MZAMP v Minister for Immigration
[2015] FCCA 2703
•8 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAMP & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2703 |
| Catchwords: MIGRATION – Whether the applicant was afforded procedural fairness/natural justice by the Tribunal – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 26(2)(aa), 424A(3)(a), Division 7, Part 7 |
| Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611 Tisdall v Webber [2011] FCAFC 76; (2011) 193 FCR 260 |
First Applicant: Second Applicant: | MZAMP MZAMQ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2143 of 2014 |
| Judgment of: | Judge Jones |
| Hearing date: | 19 June 2015 |
| Date of Last Submission: | 1 July 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 8 October 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Self Represented |
| Counsel for the Respondents: | Ms Maddocks |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The Second Respondent’s name be amended to read the Administrative Appeals Tribunal.
The Application for judicial review filed on 23 October 2014 be dismissed.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2143 of 2014
| MZAMP |
First Applicant
MZAMQ
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an Application filed on 23 October 2014 for judicial review of a decision of the (then) Refugee Review Tribunal (“Tribunal”) dated 18 September 2014. The Tribunal affirmed a decision by a delegate of the First Respondent dated 18 June 2014 not to grant the Applicants Protection (Class XA) visas (“the Visa”).
The first and second named Applicants are husband and wife respectively, and are citizens of Malaysia. The first named Applicant shall be referred to as the Husband and the second named Applicant shall be referred to as the Wife. The Husband arrived in Australia on 8 October 2013 (CB 28) and the Wife arrived in Australia on 5 April 2012 (CB 14).
Both Applicants applied for Protection (Class XA) visas on 26 May 2014 (CB 2-40). The Applicants were assisted by a Migration Agent (CB 46-51). The Applicants’ claims are set out in two statutory declarations accompanying the application (CB 41-45). These claims are:
a)The Applicants claimed to fear persecution and significant harm in Malaysia on the basis of their Indian Tamil Ethnicity, Hindu faith and political opinion.
b)Specifically the Husband claimed to fear persecution and significant harm from Malay Muslims, the police and other state authorities for reason of:
(i)His involvement in a demonstration in Brickfield, Kuala Lumpur organised by the Hindraf organisation, following which he was arrested, detained for about 20 days and tortured;
(ii)His support for opposition leader Anwar Ibrahim in the 2013 general election following which many supporters were shot and killed by the police, including his friend Ashok and Ashok’s sister;
(iii)Harassment and abuse he experienced by the police and Malay Muslims; and
(iv)His tattoo which pronounced him to be a non-Muslim.
(c)The Wife claimed to fear persecution and significant harm from Malay Muslims, the police and her Husband’s enemies for reason of:
(i)Her gender, her status as a Hindu Tamil woman and the discrimination she experienced in the past;
(ii)Previous threats and sexual harassment she received from an individual named Ismail whom she went to college with, and her fear that she may be harmed and/or raped in the future; and
(iii)Her marriage to her husband.
At the Tribunal hearing, the Husband made a further claim with respect to his tattoo which was described in the Tribunal decision record as a “visible spider web tattoo”(CB 250 [36]). He claimed that [36]: “he fears serious harm in Malaysia because of this tattoo… (because) in 2013 Malaysia passed a law stating that persons with tattoos would be identified as members of gangs…”
The Applicants on their own behalf, applied to the Tribunal for review of the delegate’s decision on 23 June 2014 (CB 137-142). The Applicants submitted a copy of the delegate’s decision with their application for review (CB 149-159).
By email dated 8 July 2014, the Tribunal wrote to the Applicants inviting them to attend a hearing on 1 August 2014 (CB 194-197).
The Husband requested, on 30 July 2014, an adjournment of the scheduled hearing on the basis of the Wife’s physical and mental ill-health (CB 201):
“My wife has been unwell lately, physically and mentally, and she is having an appointment with the Mental Health team this afternoon. I have also been very worried about this hearing as I don’t have a Migration Agent or lawyers to represent me. My wife and I are looking for a lawyer to represent us, but this may take some time. As we are not mentally ready for this hearing, we are writing to you to request if the hearing can be postponed for a few weeks, approximately one month if possible, so we can be ready for the hearing.
My wife will request for a letter from IHMS about her medical conditions and we will send it to you as evidence or supporting document for our request”.
The request was granted and the hearing was postponed until 28 August 2014 (CB 203-205).
There is no evidence that a letter from IHMS regarding the Applicant Wife’s health was provided.
At the hearing on 28 August 2014, the Tribunal heard evidence from the Applicants who were assisted by an interpreter in the Tamil and English languages, separately and then together. The Applicants were granted a request to have a support worker in attendance (CB 206, 209-211).
After the hearing, the Applicants provided to the Tribunal copies of their passports, a letter of support from a support worker and articles regarding the circumstances of Indians living in Malaysia, the Hindraf protest in 2007 and the Hindraf organisation generally (CB 215-239).
The Tribunal had significant concerns as to the credibility of the Applicants’ claims. The Tribunal stated (CB 245 [13]):
“The Tribunal records at the outset that it holds significant concerns as to the credibility of each of the applicants’ claims to have experienced past harm in Malaysia. These concerns arise because of the Tribunal’s assessment that the applicants’ evidence has changed over the course of these proceedings, that their evidence is inconsistent with information from independent sources and that there are significant inconsistencies between the evidence of the applicant husband and the evidence of the applicant wife.”
The Tribunal described the Husbands’ claims with respect to his political opinion as “manufactured” (CB249 [34]).
The Tribunal did not accept that the Husband had been involved in Hindraf, that he had attended a protest organised by Hindraf, or that he was arrested and detained as a result of the protest or at any other time (CB 248-249 [27]-[30]. This was based on inconsistencies between his written statement, his evidence at the Departmental interview and his evidence at the Tribunal hearing regarding when the protest occurred, and the frequency and timing of his arrest (CB 246-247 [20]–[23]). The Tribunal was also concerned with the inconsistencies between the evidence of the Husband and the Wife regarding the frequency and timing of the arrests of the Applicant Husband (CB 247 [24]). The Tribunal considered the photographs submitted by the Applicants which purported to show injuries sustained during the Husband’s detention. The Tribunal found that one of the photographs did not depict the Husband, and did not accept that the injuries depicted in the other photographs were sustained in the manner claimed (CB 248 [25]-[26]).
The Tribunal did not accept that the Husband would become involved in political activities in Malaysia in the future (CB 249 [34]).
The Tribunal did not accept that the Husband would be harmed due to his support for Anwar Ibrahim in the 2013 general election, and did not accept that either Applicant would be harmed if they voted for opposition candidates in the future (CB 250 [35]). In so finding, the Tribunal rejected the Applicants’ claim that people they knew had been shot and killed as a result of voting for Anwar Ibrahim, on the basis of their evidence at the Tribunal hearing that those people had in fact been shot due to suspected gang involvement (CB 249 [31]).
The Tribunal did not accept that the Husband would be harmed as a result of his tattoo. Although the Tribunal accepted that police in Malaysia use gang tattoos to identify and target suspected gang members in Malaysia (CB 250 [36]), it did not accept that the Husbands’ tattoo was a gang tattoo or that it would be perceived as such by the Malaysian authorities (CB [37]). The Tribunal’s reasoning was:
“The Tribunal’s concerns about the applicant husband’s credibility, taken together with his evidence that he is not a member of the 08 gang or any other gang and has no association with any gang in Malaysia, cause it not to accept that the applicant’s tattoo is a gang tattoo, nor that it would be perceived as such by the Malaysian authorities”.
The Tribunal accepted that the Applicants were of Indian Tamil ethnicity and of Hindu faith, but on the basis of country information did not accept that they would be harmed as a result of this (CB 252 [44] and CB 253 [48]).
The Tribunal accepted that the Wife was harassed by a man named Ismail while at college in 2004 to 2005 (CB 254 [53]), and that non-ethnic Malays face discrimination in Malaysia (CB 255 [55]). However, the Tribunal did not accept that the Wife would be targeted or be seriously harmed by Ismail now or in the reasonably foreseeable future (CB 254 [53]) or that she had a well-founded fear of harm considered either cumulatively or separately on the basis of her relationship with her Husband, her Hindu religion, her Tamil ethnicity and her female gender (CB 255 [56] – [57]).
For the reasons set out earlier in relation to s.36(2)(a), the Tribunal concluded that the Applicants did not satisfy the criteria for grant of the visa in section 36(2)(a) or in section 36(2)(aa) of the Act.
Judicial Review
In their Application filed on 23 October 2014, the Applicants specify two grounds:
a)Denial of natural justice in decision: and
b)Denial of procedural fairness.
The Applicants appeared at the hearing assisted by an Interpreter in the Tamil and English languages. The Husband made submissions on their behalf.
The Husband had filed an Affidavit on 17 June 2015, two days before the hearing, in which, inter alia, he asked for an adjournment is order to obtain a transcript of the Tribunal hearing. He deposed that presently he could not afford a transcript but that if it is necessary and the Court grants permission he would like more time to obtain the transcript [6].
It is not clear why the Applicant required a transcript. It seems that he was critical of the Tribunal member for saying at the hearing that there was nothing before her to suggest the spider web is a gang tattoo or that the Malaysian Government subjected people to persecution or significant harm because they have obvious tattoos [8] and yet, in her written decision referred to country information regarding this issue (CB 250 [36]).
Even if the Tribunal did not refer to independent country information at the hearing, it was not required to in order to comply with the procedural fairness obligation under the Act: see s.424A(3)(a).
The Husband asked the Court if he would have to pay any money if the proceedings were adjourned. I informed him that that may well be a consequence if I adjourned the hearing. The Husband informed me that he did not press his application for an adjournment.
I asked the Husband why he said they were denied procedural fairness/natural justice. He gave two reasons. First, he submitted that the Tribunal asked him to provide evidence about his tattoo. He said he was not able to get information from the Internet about tattoos because he was in detention and the web sites were blocked. He submitted he told the Tribunal he could not collect the evidence because the internet was down. The Tribunal said they would call him but did not. He argues that the Tribunal did not give him sufficient time to obtain the evidence.
There is nothing on the face of the decision record to suggest that the Husband was asked by the Tribunal to provide any evidence regarding the Husband’s tattoo. Nor, it might be said, was there any record that the Husband asked the Tribunal for the opportunity to provide such information. At [26] of its Decision Record the Tribunal stated:
“At the hearing the applicant husband gave evidence that he would try to obtain medical records after the hearing relating to the treatment of the injuries he received during his period of detention.”
The Husband’s submission is also not consistent with the Decision Record in which the Tribunal records that (CB 250 [37]):
“… the applicant gave evidence that since being in detention he had researched gang tattoos on the internet and now believed (his tattoo) was a gang tattoo associated with the 08 gang”.
In addition, the record of a communication by the Husband with the Tribunal dated 3 September 2014 supports an inference that the Husband was only concerned to provide medical records from the internet not tattoos (see [33] below).
The Tribunal rejected the Husband’s evidence that the tattoo was a gang tattoo on the basis that he had not provided this information he said he had located to the Tribunal, on his lack of credibility and having regard to the evidence he was never a member of a gang. In any event, the Applicant was given seven days to provide further evidence after the hearing (CB 213). The Applicant provided various documents after the hearing including on-line information (CB 215-239).
At the judicial review hearing the Husband said that he was also denied procedural fairness because he could not provide a 2007 medical report regarding his alleged injuries.
There is a case note at (CB 240) dated 3 September 2014 which reads:
“The applicant contacted the tribunal to advise that the member requested the applicant to provide a medical certificate the applicant advised that he cannot provide the medical certificate. I advised the applicant if he could put that in writing. The applicant advised that the systems at the detention center are down and he cannot do that and that is why he has called. I advised that I will advise the member and if the tribunal requires anything further a case officer will be in contact. The applicant thanked me and the call ended.”
The Husband informed the Court that the Malaysian hospital no longer had the records in question. In these circumstances, it can hardly be said the Tribunal did not comply with its procedural fairness obligation under Division 4, Part 7 of the Act.
I find that there is no jurisdictional error on the grounds that the Applicant was denied natural justice/procedural fairness.
The Husband did not particularise his ground of judicial review that the Tribunal’s decision was unreasonable. However, having read his Affidavit filed on 17 June 2015, it seemed to me that this was a ground that fairly arose from the matters deposed to by the Husband at [11] to [14]:
“11. The RRT Member then writes: ‘However the Tribunal does not accept the applicant’s tattoo is a gang tattoo, nor that it would be perceived as such by the Malaysian authorities’. Although she accepts in para. 36 that people with tattoos which resemble gang tattoos are targeted by Malaysian police, she does not accept that a spider web tattoo look s like a gang tattoo.
12. The RRT Member does not say what gang tattoos look like, or what tattoo designs are used by criminal gangs in Malaysia.
13. The RRT Member does not accept my tattoo is a gang tattoo, or that it would be seen as a gang tattoo by the Malaysian authorities, without saying what gang tattoos look like. This does not make sense and is illogical. In the interview the RRT Member said there was no evidence that people in Malaysia are targeted for any visible tattoo – she did not state it needs to look like a gang tattoo, or even be a gang tattoo. The evidence cited in the decision is very different to the information provided at the interview and it was a breach of due process that I was not given an opportunity to respond to this.
14. During my RRT interview I informed the RRT Member that my tattoo looks like a gang tattoo which is associated with the 08 gang. A simple internet search using Google or another common browser reveals that spider web tattoos are linked to Malaysian gangs. The information I provided in the RRT Hearing was that the Malaysian authorities target people who have tattoos which look like gang tattoos, and that my spider web tattoo looks like a gang tattoo. The information the RRT Member relies on in her decision agrees with my claim that people with tattoos which resemble gang tattoos have been arrested by police, but she does not follow logic in reaching a conclusion that I would not be at risk because of my tattoo”.
I explained to the Husband that it appeared that his Affidavit raised as a ground of judicial review “illogicality”. I asked him whether he wished to be granted leave to pursue this ground. He said he did and he was granted leave to amend his application to include “that the reasoning of the Tribunal was illogical” as a ground of review.
Directions were made for the Minister to file written submissions in relation to this further ground and for the Applicant to respond. The Minister filed a written submission in accordance with my orders made on 19 June 2015.
The Applicant filed an Affidavit after the date on which his written submission was due. I have read his Affidavit filed 13 August 2015. It does not address the issue of illogicality. Rather the Applicant complains about the standard of interpretation at the judicial review hearing and the manner in which I conducted the hearing with the consequence it is asserted he was denied natural justice and procedural fairness.
The Husband’s argument, evident from his Affidavit filed 17 June 2015, can be said to be:
(a)The Tribunal accepted at [36] that people with tattoos resembling gang tattoos are targeted by police and are arrested by police;
(b)However, the Tribunal “did not follow logic” in concluding that he would be at risk.
It is apparent from the Tribunals’ Decision Record that during the hearing the Tribunal member observed that the Husband had a “visible spider web tattoo” (CB 250 [36]). The Husband gave evidence that people with tattoos would be identified as a gang member ([36]). In its Decision Record the Tribunal referred to independent sources and stated that “The Tribunal accepts the police are using gang tattoos to identify and target suspected gang members.”
The Tribunal said it did not accept the Applicant Husband’s tattoo was a gang tattoo associated with the 08 gang for reasons that [37]:
(a)The Husband had not provided copies of the information he said he had researched on the internet;
(b)Its concerns about the Husband’s credibility; and
(c)The Husband’s evidence he was not a member of the 08 gang or any other gang.
In these circumstances, the Tribunal found his tattoo was not a gang tattoo nor would it be perceived as such.
In its written submission filed 1 July 2015, the Minister has correctly set out an exposition of the relevant law as follows:
“The first respondent submits that the appropriate test to be applied in determining whether the RRT’s consideration of the first applicant’s claims was irrational or illogical is contained in the joint judgment of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611 at [130] to [131] (SZMDS). Their Honours explained the approach as follows:
130. In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s.65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be on that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusions has been preferred to another possible conclusion.
135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn…”.
This approach has subsequently been applied by the Full Court in Tisdall v Webber [2011] FCAFC 76; (2011) 193 FCR 260 at [126]-[128] per Buchanan J (with whom Tracey J agreed), Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; (2013) 296 ALR 307 at [85]-[88] per Jagot J (with whom Nicholas J agreed) and SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 at [82]-[85] per McKerracher J (with whom Reeves J agreed) SZOOR.
In SZOOR, Rares J held:
“The approach to irrationality or illogicality dictated by the authorities in the High Court appears to be that even if the decisions-maker’s articulation of how and why he or she went from the facts to the decision is not rational or logical, and if someone else could have done so on the evidence, the decision is not one that will be set aside. It is only if no decision-maker could have followed that path…”
The above principles make clear that it should not lightly be inferred that a decision of the Tribunal is illogical or irrational, and that the threshold to make out illogicality amounting to jurisdictional error is high (see Re MIMA; Ex parte Applicant S20/2002 (2003) 198 ALR 59).”
I am satisfied that the Tribunals’ ultimate finding was a logical one based on the evidence the Husband provided, the information he failed to produce and its concerns with respect to the Applicants’ credibility.
The Tribunal’s reasoning was not one that no other decision maker could have reached.
The Tribunal was not obliged to engage in a general inquiry about what gang tattoos looked like.
In SZIAI v Minister for Immigration and Citizenship[2008] FCA 1372, Flick J stated at [25] to [26]:
“25 The circumstances in which a decision of the Tribunal should be set aside by reason of a failure to make inquiries, it is acknowledged, may be a confined category of case: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155. Wilcox J there observed at 169–70:
... The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. ...
This decision was subsequently endorsed by the Full Court: Luu v Renevier [1989] FCA 518; (1989) 91 ALR 39. See also: Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 183 at 197–8 per Black CJ. Subsequently in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589, 173 ALR 362 at 417 Wilcox J returned to his earlier decision in Prasad and further observed:
[214] ... It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker’s failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored.
The circumstances in which an obligation may be imposed upon an administrator to make further inquiries is thus repeatedly said to be "strictly limited": Wecker v Secretary, Department of Education Science & Training [2008] FCAFC 108 at [109] per Greenwood J (Weinberg J agreeing). And the fact that it is no part of the task of the decision-maker to make out an applicant’s case is also repeatedly recognised -- it was referred to at the outset by Wilcox J in Prasad and subsequently emphasised: eg, Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 at [50], [2002] FCAFC 369; 127 FCR 24 at 40–1 per Gray, North and Mansfield JJ.
26 Whether or not it is unreasonable not to make further inquiries may well depend upon the availability of further information and its importance to the factual issues to be resolved. It may also depend upon the subject matter of inquiry and an assessment of the comparative ability of individuals to provide or to obtain relevant information. There may thus be little (if any) scope for a duty upon a decision-maker to inquire into facts well known to an applicant and facts within his power to adduce: eg, Singh v Minister for Immigration and Ethnic Affairs (1985) 9 ALN N13. In refugee cases, reference may also be made to the comparative difficulty in some circumstances confronted by an applicant seeking refugee status and the comparative ability of decision-makers to elicit further information: cf Taylor S, Informational Deficiencies Affecting Refugee Status Determination: Sources and Solutions [1994] UTasLawRw 2; (1994) 13 U Tas LR 43. And an assessment as to whether further inquiries should be undertaken may also take into account the importance of a decision upon an individual -- an administrative decision-making process which impacts upon an individual’s freedom or a claimed ability to live in freedom may warrant more extensive inquiries being undertaken than one, for example, where the imposition of a modest pecuniary penalty is under consideration.”
In my opinion, whilst the Tribunal had recourse to country information regarding gang tattoos it was not required to make inquiries about whether the Husband’s tattoo was a gang tattoo.
Accordingly, I do not find that this ground raises jurisdictional error.
Conclusion
For the reasons set out in my judgment I will dismiss the application for judicial review filed 23 October 2014 with costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 8 October 2015
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