MZAFZ v Minister for Immigration

[2019] FCCA 2016

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAFZ v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2016

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.438

Cases cited:

MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081

Applicant: MZAFZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1566 of 2017

Judgment of: Judge Riethmuller

Hearing dates: 14 February 2019 and 25 March 2019

Date of Last Submission: 25 March 2019

Delivered at: Melbourne

Delivered on: 25 March 2019

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent: Mr Hill

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application filed 21 July 2017 be dismissed.

2. The Applicant shall pay the Respondent’s costs fixed in the sum of $9,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1566 of 2017

MZAFZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

1. The applicant in this matter seeks judicial review of a decision made by the Administrative Appeals Tribunal (‘the Tribunal’) on 30 June 2017.  That decision affirmed a decision of a delegate not to grant the applicant a protection visa. 

2. The matter has had a long history. The first Tribunal decision was overturned by the Federal Court in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 on the basis that a certificate under s.438 of the Migration Act 1958 (Cth) was not a valid certificate and therefore the material covered by it ought to have been shown to the applicant. The matter was remitted to be reheard by the Tribunal which resulted in a second decision of the Tribunal, the subject of this application.

The Applicant’s Claims

1. The Tribunal identified the applicant’s claims (at [22] to [27] of the decision) as follows:

   22. The applicant has provided a large amount of evidence regarding her claims for protection, which are variously set out in her protection visa application, her two departmental interviews, her two hearings before the previous tribunal, a statement provided by her to the current tribunal prior to hearing as well as her oral evidence taken at hearing before the current tribunal. The applicant has also provided documents in support of her claims including various news and country information articles, a psychological report and medical documents.

   23. A summary of the applicant's claims to the tribunal is as follows. The applicant was born in 1982 in Chakwal, Punjab state. She has trained and worked in the nursing profession since 2001. Her core claims relate to her 'un-lslamic' relationship with a married man, [A], whom she met while working at a hospital in 2011.

   24. The applicant received threats from [A’s] family, namely his brother in law [R] who contacted the applicant's family and advised them to poison her so that their name would not be tarnished. [A’s] car was fired upon on two occasions, including one where the applicant was present and during which [A] was injured. Maulanas came to see the applicant at the hospital where she worked and issued a fatwa that she was no longer a Muslim due to her relationship with a married man, which was not allowed in Islam. The applicant's family members forced her to return home, where they drugged and physically abused her on several occasions and were planning to kill her, but she managed to escape. With [A’s] help, she was in hiding until she left Pakistan on 11 February 2013 and entered Australia on a visitor visa arranged for her by an agent on 12 February 2013.

   25. As a result of this relationship the applicant claims she fears harm from her family, [A's] family, extremists/Taliban and others including in the form of honour killing.

   26. The applicant also fears harm at the hands of the maulanas and community in general due to the fatwa that she is no longer a Muslim. She has also referred to problems she faced as a nurse, has raised claims in relation to religion and has raised sur place claims in relation to the Pakistani community in Melbourne.

   27. The departmental delegate did not accept the applicant to be a witness of truth on the basis of inconsistencies in her evidence.

The Tribunal’

1. The Tribunal comprehensively rejected the applicant’s credibility saying (at [27]) that they did not accept her ‘to be a witness of truth on the basis of inconsistencies in her evidence’. They expand upon that (at [28]) saying:

   28. The tribunal has significant and serious concerns about the applicant's credibility due to significant changes in the nature of her claims, inconsistencies in key aspects of her claims and the addition of significant new claims throughout the protection process, including before the current tribunal. These concerns were discussed with the applicant in detail during her hearing, where the tribunal explained that it may not accept any of her evidence about what occurred in Pakistan due to its concerns. The tribunal found the applicant evasive at times and unable to address the concerns put to her at hearing. As a result of its numerous concerns, the tribunal does not accept that the applicant is a credible witness.

2. The Tribunal then goes on to examine various inconsistencies.  At [34] to [37] they take into account potential mental health issues that may have impacted upon the applicant’s ability to give cogent evidence.  The Tribunal then examine in detail a number of incidents that the applicant raised and relied upon. 

Grounds of Judicial Review

1. The applicant in her grounds for judicial review sets out as follows: 

   (1)     I am not satisfying with AAT decision.

   (2)     I have no legal assistance throughout my case;

   (3)     There is legal error in my AAT decision – That’s why I need a time to detail grounds of the appeal will be provided once I get a legal representation.

2. The applicant then goes on to provide a number of dot points effectively claiming that she was not listened to in the Tribunal hearing and disputing the merits of the outcome by the Tribunal.  The applicant has not filed an amended application or a document further particularising her claim. 

Section 438 Certificate matters

1. When the matter came before me on the first occasion I ascertained from the applicant that she claimed that the Tribunal had failed to take into account new claims which she would particularise and that she also raised issues relating to how the Tribunal dealt with information that had previously been covered by the s.438 certificate.

2. The applicant at the hearing before me today said that the Tribunal did go through everything with her again, and that the decision covers everything.  The applicant identified that in her additional dot points that she claims she had a fractured forehead as a result of abuse when she received a scar to her forehead.  Only the scar and not the fracture is detailed in a doctor’s report that she provided to the Tribunal (which appears at CB p.257) and this was taken into account by the Tribunal:  see [22] of the reasons. 

3. There is no transcript of the Tribunal hearing before me, nor a recording.  The applicant says she telephoned the Tribunal and was told that it had been lost, but there is no evidence to that effect, nor does it appear that she made the request of the solicitors for the Minister.  The matters detailed in the doctor’s report do appear to have been considered by the Tribunal: see [62] of their reasons.  Whilst the Tribunal do not articulate that they have seen the cigarette burns referred to specifically, they do discuss them in the decision. 

4. The applicant attempted to show me the cigarette burns in Court that were said to appear on her arm.  At the distance from the bar table to the bench one could not discern any marks on the applicant’s arms.  That is not to say that there are not marks there but they are certainly not obvious.  The cause of those burns is the relevant factor, not simply whether or not they exist.  On the material before the Tribunal, it does appear that they have dealt with this issue as counsel for the Minister points out.  I am not persuaded that this matter is such as to give rise to an arguable ground for judicial review. 

5. I was concerned as to the effect of the s.438 certificates which were found to be invalid. The Tribunal discussed them and the documents that lay behind them (at [111] to [117]) saying as follows:

   111. As discussed with the applicant during the hearing, her departmental file contains information which is the subject of two separate certificates under s438 of the Migration Act 1958. The tribunal finds that, for different reasons, both certificates are invalid.

   112. It is more convenient to deal with the certificate located at folio 122 of the departmental file first. That document states that certain information is the subject of a s438 certificate on the basis that discloser of this information would be contrary to the public interest because it contains internal working documents. On the evidence before it, the tribunal does not consider that the release of internal working documents is contrary to the public interest and does not find the certificate to be valid.

   113. The tribunal has considered the information to which the above-described certificate relates. The first piece of information purportedly covered under the certificate is a departmental document containing a dob-in by a third party that the applicant's claims are false and that she was attending a mosque in Fawkner. This dob-in was raised with the applicant at the previous tribunal and by the present tribunal. The complete version of the dob-in appears to be anonymous, but the document contains a second, incomplete version of the dob-in that is incomplete but which does contain an email address and name of an individual who appears to be the sender.

   114. The tribunal finds the above information to be relevant to the review given the nature of the information contained in the dob-in. However, as discussed at hearing, the tribunal has consistently been of the view that, as the motivation of the third party who has provided this information is unclear, the tribunal has given no weight on this information and has not relied on the dob-in or information contained therein in the making of any findings or its decision. The tribunal acknowledges the applicant's evidence that this information has come from [X], the man she claims assisted her with making her application because he demanded payment from her for helping prepare her application. As the tribunal has not relied on the information contained in the dob-in, it has not considered the applicant's evidence regarding [X] further.

   115. The second piece of information purportedly covered under the above-described certificate are departmental electronic notes regarding the applicant's visitor visa application including the applicant's reasons for visiting Australia (a visit to her pregnant sister), documents provided as part of that application and reference to the applicant leaving a husband and two children behind in Pakistan. The tribunal finds that this information is relevant as it contradicts the applicant's claims for protection. However, the applicant has consistently admitted to paying an agent in Pakistan to prepare her application and to providing false information in that application including a false Family Registration Certificate (FRC), a 'sponsorship letter' and another letter showing that she was married and had children. She has also consistently claimed that she does not have a pregnant sister in Australia, as indicated in her visitor visa application. The tribunal accepts the applicant's consistent evidence on this matter and has not relied on discrepancies between the applicant's visitor visa application and protection claims. Nor has it relied on the applicant's provision of false documents and information in that visitor visa application, given that the tribunal has rejected the applicant's claims for reasons described throughout this decision.

   116. The certificate contained in folio 121 of the applicant's departmental file, asserts that s438(1)(b) of the Act applies to certain information contained on the file and that this information should not be disclosed because it contains information affecting the personal privacy of third parties. However, s438(1)(b) refers to the tribunal's discretion in relation to disclosure of certain information as it applies to a document, matter contained in a document or information given to the Minister or an officer of the department in confidence. The information or documents that this certificate purports to cover are printouts from the department's own internal database regarding personal details (including address and visa history) of an individual referred to in the applicant's visitor visa application and that individual's spouse. There is nothing contained in those documents to indicate that any information contained within was given to the Minister or a departmental delegate in confidence.

   117. The tribunal has considered whether the information to which the certificate relates is relevant to the review. The tribunal does not find the contact and other personal details of the individuals named in the documents to be relevant to the review. The applicant has consistently stated that she provided false information in her visitor visa application and that she does not have a sister in Australia.

6. It appears clear that the Tribunal did not rely upon any of this evidence against the applicant in making its decision.  It is appropriate that the Tribunal nonetheless mentioned the material as it was material that was before them and it is important that the Tribunal state how they deal with such material. 

7. The fact that the Tribunal did not use the material against the applicant, however, did not appear to me to be the end of that issue as it was possible that the material may have contained information that would have been of assistance to the applicant in putting her case.  As a result, and bearing in mind that the applicant is unrepresented, I had the lawyers for the Minister provide a copy of the relevant information which appears annexed to an affidavit of Mr Brown. 

8. That affidavit identifies all of the documents that are contained within the applicant’s file that relate to these certificates and identifies that the substance of that information was also contained within the Court Book, although not the entirety of the pages. 

9. The applicant has now had the opportunity to peruse every one of those folio pages that were previously covered by the certificate.  The applicant does not argue that there is something within those that would assist her case.  It is not apparent to me, that the contents of that material could assist the applicant in her case. 

10. In these circumstances, it seems that the substance of the material was known to the applicant from the previous Court Book.  In any event, the Tribunal has not relied upon any of this information against her. 

11. In these circumstances this does not give rise to a ground for judicial review. 

12. I turn then to consider the formal statement of grounds that the applicant sets out in her application. 

Ground 1

1. The first ground is that she is not satisfied with the AAT decision. It is not open to this Court to review decisions of the Tribunal on their merits; only judicial review is available and, therefore, this ground cannot succeed.

Ground 2

1. The second ground is that the applicant had no legal assistance throughout her case.  It is not necessary that parties have legal assistance for there to be a valid decision made in cases of this type.  The lack of legal assistance is not a basis for judicial review. 

Ground 3

1. The third ground is that there is legal error in the AAT decision.  However, no specific error has been identified. 

Conclusion

1. I have, as best as I can from the submissions that the applicant has made and the notes she has provided in her application, attempted to identify where any error that was arguable may lie, including requiring the Minister to file additional material about the department file. However, it does not appear that a legal error was committed by the decision-maker in the Tribunal.

2. In these circumstances, I must therefore dismiss the applicant’s current application. 

   [Further argument ensued]

Costs

1. In this matter, the applicant has been unsuccessful and it is appropriate that the respondent have costs and the scale fee is $7,467.  However, as a result of the way in which the case has been litigated there have been two court events and an additional amount of work undertaken by the solicitor in perusing a department file and producing an affidavit setting out the contents of that. 

2. The difficulty for the Minister in preparing for the case was that the applicant had a poorly particularised application, and it was only as the matter unfolded at the first hearing and as a result of inquiries from the bench that potential issues to be explored were identified, thus requiring a second hearing. 

3. Having regard to the court scale and the size of the file and the nature of the work in this matter, it appears to me that the costs sought at $9,000 are reasonable costs and that it is not a case that would warrant consideration of sending the matter to taxation rather than a lump sum order.

4. I therefore order the applicant pay the Ministers costs of $9,000.

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

Associate: 

Date:  24 July 2019