MZZEA v Minister for Immigration
[2014] FCCA 360
•28 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZEA v MINISTER FOR IMMIGRATION | [2014] FCCA 360 |
| Catchwords: MIGRATION – Review of Tribunal’s decision to affirm Minister’s refusal to grant a protection visa – decision alleged to be vitiated by a failure to make an enquiry, drawing an inference without facts to support it and a failure to afford the Applicant procedural fairness – adverse finding concerning the Applicant’s credit – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.46A(2), 424A |
| Minister for Immigration & Citizenship v SAIAI (2009) 83 ALJ R1123 at[25] Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [94] SZMOK v Minister for Immigration & Multicultural Affairs and Citizenship (2009) 257 ALR 42 at [68] Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJ R1123 LIOA v West (1985) 159 CLR 550 WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912 at [36] |
| Applicant: | MZZEA |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | MLG 1600 of 2012 |
| Judgment of: | Judge O'Dwyer |
| Hearing date: | 14 May 2013 |
| Date of Last Submission: | 14 May 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 28 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Stanton |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration and Border Protection”
Leave is granted to the Applicant to withdraw his application for review filed on 14 December 2012, as amended.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1600 of 2012
| MZZEA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed on 14 December 2012, and later amended, the Applicant seeks to review a decision of the Refugee Review Tribunal (“the Tribunal”) dated 12 November 2012. That decision affirmed an earlier decision of the delegate of the First Respondent (“the Minister”) to refuse to grant the Applicant a Protection (Class XA) visa.
Background and the Applicant’s claims
The Applicant is a citizen of Pakistan who arrived in Australia in April 2012 as an irregular maritime arrival. The Minister subsequently exercised his discretion under s.46A(2) of the Migration Act 1958 (Cth) (“the Act”) and permitted the Applicant to make an application for the Refugee Status Assessment visa.
In support of his application the Applicant made the following claims:
3.1He is a man of Sunni faith and was a businessman in Bannu, Pakistan, in what is now known as the Khyber Pakhtunkhwa Province, but formerly known as the North West Frontier Province.
3.2His family business, which had been established around 1971 by his father, distributed medical supplies, including those from Western firms Pfizer, Beechams, Welcome, and Glaxo SmithKline.
3.3 The Applicant entered the family business around 1993 and he had visited the US for business and medical treatment between 2000 and 2004.
3.4The Applicant claimed protection on the basis of:
(i)his membership of a particular social group of successful business owners in Pakistan, which was more generally described as businessmen who have dealings with Western countries; and
(ii) his imputed opposition to the Taliban.
3.5The Applicant said that he was the managing director of the Bannu branch of the family company during the period relevant to his claim.
3.6On 2 December 2010 he claimed to have received a letter from the Tehrik-e-Taliban Pakistan (“TTP”), which alleged that he was involved with American businesses. That letter told him to attend a Shura within 10 days, but he refused.
3.7On 29 December 2010, he claimed his eldest son was kidnapped when returning home from school. The Applicant reported this matter to police, and also reported having received the letter from the TTP, but no action was taken by the authorities.
3.8On 15 January 2011, members of the Taliban attended his office. They told security guards that they wanted to meet him and that they have his son. The Applicant refused to meet the Taliban because he was scared he could have been abducted and/or shot. There was a firefight at the main gate between the Taliban and his security guards. It was thought that one of the Taliban had been injured during the fight. Police attended two hours later, but did not take any action.
3.9After this incident, the Applicant resided in his office due to concerns over his safety.
3.10 On 22nd of January 2011, the Applicant received another letter from the Taliban. That letter noted that one member of the Taliban had been killed during the incident and told him to attend a Shura within 10 days. At the time the Applicant did not know whether his son was alive or dead, but he refused to attend.
3.11On 28 March 2011 when returning from an engagement party at his cousin’s house, shots were fired at his vehicle. He immediately attended the police station and the police provided him with security to return to his office.
3.12The Applicant then determined to leave Pakistan upon the advice of his brothers. After leaving Pakistan, his family received threatening correspondence. His third eldest brother was killed by the Taliban. Other family members have allegedly been attacked subsequent to the Applicant leaving Pakistan.
Tribunal’s decision and findings
A critical finding of the Tribunal was that it found the Applicant was not a truthful witness. The Tribunal did find that there was a business as claimed by the Applicant but the Tribunal did not accept that the Applicant was the manager of the Bannu branch of that business, given the documents the Applicant submitted to the Tribunal suggested the Applicant ran the Di Khan branch of the business.
The Tribunal also found that an undated letter from the Applicant’s brother, which was claimed to have stated that the Applicant had been managing director of the Bannu branch of the business between 1993 and 2011 had been created specifically to support the Applicant’s claims and the Tribunal thus placed greater weight on the contemporaneous documents which indicated the Applicant was a director of the Di Khan branch of the business. The Tribunal did accept that the Applicant had some role in the family business, but it found that his role was clearly subordinate to that of his older brother and that his brother’s sons were the proprietors of the business in Bannu.
The Tribunal rejected the Applicant’s claim that the Taliban wanted to target the business because of its distribution agreements with US companies, concluding that if that were the case, the Taliban would have targeted the Applicant’s brothers as well as the Applicant. The Tribunal also did not accept that the Applicant was considered to have become an infidel because of his association with Western countries. The Tribunal rejected the Applicants claims that his brother had been killed by the Taliban and that his son had been abducted by the Taliban. The Tribunal did not accept that the Taliban fired weapons at the Applicant’s car when he was returning from an engagement party.
The Tribunal found it implausible that the Taliban would write to the Applicant if they were intent on killing him. The Tribunal was of the view that the Taliban would not come and see him at the business if the Taliban was intent on killing him. Further, given the prevalence of document fraud in Pakistan, the Tribunal noted that it placed greater weight on any inconsistencies in the Applicant’s evidence than the documents provided by the Applicant that purported to corroborate the Applicant’s claims.
Consequently, the Tribunal did not find that the Applicant was a person to whom Australia owed obligations under the Refugees Convention and further went on to find that the Applicant was not a person to whom Australia owed “complementary protection”.
Grounds for review
By an amended application filed on 12th of April 2012, the Applicant set out three grounds of review, namely:
Ground 1 - The second respondent engaged in a constructive failure to exercise jurisdiction by failing to make an obvious enquiry about a critical fact, the existence of which was easily ascertained.
Particulars
A. The Applicant claimed to have been sent two letters by the Tehrik-e-Taliban Pakistan (“TTP”). The first letter was dated 2 December 2010, and the second letter was dated 4 January 2011
B. The letters were central to the Applicant’s claim that he was at a real risk of persecution due to his involvement in the family business for dealing with Western pharmaceutical companies.
C. The letters were vital in order to understand the purported motives of the TTP.
D. The two letters were in the Urdu language, and translated copies were not provided to the Tribunal by the Applicant’s legal representatives.
E. During the hearing on for January 2012, and with the assistance of an interpreter, the Applicant offered to read the first of the two letters to the learned Tribunal member. The learned Tribunal member only asked that the Applicant state “roughly” what the letters said.
F. The learned Tribunal member gave the letters less weight than other considerations due to the purported prevalence of document fraud in Pakistan.
G. The learned Tribunal member found that the TTP would not engage in the conduct of sending letters if its members intended to harm the Applicant, because “if the Taliban had wanted to kill [the Applicant] they would not have needed to write him a letter”. This was found to be relevant to the Applicant’s credibility.
H. The learned Tribunal member found that the Applicant did not receive threatening letters from the TTP on the basis of an adverse credibility finding.
I. The authenticity and content of the letters were of critical importance to the Applicant’s claims. Whether or not the TTP had sent the letters, and the motivations of the TTP as disclosed in the letters were critical facts.
J.In giving the letters some, albeit less, weight, the Tribunal could not properly determine the weight to be afforded to the letters until it had a full and accurate translation of the documents.
K. In finding that the letters were relevant to the Applicant’s credibility, the Tribunal could not determine how the letters were relevant to the Applicant’s credibility until it had a full and accurate translation of the letters.
L.It was necessary for the Tribunal to consider the precise content of the letters before making adverse findings about likelihood or otherwise of the TTP sending letters, the likely motivations of the TTP, and the Applicant’s credibility. This was all the more so in circumstances where the Applicant had offered to read the first of the letters to the Tribunal.
Ground 2 - The second respondent erred in drawing an inferrence, for which there was no evidence and which was illogical.
Particulars
A. The learned Tribunal member found that, inter alia, “if the Taliban had wanted to kill [the Applicant] they would not have needed to write him a letter”. Many similar propositions were put to the Applicant during the hearing.
B. The learned Tribunal member inferred that the TTP would not send the letters if its members intended to harm the Applicant. Accordingly, for the learned Tribunal member, the Applicant’s refusal to meet with the TTP was unreasonable because the TTP could have already have killed him by that stage.
C. The inference, that by sending the letters, the TTP would not have intended to harm the Applicant because its members could have already killed him, was an inference drawn without support of probative evidence and which was illogical. This was a matter of significance when considering the Applicant’s credibility, which was the critical issue in the hearing.
Ground 3 - The second respondent failed to afford procedural fairness to the Applicant.
Particulars
A. The learned Tribunal member put to the Applicant that document fraud is extremely common in Pakistan. The Applicant agreed.
B. The country information relied upon by the learned Tribunal member was specifically relevant to “first information reports”, not warning letters from the TTP.
C. The learned Tribunal member stated to the Applicant that the letters may be given less weight than other considerations, such as purported problems with the Applicant’s evidence. It was therefore put to the Applicant that the letters would be given some, albeit limited, weight.
D. The learned tribunal member ultimately found that the Applicant did not receive the threatening letters from the TTP.
E. It was never put to the Applicant that he did not receive the letters from the TTP, nor that the documents were forgeries. The “puttage” that document fraud was commonplace in Pakistan, to which the Applicant agreed, and the comments that the letters have to be given less weight, was expressed is far too high a degree of generality.
F. Having regard to the importance of the letters in the context of the Applicant’s claims it behoved the learned Tribunal member to put squarely to the Applicant that he took issue with the authenticity of the letters and the Applicant’s claim that he had received them from the TTP, and that it was possible that the letters would be given no weight.
Contentions and consideration
In respect of ground 1, the Applicant relies on MIAC v SZIAI[1] as authority for the proposition under this ground. It is edifying to quote [25] of that decision:
“25. Although decisions in the Federal Court concerned with a failure to make obvious enquiries have led to references to a “duty to enquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an enquiry results in the decision being affected some other way that manifests itself as jurisdictional error. …”.
[1] (2009) 83 ALJ R1123
The Applicant contended that it was vital that the Tribunal obtained a translation of the purported letters from the Taliban and as such a translation would have afforded the Tribunal the opportunity to properly assess the weight to be given to the letters, which had they been given greater weight, as I understood the submissions of the Applicant, it may have greatly affected the Tribunal’s determination on the Applicant’s credit. The Applicant therefore submits that this was a critical point. Although the submissions by the Applicant did not address the question of whether the translation was easily ascertained, it was implied.
In my view, consideration of the content, once properly translated, would not have had a critical impact on the assessment by the Tribunal of the Applicant’s credit. It ignores the opportunity that was within the scope of the Applicant to have provided a translation prior to the hearing and post the hearing. The Applicant did not do so. It is for the Applicant to present his case to the Tribunal, it is not for the Tribunal to make out the Applicant’s case for him. In any event, the Applicant informed the Tribunal “roughly” of the content of the letters. In the Applicant’s contentions before me he did not resile from the fact that the Applicant did give an exposure of the content of the letters. The Applicant did not highlight how the precise translation of the letters would have added to the Tribunal’s understanding of the claims made; how a failure to obtain a translation would have constructively led the Tribunal into jurisdictional error. A fair reading of the Tribunal’s decision, coupled with the translation of the letters, cannot found a proposition that the Tribunal was not fully aware of the claim and how it was put. The Applicant submitted that a proper translation would add to the authenticity of the letters and again would have been critical in assessing the credit of the claim made and the credit of the Applicant. The Tribunal, however, queries the authenticity of these letters, referring as it did to the prevalence of counterfeit documents being generated in Pakistan. The translation of these letters would not have vitiated, in my view, the Tribunal’s ultimate evaluation of the weight to be ascribed to these letters.
The submissions on the part of the Applicant failed to first establish that the lack of a concise translation of the letters was a critical fact, nor that, in any event, the translation could easily be ascertained. It is not for the Tribunal to organise translations of documents, particularly in the circumstances where the Applicant was represented, where the Applicant was put on notice of the Tribunal’s concern about the authenticity of these letters and where the opportunity to provide translations prior to the Tribunal’s decision was foregone. There is no substance to this ground and it should be dismissed.
In respect of the second ground which challenged the Tribunal’s assertions that, if the Taliban had wished to cause harm to the Applicant, it was implausible that they would first write to him or come to his factory. It was contended that the inference drawn by the Tribunal was done without support of probative evidence and that it was illogical. It was suggested that the Tribunal’s findings in this regard were a critical step in the Tribunal’s ultimate conclusion as to the credit of the Applicant.
The inference to be taken from the Tribunal’s findings and upon which the Applicant’s credit was impugned, was reliance on an understanding or a supposition that the Taliban would not send warning letters and would not go to try and meet the Applicant if they wanted to kill him. They would simply kill him without taking preliminary steps. The Applicant contends that there was no evidence from which such a conclusion could be drawn.
In the alternative, the Applicant contended that the Tribunal’s decision was affected by illogicality. The illogicality complained of was the Tribunal’s finding that the TTP would not have acted in this matter in the circumstances where the Applicant’s evidence was that he worked and then also resided at the company address where there were security guards.
In respect of this ground. I can only agree with the Minister’s submissions that it amounts to an expression of dissatisfaction with factual findings made by the Tribunal.
In respect of the lack of probative evidence to support the inferences outlined above, it is not unreasonable for the Tribunal to form a view about the probable conduct of the Taliban. The Taliban do not broadcast their raids on villages or the presence of improvised explosive devices by writing letters to intended victims first. The knowledge of how the Taliban most probably works is within the community at large, but particularly within those Tribunal members dealing with Afghanistan and Pakistan protection applications.
In any event, a fair reading of the Tribunal’s decision shows that the inferences drawn and the findings made by the Tribunal are ones open to it on the Applicant’s own evidence and the assessment made by the Tribunal of the Applicant’s credit. In respect of the Tribunal’s conclusion on the Applicants credit there is nothing illogical to an extent that it discloses jurisdictional error on the part of the Tribunal. As stated by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS[2] for there to be illogical or irrational reasoning in respect of the Tribunal’s findings, they must be such that “no rational or logical decision-maker could arrive at on the same evidence”. In my view, the findings and the inferences formed by the Tribunal were open to a decision maker on the evidence before it. The Tribunal has not made findings no rational Tribunal could not have made on the evidence before it. This ground is also not sustainable.
[2] (2010) 240 CLR 611 at [94]
In respect of third ground the Applicant contended that he was denied procedural fairness in that the Tribunal failed to put to the Applicant that it would find that the two letters from Taliban were not received by the Applicant; that the Tribunal should have put the issue of the letters authenticity squarely to the Applicant and also put squarely to the Applicant that the Tribunal found that the letters were not received from the TTP.
It was submitted that, because of the importance of the letters to the Applicant’s case, it was appropriate that, if the Tribunal member intended to give the letters no weight, or find that they were never sent, in fairness, that had to be put to the Applicant. Merely putting to the Applicant, that, it was submitted, the letters may be given less weight because of the prevalence of document fraud in Pakistan was not sufficient to discharge the obligation to fairness. In support of this ground the Applicant relied on the common law principles as set out in Kioa v West[3]
[3] (1985) 159 CLR 550.
The Applicant’s contentions under this ground appear to be based upon the premise that the Tribunal found the two letters from the Taliban were forgeries. This is not a finding made by the Tribunal, but a fair reading of the decision, supported by the transcript of the hearing, inevitably leads to the conclusion that they were forgeries. Be that as it may, the Applicant in my view was afforded procedural fairness in respect of this issue, both during the hearing when he was informed of the Tribunal’s concerns about the authenticity of the letters and also post hearing when an opportunity, which was not taken, was available to the Applicant to provide a translation of the letters and further submissions on them before the decision was made. In my view, what the third ground in effect purports to do is challenge the Tribunal’s decision because the decision-maker did not disclose the processes of his thinking leading to the findings he made. It is trite law that the Tribunal is not under an obligation to disclose its thinking processes.
In any event, a fair reading of the decision shows the Tribunal reached its conclusions on the credit worthiness of the Applicant for various articulated reasons, all of which were open to the Tribunal on the evidence before it, and all of which buttressed the view that the letters were not sent to the Applicant. Again, it is trite law to say that where a Tribunal has made findings as to the credibility of an Applicant, the Tribunal has not committed jurisdictional error by giving what is purported to be corroborative documents no weight. Those documents, their significance and worth, is diminished by the Tribunal’s credibility findings.[4] Further, it is not a denial of procedural fairness (or a breach of s.424A of the Act) when a decision-maker fails to give an Applicant on notice that the decision-maker will give what appears to be corroborative documents no weight as they have been undermined by an adverse credibility finding.[5]
[4] see Re Minister for Immigration; Ex Parte Applicant S20/2002 (2003) 198 ALR 59 at 70 [4]; Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 42 at [ 59]; Minister for Immigration and Citizenship v SZNSP (2010) 115 ALD 294 at [ 33].
[5] see WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 at [36].
The Minister contended that even if the Tribunal had rejected the Taliban letters for being forgeries, such an approach would not reveal any error. The Minister referred to SZMOK v Minister for Immigration and Multicultural and Citizenship[6] where the Full Federal Court noted that there is no general rule the Tribunal cannot make a finding that a document is not genuine without first specifically referring to its concerns about the document where a Tribunal had sufficiently alerted an applicant to the doubts it had about the genuineness of the document that the applicant had submitted. This is certainly the case in this instance.
[6] (2009) 257 ALR 42 at [68]
This ground is not sustainable.
Conclusion
For the above reasons, none of the three grounds for review have been made out and accordingly, the application filed on 14 December 2012, as later amended, would have been dismissed had the Applicant not agreed with the Minister to withdraw his application
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge O'Dwyer
Associate:
Date: 28 February 2014
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