
It is appropriate then to turn to consider the argument concerning whether or not the Tribunal had regard to and understood the evidence and material before it, which appears to be the substantive complaint raised by the applicant under this ground.
The first point of complaint is that the Tribunal drew an adverse inference against the applicant because she was not able to describe the surroundings where she claimed to have lived in the suburb of Tripoli. Counsel refers to her evidence that she was in and out of hiding in another area of Tripoli, and that the Tribunal referred to her evidence that she was hiding in an agricultural area, near a lemon grove, or later to being near a park. Whilst the reference to the lemon grove appears in the transcript and not the decision, at page 19 of the transcript the members put to the applicant that she had described an area that she first went into hiding as being somewhere agricultural and then altered that to a lemon grove. This was a reference to an exchange earlier in the transcript at page 7, where the member restated a question to clarify, saying that the applicant had earlier told him that she had gone into hiding in an agricultural area and old farms, and the applicant responded:
It’s not an agricultural area or farms as it was like a park with lemon trees planted. So we used to go there and hiding until the situation calms down, so we would come out. (See transcript 7.36 to 7.38.)
From reading the transcript I am not of the view that the Tribunal member misstated the evidence that the applicant gave, and to the extent that there is arguably any looseness in the language, it was part of the process of the Tribunal member seeking to clarify what was said and provide the applicant with an opportunity to answer the Tribunal member’s concerns. The applicant had also made mention of hiding in old buildings far away among farms, and at one point claimed to have been mixed up in her evidence.
It is clear that the Tribunal member had regard to the evidence. There is nothing in the transcript that indicates that the Tribunal member did not genuinely seek to clarify the evidence that the applicant was giving and provided her with an opportunity to answer concerns that the Tribunal member had about the evidence. I find no error in the way the Tribunal member has dealt with this issue.
The second issue raised is the inferences drawn by the Tribunal member against the applicant on the basis that no documents, evidence or explanation was provided as to why the majority of the documentation for her sponsored family visa referred to her and her husband living in a different suburb, as well as the work reference she provided. When reading paragraphs [32] and [33] of the decision, it is clear that the Tribunal member is intending to refer to credible evidence. There is no doubt that the Tribunal member carefully considered the explanation that the applicant gave, being that her sister assisted her to get the visa, and the documents were prepared by a lawyer in Lebanon, as is set out in paragraph [35] of the decision, which provides:
[35] The applicant has claimed that she left Lebanon without the knowledge or assistance of her husband, whom she has separated from. She claimed that her sister assisted her to get the Australian visa, and that friends of her sister visited her to get her to sign the various documents without her husband knowing and looked after the process for her. I asked her if her husband had had to sign a consent forn1 for her to leave Lebanon and she said this was all handled by these people. The applicant claimed that her husband did not know she and their son had left Lebanon until she was in Australia, and that he was very angry and threatened her brother. I put to her, pursuant to s.424AA that on her sponsored family visitor file there is a statement from her husband, and a signed from which indicates that he was aware and consented to her leaving Lebanon with their son. She said that these documents were all prepared by the lawyer. I asked if she understood the information and its significance and she indicated that she did, and elected to respond after the hearing.
The applicant points out that she gave the names of the lawyer and other persons in Lebanon who assisted her to complete the documents, but that the Tribunal member does not name them in the decision. It does not appear to me that it is necessary for the Tribunal member to name those persons, and indeed there may be good reasons for not naming them in the decision.
In substance, this ground is attempting to seek a merits review of the findings of fact by the Tribunal based upon its assessment of the evidence before it. I therefore find no merit in this ground.
The second point made under this ground is that the Tribunal allegedly failed to give weight to supporting documents. The documents relied upon are a family register the second applicant’s birth certificate, which showed the first applicant’s domicile as Tripoli (supporting the claim that they resided at the particular suburb), and a letter confirming her father’s ownership of a shop. These documents appear in the court book and are referred to by the Tribunal at paragraph [33]. The Tribunal member gave them little weight, in light of its findings about credibility. The Tribunal sais at Paragraph [33] provided:
[33] I have considered the documents provided after the hearing. I have also considered the document in her sponsored family visitor visa which refers to her husband residing in Tabbane, and to the applicant and applicant two being registered in Tabbane. I give these little weight, given my numerous credibility concerns with the evidence of the applicant, expressed in this section, and because the weight of the information on the Sponsored family visitor file supports that the family lived in Kabhit, not Tabbane, with no clear explanation having been provided for the inconsistency. The applicant has not explained why the 1229 form lists her and her husband's residence as Kabhit, or why there is a letter from her employer, also in Kabhit, when she has claimed not to have worked or lived in Kabhit. I find that the evidence that her father owned a shop in Bab El Tabbaneh, which it is claimed she visited often in her youth and where she met her husband is not reconcilable with her inability to describe the area. I do not accept these explanations.
An integral part of the Tribunal’s obligations was to resolve the factual issues that the evidence of the applicant and the documents bore upon. The Tribunal member considered the material before him and made a finding of fact.
The third matter that is relied upon is the claim that there were inadequate interpreting services. The case appears to be run on the basis that the applicant’s sister told her that she did not think the interpreting was accurate, and a passage that appears in the transcript where at one point the interpreter says:
I’m sorry, member. I’m sorry. I’m sorry. I’m sorry. I’m just mixed up. Sorry, which was your question?.
The remainder of the transcript does not indicate any real difficulties with the interpretation. That the interpreter may have been muddled at one point doesn’t show the interpreter as a whole is inadequate particularly where the interpreter obviously acknowledged this at the time. Interpreting is a difficult task, especially in a hearing environment where even those who speak English as there first language sometimes become muddled or speak at cross purposes.
Most importantly, it was open to the applicant to obtain evidence from an interpreter as to the accuracy of the interpreting compared to the tape of the hearing. No such evidence has been forthcoming. On the strength of the material that is available, I am not persuaded that there was any difficulty with the interpreter in this case that resulted in the application not being a fair hearing.
The next matter relied upon was an alleged failure to make inquiries about an anonymous tip off. As the respondent notes, it is for the Tribunal to determine what weight, if any, it gives to an anonymous tip off: see SZGOW v The Minister for Immigration and Anor [2006] FMCA 1687 at [127]; and NAOX and Anor v The Minister for Immigration and Anor [2008] FMCA 1467.
The Tribunal member dealt with this issue by simply noting that the anonymous tip off information only added satisfaction to the views already taken by the Tribunal. Part of the tip off information alleged that false police certificates were used by another to support that claim, and there were no police certificates given in this case. To the extent it related to family members, that could have been checked by the Tribunal.
However, having regard to the fact that the tip off information was not ultimately relied upon by the Tribunal, other than to note that it was consistent with the Tribunal’s views that had already been formed on the other evidence, it does not appear to me that even if the inquiries had been made, and turned out to be correct, that it would have made any difference to the findings of the Tribunal, or the outcome.
Ultimately, I am not persuaded that there have been any errors on the part of the Tribunal with respect to its consideration of the evidence, nor that it has failed to have regard to the evidence in the context of this case. The applicant’s case contained significant and serious inconsistencies. It was open to the Tribunal member to rejected the applicant’s evidence in the way that he did in this case.
Ground 2
The second ground relied upon by the applicant is that the Tribunal’s decision is illogical. In substance, the ground relies upon all of the above matters to claim that the decision was illogical in the circumstances of the case. For the reasons set out about I am not of the view that it could be said that this decision was illogical. Rather, on reviewing the transcript and the documents, it appears to me that the decision by the Tribunal was entirely unsurprising.
Conclusion
In the circumstances, I therefore dismiss the application and order that the first applicant pay the respondents’ costs on the Court scale, fixed at $6646.00.
I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 16 February 2016
Correction
Certification date amended to delivery date.
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