MZADG v Minister for Immigration - [2015] FCCA 3222

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZADG v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 3222

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal – whether or not an integer had been raised – Tribunal decision quashed – writ of mandamus to issue.

Legislation:

Migration Act 1958 (Cth)

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; (2003) 77 ALJR 1088
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 572; (2013) 136 ALD 41
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 136 ALD 547
MZYQZ v Minister for Immigration & Citizenship [2012] FCA 948
MZZES v The Minister for Immigration and Border Protection [2015] FCA 397
MZZUT v Minister for Immigration and Border Protection [2015] FCA 141
SZQTW v Minister for Immigration [2012] FMCA 777
SZRPA v Minister for Immigration & Citizenship [2012] FCA 962
SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26
SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; (2014) 317 ALR 365; (2014) 142 ALD 150

Applicant:

MZADG

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 747 of 2014

Judgment of:

Judge Riethmuller

Hearing date:

26 August 2015

Date of Last Submission:

26 August 2015

Delivered at:

Melbourne

Delivered on:

26 August 2015

REPRESENTATION

Counsel for the Applicant:

Ms Levine

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondents:

Ms Szydzik

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The decision of the Refugee Review Tribunal made 10 April 2014 be quashed.
A writ of mandamus issue is directed to the Tribunal requiring it to determine the applicant’s application according to law and the matter be remitted to the Administrative Appeals Tribunal for rehearing.
The First Respondent pay the applicant’s costs fixed in the sum of $6825.00
The name of the Second Respondent be amended to the Administrative Appeals Tribunal.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 747 of 2014

MZADG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(EX TEMPORE)

This is an application for judicial review of a decision of the Refugee Review Tribunal. The decision was dated on 10 April 2014.
The Applicant came to Australia as a Shia Muslim from Pakistan, an irregular maritime arrival arriving in Australia on 22 June 2012. He had an earlier interview in July 2012 and then applied for a Protection (Class XA) visa in November 2012. The Applicant was assessed by a delegate of the Minister (‘the delegate’) and refused a visa on 12 July 2013. On 4 February 2014, the Applicant attended a hearing before the Tribunal. On 10 April 2014, the Tribunal rejected the Applicant’s claims for protection. On 16 July 2014 the Applicant sought judicial review of the Tribunal decision.
The case is of relatively narrow ambit as it comes before me: Whether or not an answer that the Applicant gave at an earlier interview that was recorded by the interviewer was sufficient to raise a ground for a claim for protection is in question. The substantive issues, aside from this, were dealt with by the Tribunal in its decision where, although finding that they accepted that at the end of 2007 he was shot outside his home by a group of Sunni Muslims (see paragraph 28 of the decision), it ultimately concluded that the Applicant could relocate within Pakistan, even though he could not return to his home area.
The Applicant’s two concerns were Sunni Muslims and the Taliban, which are discussed in some detail in the decision. The Applicant appeared represented before the Tribunal. The Applicant’s representative compiled detailed written submissions on 1 January 2013 (see CB 138-151). The written submissions did not raise the particular claim at issue in these proceedings, although at paragraph 2 of the letter from the solicitors it is said:
He [MZADG] has provided a written statement setting out his claims.
The issues arise because of the answer that appears in the interview record at court book page 37 where in answer to question 18, which is:
What do you think will happen to you if you return to your country of nationality (residence)?
And the answer given was:
They will make me mincemeat. If they find out that I went to western country, English country, they will make me mincemeat.
It appears clear that this form, which is typewritten in its completion, was compiled by an interviewer who has signed and dated the form based upon the information given by the Applicant through an interpreter on the day. The nature of the form makes clear that it is a summary of the information and claims put by the Applicant to the interviewer.
When the matter came before the Tribunal, the Tribunal member, no doubt quite reasonably seeking to limit the hearing to the central issues, stated (at page 7.33 to 8.5 of the transcript) the following:
The role of the Tribunal is to look at all of the information and make a new decision on your application. For this reason I have before me all the information you provided to the Department of Immigration, as well as any information you’ve provided to this Tribunal. So I already have a reasonable idea of what you claim your problems are. What I will be doing today is asking you a number of questions, trying to get as clear a picture of your circumstances as I possibly can…After answering my questions, you will have an opportunity to raise any additional matters that you consider important to your claims.
At the conclusion of the hearing, at page 51.12 to 51.30, the Tribunal member said:
I’ll wait for the submissions from [the Applicant’s representative] and I’ll take those into consideration and the information that you’ve got with you and that you wanted to provide the Tribunal, together with everything you’ve told me today and all the other information on your file. Once I’ve done that, then I’ll make my decision.
It seems to be clear that the Tribunal member advised the Applicant that they were already familiar with the claim, and that they have all of the information before them that was provided to the Department of Immigration and Border Protection (‘the Department’), and that after answering any particular questions that the Tribunal member had, the Applicant could raise any additional matters that the Applicant considered important to the claim. It does not seem to me that the interactions at the hearing indicate that there was any notice given that the claim was taken to be limited to the matters set out in the solicitor’s letter, and therefore any matters squarely raised ought to have been dealt with by the Tribunal if they amounted to a basis for a claim, or what has been referred to in a number of the cases as an integer. This is in accordance with the views of North J in MZZES v The Minister for Immigration and Border Protection [2015] FCA 397, and a decision of Dodds-Streeton J in MZYQZ v Minister for Immigration & Citizenship [2012] FCA 948.
It appears that before me there is no real dispute that if the claim has been raised, the way in which the hearing was conducted means that the claim cannot be taken to have been abandoned based upon these authorities. It was not sought to persuade me to depart from these two authorities in this regard, nor could I because both appeal decisions are binding upon me.
In the decision by North J, the material raising the relevant question is set out in paragraphs 8 and 9 of his Honour’s decision as follows:
8. In his answers the appellant identified [Person X] as a supervisor of the five or six people who drove the boat which brought him to Australia. [Person X] was in the Scherger Immigration Detention Centre with the appellant. The appellant responded “yes” to the question whether there was anyone in the Centre of concern to him and who had been threatening him. He provided the following details, at Question 10(f):
[Person X] spoke to [Person Y] [Boat ID XXXXX X] on either [A date] or [B date] and said that he would harm his family and his parents and that if he tried to go back to Sri Lanka they would know about it at the airport. [Person Y] told his Case Manager about this. [Person X] told me the same information on [C date]. I said to [Person Y] that I would remain quiet about this and told my Case Manager about this on [D date]. [Person X] is a Sinhalese and he is here with his son – name is [Person Z] and I think his boat ID is [Boat ID YYYYYY]. The son did not say anything. They have the power to do anything as the Army and Police in Sri Lanka are all Sinhalese and they can go to any country. [Person X] has also threatened many others and they have put in complaints.
9. When asked at the end of the interview whether there was anything the officer had not asked the appellant which he would like to say, the appellant said, at Question 19:
I would like to have on record that the captain of the boat [Person X] [Boat ID ZZZZZZ] has made threats stating that he and his people will create problems and harm my family, so the danger for me has increased further. [Person X] is part of the people smugglers and it is no problem for him to kill somebody.
With respect to that material, North J records at paragraph 6 that:
6. Mr Hill, who appeared as counsel for the Minister, correctly accepted that if the appellant had not abandoned the people-smuggler claim then the Tribunal fell into jurisdictional error by failing to consider it.
It seems to me that this is a clear endorsement of the concession made by Mr Hill that the material set out above was sufficient to raise that claim. Before me, counsel sought to argue that the material in answer to question 18, as set out above, was not sufficient to raise a claim that ought to have been dealt with by the Tribunal. In this regard counsel relied upon a number of decisions to which I now turn.
Firstly, I was taken to the High Court’s decision in Dranichnikov v Minister for Immigration and Multicultural Affairs (‘Dranichnikov’), where at paragraph 24 the High Court said:
24. To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.
It seems to me that there can be no argument about the obvious appropriateness of this sentence given that it sets out that any substantial, clearly articulated argument relying upon established facts should be dealt with. However, it is not clear to me that it is particularly apposite to the problem that we’re dealing with in this case, and it was certainly part of the process of reasoning towards the key point of Dranichnikov.
The second decision I was referred to was SZSSC v Minister for Immigration and Border Protection [2014] FCA 863 by Griffiths J, and in particular the passage at paragraph 75 where his Honour deals with the claim that the Tribunal there had failed to deal with a submission of substance that could be jurisdictional error.
His Honour goes on to give some detailed assistance to subsequent decision-makers at paragraph 81. However, it seems to me that these comments relate to submissions and address the types of issues that arose in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 and Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 rather than the core question here which concerns whether or not an integer had been raised.
The next case that I was taken to was SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 (‘SZSHK’) where the Full Court again looked at whether or not an issue had been raised that needed to be dealt with, saying at paragraph 36:
36. As to whether the claim regarding the Kuchis was squarely raised as a key integer of the appellant’s claims, we agree with the conclusions of the primary judge at [75]-[77] that the appellant’s legal representative’s long and detailed submissions, when arguing that the appellant met the complementary protection criterion, made no specific reference to the appellant’s Kuchi claim. The basis for the appellant’s legal representative’s argument before the Assessor that the appellant met the “significant harm” criterion was the absence of State protection in circumstances where the authorities and the Taliban would torture and kill Hazaras and Shias and that the appellant would also be at risk because he would be a returnee from a Western country and that he would suffer degrading treatment or punishment from the Taliban because he would be unable to travel freely. There was no claim by the appellant or his representative to say that he feared significant harm from the Kuchis in relation to livestock so as to require the Assessor to address it. There was no such claim expressly made or clearly arising. In our opinion the Assessor accurately summarised the appellant’s submissions in relation to the complementary protection criterion as, first, that the routes to and from Ghazni were insecure and the appellant would suffer significant harm from cruel and inhuman treatment or punishment by the Taliban and, second, that if he returned to Afghanistan his identity and whereabouts would become known to the Taliban and Pashtuns and he would be subject to degrading treatment and punishment.
In SZSHK, however, the question was whether a claim had been expressly made, while in this case the nature of the claim is specifically set out in writing by the interviewer at the answer to question 18 of the interview record.
The next authority was of similar vein. In SZQTW v Minister for Immigration [2012] FMCA 777 there was a passing comment in a submission to the reviewer, as outlined at paragraph 11 of the decision, which was not found to be sufficient.
In the decision of MZZUT v Minister for Immigration and Border Protection [2015] FCA 141, Middleton J looked at whether or not there was a new claim from those clearly and separately articulated in the submissions that had arisen. Again, the difference in this case is that the claim that we are confronting is not a new claim but one that was raised very early before an interviewer and recorded by the interviewer on behalf of the Minister.
Finally, in SZRPA v Minister for Immigration & Citizenship [2012] FCA 962 the relevant passage to which I was taken appears at paragraph 10. What was sought in that case was to infer a claim, while this case concerns a claim that was expressly articulated.
It was also argued that the nature of the articulated claim did not specifically identify who it was that the Applicant was fearful of harming him on the basis of him being a person who returned from a western country to Pakistan. Given the nature of the Applicant’s case, it seems clear that it could only realistically have been the Taliban or the Sunni Muslims in his country. It also seems clear from the nature of the record of the interview and the typed answer, that the answer is pregnant with the proposition that in the context of the interview it was apparent who he was talking about.
There is not a tape recording of the interview before me, and the Minister objected to any evidence being put of the content of the conversation that would have added more detail to the material contained in the written record at page 37 of the court book. The Minister sought instead to have the case determined simply upon the material before me and whether or not a claim had been raised which ought to have been dealt with by the Tribunal. In the unusual context of this particular case, where a quite specific claim has been articulated to an interviewer, reduced to writing and placed in the interview record this is sufficient to raise a claim that needs to be dealt with, unless it has been specifically abandoned.
It would have been a simple matter for the Tribunal member to ask if the Applicant was confining himself to the claim as put in the letter from his solicitors, or to articulate precisely what he was actually relying upon before the Tribunal rather than simply stating that the Tribunal took him to be relying upon everything that had been said before.
Indeed, in the context of this particular case one could imagine that a particularly astute litigator, aware that that claim had risen before the interviewer and that the Tribunal member had not asked questions indicating any doubt about that part of the claim, may not have wished to further revisit a topic upon which they might consider they were already on firm ground. This is, of course, speculative but what it does highlight is the importance of the rules of procedural fairness. If something has been raised in a way that would have certainly been sufficient if it were particularised and set out in writing in the material before the Tribunal, it is important that the Tribunal deal with it unless it has in fact been abandoned.
In these circumstances I am persuaded that in this case the Tribunal has erred and I will therefore make orders for consequential relief.
In light of my findings with respect to the first ground, there is no need to proceed to deal with the second.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate:

Date: 4 December 2015