MZAHY v Minister for Immigration
[2015] FCCA 2660
•8 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAHY v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2660 |
| Catchwords: MIGRATION – Whether the applicant should be granted leave to extend time to file his application for judicial review – consideration of explanation for the delay and the merits of the applicant’s substantive application – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal notified the applicant of a dispositive issue which was not an issue in the Delegate’s decision – whether the Tribunal failed to comply with its obligations under s.425 of the Migration Act 1958 – finding that there was no reasonable explanation for the delay – finding that the Tribunal failed to comply with s.425 of the Migration Act 1958 and thereby committed jurisdictional error – leave granted to the applicant to extend time to file his application for judicial review – writs issued quashing the Tribunal’s decision and remitting the matter to be determined according to law. |
| Legislation: Migration Act 1958 (Cth), ss.425, 477(1), 477(2), 36(2)(aa), 36(2), 425(1) |
| Mohammed v Minister for Immigration and Border Protection [2015] FCA 184 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZHBX v Minister for Immigration and Citizenship [2007] FCA 1169 MZYOI v Minister for Immigration and Citizenship [2012] FCA 868 AZAED v Minister for Immigration and Border Protection [2015] FCA 982 |
| Applicant: | MZAHY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1372 of 2014 |
| Judgment of: | Judge Jones |
| Hearing date: | 19 August 2015 |
| Date of Last Submission: | 19 August 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 8 October 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Symons |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr Priest |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Second Respondent’s name be amended to read the “Administrative Appeals Tribunal”.
The period in which the Applicant must file his application for judicial review and his amended application for review is, pursuant to s.477(2) of the Migration Act1958, extended to 17 March 2015.
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 28 February 2014.
A writ of mandamus issue remitting the matter to the Second Respondent and requiring it to determine, according to law, the application made to it by the Applicant, for review of the Delegate of the First Respondent’s decision.
The First Respondent pay the Applicant’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1372 of 2014
| MZAHY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 9 July 2014, the Applicant applied for judicial review of a decision of the (then) Refugee Review Tribunal (“the Tribunal”) dated 28 February 2014, affirming a decision of a Delegate of the Minister for Immigration and Border Protection (“the Minister”) not to grant the Applicant a Protection (Class XA) visa (“visa”). An amended application was filed on 16 March 2015.
As the application was made on 9 July 2014, the application was 96 days outside the 35 day limit provided under s.477(1) of the Migration Act1958 (“the Act”). The Applicant must first be granted an extension of time to proceed with his application for judicial review.
Section 477(2) of the Act relevantly provides:
“The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a)An application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)The Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.”
Whilst the discretion to extend the time limit in s.477(2) of the Act is one at large, the matters relevant to the Court’s consideration are well settled. In Mohammed v Minister for Immigration and Border Protection [2015] FCA 184, Perry J summarised the principles relevant to the statutory discretion as follows:
“15.In determining whether to grant an extension of time, factors to be taken into account include the extent of the delay, and the explanation for it, any prejudice that the respondents may suffer by reason of the delay and the merits of the proposed appeal: see e.g. SZQCZ v Minister for Immigration and Citizenship[2012] FCA 91 at [15] – [19]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 – 349.
16.The Minister did not contend that he would suffer any prejudice if an extension of time were granted. Nor is delay substantial, being a period of 17 days only. In this regard, the Minister accepted that if the proposed grounds of appeal had merit, so short a delay should not serve as an impediment to the grant of an extension of time. Furthermore, while the Minister submitted that the explanation for the delay, namely, that the applicant was not aware of the appeal time, was not adequate, I would not attribute much weight to that consideration in all of the circumstances; nor did the Minister suggest otherwise. The critical issue here, in my view, is that the application for leave to appeal is lacking in any merit for the reasons I explain below, as a consequence of which there is no utility in granting an extension of time: see Ford v La Forrest[2001] QCA 455; [2002] 2 Qd R 44 at [4] Thomas JA (McMurdo P and Cullinane J agreeing); Vatti v Minister for Immigration and Border Protection[2014] FCA 893 at [24] (Mortimer J). It is on this ground that I would refuse the application for an extension of time.
Background
The Applicant is a citizen of Afghanistan, is of Hazara ethnicity and follows the Shia Muslim religion. He is 23 years of age, having been born on 31 December 1991. He was born in Cosha, Sange-e-Masha, Jaghori district, Ghazni province, Afghanistan. He arrived in Australia as an irregular maritime arrival. On 6 November 2012, he applied for a visa (CB 26 to 79).
The Applicant’s claims for protection are set out in his Entry Interview (CB 7 to 25), a statutory declaration attached to his application for the visa (CB 57 to 60), the submissions made on his behalf by his lawyer (CB 143 to 207) and the evidence he gave during the Tribunal hearing. In summary the Applicant claims to fear harm on the basis of his:
a)Hazara ethnicity;
b)Shia Muslim religion;
c)imputed political opinion of opposition to Mr X and his associates as a result of a land dispute;
d)imputed political opinion as a failed asylum seeker;
e)risk of harm from Mr X and his son, Mr XX; and
f)risk of harm by denial of social and economic rights.
The factual circumstances the Applicant relies on for his claims to fear harm on the basis of his political opinion are as follows:
a)his family was involved in a dispute with the neighbouring land owner, X, when the Applicant was young;
b)X is now a member of local Parliament and has a lot of influence in the district;
c)he tried twice to commence building a house on a parcel of land and both times was stopped by threats of violence from X’s son, XX. XX told him that if he built the house, he would be killed;
d)the last threat was made in late 2011, just after he returned to Afghanistan from working in Iran. He reported the threats made against him by XX to the local police;
e)shortly after reporting the threats to the police, XX came to his home with two other people and demanded that he come out of the house. He saw XX from the window. XX and his accomplices were carrying AK–47s, automatic weapons and batons. As he was sure that they had come to his home to kill him he ran away through the back of the house;
f)his mother answered the door and XX told her that he will kill the Applicant if he returned home;
g)he went to a nearby village called Dawood to hide, staying with his maternal uncle. He telephoned his mother, who told him that XX and his accomplices had returned twice more to his home and told her that if they found him they would kill him;
h)he was scared for his life and fled Afghanistan, because X is an influential member of Parliament and has considerable power in his district, and there is nowhere he can hide. The authorities, including the police will not protect him; and
i)he cannot move to any other part of Afghanistan, because the authorities are not able or willing to protect Hazara and Shia Muslims from attacks by the Taliban.
With respect to his claims to fear harm on the basis of his ethnicity and religion, the Applicant says that the Jaghori district may be relatively more safe than other areas (CB 16). However, he claims the Jaghori district is isolated and Shia Hazaras resident in Jaghori are forced to travel outside the district for work, where Hazaras are exposed to greater risks of violence from the Taliban (CB 230 [37]). Further, he claims that with the international forces withdrawal from 2014 onwards the security situation in Afghanistan will worsen (CB 149).
The delay and explanation for delay
The delay by the Applicant in filing his application for judicial review is significant. His explanation for this delay is set out in an affidavit he filed on 23 March 2015. The Applicant deposes:
a)he was represented at the Tribunal by a lawyer, who was given to him by the Department of Immigration and Border Protection. He mainly spoke to his lawyer over the phone;
b)the decision of the Tribunal was sent directly to the lawyer, who called him and informed him his application for the visa had been refused. He received correspondence from the lawyer around 5 March 2014. He knew he had 35 days from the date of the decision to lodge his appeal. His lawyer told him that another option was to appeal directly to the Minister, but he was not sure how to do that. The lawyer gave the details of Victoria Legal Aid (“VLA”) and told him that they would help him;
c)the day after receiving the Tribunal decision he went to see his case manager at AMES and the case manager told him to contact the Asylum Seeker Resource Centre (“ASRC”). His case manager sent his paperwork to the ASRC and told him to wait until he was contacted by them for an appointment;
d)at the same time, he tried calling VLA, but the phones were busy. He finally managed to speak to someone after about a month;
e)he started stressing about the deadlines, but could not find anyone to help him;
f)he was finally contacted by VLA, who informed him that a lawyer would contact him, which she did, requesting him to send in a copy of the Tribunal decision. He went in the next day to hand in his paperwork and was informed by the lawyer that someone would ring him back after they had looked at his documents;
g)the next day, another lawyer from VLA called him and said they could not help him, because the deadline for lodging the documents had passed. They referred him to a private lawyer;
h)he went to see a private lawyer on the last day he was due to lodge his documents, but he could not afford the $4,000 they said was necessary for them to help;
i)two and a half months after he received the Tribunal decision, he was contacted by the ASRC, who informed him that they would appoint a lawyer to assist him in completing the forms;
j)around 10 days later a lawyer from the ASRC contacted him, but when they discovered he was working, he was informed that they could not assist him; and
k)the reason his application was more than three months out of date is that he could not find someone to assist him with the forms, he does not speak English and he found it incredibly difficult to understand the legal system here.
The delay is a significant period of time and the explanation provided by the Applicant is not altogether satisfactory. I accept that there may well have been delays in accessing and receiving responses from non-profit organisations, from which he sought help. I do not, however, accept that he was not able to complete the forms. There are many Applicants in his position without competent English, who manage to file in time. In any event, an amended application was filed on his behalf at a later date.
The First Respondent has conceded that no prejudice is suffered from the delay and has focused its arguments, in opposing an extension of time, on the basis that the Applicant has no reasonable prospects of success. Likewise, the focus of the submissions made on the Applicant’s behalf, was the merits of the Applicant’s substantive application.
Merits of the Judicial Review application
In his amended application filed 16 March 2015, the Applicant specifies his grounds of review as:
1. The Tribunal’s decision dated 28th February 2014 (the “Tribunal’s decision”) is affected by jurisdictional error because the Tribunal failed to afford the applicant procedural fairness and failed to comply with its obligations under s.425(1) of the Act.
Particulars
(a) The Delegate accepted that a low level land argument may have taken place between the applicant’s family and the neighbours, and that an objection may have arisen to the building of a house on the applicant’s land from the neighbours in 2011.
(b)In contrast to this, the Tribunal found the applicant’s evidence regarding the basis of the dispute between his father and neighbour to be inconsistent and did not accept that the applicant’s family had been involved in any such dispute with the neighbouring family for significant number of years, nor did the Tribunal accept that an objection may have arisen to the building of a house on the applicant land from the neighbours in 2011.
(c)The Tribunal failed to notify the applicant that it was likely to make an adverse finding on an important matter where the delegate accepted the applicant’s claims, and so failed to notify the applicant that these matters were issues arising in relation to the decision under review.
Delegate’s decision
Because of the way in which submissions were put by Counsel for the Applicant in the judicial review proceedings, it is appropriate to set out in full extracts, from the Delegate’s decision, relied on by the Applicant, which is located under the heading “Credibility Assessment”. The extracts are as follows:
“I have considered the above material claim and consider that a low level land argument may have taken place between the applicant’s family and the X’s. I consider it plausible that an objection may have arisen to the building of a house on the applicant’s land from the X’s in 2011. However after careful consideration, I do not accept the applicant was allegedly threatened by the X’s to the point where his home was raided and do not accept he is of adverse interest to the X’s as is claimed. I do not find as plausible the applicant would seek the assistance of a village elder and make contact with government agencies when he allegedly knew of the influential position the X’s held in Jaghori. The applicant claims his father has been missing for approximately five years and essentially no significant issues over the land had taken place until his return from Iran in late 2011. I find if the applicant and his family were of significant adverse interest to the X’s for the land, there would have been multiple opportunities for the X’s to extend their claimed influence before the purported threats of serious harm in 2011. The fact this did not occur suggests that the applicant and his family are not of adverse interest to the X’s or their associated groups. I cannot discount that the applicant has exaggerated claims of serious harm from the X’s in an attempt to elevate his request for refugee status.” (CB 115)
“As earlier mentioned, I consider it plausible that the applicant’s family may have had some disagreement with their neighbours over land. At his PV interview, I noted the applicant appeared not to know the significant political position X had within Jaghori and the associated political group he is affiliated with (5.20, 5.21). Again, while I find it plausible that some low level argument/discussion may have taken place between the X’s and the applicant’s family, I am not convinced the applicant is of adverse interest to the X’s as he claims. I do not find as plausible the applicant would seek to allegedly lodge a complaint with the village elder or district regarding X’s when he claims that nothing could be done about it due to the X’s political influence in the area. I find it implausible that the applicant would extend himself and essentially bring himself to the adverse attention of the X (sic) by allegedly lodging a complaint with the village elder or government office.” (CB 121)
“During his PV interview, the applicant advised that there has been long standing enmity between his father and the X’s over the land. The applicant claims his father went missing approximately 5 years en route to Iran in search of work. During his PV interview, the applicant advised that the issues arose with X in late 2011, when he attempted to build a house on the land. While I consider there may have been some objection to the building of the house, the fact that no significant encounters took place for approximately 5 years, and in the absence of the male head and alleged main objector to the X’s casts doubt over the veracity of the applicant’s claims regarding the alleged threats of serious harm. I find that there is no plausible connection as to why the X’s would seek the applicant as it would appear that they would have had multiple opportunities to take action against the applicant and his family in order to secure the land before the alleged encounters in 2011. I consider the applicant may have exaggerated the alleged threats of serious harm from the X’s in an attempt to elevate his submission for refugee status.” (CB 121)
Tribunal decision
Under the heading, “Consideration of Claims and Evidence”, the Tribunal extracted, in full, the Applicant’s statutory declaration attached to his visa application, and referred to the submission made by the Applicant’s representative to the Tribunal on 10 October 2013 in a general way, noting, “The adviser summarised the findings of the delegate and responded to the delegate’s decision.” (CB 226 [23])
The Tribunal stated that for the reasons which followed it had concluded that the decision under review should be affirmed.
The first reason given was that the Tribunal found the Applicant’s evidence regarding the basis of the alleged land dispute between the Applicant’s father and his neighbour, X to be inconsistent. The inconsistency arose from the claims in the Applicant’s statutory declaration attached to his visa that the dispute was in relation to his father getting permission to build a house and the submissions from his representative to the Tribunal, which stated that the Applicant’s father had attempted to build a wall and the Applicant’s evidence at the hearing that the dispute over the land began a very long time ago when X took some of the Applicant’s family’s land to build a house. The Tribunal then found:
“The Tribunal finds the applicant’s evidence regarding the basis of this alleged dispute to be inconsistent and as a result it does not accept that the applicant’s family have been involved in any such dispute with X for a significant number of years.” (CB 227 [26])
The next reason given by the Tribunal was that, in the context where the Applicant’s evidence was that X is a member of the local Parliament and has a lot of influence in his district and where the country information relied on by the Applicant referred to the fact land disputes are common, often involving powerful actors with connections to the government and of a violent nature (CB 227 [27]):
“The Tribunal finds it implausible that if X or his son wanted the applicant’s family’s land as he claimed in his statutory declaration, that they would not have done something in the past, particularly since the applicant’s father went missing in 2007 and the applicant subsequently went to Iran for a period of two years between 2009 and 2011.”
Flowing from this finding, the Tribunal stated that (CB 227 [28]) :
“The Tribunal therefore does not accept that the applicant was stopped with threats of death and violence from XX when he commenced building a house on his family’s parcel of land by moving some stones from his farm to this particular location.
The Tribunal also stated that it found the Applicant’s evidence regarding the alleged threats by XX to be “somewhat lacking and inconsistent.” The inconsistencies identified by the Tribunal were as between the number of threats and sequence of events and the harm caused when he was threatened (CB 227 [28]).
The Tribunal then stated that, as it did not accept the Applicant’s claim regarding “this land dispute”, it did not accept that the Applicant reported the alleged threats made against him by XX to the local police (CB 228 [29]). The Tribunal also noted inconsistencies in the Applicant’s evidence in a statutory declaration and at hearing about the persons to whom the complaints were made.
Flowing from this finding, the Tribunal stated that (CB 228 [ 30]):
“It therefore follows the Tribunal does not accept that shortly after reporting these alleged threats to the police, XX came to his house with two other people and demanded he come out of the house.”
The Tribunal identified inconsistencies in the Applicant’s evidence contained in his statutory declaration, his claims made to the Delegate and his evidence at hearing regarding the particular circumstances that surrounded the attendance by XX at his house. The Tribunal stated that given these discrepancies regarding the circumstances of the alleged incident, it was further satisfied that the incident did not take place.
The Tribunal stated that because it had not accepted “the applicant’s claim regarding any dispute with X and his family,” it did not accept the Applicant’s claims that he went to his uncle’s place, that he was hiding there and that his mother advised that XX and his servers returned twice to his home and told his mother that if he returned they would kill him (CB 228 [31]).
The Tribunal also rejected claims the Applicant made during the hearing, which were not ventilated in his statutory declaration attached to his visa or to the Delegate (CB 228 [32])
The Tribunal set out a penultimate finding in relation to the Applicant’s claims regarding the land dispute as follows (CB 229 [33]):
“Based on the above findings, the Tribunal does not accept that the applicant will be harmed or killed by X, through his son XX, over any alleged dispute concerning his family’s land or because the applicant allegedly reported Baqir to the police for making threats against him.”
The Tribunal then proceeded to deal with the Applicant’s claims to fear harm of persecution, because of his ethnicity and religion and his claim that whilst there may be peace in Jaghori, there were risks of harm for those travelling on the roads outside the Jaghori district. The Tribunal also considered the Applicant’s claim that the departure of foreign forces in 2014 would further affect the safety of Hazara people in Afghanistan. The Tribunal referred to and considered country information (CB229 to 231 [34 to 38]) and concluded (CB 231 [39]):
“In light of the information cited above and the fact the applicant would be returning to Jaghori, which is predominantly Hazara, the Tribunal finds that the applicant does not face a real chance of persecution, for the reason of his Hazara ethnicity or Shia religion. The Tribunal accepts the applicant will be denied social and economic rights as a result of his profile as a Hazara Shia. The Tribunal finds the applicant has not suffered such problems in the past and does not accept in light of this and the fact he has family support and connections in his home area and he has worked experience and skills gained in both Afghanistan and in Iran, that he will suffer significant economic hardship, the denial of access to basic services or the denial of a capacity to earn a livelihood of any kind, that threatens his capacity to subsist.”
With respect to the Applicant’s claims on the basis of his status as a returned asylum seeker, the Tribunal referred to country information and found that (CB 231 to 232 [40)]:
“…the independent information does not suggest that persons who have returned to Afghanistan after spending time in the West are targeted for this reason or because they are identified as failed asylum seekers. On the information before it, the Tribunal does not accept the applicant faces a real chance of persecution for reason of his membership of a particular social group of Afghan failed asylum seekers or an imputed political opinion as a result of being a failed asylum seeker, a returnee or returnees from the West, now or in the reasonably foreseeable future.”
The Tribunal then turned to consider the complementary protection obligations under s.36(2)(aa) of the Act. It stated it was not satisfied that the Applicant satisfies the criterion set out in s.36(2)(aa).
The Tribunal stated that because it did not accept the Applicant’s claims regarding the dispute between the X’s and his family, it did not accept the Applicant faces the risk of significant harm as a result of the alleged dispute (CB233 [45]).
The Tribunal referred to country information with respect to the circumstances of Hazara Shia Muslims, saying it did not accept that if the Applicant returns to his home area in the Jaghori district of Ghazni province there was a real risk he would suffer significant harm. The Tribunal said it accepted, based on country information, that the Applicant “may face some degree of danger travelling outside of Jaghori”. It held that on the country information, no particular ethnic group were being targeted and that the main people being targeted were those employed by or with direct links to the Afghan government (CB 233 [47]).
The Tribunal stated it was not satisfied based, on the country information, that the Applicant would face a real risk of significant harm as a failed asylum seeker, returnee or a returnee from the West (CB233 [48]).
Accordingly, the Tribunal found the Applicant did not satisfy the criteria in s.36(2) of the Act.
Judicial Review Ground
The Applicant claims that the Tribunal failed to conduct the hearing, as it was obliged to do pursuant to s.425 of the Act “relating to the issues arising in relation to the decision under review”.
The central authority upon which the Applicant relies is SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (“SZBEL”) and, in particular, the consideration by the majority of the obligations imposed on the Tribunal by s.425 of the Act at [35] to [36]:
“[35] The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
[36] It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant’s favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal’s invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant’s favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.”
Two further decisions were referred to by the Applicant as expositions of the principle established in SZBEL. In SZHBX v Minister for Immigration and Citizenship [2007] FCA 1169 at [14], Justice Edmonds stated:
“Section 425, as construed in SZBEL, requires the Tribunal to disclose to an applicant additional issues which were not live issues in the delegate’s decision or otherwise made known to the applicant as being in issue. If the Tribunal proposes to make an adverse finding on a matter where the delegate accepted or found no deficiency in the applicant’s claims and the applicant has not otherwise been notified that the matter is in issue, the Tribunal should disclose to the applicant that it has a concern about the matter ((2006) [2006] HCA 63; 81 ALJR 515 at [36]). It is an entirely different matter to say that the Tribunal is bound to treat the applicant’s case before the Tribunal as identical to the case the applicant presented to the delegate. Following the delegate’s decision an applicant may present additional evidence, and/or elaborate upon or change the Convention ground claimed. The Tribunal has a duty to consider the claim as it is presented to it on the basis of all the available evidence. The Tribunal does not have a duty to inform an applicant that because the evidence on which he or she now relies is different from the evidence before the delegate, the Tribunal may make different factual findings. Nor does the Tribunal have a duty under s 425 to inform an applicant that because the claims are now framed on the basis of a different Convention ground it will be required to consider whether the evidence supports the new claim.”
In MZYOI v Minister for Immigration and Citizenship [2012] FCA 868 Justice Dodds-Streeton stated at [92];
“SZBEL establishes that the statutory procedure prescribed for a review by the Tribunal would ordinarily require it to notify an applicant of an intended deviation from the delegate’s finding on a dispositive or important matter, so that, consistently with procedural fairness, the applicant has notice of the “live” issues in the review. The underlying rationale is that, as the Tribunal conducts a review of the primary decision, unless advised by some means that all findings are in doubt, the applicant may assume that, in the absence of a specific challenge or notice, the dispositive facts accepted by the primary decision maker would also be accepted on review.”
SUBMISSIONS
Applicants Submissions
The Applicant submits that the Tribunal failed to put the Applicant sufficiently on notice of an issue that arose in the review process. This issue related to a land dispute between the Applicant’s father and his neighbour, X. The Applicant submits that in circumstances where the Delegate, in his reasons, had accepted there was a dispute between the Applicant’s father and his neighbour, X, the Tribunal member was obliged to inform the Applicant of the Tribunal member’s disbelief as to the existence of this dispute.
The Applicant’s submission is as follows:
a)one of the Applicant’s claims was that he fears persecution and/or significant harm if returned to Afghanistan, because of “his imputed political opinion of opposition to X and his associates as a result of a land dispute” (CB 143);
b)the claims made by the Applicant in his statutory declaration attached to his visa application were twofold. First, he claimed a long-standing land dispute between the Applicant’s father and X, which originated when the Applicant was younger. Second, he claimed a dispute in 2011 between the Applicant and X’s son, XX;
c)the delegate made various findings in relation to the Applicant’s claims regarding a land dispute. In particular, the Delegate accepted the historical and more recent aspects of the dispute when it stated:
“I have considered the above material claim and consider that a low level land argument may have taken place between the applicant’s family and the X’s. I consider it plausible that an objection may have arisen to the building of a house on the applicant’s land from the X’s in 2011. (CB 115)
d)having read the Delegate’s decision, the Applicant would have appropriately taken the view that the question whether or not there was a land dispute was not an issue he need necessarily be concerned with (subject to being informed of this by the Tribunal);
e)the understanding by the Applicant of the issues under review is reflected in the submissions made by the Applicant’s representative, when summarising the Delegate’s decision, inter-alia, (CB144):
“f. the Applicant’s family may have been involved in a land dispute with the X family; and
g. An objection may have arisen to the building of a house on the applicant’s land from the X family in 2011.”
f)Given this understanding, the submissions made on the Applicant’s behalf focused on the adverse findings of the delegate, which were in relation to the claim that XX made threats to the Applicant and the Applicant complained to the police;
g)the Tribunal stated, having identified inconsistent evidence given by the Applicant:
“The Tribunal finds the applicant’s evidence regarding the basis of this alleged dispute to be inconsistent and as a result it does not accept that the applicant’s family have been involved in any such dispute with X for a significant number of years.” (CB 227 [26])
h)in making this finding, the Tribunal is rejecting the basis for the entirety of the land dispute.
The Applicant submits that, he was entitled on the reasoning of SZBEL, to assume that the starting point was the decision of the Delegate. Matters that were not identified or were not issues in that decision, if they were to become issues in the Tribunal’s treatment of his claims, needed to be identified sufficiently for the Applicant. The Applicant submits that the Tribunal did not do so. It is in this respect, the Applicant submits that the Tribunal erred.
The Applicant submits that the obligation under s.425 of the Act was not discharged by reason of the questions put to the Applicant at the hearing. He submits the questions put did not appraise him that the Tribunal had any level of disbelief about his account of the land dispute between his father and X.
The Applicant relies on a copy of a transcript of the audio recording of the hearing, contained in Annexure A of an affidavit affirmed by Ajsela Siskovic and filed 16 March 2015.
The Applicant refers to some general questions regarding the land dispute (T11.8 to T12.33):
MS MULING: So you say this dispute started between (indistinct) X and your father. Is that right?
INTERPRETER: Yes.
MS MULING: When did this dispute first begin between the two of them?
INTERPRETER: It was long ago, I was very young at that time.
MS MULING: How did this dispute arise, how did it start?
INTERPRETER: Because X’s house was close to my house, he took some of our land. He build a house and took some of our land to build a house across the (indistinct)
MS MULING: So he actually took some of your family's land?
INTERPRETER: Yes, a part of land. He wanted to build a house, so just like one metre he cross and took my land.
MS MULING: But you said before that he had the dispute with your father but could not take the land from your father, so can you explain how this occurs?
INTERPRETER: He wanted to take all the land, but he could not. He just built a house, it was just a little bit he crossed, he built a house a little bit on our land.
MS MULING How was he not able to take more of the land away from your father?
INTERPRETER: I was very young at that time, but they had some dispute and that's when my father was alive, and he could not take the land. X was not in power at that time as well.
MS MULING: Was the dispute between your father and X resolved at that time?
INTERPRETER: No, because it was just left like that.
MS MULING: What do you mean by that?
INTERPRETER: X could not take that land and also we could not build house and we could not do anything with that land.
MS MULING: Why couldn't you build a house or do anything with the land, seeing it was your land?
INTERPRETER: X did not leave us too, he was working on the party at that time, party of (indistinct)
MS MULING: So how did he prevent your father from doing anything with his land?
INTERPRETER: He was in power at that time, he was in that group, working with that group, and my father did not have any group, so that's why my father could not do anything otherwise he would kill my father.
MS MULING: Apart from not being able to do anything with his land, did your father experience any other problems as a result of this dispute with X?
INTERPRETER: Only our dispute was for the land and nothing else, because X had power and he was using his power, he was forcing us to take our land, but he couldn't.
MS MULING: But as a result of that dispute did your father have any particular problems?
INTERPRETER: No, nothing happened because my father was afraid that he should not be killed, that's why he did nothing.
The Applicant submits that these questions disclose no expression of disbelief by the Tribunal member as to the veracity of his claims regarding the genesis of the land dispute. The Applicant submits that the later questions of the Tribunal focus on threats that were the consequences of the land dispute (and about which the Tribunal made adverse findings) and a detailed exchange about the building the Applicant committed to in 2011. However, he submits there was nothing from the exchange which would leave the Applicant with any doubt about the fact of the land dispute being accepted by the Tribunal.
First Respondent’s submissions
The First Respondent submits that the substantive application does not have a reasonable prospect of success because the determinative issue before the Delegate and the Tribunal was the credibility of the Applicant’s claim of a violent land dispute in 2011 with a local politician and son. The Minister submits that the determinative issue in both the Delegate’s and the Tribunal’s decisions was that each decision maker did not find the Applicant’s claims about the nature of the land dispute credible, and therefore did not consider there was a real chance of serious harm.
The First Respondent submits that the extract relied on by the Applicant at [26] from the Decision Record where the Tribunal stated it, “does not accept that the applicant’s family have been involved in any such dispute with X for a significant number of years on”, is not a finding by the Tribunal that it did not accept that there was a dispute at all but rather that it subsisted for a “significant number of years”.
The First Respondent submits that whilst the Delegate and the Tribunal may have expressed themselves differently on the claimed land dispute, they did not differ in finding that the Applicant’s claim to have been involved in a land dispute of a kind that gave rise to threats of violence by the neighbour was not credible.
The First Respondent’s submission is as follows:
a)the Delegate did accept that it was plausible that an objection may have arisen to the building of a house on the Applicant’s land from the X’s in 2011;
b)however, the Delegate did not accept the Applicant was threatened by the X’s in the manner claimed by the Applicant;
c)nor did the Delegate accept that the Applicant and his family were of adverse interest to the X’s and their associates (CB 115);
d)the reasoning of the delegate is a credibility finding, which then informed its ultimate finding that the Applicant did not have a well-founded fear of persecution (CB 121);
e)likewise, the Tribunal made adverse credibility findings regarding the Applicant’s evidence in relation to the dispute between the Applicant’s father and X;
f)given this adverse credibility finding, the Tribunal then made its finding that “it does not accept that the applicant’s family have been involved in any such dispute with X for a significant number of years.” (CB 227 [26]);
g)this finding of the Tribunal was not a finding that there was never any land dispute but that there was not a land dispute persisting for a significant number of years;
h)the Tribunal then considered the Applicant’s claim about his land dispute in 2011 with XX and rejected that claim based on credibility findings; and
i)consequently, the credibility findings made by the Tribunal were the same as those made by the Delegate.
The First Respondent submits that it is apparent, from the written submissions dated 10 October 2013, made on behalf of the Applicant to the Tribunal that the Applicant was alive to the fact that this was the issue he would be required to deal with at the review hearing. The First Respondent relies on the following extracts from the written submissions which are located under a heading “Credibility Issues” (CB 145):
“8…we submit that country information suggests land dispute such as the one (the applicant) is embroiled in are common throughout Afghanistan. The most recent UNHCR Guidelines also refer to the violent nature of land disputes which often involve powerful actors with connections to the government …”
“9. The common occurrence of land disputes throughout Afghanistan, and the documented evidence of such disputes involving armed civilians with links to persons of political power, support (the applicant’s) claims that he was harassed by XX to the point of him coming to (the applicant’s) house with two armed men.”
The First Respondent further submits that, even if this were not the case, the Tribunal discharged its obligations under s.425(1) of the Act by reason of the questions and comments during the review hearing which, it submits, indicated to the Applicant that it did not accept his claim regarding the land dispute.
The First Respondent submits that the transcript relied on by the Applicant is selective, in that the Tribunal member is then asking the Applicant a series of open questions about the dispute to enable the Applicant to tell a story in his own words. The First Respondent submits that from T21, the member commences to put to the Applicant inconsistencies in his evidence about the land dispute. The extracts from the transcript relied on by the First Respondent are as follows:
MS MULING: Okay, thank you. Can you tell me if the land had seemed to have been settled to some degree several years before when you were younger and (indistinct) X had the dispute with your father? Why would they care if you built the house on your land in 2011? (T 21.35)
MS MULING: I just don't understand. You say this dispute has been going on for a long time, since you were young, and you also say your father went missing three years before you went to Iran. You still would have been fairly young at that time, but nothing has been done about this land until you came at the end of 2011 and wanted to build a house on it. Now, if they wanted the land they've had heaps of time to take that land, particularly given you say they're powerful people, so I'm just unclear as to how they want the land and have not done anything about getting it. (T 22.36)
MS MULING: I have some difficulty with that explanation given that land has been sitting there doing nothing for a very long period of time and they've had ample opportunity to take that land, but they've done nothing until you came along at the end of 2011 and wanted to build a house on it. (T 23.12)
MS MULING: I suppose what I'm getting at is there seems to be a difference with what you have put in your statutory declaration and what you've said in the interview and what you're telling me now, because you say in your statutory declaration your mother answered the door, yet you're telling me he's kicking the door now, so your mother - that just is a bit different. Then you say in your statutory declaration you saw him through the window coming with these weapons and these people, and you fled. Yet, in the interview with the delegate, it says that you said that XX broke into your home, so he actually came into your home and you somehow realised they were armed and left. So there are a number of differences between what you claimed in your stat dec and at the interview with the delegate according to the decision, which raises some doubts about this claim.(T 25.32)
The First Respondent submits that the Tribunal member could not have been any clearer in alerting the Applicant to her concerns regarding the credibility of the Applicant’s claims about the 2011 dispute.
Consideration
I am satisfied that the Applicant’s claims with respect to the land dispute with the X family were twofold:
a)firstly, he claimed there was a land dispute between his father and X, which had its genesis when he was younger; and
b)secondly, he claimed there was a land dispute between himself and X’s son, XX in 2011.
The twofold nature of the Applicant’s claims with respect to the land dispute with the X family was appreciated by the Delegate and dealt with in his decision in the following extract:
“the applicant advised that there has been long-standing enmity between his father and the X’s over the land. The applicant claims his father went missing approximately five years en route to Iran in search of work. During his PV interview, the applicant advised that the issues arose with X in late 2011, when he attempted to build a house on the land.” (CB 121) (my emphasis)
I agree with the Applicant’s submissions that the Delegate accepted that there may have been or it was plausible that the disputes existed. This is apparent from the following extracts from Delegate’s reasons where he states:
“I have considered the above material claim and consider that a low level land argument may have taken place between the applicant’s family and the X’s. I consider it plausible that an objection may have arisen to the building of a house on the applicant’s land from the X’s in 2011.” (CB 115)
“I consider it plausible that the applicant’s family may have had some disagreement with their neighbours over land.” (CB 121)
It is apparent from the reasoning of the Delegate, that his conclusion that the Applicant did not satisfy the criteria in s.32(2)(a) and s.36(2)(aa) of the Act, flow from his findings as to the consequences of the dispute. The Delegate did not accept the Applicant’s claims that he was threatened by the X family, such that his house was raided. The Delegate did not find it plausible that the Applicant would seek the assistance of government agencies, nor that he would have remained of adverse interest to the X’s and their associates over such a long period of time. (CB 115, 121; see [13] above).
The First Respondent’s characterisation of the determinative issue before the Tribunal is, in my opinion, directed to the conclusion reached by both the Delegate and the Tribunal regarding the threats of harm flowing from the claimed land dispute. Before reaching this conclusion, however, both the Delegate and the Tribunal were required to and did deal with the Applicant’s claims regarding the land dispute. Without making findings about the existence of the land dispute, the whole basis for the Applicant’s claim to fear persecution or significant harm fall away. That is, the claimed threats by X’s son, XX depended in the first place on the claimed existence of the land dispute between the Applicant’s father and X. In this sense, it was a determinative issue about which both the Delegate and the Tribunal were required to make findings.
Consequently, I am satisfied that the Applicant was entitled to assume that the existence of the land dispute between the Applicant’s father and X in its manifestation identified by the Delegate was not an issue that would arise, unless he was notified otherwise, in the review hearing. He was entitled to assume that he needed to address the particular reasons identified by the Delegate for refusing to grant the application; namely, the existence and nature of the claimed threats made by XX, his evidence that he complained to authorities and subsequent repercussions from XX and his associates.
I am satisfied that the written submissions of the Applicant’s representative to the Tribunal, dated 10 October 2013, so far as they can be said to reflect the Applicant’s understanding of what he was required to deal with at the Tribunal hearing, disclose the following:
a)the Applicant understood that the Delegate had found that his family may have been involved in a land dispute with the X family and that an objection may have arisen to the building of a house on the Applicant’s land from the X family in 2011 (see paragraph 5(f) and (g) of the written submission extracted at [30] above); and
b)notwithstanding these findings, the Delegate found there were credibility issues and did not accept the nature of the threats by the X family as claimed by the Applicant nor did the Delegate accept that the Applicant sought the assistance of government agencies; or that the Applicant and his family were of adverse interest to the X’s (see [13] above).
The particular extracts from the written submissions relied on by the Respondent, in my view, simply confirms the fact that the Applicant understood (see [48] above) that it was the credibility findings around the threats of harm that were the issues he had to deal with.
I am satisfied that the Tribunal’s finding at [26] of its decision was a finding that there had not been a land dispute between the Applicant’s father and X. Whether or not the dispute was long-standing was superfluous to that finding. This is evident by having regard to the paragraph as a whole. It is apparent from the preceding parts of that paragraph, that the Tribunal was addressing itself to inconsistencies in the Applicant’s evidence which it identified regarding the origin of the dispute between the Applicant’s father and X. The inconsistency in the evidence was whether the dispute arose because the Applicant’s father had built a wall or a house (see [16] above). The disbelief by the Tribunal that the dispute had persisted for some years was dealt with in the next paragraph of the decision record at [27] (see [17] above).
The fact that the Tribunal was at [26] making findings about the existence of a land dispute, at all, between the Applicant’s father and X is supported by the opening words of the next paragraph, ([27] of the Decision Record), which commences as follows:
“The Tribunal also has some doubts about this alleged land dispute with X and the applicant’s claim that either X and/or his son XX will kill or harm if he returns to Afghanistan…..”
The Tribunal then proceeds to set out its finding that it would be implausible that, from the period of the commencement of the land dispute until 2011, the X family took no action in relation to a land dispute. (See [17] above)
I am satisfied that the finding by the Tribunal that it did not accept there was a land dispute between the Applicant’s father and X, raises new and different issues to those apparent on the face of the record of the Delegate’s decision.
As I have earlier stated, I am satisfied that the Delegate accepted that a low level land argument may have taken place between the Applicant’s family and the X’s, and that it was plausible that an objection may have arisen to the building of a house on the Applicant’s land from the X’s. In other words, the Delegate recognised that there were two aspects to the “land dispute” and was prepared to accept they occurred. As is apparent from the reasoning of the Delegate, he was not, however, convinced that the Applicant was threatened by the X’s nor that he reported the matter to the police (see the extracts set out at [13] above).
In AZAED v Minister for Immigration and Border Protection [2015] FCA 982, White J stated:
“15 The issues to which s 425 refers are those identified by the Minister’s delegate as well as any additional issues identified by the RRT itself: SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at [35]. When the RRT regards issues not identified by the delegate as being critical to its decision, it must give notice of those issues to the applicant: SZBEL at [35]–[36]. If the RRT does not identify any additional issues, then ordinarily an applicant is entitled to regard the issues identified by the Minister’s delegate as being the critical issues: SZBEL at [42]–[44].”
I am satisfied that the existence or not of the land dispute, in its two manifestations, were critical issues, in the sense that they informed the Tribunal’s findings, because, as a matter of logic, without accepting the claim of the land dispute, there could be no basis for the Applicant’s claims that he was threatened with harm by XX and that he reported the matter to the police and that after he did this XX attended his home with accomplices threatening to kill him. Consequently, I am satisfied that the existence or not of the land dispute was ultimately dispositive of the Tribunal’s rejections of the Applicant’s claims to fear persecution and significant harm.
The question then becomes, did the Tribunal draw to the Applicant’s attention, during the review hearing, the issues identified by the Tribunal as being critical issues, which issues were not identified by the Minister’s Delegate.
I have considered the extracts relied on by the Applicant and the First Respondent and have read the transcript of the review proceedings as a whole.
There is no doubt that the Tribunal member questioned the Applicant regarding the Applicant’s claims about the alleged 2011 land dispute. In doing so she used phrases such as “I just don’t understand”, “I have some difficulty with that explanation” and, referring to differences in the Applicant’s statutory declaration and the interview with the Delegate, “which raises some doubts about this claim.” (see [50] above)
I am not satisfied that these expressions by the Tribunal member would have conveyed in terms understandable to the Applicant, her disbelief regarding the land dispute between the Applicant’s father and X, which had its genesis when the Applicant was younger.
In context, these questions are clearly directed only to the Applicant’s claims regarding the land dispute in 2011. There is nothing in the transcript to suggest that the Tribunal put the Applicant on notice that it had doubts or concerns as to the very existence of a land dispute between his father and X.
For these reasons, I am satisfied that the Tribunal failed to discharge its obligation under s.425 of the Act, thereby denying the Applicant procedural fairness.
Conclusion
It will be apparent, from my reasons, that I am satisfied the Applicant’s substantive application for judicial review has a substantial prospect of success. In these circumstances, I am satisfied I should exercise my discretion pursuant to s.477(2) of the Act to extend the time in which the Applicant must file his application and amended application for judicial review.
I further find, for the reasons set out above that the Tribunal fell into jurisdictional error. Consequently, I will make an order quashing the Tribunal’s decision and remitting the matter to the Tribunal to determine the matter according to law. An order for costs will also be made against the First Respondent.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 8 October 2015
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