MZXGW v Minister for Immigration & Anor
[2006] FMCA 1639
•4 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXGW v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1639 |
| MIGRATION – Refugee Review Tribunal – alleged WAIJ error – “serious credibility problems” with applicant’s claims – ground not made out. MIGRATION – Refugee Review Tribunal – allegations of bias – ground not made out. |
| Migration Act 1958, ss.91R, 422B, 424A |
| Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 Minister for Aboriginal Affairs v Peko-Wallsend Ltd & Anor (1996) 162 CLR 24 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 WAJQ v Minister for Immigration and Multicultural Affairs [2005] FCAFC 79 WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004)80ALD568 WAKK v Minister for Immigration and Multicultural Affairs [2005] FCAFC 225 |
| Applicant: | MZXGW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 148 of 2006 |
| Judgment of: | Riley FM |
| Hearing date: | 1 November 2006 |
| Date of Last Submission: | 1 November 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 4 December 2006 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the First Respondent: | Ms Latif |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application filed on 31 January 2006 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 148 of 2006
| MZXGW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 31 January 2006 seeking the review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 5 January 2006. By that decision, the Tribunal affirmed the decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant is a 32 year old citizen of Pakistan. He arrived in Australia on 28 October 2004 as a seaman aboard the carrier MV Maysora. The applicant abandoned his position and, on 25 January 2005, applied for a protection visa. On 30 August 2005, a delegate of the first respondent refused the protection visa application.
On 21 September 2005, the applicant applied to the Tribunal for review of the delegate’s decision. By letter dated 24 October 2005, the Tribunal advised the applicant that it was unable to make a decision in his favour on the written material alone and invited the applicant to attend a hearing of the Tribunal on7 December 2005. On 7 November 2005, the applicant asked the Tribunal to postpone the hearing. However, the Tribunal refused the applicant’s request. On 7 December 2005 the applicant appeared before the Tribunal and gave oral evidence with the assistance of an interpreter.
On 5 January 2006, the Tribunal handed down its decision affirming the decision of the Minister’s delegate. On 31 January 2006, the applicant applied to this court for review of the Tribunal’s decision.
A response was filed on 17 February 2006 by the first respondent opposing each of the grounds of the application. On 28 February 2006, the applicant filed a document titled ‘Explanation of Grounds for Review’ and on 12 April 2004 the applicant filed further submissions. On 13 June 2006, the respondent filed contentions of fact and law.
Initial claims
In a statement attached to his protection visa application and dated
19 January 2005, the applicant said the following:
When I was young my parents engaged me with one of my relatives girl according to our Pathans customs. But when I grew up I fell in love with a girl from another tribe. She also fell in love with me. We used to see each other secretly. Once, her family members saw us together. They attacked me and I was injured and hospitalised for few days. When I came out of hospital my parents forcefully against my will send me to Sharjah (UAE) in 1995. I spent there 2 months and then I came back to Pakistan because it was a boring place to me without my girlfriend. Meanwhile my girlfriend parents married her with somebody but we were still in love with each other. We didn’t stop to see other secretly until March 2004. In March my girlfriend and myself were together in her house whereas his husband was out of town but something happened he came back home unexpectedly early. When he saw us together he pulled the knife on me and I ran for my life. I left my village for Karachi about 1700 km away from my place of residence. Few days later her husband killed her and told everybody that she has committed suicide. The case was dealt with Jirga system (Tribal Law). It was decided that girl was killed in order to protect the honour of the tribe and my father was ordered to surrender me to the Jirga committee dead or alive. I am regular sea-man since 1998. When I was on the ship my father told me about the decision of Jirga, so I decided not to go back.
I came to Australia in 2002 and went back because I have a good job and no trouble at that time. Now this time because of this incident my life is at risk in Pakistan. Pakistani laws cannot override Jirga laws so if I go back I will be definitely killed. On the ship they may hire some of my countryman to kill me. So I seek protection from Australian authorities in order to save my life.
Claims before the Tribunal
In a written statement submitted to the Tribunal at the beginning of the hearing on 7 December 2005, the applicant made a new claim for protection on the basis of political opinion. The written statement was as follows:
At this time I want to submit few more things which were left before at the time of my application into the immigration office. The decision from Department of Immigration and Multicultural and Indigenous Affairs was based on my first application. The decision was not given in my faour (sic) which was unaccepted to me. Now this matter is in the hands of Review Tribunal and my life or death decision is depend on you.
1.At the time of my first application I was not guided properly by my friends, and the application was prepared by one of my friend and submitted.
2.My English was not good at that time and could not fully understand.
3.At that time I mentioned to the person who was writing the application to mention about my political interest and involvement in Pakistan Peoples Party.
4.I have the membership card and other related document.
5.The political involvement was the main reason of refusal for the marriage from the girl’s father.
6.The girl’s father and all other family members were in purely religious party.
7.The murdered girl’s husband is also a very active member of very fanatic fundamentalist Islamic Part member.
8.I was working on the ship and visited different countries including Australia.
9.My job was very good and I had no intention to enter in any country even in Australia in my previous visits.
10.Now I want to draw your attention at the decision by Immigration and Multicultural and Indigenous Affairs.
11.On page 7 under the heading “Consideration of the Applicant’s Claim” Para 3. The honorable officer assumed that I feared the harm by my tribes. It is not correct, in Islamic Sharia it was the religious base decision. The murdered girl’s family and her husband want to kill me due to this incident and as well due to my political belief.
12.I have to mention here Girga has its own power and not follow the country’s laws. Even Government made the laws but unable to implement in “Girga” base areas and you can find on internet lot of honour killing is still going on.
13.In my case the decision was depend both on Islamic Sharia and Girga. Due to my political belief and decision based on Islamic Fiqqah (Law) it is impossible for me to escape of this death penalty.
14.My request is for clemency, as I convinced that the death penalty is not acceptable in Australian society. In my case the Girga decision is already issued.
In view of above facts I request you to consider with sympathy.
In support of his claims, the applicant also submitted to the Tribunal a number of documents. The first was a copy and English translation of a handwritten letter dated 10 May 2004 and titled “Girga” which stated:
Girga
To day a special Girga meeting of Yousus Zai Tribe of Malakand Division is held under the presendent ship of Malik Abdul Sattar La La. In this Girga lot of people participated along with the dignitaries of the area and elected representatives. Girga considered the terrible murder of Ms [X] and discussed the matter. Participants of Girga were informed about the preceding and advancement. Girga, anonymously, came to the conclusion that real accused is [MZXGW] son of [A], because the person had illicit relationship with murdered woman. The accused person used to come to the murdered woman’s home in the absence of her husband. On the day of murder the husband of murdered [X] seen them in objectionable position and could not control by himself. He killed his wife [X] and accused [MZXGW] succeed in escaping. Even after the intense demand of Girga, [A], father of accused [MZXGW] was unsuccessful to bring him in front of Girga. After seeing all these it is proved that actually the accused is the central character of this murder, where as the murdered woman husband regarded the tradition of Puhktoon and Tribes.
Therefore accused [MZXGW] is guilty of this crime, and this Girga unanimously announced that this accused is deserved for death and ordered that whenever [MZXGW] is seen in this area he should be killed without any hesitation, so that Tribe tradition will remain as it is and others learn lesson by this.
Furthermore this Girga ordered the Administrator of Union Council … that they should fulfill their duties and try to find accused [MZXGW] and punished him and use their resources and participate in keeping the tradition of Tribes.
The second and third documents provided by the applicant to the Tribunal were copies and English translations of advertisements placed in ‘The Daily Salam’ on 21 July 2004 and 12 August 2004 which stated respectively that:
21 July 2004
WAKE UP EVERY ONE
Every one is informed by this notification that [MZXGW] Identity Card No … resident of … is escaped, if arrested by the committee and fixed the punishment it will be acceptable. The responsibility will not be passed on to the administration or police or any other party.
12 August 2004
ATTENTION EVERY ONE
It is being informed to the general public that if any one arrest the escapee accused [MZXGW] son of …, resident of …, Identity Card No … and handed him to the Administrator Union Council, then he will be paid Rupees 50000.00 cash as prize. The name of the informer or the name of person who helped in arresting him will be kept secret.
Additionally, the applicant submitted to the Tribunal copies of articles from the internet concerning honour killings.
At the Tribunal hearing, the applicant was asked why he had waited until the day of the hearing to make the additional claims concerning his involvement in the Pakistan Peoples Party (“the PPP”).
In response, the applicant said that the information had been omitted from his protection visa application because a friend, who had since died, had prepared the application and his friend had forgotten to include the information. When asked why he had not made the claims upon learning of the omission, the applicant said that he had been waiting on documents about his political activities in Pakistan to arrive.
The Tribunal’s summary of what transpired at the hearing regarding the applicant’s involvement with the PPP is as follows:
I asked the applicant about his political activities. The applicant stated that he was a Pakistan People’s Party (PPP) worker. When I asked the applicant for more details, he stated that he used to work for the party “at the time of processions”. When I asked the applicant to elaborate on his political activities, he reiterated that he was “just a worker”. I asked the applicant when he joined the PPP. The applicant stated that his father was also involved in the party and that he had joined in 1991. When I again asked the applicant if he could give me any further details of his political activities, he stated that he did whatever work he was given to do. He stated that, for example, he arranged the chairs. When I asked the applicant if he could tell me anything about the organisational structure of the PPP the applicant stated that there is a president and a secretary and they make arrangements. In relation to the party’s manifesto, the applicant stated that the PPP wants to help the people and wants social justice for the people. I asked the applicant if he could tell me what the party did in order to participate in the elections in 2002. The applicant was unable to answer the question and stated that whatever he did it was just at the village level. He indicated that his father was more involved with the PPP than he was.
The Tribunal asked the applicant about his relationship with the married woman. The applicant told the Tribunal that after his return from Sharjah, he used to meet the woman at his aunt’s house and at the woman’s house. He said that from 1995 to 1998 they would meet each other about twice a week. The Tribunal asked the applicant how he was able to carry on an undetected relationship for so many years, especially when they were meeting in his aunt’s house and in the woman’s house. The applicant said that he did not stay with the woman for long and that no one knew of the relationship as he had purposely kept it secret.
In relation to the incident in which the applicant and the woman were discovered by her husband, the Tribunal recorded the following:
I asked the applicant about the incident in which they were discovered by her husband. The applicant stated that this happened in March 2004. He claimed that they were together in a guest room which had an external and an internal door. The applicant claimed that the external door gives on to a street, which was only used by people who lived in the area. The applicant stated that his girlfriend’s husband came home suddenly. He stated that they had put the light on in the guest room and that the door was locked. The applicant claimed that the woman’s husband banged on the door. He stated that while her husband was banging on the door he jumped from the window. I asked the applicant if this meant that they were not in fact caught together. The applicant then stated that there was reflective window through which the husband could see them. I asked the applicant why his statement says that the husband had pulled a knife on him. The applicant stated that the husband had a knife in his hand. I asked the applicant how he had managed to see the knife when he was jumping out of the window. The applicant stated that he could see it in the reflection in the large window. I asked the applicant why, if he knew that the husband was coming through the door with a knife in his hand, he had not stayed to protect the woman he claims to have been deeply in love with. The applicant stated that he did not know what to do and his girlfriend told him to save his life.
The Tribunal’s findings
In its findings and reasons, the Tribunal said, of the applicant’s evidence, that:
In my view significant aspects of his evidence were highly implausible and internally inconsistent. I am of the view that the applicant has fabricated his claims in an attempt to create for himself the profile of a refugee.
The Tribunal found the applicant’s evidence about his relationship with a married woman to be unconvincing. The Tribunal found that it was inherently implausible, given that both his family and the woman’s family knew of their relationship and that her brothers had beaten the applicant because of it in 1995, that the relationship had continued undetected for the next nine years. The Tribunal was unpersuaded by the explanation provided by the applicant as to why the relationship had remained undetected for so long.
In relation to the documents provided by the applicant to the Tribunal at the hearing, the Tribunal said:
I note the documents that the applicant has provided in support of his claims to be of adverse interest because of his relationship with a married woman. However, I am of the view that they have low probative value. In relation to the advertisements, anyone could have placed them in the relevant newspapers. I do not consider that they constitute evidence that the applicant is of any adverse interest. In relation to the letter, I am of the view that this is a document which would have been easy to manufacture. In addition, it appears that the date on the letter has been changed. I do not place any weight on this letter as evidence that a jirga has announced that the applicant should be or could be killed. I note the newspaper articles provided by the applicant. I accept that honour killings occur in Pakistan. However, the fact that honour killings occur in Pakistan is not evidence that the applicant had a relationship with a married woman, let alone that he is at risk of being killed for this reason.
The Tribunal concluded that the applicant’s claim that he had been in a relationship with a married woman was fabricated. The Tribunal did not believe that the applicant had formed a relationship with a woman he met at his cousin’s place, that he had been beaten by her brothers because of that relationship, or that the relationship had resumed upon his return from Sharjah. The Tribunal did not accept that the applicant had been in a relationship with a married woman and did not accept that anyone wanted to kill the applicant for that reason.
The Tribunal then turned to consider the applicant’s claim that he is of adverse interest in Pakistan because of his involvement with the PPP. While the Tribunal member was satisfied that the applicant was a member of and involved with the PPP, it was found that the applicant’s involvement was at a very low level based on his limited knowledge of the party’s organisational structure and political manifesto.
The Tribunal found that the PPP was a mainstream political party which contested elections and held seats in parliament. On this basis, the Tribunal found that the applicant would not be of adverse interest if he were to return to Pakistan because of his membership of the PPP or his involvement in its political activities. Accordingly, the Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of persecution for reasons of his political opinion.
Grounds of review
In his application filed on 31 January 2006, the applicant set out the grounds of review as follows:
1.The Decision was made contrary to the definition of Refugee Convention.
2.The circumstantial evidences which were provided to the Tribunal were not given any weightage (sic) and the decision was based on presumptions.
3.The decision was not made according to the Migration Act of 1958.
4.The decision was made with a pre set mind. The Tribunal officer already had made her mind of refusing my application.
The applicant filed on 28 February 2006 a document entitled “Explanation of Grounds for Review”. It appears that this document was not served on the first respondent and that the first respondent knew nothing of it until the hearing before this court. At that stage, a copy of the document was provided to the counsel for the first respondent who indicated that she was content to proceed with the hearing although she had not previously seen that document.
The applicant apparently served on the first respondent a further document dated 24 May 2006 and headed “Contention of Law and Facts”. This document was not filed in the court but a copy of it was provided to the court by the first respondent’s counsel at the hearing before this court. Its contents have been taken into account in these reasons for decision.
Finally, the applicant also filed on 12 April 2006 and apparently served a document dated 6 April 2006 headed “In continuation to my submissions in FMC action # MLG148/2006.”
The matters raised in the applicant’s various documents are dealt with below, not necessarily on the order contained in the various submissions.
Point one: The Tribunal ignored s.91R
The applicant explained this point by saying that he fears serious harm because of the decision taken by the Jirga to kill him. Section 91R of the Migration Act 1958 (“the Act”) provides, among other things, that serious harm includes “a threat to the person’s life or liberty”. It is clear that the matters allegedly feared by the applicant would constitute serious harm if his claims were true. However, the Tribunal did not accept the applicant’s central claim that he had a relationship with a married woman and did not accept that there was an intention to kill him for that reason. Accordingly, there was no occasion for the Tribunal to consider s.91R of the Act.
Point two: The applicant is unable to relocate within Pakistan
The applicant explained this point by saying that country information shows that people are pursued throughout Pakistan for the purposes of being subjected to honour killings. However, the Tribunal did not accept that the applicant had done anything that might make him the victim of an honour killing. Accordingly, the question of the applicant’s ability to relocate within Pakistan did not arise.
Point three: Ethnicity and political opinion
The applicant submitted that the Tribunal made an error of law by refusing to understand that the applicant feared Convention based persecution for reasons of his ethnicity and for reasons of his political opinion. The only suggestion before the Tribunal that the applicant was at risk because of his ethnicity was connected with him being a Pathan and the subject of the Jirga’s instruction to kill him. However, the Tribunal considered that matter and did not accept that the applicant faced a real chance of persecution on that basis.
As regards the applicant’s political opinion, the Tribunal understood that the applicant had made a claim that he was involved with the PPP and dealt with that claim as outlined above. The applicant submitted that his political opinion claims were connected to the claim concerning the married woman in that he had not been allowed to marry her because her family objected to his support of the PPP. However, the Tribunal did not accept that the applicant had formed a relationship with a woman he met at his cousin’s house. Accordingly, it did not accept that there was any relationship to which his political claims could have been connected. This ground is not made out.
Point four: Honour killings uncontrollable by the authorities.
The applicant submitted that the Tribunal failed to understand that the government in Pakistan is unable to guarantee the applicant’s security of life and that honour killings are partially tolerated by the government of Pakistan. The Tribunal expressly accepted that honour killings occur in Pakistan and, to that extent, accepted that the government condones or is unable to control them. However, the Tribunal did not accept that there was any reason to suppose that the applicant might be a victim of an honour killing. Accordingly, the Tribunal made no error in this regard.
Point five: The seriousness of an illicit relationship
The applicant says that the Tribunal failed to understand the seriousness of the issue of having an illicit relationship with a married woman in Pathan culture. The applicant said that it was not only the woman’s husband who wanted to kill him, but also the people of the region, pursuant to the Jirga. As indicated above, the Tribunal did not accept that the applicant had had an illicit relationship with a married woman and did not accept that anyone wanted to kill the applicant for that reason. Accordingly, the Tribunal did not make the error alleged.
The applicant also says in connection with the seriousness of having an illicit relationship that “the reason of persecution is also backed up by his political affiliation with Pakistan People’s Party.” As discussed above, the Tribunal did not consider that the applicant’s political affiliation gave him any cause to have a well founded fear of persecution. As the Tribunal did not accept that the applicant had had an illicit affair his alleged fear of persecution on that ground was not “backed up” by his political opinion. There is no substance in this ground.
Point six: The documents
In relation to the letter titled “Girga” and the advertisements placed in the “Daily Salam”, (“the documents”) the applicant made written submissions as follows:
The evidence(s) provided to the Tribunal were out rightly dismissed as fake/fabrication without even proper investigation. I do understand that there is a culture of fabrication in Pakistan but it does not, in any sense, means that everyone who provides any thing would be fabricated. I understand that its duty of the Tribunal that they should have investigated the authenticity of the evidence(s) provided to them, through the means available to them, instead of basing there decision and hence my life on presumptions of the Tribunal Officer.
The decision was made with a pre set mind as all the supportive documents I provided or what ever I said was also dismissed by the Tribunal Officer as either fabrication or lies. The Tribunal Office was not ready to listen or look at any thing I said or provided because the Tribunal Officer already had made up her mind of refusing me the Protection. It is stated in my RRT’s decision that all I stated in my original Protection Visa Application or the additional information I provided to the Tribunal was just to create a profile for my self of a Refugee. I would once again state here that my claims and evidence(s) should have been properly investigated.
The Tribunal Officer in her decision states that all the Newspaper clippings, supportive letters and all other documents are easy to be fabricated in Pakistan. I do understand that and agree with her that there is a culture of Fabrication in Pakistan. But, this in no way proves that what I provided were should also be categorized as such. I would expect the Tribunal to make its proper investigations in regards to my claims. They should have contacted the people and asked for the confirmation of my claims, who provided the reference letters. And, even if the individuals were not trust worthy the Tribunal Officer could have easily asked for the confirmation of the decision which was made by the JIRGA (private community courts) which stated that … myself should be killed if some one finds me for the relationship I had with a married woman.
To the extent that the applicant’s submissions argue that the Tribunal should have made enquiries, I reject them. It is well established that the Tribunal, in circumstances such as these, has no such obligation: WAKK v Minister for Immigration and Multicultural Affairs [2005] FCAFC 225 and WAJQ v Minister for Immigration and Multicultural Affairs [2005] FCAFC 79. Otherwise, the applicant’s submission in relation to this point appears to allege bias and the sort of error identified in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568. In that case, Lee and Moore JJ said the following:
[21] Failure of the Tribunal to act "judicially" will necessarily stamp the review procedure as one which did not accord an applicant practical fairness or justice. To act "judicially" and according to law the Tribunal must carry out its decision-making function rationally and reasonably and not arbitrarily …. That is to say, the Tribunal cannot determine the matter by a "tossing a coin" or by making a "snap decision" or by acting on instinct, a "hunch" or a "gut-feeling".
[22] The requirement that the review procedure be carried out according to law, is an irreducible duty arising out of s 75(v) of the Constitution …. Failure to observe that requirement will mean that the purported decision of the Tribunal has no "jurisdictional" foundation …. The Tribunal only obtains power to make a determination under the Act where the determination is based on findings or inferences of fact that are grounded upon probative material and logical grounds…. A determination based on illogical or irrational findings or inferences of fact will be shown to be a decision not supported by reason and to have no better foundation than an arbitrary selection of a result. It is because it is based upon such findings that the determination is an unreasoned decision. Such findings or inferences of fact become part of, and are not distinguishable from, the decision subject to judicial review …. A review culminating in such a decision would be a process lacking practical fairness or justice and would not be a process conducted according to law. (authorities omitted)
…
[26] The Tribunal determined the matter adversely to the appellant by disregarding the documents it had been directed to consider by the order made by consent in this Court, stating that the documents "do not overcome the problems I have with the applicant’s evidence".
[27] Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material: see: S20/2002 at [49] per McHugh, Gummow JJ. Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error: see: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 per at [82]-[85] per McHugh, Gummow, Hayne JJ.
[28] This appeal did not involve a case in which the credibility of the appellant had been destroyed by stark findings of untruthfulness. The Tribunal accepted that in her youth the appellant had distributed "MKO" newsletters at university and that her brother had engaged in similar activities and had been killed in unexplained circumstances. The Tribunal accepted that the appellant believed that the security forces had been responsible for the death of her brother.
[29] The Tribunal said it did not accept that the appellant, a nurse, had assisted an injured "MKO" supporter to escape from the hospital at which she was employed after Iranian security forces had brought that person to the hospital for treatment for his injuries. The principal reason given by the Tribunal for not accepting the appellant’s claims was the failure of the appellant to assert those claims at the "entry" interview on 11 October 2000. The same reason grounded the first decision of the Tribunal where the documents corroborating the appellant’s account had remained untranslated.
…
[42] At the outset it may be noted that it does not appear that any of the speculation recited by the Tribunal in its reasons in respect of the possible lack of authenticity in the documents was put to the appellant for comment, and nor was the appellant given the opportunity to address such concerns by presenting material confirming the provenance of documents: see: WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 1 at [54]-[56]; Meadows v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 370 at 382, 383, 388; WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 597 at [52]-[55]; WAJR v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 204 ALR 624 at [51] – [56]).
…
[52] The reasons provided by the Tribunal in relation to its rejection of the documents revealed that the Tribunal failed to act judicially in respect of that material. The Tribunal appears to have considered that it could disregard documents that it was otherwise bound to consider if it surmised that it was possible that the documents could have been fabricated. That was not a course open to a tribunal acting judicially. There was no material before the Tribunal that permitted it to so dispose of the documents, and, thus, of the tendency of the documents to corroborate the appellant’s account. (emphasis added)
[53] It is a denial of a fair process to purport to dismiss documents from consideration where the material therein supports an applicant’s case in substantive respects and no ground for such a course is provided by the documents on their face or by other facts.
The first respondent’s written submissions in relation to this ground are as follows:
The applicant submits the Tribunal failed to give proper weight or “totally ignored” his “circumstantial evidences”. By this, the first respondent understands the applicant to claim that the Tribunal’s assessment of the weight to be given the documents he filed in support of his claims was wrong, or alternatively, that the Tribunal ignored his claims.
The Tribunal’s reasons for decision demonstrate that it was aware of the evidence filed in support of the applicant’s claims and understood the relevance of these materials: CB 86-87 and 91. In the particular circumstances of this case there was no failure to consider these materials: compare Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ.
The applicant’s real complaint is that the Tribunal was not persuaded by these materials. The Tribunal considered the applicant’s documents to be of “low probative value” and expressed doubt as to the provenance of the newspaper articles and letter: CB 93. The applicant’s country information (CB 60-63) was accepted as evidence that honour killings take place in Pakistan, but was not accepted as evidence that the applicant was at risk of such harm: CB 93.
The applicant’s submissions in this connection do not demonstrate any jurisdictional error. The Tribunal provided a rational basis for not affording the evidence great weight and relied upon matters that were logically determinative of the issue. Again, the weight afforded individual items of evidence are matters in the sole jurisdiction of the Tribunal: Minister for Aboriginal Affairs v Peko-Wallsend Ltd & Anor (1996) 162 CLR 24 at 41 per Mason J with whom Gibbs CJ and Dawson J relevantly agreed.
The first respondent has overstated the effect of Peko-Wallsend. Mason J actually said that the weight to be given to the items of evidence is “generally” a matter for the decision-maker. His Honour noted that the weight attributed to a particular item of evidence by an administrative decision-maker may result in a decision that is Wednesbury unreasonable. On the assumption that Wednesbury unreasonableness is a jurisdictional error, I do not consider that there was any such unreasonableness in this case. It appears to me that the Tribunal’s implausibility findings were reasonably open to it.
At the hearing before this court, the first respondent submitted that there was no breach of the rules of natural justice in this case as s.422B of the Act operated as a code which excluded the rules of natural justice except in so far as they are provided for in Division 4 of Part 7 of the Act, and except in so far as they concern the rule against bias. The first respondent submitted that in the present case, except in relation to the bias ground, the applicant needed to fall within the provisions of s.424A of the Act to be able to succeed with a natural justice argument. In view of the Full Federal Court decision in SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62, I accept that argument.
In oral submissions, the first respondent also referred to the decision of the Full Federal Court in WAKK v Minister for Immigration and Multicultural Affairs [2005] FCAFC 225 at [70] per Marshall Mansfield and Siopis JJ where the following was said:
[70] In our view, the primary judge did not err when he decided that there was no failure to accord procedural fairness in relation to the letter. We accept the submissions of the respondent that the Tribunal dealt with the letter as one piece of evidence which had to be weighed with the other evidence. The Tribunal considered the letter and the other evidence in the context of whether the appellant would suffer persecution on the ground of his political opinions if he was to return to Burma. The Tribunal considered the letter in light of the oral evidence given by the appellant and found an incongruity between the assertion in the letter that he was required to report to the police without fail and the oral evidence that he was never called in or questioned by the police whilst he was in Burma. The Tribunal also relied on the curiosity of the English name. The Tribunal said it did not accept that the letter meant that the appellant had a real chance of persecution. It is apparent that the Tribunal, whilst making no positive finding that the letter was not genuine, accorded the letter no weight, in reaching its final conclusion that on the evidence the appellant did not have a well founded fear of persecution if he was returned to Burma. This conclusion reflected the findings which the Tribunal had made, independently of the letter, which were based on serious credibility problems with the claims made by the appellant for which the letter was relied upon as corroboration. The approach which the Tribunal took was consistent with the observations referred to above by McHugh and Gummow JJ in the case of S20/2002 and French J in WAGU. This approach was not irrational or unfair. (emphasis added)
Additionally, the first respondent referred to Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 where, at [7]-[14], Gleeson CJ said:
[7] The attack is directed to the reasons given by the member of the Tribunal for concluding that, considering the evidence as a whole, she was not satisfied that the applicant/appellant was a person to whom Australia had protection obligations. It was not directed to her appreciation of the whole of the evidence. It was not suggested that it was not reasonably open to the Tribunal, on the material, to find that the claim was implausible, or that there were features of the applicant/appellant's story that might reasonably be doubted or disbelieved. The illogicality was said to be in the Tribunal's process of reasoning, and, in particular, in the way in which the member dealt with certain information relied upon as corroboration.
…
[9] To describe as irrational a conclusion that a decision-maker is not satisfied of a matter of fact, or a state of affairs, because the decision-maker does not believe the person seeking to create the state of satisfaction, or to describe the process of reasoning leading to such a conclusion as illogical, on judicial review of an administrative decision, might mean no more than that, on the material before the decision-maker, the court would have reached the required state of satisfaction. Ordinarily, however, it will be necessary to go further, as in the respects mentioned by Dixon J. If, in a particular context, it is material to consider whether there has been an error of law, then it will not suffice to establish some faulty inference of fact. On the other hand, where there is a duty to act judicially, a power must be exercised "according to law, and not humour", and irrationality of the kind described by Deane J in Australian Broadcasting Tribunal v Bond may involve non-compliance with the duty. Furthermore, where "the true and only reasonable conclusion contradicts [a] determination" then the determination may be shown to involve legal error. It is often unhelpful to discuss, in the abstract, the legal consequences of irrationality, or illogicality, or unreasonableness of some degree. In a context such as the present, it is necessary to identify and characterise the suggested error, and relate it to the legal rubric under which a decision is challenged.
...
[11] The principal suggested error concerns the way in which the member of the Tribunal dealt with the evidence of a witness who claimed to have observed the way in which the Sri Lankan authorities treated the applicant/appellant after he had assisted two persons associated with a subversive group. The relevant passages are set out in the reasons of McHugh and Gummow JJ. The key passage is:
"In light of the Tribunal's findings above that the [applicant/appellant] thoroughly lacks credibility, and its findings that the [applicant/appellant] had misled the Tribunal in regard to his claims to fear harm by the Sri Lankan authorities, it cannot be satisfied with the corroborating evidence given by the ... witness, and gives no weight to this evidence."
[12] It was contended that this passage shows that the Tribunal member adopted a flawed approach to her evaluation of the evidence, failing to assess the evidence of the applicant/appellant in the light of the corroborating evidence, and giving no weight to the evidence of the corroborating witness for reasons that had nothing to do with the quality of that evidence. The essence of the complaint is that the Tribunal failed to consider the evidence as a whole, but first considered, and disbelieved, the evidence of the applicant/appellant, without taking account of the corroboration, and then considered and rejected the corroboration because of the rejection of the evidence of the applicant/appellant. I do not accept that this is a fair criticism of the Tribunal's reasons. In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant's story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering. The member could have expressed herself more clearly. It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness. (emphasis added)
[13] Upon analysis, the complaint is that the Tribunal member did not have regard to the whole of the evidence before deciding whether she believed the applicant/appellant, and did not properly assess the significance of the evidence of the corroborating witness. I am not persuaded that this criticism is justified.
[14] Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the Tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him.
In my view, in the present case, the Tribunal rejected the allegedly corroborating documents partly because, in the words of WAIJ, “it was possible to surmise that the documents could have been fabricated”. However, the Tribunal in this case had additional reasons for rejecting those documents. The Tribunal firstly disbelieved the applicant’s claim about the married woman because it did not accept that the relationship, in the circumstances described, could have remained undetected for nine years.
The Tribunal also said that it disbelieved the claim as a result of “other problems” with the applicant’s evidence. It gave as one example an inconsistency about where the applicant had said he had lived prior to his departure from Pakistan. No other examples were given in the part of the Tribunal’s reasons for decision that appears under the heading “Findings and Reasons”. However, in its summary of the evidence given at the hearing, the Tribunal set out the applicant’s account of the incident when he claimed the relationship was discovered.
That account is set out at paragraph 13 above. It contains reference to matters which the Tribunal evidently regarded as significant inconsistencies and implausibilities. Reading the Tribunal’s reasons as a whole, it appears that the Tribunal may have been referring to this account when it referred to “other problems” with the applicant’s evidence.
But whether or not that is so, in my view, the Tribunal rejected the documents in this case based on “serious credibility problems”, in the words of WAKK, with the applicant’s claims. The Tribunal was entitled to reject the documents on that basis. The WAIJ ground is not made out.
Additionally, for the reasons explained by Gleeson CJ in S20/2002, there is no reason to suppose that in the present case the Tribunal failed to consider the evidence, including the documentary evidence, as a whole. The Tribunal began its findings and reasons by saying that it had “a number of problems” with the applicant’s claims and then explained what those problems were, including the problems with the documents. The Tribunal then concluded that, “Overall, I am led to conclude that the applicant has fabricated his claim to have been involved in a relationship with a married woman.” In my view, there is no basis for a conclusion that the Tribunal did not consider the evidence as whole.
The applicant also alleges that the Tribunal was biased, in the sense that it had a pre-set mind. Making a decision free from bias is not one of the aspects of the rules of natural justice that is excluded by s.422B of the Act: Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [67].
The first respondent’s submissions on this ground are as follows:
The decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 permits the conclusion that, if jurisdictional error is established on the grounds of actual or apprehended bias in respect of a decision that would otherwise be a “privative clause decision” within s 474 of the Act, the applicant’s application to have the decision set aside may be granted. In order to make out a case of actual bias on a decision-maker’s part, the person alleging bias must establish that, before a conclusion could properly be reached, the decision-maker had made up his or her mind and was incapable of being persuaded differently: see e.g., Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 (“Jia”), at 531 per Gleeson CJ and Gummow J.
A party alleging actual bias carries a heavy onus. The allegation must be “distinctly made and clearly proved”: see Jia, at 531 per Gleeson CJ and Gummow J and 546 per Kirby J. A case of actual bias is seldom made out by reference solely to the decision-maker’s reasons for decision.
Bias may alternatively be made out by demonstrating apprehended bias. The test is whether a fair-minded lay observer could reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question to be decided: see Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 (“Ex parte H”), at 434 per Gleeson CJ, Gaudron and Gummow JJ. As their Honours observed, this rile may be expressed differently when applied to administrative proceedings, in order to take account of the nature of the proceedings and the task of the decision-maker: see Ex parte H, at 427.
The applicant has provided no evidence (e.g., affidavit or transcript) or submissions in support of this ground. The first time this matter was raised was in his application. Further, the Tribunal accepted the applicant’s claims with respect to his political affiliation and attempted to lead material from the applicant to ally (sic) its (the Tribunal’s) concerns with respect to the perceived inconsistencies in, and implausibility of, the applicant’s claims: CB 87-91, 94. The Tribunal made its decision in good faith and gave a bona fide assessment of the applicant’s claims and evidence: compare VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 per Kenny J. In the circumstances, the first respondent submits there is no basis for a finding of actual or apprehended bias.
In my view, there is no substance to the allegations of bias in this case. It was open to the Tribunal on the evidence to conclude that the applicant’s claims were not plausible. The Tribunal was entitled to reject the documents in circumstances where it considered that the applicant’s claims had “serious credibility problems”. The applicant has not pointed to any facts or circumstances which might lead a fair-minded lay observer to reasonably apprehend that the Tribunal did not approach its task with an impartial mind. This ground is not made out.
Conclusion
For these reasons, the application is dismissed with costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate:
Date:
0
14
1