MZYTS v Minister for Immigration & Anor

Case •

[2012] FMCA 1109

•

29 November 2012

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYTS v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1109
MIGRATION – Review of Refugee Review Tribunal – judicial review – whether tribunal erred because it did not base its decision on a consideration of most recent country information available to it – general principle that, in absence of legislation to contrary, administrative decision-maker is required to make decision on basis of most current material available to him or her at time decision is made.
Migration Act 1958 (Cth)
Anderson v Director General of the Department of Environmental and Climate Change & Anor [2008] NSWCA 337; (2008) 251 ALR 633; (2008) 163 LGERA 400
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630
Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59; (2011) 180 LGERA 99
Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1
Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248; (2010) 274 ALR 438; (2010) 119 ALD 26
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 9 Leg Rep 2; (1996) 70 ALJR 568; (1996) 41 ALD 1
MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99
SZJTQ v Minister for Immigration and Citizenship [2008] FCA 1938; (2008) 172 FCR 563; (2008) 107 ALD 552
the Honourable Robert Tickner, Minister of Aboriginal and Torres Strait Islander Affairs, & Ors v Thomas Lincoln Chapman & Ors [1995] FCA 1726; (1995) 57 FCR 451; (1995) 133 ALR 226; (1995) 89 LGERA 1
Applicant: MZYTS
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: MLG 1813 of 2011
Judgment of: Riethmuller FM
Hearing date: 25 July 2012
Date of Last Submission: 25 July 2012
Delivered at: Melbourne
Delivered on: 29 November 2012

REPRESENTATION

Counsel for the Applicant: Mr Watters
Solicitors for the Applicant: Victoria Legal Aid
Counsel for the Respondents: Ms Szydzik
Solicitors for the Respondents: Sparke Helmore

ORDERS

  1. The decision of the second respondent made on 30 November 2011 be set aside.

  2. The matter be remitted to the second respondent for reconsideration according to law.

  3. The first respondent pay the applicant's costs fixed in the amount of $6,471.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1813 of 2011

MZYTS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. The Applicant seeks judicial review of a decision of the Refugee Review Tribunal, on review of a decision of a delegate of the Minister for Immigration and Citizenship refuse to grant him a protection visa.

  2. The Applicant is from Zimbabwe, having arrived in Australia on 18 February 2007.  On 27 May 2010 he applied for a protection visa, which was refused by a delegate of the Minister on 19 October 2010.

  3. On 11 November 2010 the Applicant applied for a review of the delegate’s decision by the Refugee Review Tribunal, which review was refused on 30 November 2012.

The Claims

  1. The applicant’s claims stem from fears that he will be harmed at the hands of the Zimbabwe African National Union-Patriotic Front (ZANU-PF) as a result of his support of the Movement for Democratic Change (MDC), his opposition to the ZANU-PF, his being a member of a family that are known MDC supporters, that his sister works for the British Army, and his profile as an international student in Australia.

  2. The Applicant said that security forces came to his house and were unable to obtain entry in the lead-up to the 2004 elections.  He said that he had attended MDC rallies between 2003 and March 2004, and seen violence at the rallies although he was not harmed himself.  He said that he continued to attend MDC activities prior to the 2005 elections and had attended around 3 rallies.

  3. He explained that he didn’t initially apply for a protection visa as he planned to study in Australia and hopefully obtain a skilled migration visa.  He said that he returned to Zimbabwe in 2008 for a wedding and to see his family and his son (who was born in late September 2007) and review his security and political situation.  He said that he believed that the violence in Zimbabwe to be cyclical around election times and therefore he was not at such great risk travelling there at a time when there were not elections due to be held.

  4. He also said, somewhat surprisingly, that he was not aware that you could apply to be a refugee when you first arrived in Australia.

  5. The Tribunal’s core findings relevant for this application were as follows:

    83. The applicant did claim to have experienced difficulty obtaining his passport, which was issued to him in 2006, and says he ultimately obtained it through a relative who worked in the relevant office. Whilst the Tribunal cannot discount the possibility there was difficulty for the applicant as claimed, it does not accept any such difficulty related to him personally, or his political opinion. It finds any such difficulty was the result of a failing administrative system in Zimbabwe at the time, affecting all citizens, and was not a result of any personal attribute of the applicant. In reaching this conclusion the Tribunal notes this was raised at hearing and the applicant did not dispute this, and suggested the government had been trying to generally discourage its citizens from leaving at the time by not issuing passports.

    84. The Tribunal does not accept the applicant fled or “escaped” Zimbabwe because of genuine or well-founded fear of harm, or for reason of his political opinion of MDC membership.  Rather it finds his motivation in leaving Zimbabwe was to pursue an education, and the hope of a better life. In reaching this conclusion the Tribunal relies on the absence of any direct personal threat or mistreatment of the applicant or members of his family, and the fact he delayed leaving Zimbabwe until he was able to identify a suitable course of study from a number of different applications he had made, and options available to him. If he had a well-founded fear of persecution prior to leaving Zimbabwe, given he had a passport from 2006, the Tribunal considers he would have departed more promptly. Further the Tribunal considers his willingness to voluntarily return to Zimbabwe in 2008 is inconsistent with the existence of any well-founded fear of persecution at that time. In reaching this conclusion, the Tribunal has considered, but does not accept as credible his explanation at hearing that he believed things were better in Zimbabwe at that time. The Tribunal notes country information (above) which it accepts, suggests the time he returned in December 2008 was part of a period of increased (not diminished) political violence in Zimbabwe, and if he had any well-founded fear for his own safety or concern about being targeted because of his political opinion, he would not have returned as he did.

    85. The fact the applicant was able to leave Zimbabwe in 2007 without incident or difficulty also suggests he lacked any adverse political profile at that time. Had he held such profile the Tribunal considers he would not have been able to lawfully depart the country without interference as he did. In reaching this conclusion the Tribunal accepts the country information (above) from DFAT, that the Zimbabwe CIO maintains a presence at Harare airport (through which he left the country), and that his ability to pass through that process without hindrance suggests he was of no adverse interest whatsoever. Similarly his ability to return to Zimbabwe in 2008 and then subsequently depart the country at the end of his visit through the same airport without difficulty suggests he was also of no adverse interest to authorities in Zimbabwe at the time of that more recent travel.

    86. Finally, the Tribunal notes the applicant made no claim to have experienced any problems or threats or be subjected to any adverse treatment during the time he returned to Zimbabwe, and the Tribunal finds he was of no adverse interest to government supporters, or ZANU PF supporters in his local area at that time.

    87. Whilst the Tribunal accepts the applicant is an MDC member it does not accept that simply being a member creates a real chance of persecution. In reaching this conclusion, the Tribunal relies on and accepts country information (above) from the UK “Fact Finding Mission” which indicates whilst some organisations had noted that influential MDC supporters could be at risk, “ordinary opposition and MDC supporters were not thought to be at any particular risk”. The Tribunal considers the applicant falls into that category of supporter.

Ground of Application

  1. The ground of the amended application by the Applicant contained numerous particulars, but clearly articulated his claim:

    1. The Refugee Review Tribunal erred by failing to have regard to the most current information in determining the Applicant’s application for refugee status.

    Particulars

    a. In determining an application for a Protection (Class XA) visa, the Tribunal is required to have regard to the most current material available in making its decision.

    b. The Applicant’s application to the Tribunal was heard on 31 January 2011.

    c. By letter dated 21 February 2011, the Applicant’s representative at the Refugee and Immigration Legal Centre, Ms Amy Faram, provided the Tribunal with what she described as ‘Updated Country Information’. That letter contained extracts from a number of sources, all published in 2011, which indicated that:

    (a) The situation in Zimbabwe was a volatile one; and

    (b) The members of the MDC, including ordinary supporters, were at risk of persecution in the form of physical violence.

    d. In reaching its decision that the Applicant was not a person to whom Australia owed protection obligations, the Tribunal:

    (a) Relied upon a report of the UK Border Agency prepared in October 2010;

    (b) Generally relied upon the same country information for the same propositions as in previous decisions by the same Tribunal member, except where expressly referred to;

    (c) Did not expressly refer to any of the sources of Updated Country information identified in Ms Faram’s letter;

    (d) Did not address the apparent conflict between the view, expressed in the Border Agency report, that the ‘ordinary supporters of the MDC’ were not ‘at any particular risk’ of persecution and the evidence contained in the Updated Country Information, which depicted included express reference to attacks on rank and file members of the MDC.

    e. As such, the Court should infer that the Tribunal did not have regard the Updated Country Information, which was the most recent material at the time, in making its decision.  Accordingly, the Tribunal committed jurisdictional error.

  2. The core point of the Applicant’s argument is that the Tribunal relied upon an October 2010 report of the UK Border Agency (para.87 of the decision quoted above) that ‘ordinary opposition and MDC supporters were not thought to be at any particular risk’.  However, the Applicant’s migration agent, in submissions to the Tribunal, referred to a Human Rights Watch Report in 2011, which said that:

    Two years into Zimbabwe’s power-sharing government, President Robert Mugabe and the Zimbabwe African National Union-Patriotic Front (ZANU-PF), have used violence and repression to continue to dominate government institutions and hamper meaningful human rights progress. The former opposition party, the Movement for Democratic Change (MDC), lacks real power to institute its political agenda and end human rights abuses.

    The power-sharing government has not investigated widespread abuses, including killings, torture, beatings, and other ill-treatment committed by the army, ZANU-PF supporters, and officials against real and perceived supporters of the MDC.

    Political Violence during Constitutional Outreach Program

    In 2010 the power-sharing government began a series of community outreach meetings called the Constitutional Outreach Program to elicit popular views on a new constitution. However, the meetings were marked by increasing violence and intimidation, mainly by ZANU-PF supporters and war veterans allied to ZANU-PF. In February police disrupted MDC-organised preparatory constitutional reform meetings, beat participants, and arbitrarily arrested 43 people in Binga, 48 in Masvingo and 52 in Mt. Darwin. The violence worsened in Harare, the capital, and led to the suspension of 13 meetings in September.

    On September 19, ZANU-PF supporters attacked MDC supporters and prevented some from attending an outreach meeting in Mbare, Harare. The meeting ended when violence broke out. ZANU-PF supporters and uniformed police assaulted 11 residents and MDC supporters from Mbare with blunt objects as they left the meeting. One resident, Chrispen Mandizvidza, died from his injuries on September 22.’ [emphasis added]

  3. The Applicant’s migration agent had also relied upon material from Voice of America from February 2011, which stated:

    The recent spate of political violence in Zimbabwe demonstrates how easily fear, anger, and desperation can turn a nation against itself.

    With tensions rising amid speculation over possible elections this year, youth and opportunists associated with elements of ZANU-PF have attacked innocent merchants and shoppers, as well as MDC members, in the capital Harare and other communities.

    The attacks have left dozens of people injured in the last two weeks. In the most serious incident to date, more than 4,000 youths descended on Harare’s central Gulf shopping center and flea market, trashing and looting stands and beating merchants and shoppers.

    Police in the area did eventually respond, but only after much damage had been done. The youths assembled at ZANU-PF’s provincial headquarters on 4th Street following the incident. Comments from the Zimbabwe Republic Police suggest that they have arrested only individuals affiliated with MDC in response to the recent episodes of violence.

  4. In addition, a BBC report from February 2011 was referred to, which provided:

    According to the MDC, police also arrested on Monday hundreds of its members who sought refuge at a church after weekend violence in Harare’s Mbare suburb.

    It said ZANU-PF youths had run riot in the area on Saturday and destroyed and looted homes.

    It also reported that a house belonging to an MDC official in Bindura, about 90km (55 miles) north-east of Harare, was burnt down by alleged Zanu-PF supporters on Monday.

    …

    BBC southern Africa correspondent Karen Allen reports that diplomatic sources say the demonstrations had “all the hallmarks of systematic pre-election intimidation” and appear to have been designed to “soften the opposition”.

  5. The parties were agreed that, as a matter of law there is an obligation on the Tribunal to take account of the most recent information available, referring to Anderson v Director General of the Department of Environmental and Climate Change & Anor [2008] NSWCA 337; (2008) 251 ALR 633; (2008) 163 LGERA 400, where Tobias, J said:

    [58] Of course, the relevant matter must be more than adverted to or given mere lip service. Nor would it be sufficient to advert to the matter and then discard it as irrelevant: Elias v Federal Commissioner of Taxation [2002] FCA 845; (2002) 50 ATR 253 at 265 [62] per Hely J. But whether or not it can be judged that a matter has been considered is essentially an evaluative process based exclusively on what the decision-maker has said or written. That process is not, I believe, assisted to any significant degree by resorting to formulations which purport to qualify what is an ordinary English word, namely, ‘consider’ and which, as the Full Federal Court observed in Anthonypillai, invoke “language of indefinite and subjective application”.

  6. The Applicant also relied upon SZJTQ v Minister for Immigration and Citizenship [2008] FCA 1938; (2008) 172 FCR 563; (2008) 107 ALD 552, and particularly the following passages:

    [28] Mason J observed that considerable time might elapse between completion of the earlier report of a Commissioner and the time at which the Minister had to make a decision, which in that case was well over a year and a half. He said that the change of circumstances may mean that the previous comments were no longer an accurate guide. He continued (Peko-Wallsend 162 CLR at 45):

    "It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker. This conclusion is all the more compelling when the decision in question is one which may adversely affect a party’s interests or legitimate expectations by exposing him to a new hazard or new jeopardy." (emphasis added)

    [29] The principle identified by Mason J requires a decision-maker to make his or her decision on the basis of the most current material available to him or her at the time the decision is made, unless the legislation under which the decision is made excludes this duty: Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602 at 624 per Gaudron and Gummow JJ with whom Brennan CJ, Dawson and Toohey JJ agreed on this issue at 609; see also Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 248 ALR 390 at 400 [42] per Kirby J.

    …

    [34] Ordinarily, but not invariably, a failure to follow the procedures mandated by law necessarily affects the exercise of an administrative decision-maker’s power, because the decision will be arrived at in a manner outside that authorising it; hence the need to pay particular attention in judicial review proceedings to the formalities of procedure in the path leading to the challenged decision.

    …

    [37] More importantly, the principle in the passage from Peko-Wallsend 162 CLR at 45 that I have set out above is distinct from the requirement considered earlier by Mason J in that judgment, namely that a decision-maker must take into account relevant considerations and not take into account irrelevant ones: Peko-Wallsend 162 CLR at 39-42. In other words, the issue which arises here is whether the decision-maker, the tribunal, was obliged to make its decision "on the basis of the most current material available to [it]": Peko-Wallsend 162 CLR at 45.

    …

    [39] Often, circumstances can change radically in the applicant for review’s country of origin between the time he or she arrived in Australia and when the decision-maker makes a decision under s 36(2) of the Act. In this time period, repressive governments may be toppled, democracies may suffer coups d’état and continuing governments may change their domestic policies to become more or less oppressive.

    …

    [42] Again, the decision-maker must not simply defer to the recent material because it is recent, for that would be to abjure the statutory function of arriving at his or her own state of satisfaction. The tribunal must be able to assess and weigh country information in forming its own ultimate conclusion on that information. And, there is no unqualified obligation for the tribunal to search out country information which it does not already have before it. The potential sources of such information are vast and of varying degrees of relevance, reliability, (im)partiality and utility. The recent material may not be cogent, full, accurate or satisfactory. But those characterisations could only be arrived at as part of the decision-maker evaluating the recent material in the performance of his or her function of basing the decision on the most recent and accurate material that the decision-maker has at hand: Peko Wallsend 162 CLR at 45.

  1. In this case, the Tribunal made specific reference to the submissions containing the references to the more recent material, although did not specifically touch on the material itself.  The Tribunal said:

    67. On 21 February 2011 the Tribunal received a further submission from the applicant’s adviser. In that submission it was asserted the applicant faced risk on return to Zimbabwe because of his membership of particular social groups, being a “young Zimbabwean man”, “Zimbabwean youth” or “returnee from a Western Country”. That submission also provided additional country information, which was said to support the claim the applicant was at risk if he returned to Zimbabwe.

  2. In light of the above, the real issue before this Court was whether or not the reference at para.67 was a sufficient engagement with the material provided by the Applicant’s adviser to demonstrate that the Tribunal did have regard to, or take into account or at least consider, the more recent material referred to by the Applicant. 

  3. The Applicant relied upon the comments of the Full Court in Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59; (2011) 180 LGERA 99, where the Full Court said:

    [46] A statement of reasons given by a decision maker can constitute evidence of the material put before the decision maker, the way in which that material has been dealt with and the reasons for which the decision was made. A failure to include reference to a matter in a statement of reasons may justify the inference that, as a matter of fact, the matter was not taken into account. Thus, a statement of reasons may be accepted as evidence of the truth of what it says, namely, that the findings made and the evidence referred to and the reasons set out are as stated in the statement of reasons. It can be accepted as evidence that no finding, evidence or reason that was of any significance to the decision has been omitted (see Minister for Immigration and Ethnic Affairs v Taveli [1990] FCA 169; (1990) 23 FCR 162 at 179 and 182).

    …

    [48] The Appellant’s complaint is that the Minister failed to participate in any ‘active intellectual engagement’ with the loss of critical habitat or the Draft Plan. It complains that there was a failure to give weight to those matters as fundamental elements in making a determination: there was mere advertence to the matters, which were then discarded as irrelevant, and a failure to consider the salient facts that give shape and substance to the matter, being facts of such importance that, if they were not considered, it could not be said that the matter had been properly considered. If there were any such failures there would be jurisdictional error.

  4. The Applicant also referred to MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99, where Flick and Jagot JJ said:

    [19] Even construing the reasons provided in a “beneficial” manner, it is respectfully concluded that they expose jurisdictional error, namely:

    (i) a failure to consider the lack of family support that the Appellant will have if he relocates to Kabul; and

    (ii) a failure to consider the difficulties associated with the manner in which the children spoke Hazaragi, namely with a noticeable dialect which would identify them as having been living in Pakistan.

    The failure to address the lack of family support in either paragraph [84] and [85] is not redressed by a reference to paragraph [76] of the Independent Merits Reviewer’s reasons where it is stated that the Appellant “... would not have the family support networks to enable him to easily reintegrate into Afghanistan”. Whether the absence of family networks were taken into account when considering the reasonableness of the Appellant being relocated to Kabul remains unknown. And, although there is a reference in paragraph [84] to the fact that “... his children would be noticeable because they learnt their language in Pakistan ...”, that reference is in the context of recording a “submission” being made by the Appellant. How that submission was resolved is left unstated. Nor can the ultimate findings and conclusions of the Independent Merits Reviewer be supplemented by reference to paragraph [38], as the Respondent Minister contended. That paragraph is but a summary of an exchange that occurred during the course of an interview.

    [20] Having identified those two factors as relevant to an assessment as to the reasonableness of the Appellant relocating to Kabul, the Independent Merits Reviewer committed jurisdictional error in not taking them into account.

  5. MZYPW’s case appears to be based upon a failure to deal with an integer, rather than simply to actively consider evidence. As a result it is not particularly helpful in the present case.

  6. More generally the Applicant relied upon The Honourable Robert Tickner, Minister of Aboriginal and Torres Strait Islander Affairs, & Ors v Thomas Lincoln Chapman & Ors [1995] FCA 1726; (1995) 57 FCR 451; (1995) 133 ALR 226; (1995) 89 LGERA 1 (also known as Tickner v Chapman) and the requirement that:

    [39] …Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission. [emphasis added]

  7. A further statement of the decision-maker’s obligation to actively engage with the material is set out in Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1, where the Full Court said:

    [47] The Minister accepted that jurisdictional error would be established if the AAT did not genuinely take into account the question of general deterrence as required by Direction 21: see the primary Judge’s decision at [21]; and the discussion by Rares J in Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 at 181–182 [105]-[107], and by the Full Court in Telstra Corporation Ltd v Australian Competition Tribunal (2009) 175 FCR 201 at 242 [267].

    [48] With respect, we consider that her Honour misapplied the statement made by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 in inferring from other parts of the AAT’s reasons that [124]-[127] were to be read as an engagement by the AAT in an "active intellectual process" (Tickner v Chapman (1995) 57 FCR 451 at 462). The High Court said at the passage referred to (and quoted by her Honour at [22]):

    ... reasons of an administrative decision-maker are meant to inform and [are] not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

    [49] When the allowances called for by this passage are made, we remain of the view that the AAT’s reasons for decision fall on the wrong side of the line: they do not show an active intellectual engagement with the question how the factor or consideration of general deterrence was taken into account, and therefore whether it was taken into account at all, in the exercise of a discretion to cancel. Mr Lafu would be left to guess what role, if any, the issue of general deterrence had played. Yet it will be recalled (see [32] above) that Mr Lafu had expressly submitted that "[g]iven the lack of publicity about the matter, and the lack of any gang involvement, cancelling the applicant’s visa would have no deterrent value".

    [50] We do not think that the structure of the AAT’s reasons for decision is to be ignored. It was at [124]-[127] that the AAT deliberately turned its attention to the requirement that it consider a question of general deterrence, yet we find in those paragraphs no engagement with the question how the AAT considered the way, if any, that the issue of general deterrence related to the facts of Mr Lafu’s case.

    [51] The Minister submits that [127] is a statement to the effect that, on the facts, general deterrence is a factor that must be given little weight. We do not accept the submission. At that paragraph the AAT was still stating the general position in relation to general deterrence. In Filipo, the comparable paragraph ([86]) authored by the same member was:

    While deterrence cannot be a decisive, or even a substantial factor in the exercise of the discretion, it should be taken into account, especially in the case of serious gang violence such as occurred here. [emphasis added]

    The words emphasised in the passage quoted show some application of the member’s mind to the question whether, on the facts of Filipo, the particular case, the matter of general deterrence told in favour of a cancellation. Comparable words do not appear in the AAT’s reasons for decision in the present case.

    [52] Arguably, the words "must be taken into account" in [127] of the AAT’s reasons in Mr Lafu’s case and the words "should be taken into account" in Filipo, mean that the AAT is required as a matter of law to take into account general deterrence as a factor telling against the individual in all cases. It can be accepted that in virtually all cases there would be at least one person other than the visa holder who will learn of a cancellation, so that, at least theoretically, general deterrence will always have some role, even if a miniscule one. We do not think, however, that a bland statement that as a matter of conceptual analysis, general deterrence must always tell in favour of cancellation, without any reference to how and to what extent it does so on the facts of the particular case, meets the requirements of paras 2.5(c) and 2.11 of Direction 21 set out earlier. Paragraph 2.11 states that general deterrence "may be relevant in a number of ways" and requires a decision-maker to consider and identify whether, and if so, the way in which, it is relevant on the facts of the particular case

    [53] We are not persuaded that the passage from WAEE set out at [45] above signifies that the AAT was relieved from giving reasons as to the actual relevance general deterrence had to its decision to affirm the cancellation of Mr Lafu’s visa. In the present case the AAT did expressly refer to the issue of general deterrence in the statement of its reasons. The problem is that [124]–[127] where the AAT did so, turn out, upon analysis, not to expose a consideration of the question of general deterrence as it relates to the facts of the present case at all.

    [54] Notwithstanding her Honour’s careful analysis, our own careful analysis of the AAT’s reasons convinces us that so far as those reasons reveal, the AAT did not reach a conclusion in relation to whether and to what extent general deterrence was relevant to the circumstances of Mr Lafu’s case. Apart from reciting the requirement that that factor be taken into account, the AAT’s reasons do not indicate whether the AAT was influenced, and if so by what process of reasoning, by the factor of general deterrence, in deciding that Mr Lafu’s visa was to be cancelled. We conclude that the AAT did not give real consideration to the factor of general deterrence as it related to the individual circumstances of Mr Lafu’s case.

  8. This passage was cited with approval in Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248; (2010) 274 ALR 438; (2010) 119 ALD 26.

  9. The Applicant also relied on the decision of SZJTQ v Minister for Immigration and Citizenship [2008] FCA 1938; (2008) 172 FCR 563; (2008) 107 ALD 552, where Rares, J said:

    [37] More importantly, the principle in the passage from Peko-Wallsend 162 CLR at 45 that I have set out above is distinct from the requirement considered earlier by Mason J in that judgment, namely that a decision-maker must take into account relevant considerations and not take into account irrelevant ones: Peko-Wallsend 162 CLR at 39-42. In other words, the issue which arises here is whether the decision-maker, the tribunal, was obliged to make its decision "on the basis of the most current material available to [it]": Peko-Wallsend 162 CLR at 45.

    [38] In my opinion, the critical question for the tribunal to decide under s 36(2)(a) of the Act is whether, at the date of its decision, the applicant for a visa is a person to whom Australia has protection obligations under the Refugees Convention. An adverse conclusion can result in an applicant for review being returned to his or her country of origin, despite his or her claim to have a well-founded fear of persecution were he or she to return there. And, if that occurs, he or she might be exposed to the possibility that the fear was in fact well-founded.

    [39] Often, circumstances can change radically in the applicant for review’s country of origin between the time he or she arrived in Australia and when the decision-maker makes a decision under s 36(2) of the Act. In this time period, repressive governments may be toppled, democracies may suffer coups d’état and continuing governments may change their domestic policies to become more or less oppressive.

  10. Importantly, his Honour made clear that:

    [43] Of course, the Court cannot turn a review of the administrative decision into a review of the merits of the decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Their Honours said that proceedings for judicial review should not over-zealously scrutinise the reasons of the decision-maker. Those reasons are meant to inform.

  11. Rares, J concluded, with respect to the facts of that particular case, that:

  12. [44] The tribunal was obliged to identify the evidence on which its finding of "considerable relaxation of the one child policy" was based pursuant to s 430(1)(d) of the Act. It did not make a jurisdictional error merely by failing to identify the evidence on which that finding was based. However, a decision-maker must give proper, genuine and realistic consideration to the merits of the case: Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291 at 292 per Gummow J; see also Telstra Corporation Ltd v ACCC [2008] FCA 1758 at [106] where I collected the authorities.

  13. Finally, the Applicant relied upon the comments of the Full Court in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 (although also an integer case), where the Court said:

    [49] The material put before the Tribunal on the son's intermarriage issue and the contentions advanced in respect of it went directly to the criterion for the grant of a protection visa set out in s 36. While the Tribunal recounted the appellant's claims on this issue early in its reasons, its failure to consider the evidence and the contention leads to the inescapable conclusion that it failed to address the issue.

  14. In substance, the Applicant’s case was that it was reasonable to reach a conclusion that the Tribunal had not had regard to the most recent information as:

    (i)There was nothing in the decision to indicate that the Tribunal took it into account, save for the general reference to receipt of the submission at para.67 of the decision;

    (ii)There is no reference in the reasons to any of the material that post-dates the 2010 report that was relied upon by the Tribunal member, even though there were 9 pages of quotes and references to country information.

    (iii)At para.86 of the decision there is no discussion of the conflict between the country information relied upon and that provided by the Applicant’s advisor.

  15. The Respondent’s Counsel relied not only upon the comments of the Tribunal at para.67 referencing the submission of the Applicant’s advisor but also sought to draw support from the comments at para.58 of the decision, where the member said:

    58. The Tribunal also raised with the applicant country information from the Fact Finding Mission report of October 2010 in relation to political violence, noting that report indicated more recent levels of violence were down on that experienced during 2008, that all organisations reported politically motivated violence was “rare in most urban centres in Zimbabwe” and reported that Bulawayo and Harare were noted as relatively safe, and whilst some organisations noted influential MDC supporters could be at risk, ordinary opposition and MDC supporters were not thought to be at any particular risk.

  16. Notably, however, para.58 does not refer to more recent material.  Importantly, at para.59, the Applicant, when challenged about this, said that ‘he had seen an article about violence directed towards MDC members attending a meeting concerning constitutional amendment, and there was other evidence of violence continuing’.  It seems clear that the written submissions of the Applicant’s advisor were following up on this point and providing various references to articles which did challenge material referred to by the Tribunal in para.58.

  17. Ultimately, the Applicant put the argument on the basis that it was either an integer case, in that the Applicant argued that the Tribunal failed to consider the Applicant’s risk as a result of the recent development of events since 2010, or a case where the Tribunal had failed to have regard to the most recent material.

  18. In considering the extent to which the Tribunal may or may not have engaged with the material in light of the above authorities, it is significant that none of the material is actually referred to in the decision.  In fact, nothing since 2010 appears to have been referenced in the decision.  It is also significant that the submission was acknowledged by the Tribunal member in the reasons given.

  19. It was argued that the sources relied upon by the Applicant in the advisor’s submissions were not those of formal government agencies, but informal or media agencies. That must necessarily be a consideration although not a strong one, particularly when it involves agencies such as the BBC news reports, Human Rights Watch and Voice of America, which are respected agencies.

  20. In this case some of the additional information was in stark contrast to the material relied upon by the Tribunal.  For example, the Voice of America material indicates that innocent merchants and shoppers, as well as MDC members were attacked in the capital, and that the Police were reported as having arrested hundreds of MDC members who sought refuge at a church after weekend violence in the suburb of Harare.  The Human Rights Watch Report refers to ill-treatment by various agencies against both ‘real and perceived’ supporters of the MDC. Further, there are references to uniform Police assaulting residents and MDC supporters, ultimately killing one resident, in September of 2010. 

  21. Whilst it is certainly impermissible for this Court to engage in merits review, it is appropriate to ensure that the Tribunal has considered the Applicant’s claims, and done so on the most recent material.  Given the stark difference between the reports relied upon by the Applicant and the findings of the Tribunal, on an issue that was central to the decision-making process, it is surprising that the Tribunal member would not have referred to or explained why it was that the more recent material was discounted, not relied upon, or alternatively that the material that the member did rely upon was preferred.

  22. In considering this issue, I also bear in mind the comments made by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 9 Leg Rep 2; (1996) 70 ALJR 568; (1996) 41 ALD 1:

    [31] … The reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

  23. Ultimately, I am persuaded that this is a case where the Applicant has shown, on the material before the Court sufficient to succeed on the basis that the Tribunal have failed to have regard to the most recent material or, alternatively, failed to consider the Applicant’s claim as at the time of the decision, rather than at an earlier time (prior to the 2010 reports relied upon by the Tribunal).

  1. I therefore make orders setting aside the decision of the Tribunal and remitting the matter for re-hearing.

Costs

  1. In this case the parties agreed that, in the event that the Applicant succeeded, costs should follow the event at the scale fee and, in the event that the Minister succeeded, costs should follow the event in the sum of $5400. 

  1. As the Applicant has ultimately been successful, I order that the Minister pay the Applicant’s costs fixed in the sum of $6,471.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Date:  23 November 2012

Most Recent Citation