MZZIY v Minister For Immigration and Anor and; MZZIZ v Minister For Immigration and Anor
[2013] FCCA 1896
•20 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZIY v MINISTER FOR IMMIGRATION & ANOR and MZZIZ v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1896 |
| Catchwords: MIGRATION – Extension of time required – Applicants raised issues of bias, poor quality of interpretation, lack of procedural fairness and failure to consider an integer of the claim – no merit in grounds advanced – extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.45, 424A, 425, 477(1) |
| Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315 |
| Applicant: | MZZIY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 415 of 2013 |
| Applicant: | MZZIZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 416 of 2013 |
| Judgment of: | Judge Whelan |
| Hearing date: | 7 August 2013 |
| Date of Last Submission: | 7 August 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 20 November 2013 |
REPRESENTATION
| Counsel for the Applicants: | Ms Burt |
| Solicitors for the Applicants: | Victoria Legal Aid |
| Counsel for the First Respondents: | Mr Reilly |
| Solicitors for the First Respondents: | Sparke Helmore |
ORDERS
The application for an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth), be refused.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 415 of 2013
| MZZIY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
MLG 416 of 2013
| MZZIZ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These are applications for review of two decisions of the
Refugee Review Tribunal (“the Tribunal”) made on 19 February 2013. In those decisions, the Tribunal affirmed two decisions of the delegate of the First Respondent made on 26 October 2011, not to grant the Applicants, MZZIY and MZZIZ (collectively “the Applicants”), protection visas.
The Applicants seek orders that the decision of the Tribunal be quashed and a writ of mandamus directed to the Tribunal requiring the Tribunal to determine the applications according to law.
The applications were not filed until 2 April 2013, approximately one week outside of the 35-day time limit imposed by s.477(1) of the
Migration Act 1958(Cth) (“the Act”). The Court must therefore be satisfied that it is necessary, in the interests of the administration of justice, to make an order extending time for the matters to be heard.
Background
The Applicant MZZIY is a citizen of Pakistan who arrived in Australia on 14 September 2010 on a student visa. The Applicant MZZIZ is his brother who is also a citizen of Pakistan and arrived in Australia on
10 October 2010 on a student visa.
On 12 August 2011, the Applicants both lodged applications for protection visas.
The Applicant MZZIZ had previously left Pakistan in March 2007 to travel to the United Arab Emirates (“the UAE”) where he worked for approximately three and a half years. During that time, MZZIZ made only short visits to Pakistan. He applied for a student visa to come to Australia shortly before his visa to work in the UAE expired.
The Applicant MZZIY’s claims for protection are set out in the written submissions as follows:
a) The applicant is Shia and is from the (Khushi) Bayat Clan from Upper Kurram Agency Parachinar [CB 26];
b) The applicant’s heritage is Afghan and Pakistani.
c) The applicant’s father was a successful businessman [CB 28]. The applicant’s father would travel for work, and sometimes the applicant would join him. The applicant’s father was a leader in the tribe and became a “Malak” [CB 28] (this entails particular responsibilities to the tribe, and is similar to an elder).
d) From 2007, the Taliban, with the assistance of Sunni people in the region, started expanding their power into lower and upper Kurram Agency [CB 28]. Local Khushi tribe members became concerned about the increasing presence of the Taliban in the area and the applicant’s father took this up at a meeting of Shia leaders [CB 29].
e) After this the applicant’s father received warnings and demands from the Taliban by telephone [CB 29].
f) The Taliban presence increased in Parachinar, where killings and bombing have become common and are supported by the local Sunni population [CB 29]. Violent attacks started occurring, for example on in (sic) April 2007, schools and colleges closed and there was little access to food and medical supplies for Shia people.
g) In late 2007, the Taliban attacked the applicant’s family home a number of times. Hand grenades were used and the applicant’s mother and brother were injured. The applicant’s family went into hiding [CB 30]. The applicant’s father and 119 other elders and Malaks wrote to the Pakistani government, but there was no change [CB 30]. The Shia people started to organise to try and defend themselves, the applicant assisted with this. The applicant witnessed a Shia friend shot in the leg [CB 31].
h) Eventually, the applicant and his family fled to Peshawar.
But even in Peshawar, they were unable to practice their religion freely and encountered difficulties [CB 31].
i) In May 2008, the applicant was with his brother R when they were attacked. His brother was shot, and applicant’s brother (sic) was left in a pool of blood [CB 31]. His brother was taken by ambulance to hospital and was operated on for five hours before dying.
j) After this, the family’s neighbour was killed and the applicant’s father decided for the family’s safety, to move them to Karachi [CB 31], where they attempted to keep a low profile. The family had to pay protection money to keep safe [CB 32].
Over time, however, people started to learn of the applicant’s family’s religion. The family began to receive threats and harassment [CB 32]. The applicant’s father arranged for him to come to Australia to be safe.
k) In December 2010, the applicant received a very distressed call from his mother. The applicant learned that his father had been killed [CB 32]. The family believe that the murderers were the same people who had been harassing and targeting the family.
l) The applicant’s refugee claims were for reasons of religion, nationality, political opinion (due to his affiliation with his father) and membership of a social group (young Parachinar male, Kushi tribe member).[1]
[1] Applicant MZZIY’s Outline of Submissions filed 24 July 2013, p.2-3 at para.4.
The Applicant MZZIZ’s claims for protection are much the same, except that he was not in Pakistan and was not with his brother R when the attack in May 2008 occurred.
The Tribunal’s decision
Both of the Applicants were interviewed on the same day by the same Tribunal member.
The Tribunal made adverse credibility findings about both of the Applicants. In particular, the Tribunal did not accept as genuine the death certificates produced for the Applicants’ father and their brother R.[2] Further, the Tribunal did not accept the Applicants’ explanation as to why the applications for student visas did not disclose that their brother R was dead, and why a letter on the letterhead of the brother R’s business was produced as evidence that he, R, would bear all of the “expenses, including college fees, travel and living expenses in Australia” [3] of the Applicants, if he had, at the time, been dead for two years.
[2] Court Book filed on 22 May 2013 in MLG 415 of 2013 MZZIY v Minister for Immigration & Anor, at pp.46-47; Court Book filed on 3 May 2013 in MLG 416 of 2013 MZZIZ v Minister for Immigration & Anor, at pp.44-45.
[3] Court Book filed on 22 May 2013 in MLG 415 of 2013 MZZIY v Minister for Immigration & Anor, at p.287.
The Tribunal did not accept, on the evidence, including that going to the credibility of the Applicants, that the Applicants’ father was a Malik or a well-known or socially prominent figure. Further, the Tribunal did not accept that:
·The Applicants’ father was dead;
·The Applicants’ brother R was dead; or
·The family home in Parachinar had been attacked by grenades.
The Tribunal further did not accept that the Applicants’ family were forced to flee Parachinar, or that the family was targeted by the Taliban in Parachinar and by the Sipah-e-Sahaba-Pakistan (“SSP”) in Karachi.
The Tribunal also rejected the claim that MZZIY had been intimidated or harmed during his time in Peshawar or Karachi.
The Tribunal accepted the Applicants were Shi’a Muslims from Kurram Agency in the North West Frontier Province and Federally Administered Tribal Area (“FATA”) of Pakistan. The Tribunal accepted that the Applicants’ mother was a member of the Turi clan. On the basis of country information, the Tribunal accepted that the Applicants may face a real chance of persecution for reasons of their ethnicity, religion and imputed political opinion as Shi’a in the foreseeable future if they were to return to Parachinar/Kurrum Agency/FATA.
The Tribunal then considered the question of relocation and concluded that there was no real chance that the Applicants would face persecution for any of the claimed Convention reasons, identified by the Tribunal as:
·Shi’a Muslim faith;
·Khushi/Turi ethnicity;
·Assumed Afghan nationality;
·Membership of particular social groups being their tribe, Parachinar Shi’as or their family;
·Being young Shi’a males from the Kurram Agency; or
·Actual or imputed political opinion based on being Shi’a Muslims from Parachinar or membership of a particular social group (their family or young Parachinar Shi’a males),
if they were to relocate to another area of Pakistan.[4]
[4] Court Book filed on 22 May 2013 in MLG 415 of 2013 MZZIY v Minister for Immigration & Anor, pp.334-335 at para.54; Court Book filed on 3 May 2013 in MLG 416 of 2013 MZZIZ v Minister for Immigration & Anor, pp.333-334 at para.55.
On the basis of the particular circumstances of the Applicants - being young, unmarried, well-educated and with well-developed English language skills - the Tribunal considered that it was reasonable for them to relocate to an area of Pakistan outside of Parachinar/Kurram Agency/FATA.[5]
[5] Ibid, p.287 at para.111; Ibid, p.348 at para.108.
Reasons for delay in making the application
The Applicants were represented by the Refugee and Immigration Legal Centre before the Tribunal. The decisions of the Tribunal were forwarded to Victoria Legal Aid (“VLA”) on 21 February 2013.
VLA wrote to the Applicants, explaining that they were in receipt of the decisions of the Tribunal. The Applicants met with a solicitor from VLA on 18 March 2013. The Applicants say that they misunderstood what was to happen, and believed that VLA would assist them to make the application.
On 28 March 2013, a solicitor from VLA spoke to the Applicants and advised them that they had to make their own applications.
The following day was a public holiday, as was the next business day (it being Easter), so the Applicants filed their applications on the day after that.
Grounds of application
The grounds of application are contained in the amended applications of both of the Applicants and are as follows:
1. The Tribunal erred in that there was a reasonable apprehension of bias, insofar as the following particulars demonstrate that a fair-minded observer might, or would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly.
2. The Tribunal erred in that due to the poor quality of interpretation the applicant was not provided with a meaningful hearing in accordance with s.425 of the
Migration Act.
3. The Tribunal denied the Applicant procedural fairness in failing to put the Applicant on notice of relevant and adverse information, namely the evidence of the Applicant’s brother. This breached the requirements of s424A of the Migration Act 1958.
4. The Tribunal did not consider an integer of the applicant’s claims, alternatively, failed to take into consideration a relevant matter, or considered an irrelevant consideration.[6]
The Applicants’ submissions
[6] Amended Application of MZZIY filed 26 June 2013, p.3-4 at Grounds 1-4; Amended Application of MZZIZ filed 5 June 2013, p.3-4 at Grounds 1-3.
The First Ground
The first argument of the Applicants is that there was a reasonable apprehension of bias, insofar as a fair-minded observer might, or would, “reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly”.[7]
[7] Ibid, p.3 at Ground 1; Ibid, p.3 at Ground 1.
The Applicants rely on the following:
·The tone of the Tribunal, which was described as aggressive, combative, sarcastic and dismissive;
·The Tribunal dismissed MZZIY’s evidence of being intimidated while he was enrolling at Sir Syed University of Engineering and Technology (“the University”);
·The Tribunal cross-examined the Applicants closely, asking many closed questions and making statements such as “The answer then is no”[8] in response to the Applicants’ explanations;
[8] Applicant’s Outline of Submissions filed 24 July 2013, p.4 at para.17(d).
·The Tribunal constantly interrupted the Applicants;
·The Tribunal inaccurately summarised the Applicants’ case;
·The Tribunal prevented the Applicants’ representative from assisting when there were difficulties in the interpretation;
·The Tribunal indicated a closed mind to post-hearing submissions;
·The Tribunal did not attempt to ensure that the Applicants were interpreted properly;
·
The Tribunal ‘cut and pasted’ between the two decisions.
Large parts of the decisions are the same, word for word; even in relation to the issue of credibility, the exact same findings are made; and
·The tenor of comments made by the Tribunal about the Applicants’ evidence shows an attitude towards them that demonstrated pre-judgment.
The Applicants cited numerous examples from the transcript of the hearing (“the transcript”) and the Tribunal’s decision which were said to illustrate that there was a reasonable apprehension of bias.
The Applicants referred to the decisions of:
·VFAB of 2002 v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2003) 77 ALD 23 (“VFAB”);
·SZBLY v Minister for Immigration and Citizenship and Another (2007) 96 ALD 70; and
·SZOEV v Minister for Immigration and Citizenship
(2010)
117 ALD 524,
as establishing that a reasonable apprehension of bias will constitute a jurisdictional error. If the decision-maker has not approached the task of review with an open mind, no real hearing has taken place.
The Second Ground
The Applicants’ second ground goes to the issue of the quality of the interpretation. Because of the poor quality of the interpretation, it is contended that the Applicants were not provided with a meaningful hearing.
The Applicants wrote to the Tribunal following the hearing and raised the issue of the poor interpreting, citing a number of examples of where misinterpretation had occurred. At the hearing before the Court, the Applicants also relied on the affidavit of Ms MARZIA WARDAK (“Ms Wardak”) where Ms Wardak sets out numerous examples of:
·Misinterpretation;
·Failure by the interpreter to interpret all of the Applicants’ statements; and
·Other incidents where the interpreter included statements not made by the Applicants.[9]
[9] Affidavit of Marzia Wardak filed 26 July 2013.
The Applicants contend that, because of the poor quality of the interpreting, they were, in effect, prevented from giving their evidence. It is true that the Applicants had some English language skills.
The Applicants refer to the fact that MZZIY, at one stage, interrupted the interpreter to give his evidence in English because the interpretation of what MZZIY was saying was leading to confusion.
The Applicants submit that MZZIY was much more reliant on the interpreter and MZZIZ gave most of his responses in English. However, when MZZIZ did use the interpreter, there were more misunderstandings which the Applicants submit was because the interpreter was speaking Farsi and Afghan Dari while MZZIZ was speaking Pakistani Dari, which is slightly different.
The Applicants contend that the poor quality of the interpreting affected the Tribunal’s finding that the Applicants’ claims were vague. This vagueness went to a finding that neither MZZIY nor his family experienced any harm or threat of harm for any Convention-related reason while residing in Peshawar or Karachi. If the Applicants’ claims had been conveyed accurately, this conclusion may not have been drawn.
In relation to MZZIZ, what was said by him was much more direct, concise and succinct than what was conveyed by the interpreter.
The interpreter adds a considerable amount of phrases and contortion to what is actually said quite clearly.
The Applicants submit that it is open to the Court to find that a conclusion would have been drawn about vagueness because of the interpreter’s role, rather than because the evidence was inherently vague. Likewise, a finding by the Tribunal that MZZIY was “evasive”[10] may also be attributed to the way he was interpreted.
[10] Court Book filed on 22 May 2013 in MLG 415 of 2013 MZZIY v Minister for Immigration & Anor, p.322 at para.28.
The Applicants cited examples from the transcript and the translation of Ms Wardak of distortions in the evidence by the interpreter which could clearly have influenced the Tribunal’s finding that the claim by MZZIY of being intimidated by people at the University was “incoherent”.[11]
[11] Ibid, p.342 at para.77.
In particular, the Applicants contend that errors in the translation affected the Applicants’ claims that they would be targeted as being Shi’a and being from Parachinar. Further errors in the translation concerning the death of the Applicants’ brother R would have impacted on the Tribunal’s findings of credibility in assessing the Applicants’ claims.
The Applicants submit that the poor quality of the interpreting had a bearing on whether the Applicants were afforded procedural fairness. The Applicants cited Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 and
SZJZS v Minister for Immigration and Citizenship and Another(2008) 102 ALD 318 in support of the contention that an error of interpretation may give rise to a failure to comply with s.425 of the Act.
The Applicants also refer to SZJZE v Minister for Immigration and Citizenship [2007] FCA 1653 on what is required to establish that an interpreting error prevented an applicant from having a real and meaningful hearing, and Perera v Minister for Immigrationand Multicultural Affairs (1999) 56 ALD 231 (“Perera”) on the relevance of interpreting errors to credibility findings.
The Third Ground
The third contention of the Applicants was put as a denial of procedural fairness in failing to put each of the Applicants on notice of relevant adverse information, namely the evidence of the other Applicant.
While this ground was raised with respect to both Applicants, it was particularised only with respect to MZZIZ, who was the second of the Applicants to be interviewed.
The Applicants referred to the decision of SAAPv Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009 (“SAAP”) with respect to the contention that oral evidence given can constitute information for the purpose of the Act. In SAAP, oral evidence was given by the applicant’s daughter in the presence of the applicant’s migration agent, but not the applicant. The Tribunal then relied on the information given by the daughter at the hearing as a reason, or part of the reason, to affirm the decision under review, without giving the applicant an opportunity to respond to part of that evidence.
In this case, the Tribunal referred to the reliance of MZZIZ on MZZIY’s alleged experience while a student in Karachi as part of his claim. The Tribunal rejected those claims and relied on that rejection in determining the claims of MZZIZ. In particular, the Applicants referred to whether MZZIZ would be likely to be recognised because of his appearance, looking like an Afghan. The Tribunal rejected that claim, referring to MZZIY having “passed himself off as a native of Peshawar”.[12]
[12] Court Book filed on 22 May 2013 in MLG 415 of 2013 MZZIY v Minister for Immigration & Anor, p.348 at para.97.
The Applicants submit that the evidence of MZZIY that he had been able to pass himself off as a native of Peshawar, given at the Tribunal hearing, was used to dismiss the claim of MZZIZ that he would be identified because of the way he looked. That information should have been put to MZZIZ so that he was aware of it and given the opportunity to respond. It was information that formed part of the reason for rejecting MZZIZ’s evidence.
The Applicants contend that the conclusion reached by the Tribunal, with respect to the capacity of MZZIY to pass himself off as a native of Peshawar, was a matter that should have been put to MZZIZ. It is not a matter of internal inconsistencies in MZZIZ’s own account, or an appraisal of what the Tribunal thinks about his own evidence; it is information which came from another source, and MZZIZ is not aware of what the Tribunal has concluded about that information.
The Fourth Ground
This ground relates only to MZZIY.
At paragraph [76] of the Tribunal’s decision, the Tribunal makes credibility findings about MZZIY.[13] This paragraph is identical to a paragraph in the Tribunal’s decision with respect to MZZIZ,[14] and it says, in part, “…[MZZIY’s] inability at the hearing to cite a single specific instance of harm that he himself suffered or directly witnessed…”.[15] The Applicant MZZIY had clearly cited instances at the hearing that he had directly witnessed or been part of, in particular, the fact that he had witnessed his brother R being killed, but also in relation to MZZIY being intimidated while a student in Karachi.
[13] Court Book filed 22 May 2013 in MLG 415 of 2013 MZZIY v Minister for Immigration & Anor, at pp.341-342.
[14] Court Book filed on 3 May 2013 in MLG 416 of 2013 MZZIZ v Minister for Immigration & Anor, pp.340-341 at para.78.
[15] Court Book filed 22 May 2013 in MLG 415 of 2013 MZZIY v Minister for Immigration & Anor, p.341, at para.76.
The Applicants submit that the Tribunal has not had any regard to the specific instances of direct harm that MZZIY claimed he had been subjected to in Pakistan. The fact that MZZIY made the claims was referred to in the Tribunal’s decision, but merely recording a submission does not amount to a consideration of that claim.[16]
[16] See MZYPW v Minister for Immigration and Citizenship and Another (2012) 128 ALD 520.
The First Respondent’s submissions
On the question of extension of time, the First Respondent submitted that although the delay was short, it has not been adequately explained. The affidavits of both Applicants attach a letter from VLA which makes it perfectly clear that they had to act within time to protect their rights.[17] The Applicants just claim that they did not understand, but do not explain the basis of their misunderstanding. The documentary record indicates that the Applicants were correctly advised as to the date by which they had to act.
[17] Affidavit of MZZIY filed 26 June 2013, at Annexure A; Affidavit of MZZIZ filed 5 June 2013, at Annexure A.
The First Ground
The First Respondent submits that this was a case where there were significant difficulties with the Applicants’ case on credit grounds.
The Tribunal ultimately made strong findings against both Applicants on the basis of credit, and found that their claims to have suffered harm in Pakistan were untrue and in particular, that the alleged deaths of the Applicants’ brother R and father did not happen. The great majority of the Tribunal’s concerns did not relate to the nature of the oral evidence, but rather to documentary evidence.
The First Respondent referred to the alleged death certificates,
the student visa applications and the document from the brother R dated 19 March 2010.[18] This is a case where the Tribunal was entitled to have a degree of scepticism from the start.
[18] Court Book filed on 22 May 2013 in MLG 415 of 2013 MZZIY v Minister for Immigration & Anor, at pp.46-47, 261-277 and 287; Court Book filed on 3 May 2013 in MLG 416 of 2013 MZZIZ v Minister for Immigration & Anor, at pp.44-45.
The First Respondent referred to several cases with respect to the issue of apprehended bias. In particular, reference was made to Re Refugee Review Tribunal and Another; Ex parte H (2001) 179 ALR 425
(“Ex parte H”) and SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 (“SZRUI”) in support of the proposition that the inquisitorial nature of the Tribunal’s proceedings required the Tribunal to test an applicant’s evidence, often vigorously.
The proceedings in this case are a far cry from the cases cited where the Tribunal displayed a strong disbelief of the applicant during the hearing, combined with sustained and unfair questioning, such that a reasonable observer could well infer that there was nothing the applicant could say that would alter the Tribunal’s views.
The First Respondent referred to the instances cited by the Applicants as no more than instances of casual or informal language by the Tribunal. It was entirely appropriate for the Tribunal to question the Applicants in detail and, whether or not this can be described as
‘cross-examination’, this would not justify a conclusion of apprehended bias.[19]
[19]The First Respondent submits that it is only in extreme cases that a conclusion of reasonable apprehension of bias arising from the conduct of the Tribunal proceedings will be justified. In those cases, the Tribunal Member basically lost their cool and just started calling the applicants liars and so on. Even if the Tribunal Member in this case could be accused of being perhaps sarcastic at times, that does not establish anything close to apprehended bias. Isolated displays of irritation provide no basis for a claim of apprehended bias.
The First Respondent further submits that the Tribunal was entitled to ask the Applicants’ advisors not to interrupt, and was not obliged to accede to the Applicants’ advisors’ request for two weeks to provide post-hearing submissions. The Tribunal said it had taken note of the allegations of errors by the interpreter and there is no reason to conclude it did not. It was not obliged to provide a new hearing, especially as the Applicants gave much of their evidence in English. Some degree of ‘cutting and pasting’ is no evidence of apprehended bias.[20]
[20] See Minister for Immigration and Citizenship and Another v SZQHH (2012) 125 ALD 481.
The First Respondent submitted that apprehended bias had not been “firmly established”.[21]
[21] First Respondent’s Written Submissions filed 31 July 2013, p.3 at para.11.
The Second Ground
The First Respondent submits that the test of whether allegedly inadequate interpretation amounts to a failure to comply with s.425 of the Act is whether the standard of interpretation was so inadequate that the applicant was effectively prevented from giving evidence,
or whether errors made in interpretation were material to adverse conclusions reached by the Tribunal against the applicant. The case law suggests that perfection is not required.
In this case, both Applicants can speak some English and it seems, quite good English, and both did speak English at times during the hearing. The Applicants’ claims were quite clear. The Applicants said:
·They were from Parachinar;
·They had to move to Peshawar where their brother R was killed;
·They had to then move to Karachi, before their father said for them to go to Australia because it was no longer safe.
The Tribunal understood all that. The Tribunal did not believe that the Applicants’ brother R had been killed in Peshawar, and did not believe that their father was killed after the Applicants came to Australia.
The Applicants’ submissions merely speculate that the Tribunal’s view that the Applicants’ evidence was vague, or that MZZIY was “evasive”,[22] was influenced by interpretation errors. The interpretation adequately conveyed the Applicants’ evidence. In any case, the
post-hearing submissions corrected any misinterpretations in relation to incidents such as the alleged killing of the Applicants’ brother R.
The Applicants have not been able to point to any significant claim that was not understood.
[22] Court Book filed on 22 May 2013 in MLG 415 of 2013 MZZIY v Minister for Immigration & Anor, p.322 at para.28.
The First Respondent submits that no materially adverse finding by the Tribunal, dependent upon misinterpretation, has been identified by the Applicants. It cannot be suggested that the Applicants were effectively prevented from giving evidence at all.[23]
[23] See Perera v Minister for Immigrationand Multicultural Affairs (1999) 56 ALD 231.
There has to be a link between the misinterpretation and the Tribunal’s reasons for decision.[24] It is not good enough to speculate that it might have made a difference.
[24] See SZOYU v Minister for Immigration and Citizenship [2012] FCA 936.
The Tribunal’s reasons for not finding the Applicants to be credible were clearly primarily based on the documentary evidence. A fair reading of those reasons would indicate that the genuineness of key documents was the principal reason for the findings that the Applicants were not credible, and not, on any view, of the vagueness of the oral evidence.
If one considers the summary account of the hearing by the Tribunal,
it is clear that the Tribunal understood the Applicants’ claims, including the claims in relation to being exposed to persecution by reason of family membership, ethnicity and so on when forced to produce identity documents throughout Pakistan, but found that, because of the fact that the Applicants and their family had evidently been remarkably free of persecution, even were they to be identified, this would not give rise to persecution or harm.
The Third Ground
In relation to the alleged breach of s.424A of the Act, the
First Respondent submits that, unlike in SAAP, the Tribunal here did not rely upon evidence that was contradictory of the evidence of MZZIZ. In order for evidence to be ‘information’ for the purposes of s.424A of the Act, it would require the evidence to be a rejection, denial or undermining of the Applicants’ claims to be owed protection obligations.[25] However broadly ‘information’ is defined, its meaning is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.
[25] See SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609; Minister for Immigration and Citizenship v SZLFX (2009) 258 ALR 448.
The fact that the Tribunal might regard it as perhaps not totally consistent is a thought process, but the fact that one applicant passes himself off as a native of Peshawar does not, in its terms, say anything about another applicant who claims he fears he might be identified as an Afghani. The statement of MZZIY about keeping his head down and telling people he was from Peshawar does not constitute a rejection, denial or undermining of MZZIZ’s claims.
The Fourth Ground
The First Respondent submitted that the statement concerning MZZIY that he was unable to “cite a single specific instance of harm that he himself suffered or directly witnessed…”[26]was literally incorrect.
It is perfectly apparent, however, from the Tribunal’s findings at paragraph [72],[27] that the Tribunal had understood the claim and did not accept that the brother R had been killed.
[26] Court Book filed 22 May 2013 in MLG 415 of 2013 MZZIY v Minister for Immigration & Anor, p.341, at para.76.
[27] Ibid, p.341.
Conclusions
The applications in these matters were filed one week outside of the time limit prescribed by s.477(1) of the Act. In considering whether it is necessary, in the interests of the administration of justice, to make an order extending time, this Court and the Federal Court have applied well-established principles.[28] The parties in this case agree that the most pertinent of those principles applicable are whether:
·There is an acceptable reason for the delay; and
·The applications have merit.
[28] See Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315.
I have previously outlined the Applicants’ statements with respect to the reason for the delay. The First Respondent contends that the delay has not been adequately explained because the letter from VLA dated
21 February 2013 clearly explains that, in order to protect the Applicants’ rights, “you may apply to the Federal Magistrates Court by yourself by the deadline of 26 March 2013”.[29]
[29] Affidavit of MZZIY filed 26 June 2013, at Annexure A; Affidavit of MZZIZ filed 5 June 2013, at Annexure A.
The Applicants claim they misunderstood the correspondence.
While both Applicants speak some English, it is not clear what the level of their understanding of written English is. The evidence of
Mr MATHEW JAMES KENNEALLY (“Mr Kenneally”), solicitor for the Applicants, was that he met with the Applicants on 18 March 2013 and advised them that they would need to make a decision on whether to prepare their own application to the Court. Mr Kenneally then spoke to MZZIZ on about 28 March 2013, where MZZIZ indicated to him that it had been his understanding that Mr Kenneally would make the application. The applications were lodged shortly thereafter.
I am satisfied that, in all the circumstances, the Applicants have provided an acceptable explanation for the delay.
As the second issue deals with the merit of the applications, I will consider that in the context of the grounds for review advanced by the Applicants.
The First Ground
The first ground raised by the Applicants is that there was a denial of procedural fairness based upon a reasonable apprehension of bias on the part of the Tribunal.
In VFAB, Kenny J considered the appropriate test for apprehended bias with respect to a tribunal such as the Tribunal, and referred to the decision of the High Court in Ex parte H. Her Honour said:
[25]The test for apprehended bias in relation to curial proceedings is well-settled. The test is whether a
fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided: see Ex parte H at 434 per Gleeson CJ, Gaudron and Gummow JJ. As their Honours observed, this rule may be expressed differently when applied to administrative proceedings, in order to take account of the nature of the decision-maker and its proceedings. “[R]egard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject matter with which the decision is concerned”: see Ex parte H at 427. Further, their Honours posited, at 434–5, that:
[28]Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.[30]
[30] (2003) 77 ALD 23, at para.25.
Her Honour referred firstly to the opening of the proceedings and noted that “The hearing began inauspiciously for the applicant. The member began with some adverse remarks about the applicant’s representatives”.[31] Her Honour went on to detail the exchanges between the Tribunal Member and the Applicant’s representative but concluded that “Being querulous, peevish or even rude would not, on its own, however, make out a case of disqualifying bias”.[32]
[31] Ibid, at para.33.
[32] Ibid, at para.44.
Her Honour commented that:
[45]From the outset of her questioning of the applicant,
the member adopted a somewhat belligerent style. At best, from the applicant’s viewpoint, her tone of voice conveyed a very real suspicion that he was not telling the truth and that she was very much inclined to disbelieve him and his story.[33]
[33] Ibid, at para.45.
Her Honour later noted:
·“the member’s aggressive style of questioning”;[34]
·Her “hostile attitude”[35] which “either led her to misquote his evidence or prevented her from accurately processing what she heard”;[36]
·Her “repetitive style and her adverse commentary on the applicant’s evidence”;[37]
·The fact that “the member frequently “talked over” the applicant”;[38] and
·The Tribunal member’s “hectoring approach”.[39]
[34] Ibid, at para.48.
[35] Ibid, at para.50.
[36] Ibid, at para.50.
[37] Ibid, at para.51.
[38] Ibid, at para.52.
[39] Ibid.
Her Honour found that:
·It was “apparent that the member argued with the applicant about his evidence as he gave it. To some extent, her questioning was plainly unfair”;[40]
·“Sometimes, she was sarcastic or impatient; sometimes, she spoke over the applicant; sometimes, she put matters to him that were incorrect; and sometimes she expressly stated her lack of belief”;[41] and
·The Tribunal member also “showed a lack of sensitivity towards the applicant”.[42]
[40] (2003) 77 ALD 23, at para.58.
[41] Ibid, at para.59.
[42] Ibid, at para.62.
Her Honour concluded that:
[81]Occasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias.
As Kirby J said in Re Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225 at 230:
[20]While sustained ill-temper can give rise to a reasonable apprehension of bias, momentary outbursts and misunderstandings in the often stressful world of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator: Galea v Galea (1990) 90 NSWLR 263 at 279–80, 283.
As noted earlier, if a member is sarcastic, mocking or rude, he or she fails to act in conformity with proper standards, but this conduct will not of itself constitute disqualifying bias. Mere insensitivity to an applicant, whether about his personal situation or otherwise, will also not amount to such error.[43]
[43] Ibid, at para.81.
Her Honour went on to say:
The vice was not that the member had an adverse opinion about the applicant’s claim before the hearing began (or, as noted above, that she put adverse matters to him in the course of the hearing). The tribunal will, in all likelihood, have an unfavourable view of an applicant’s claim when the hearing commences: see s 425(1)–(2). The vice in this case was that, by the member’s conduct during the hearing, a fair-minded observer might well infer that there was nothing the applicant could give by way of evidence or submit by way of argument that might change her mind about his claim — that he had fabricated his account. Virtually from the beginning of the hearing until its end, the member expressed her disbelief in his truthfulness. Whether expressly, by implication, or by her tone of voice, she made it clear that she did not believe him and the account he gave.
As well as repeated expressions of disbelief, there were her constant adverse comments on his evidence; and numerous displays of irritation, impatience, frustration and, sometimes, sarcasm. The applicant was regularly interrupted. Much of the member’s questioning of the applicant appeared calculated to undermine his case, rather than to facilitate a non-partisan investigation into the facts.[44]
[44] (2003) 77 ALD 23, at para.82.
The onus is on the Applicants to establish that a fair-minded observer might, or would, reasonably apprehend that the Tribunal member had a closed mind and was unable or unwilling to evaluate all the material fairly. The threshold for a finding of apprehended bias is necessarily higher than in curial proceedings, the accepted standard of proof being one of “real possibility”.[45] It is not sufficient if a reasonable bystander “has a vague sense of unease or disquiet”.[46] Further, the use of “strong language” or “harsh tones” may not be sufficient to give rise to a reasonable apprehension of bias.[47]
[45] See SZBLY v Minister for Immigration and Citizenship and Another (2007) 96 ALD 70, at para.25.
[46] See SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, at para.22; Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424, at 441, para.100.
[47] See SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, at para.32.
An administrative decision-maker, because of the inquisitorial nature of their role, is entitled to “vigorously test” an account being advanced by a claimant.[48] As Kenny J noted in VFAB, the issue is whether the Tribunal member “overstepped the boundary”.[49]
[48] Ibid, at para.33.
[49] (2003) 77 ALD 23, at para.82.
The Applicants in this matter rely on a number of specific exchanges between the Applicants and the Tribunal member, but also on what was described as “an aggressive tone”, a “combative approach”, the use of “derisive language”, an “adversarial approach”, a “sarcastic tone”, “interrupting the evidence”, “insensitivity”, “cutting and pasting of the reasons for decision” and the “tenor” of comments made.[50]
[50] Applicant’s Outline of Submissions filed 24 July 2013.
The Applicants invited the Court to listen to the recording of the interviews with the two Applicants. I have done so. There are clearly parts of the recording where the Tribunal member shows impatience and where he interrupts the Applicants, particularly MZZIY, as they are giving their evidence. The Tribunal member is also, at times, rude, particularly in his exchanges with the Applicants’ representative.
The Tribunal member also adopted a tone of incredulity towards the end of the interview with MZZIZ.
Many of the complaints made by the Applicants reflect infelicitous language and vigorous examination but do not, in my view, amount to ‘crossing the boundary’. Some matters, however, are of greater concern:
·The Tribunal member appears too ready to dismiss MZZIY’s claims about being intimidated when enrolling at the University in Karachi. At page 8, lines 19 to 23 of the transcript, the Tribunal member says:
Yes. I’m really – I would like you to focus on my questions and answer them, and not try and talk around them, which is what you’re doing. You would understand very well what the purpose of questions are. And my question was, did you suffer, personally, never mind what your father, did you personally suffer any harm or persecution while you were at university for two years?[51]
[51] Affidavit of Mathew James Kenneally filed 26 June 2013 in MLG 415 of 2013 MZZIY v Minister for Immigration & Anor, Annexure A, p.8 at lines 19-23; Affidavit of Mathew James Kenneally filed 26 June 2013 in MLG 416 of 2013 MZZIZ v Minister for Immigration & Anor, Annexure B, p.8 at lines 19-23.
The interpreter responds (and I note that this is a response which Ms Wardak says was misinterpreted)[52]:
[52] Affidavit of Marzia Wardak filed 26 July 2013, at p.8.
THE INTERPRETER: My aim was to study. If I – yes, if I put my head up, I would have been, but nobody touched me, as long as I kept my head down and told people I’m from Peshawar, never said who I am, where I’m from, all that is never said.
TRIBUNAL MEMBER: Okay.
THE INTERPRETER: Yes.
TRIBUNAL MEMBER: The answer then is no. Do we agree? Thank you.[53]
·The questioning about the event where MZZIY claimed his brother R had been shot was confusing, partly, it would appear, because of mistranslation of MZZIY. It is curious, however, that the Tribunal member would engage in the following exchange when MZZIY’s claim was that he had been present when his brother R was shot:
TRIBUNAL MEMBER: What kind of weapons were they using? Rifles? Handguns? What?
[53] Affidavit of Mathew James Kenneally filed 26 June 2013 in MLG 415 of 2013 MZZIY v Minister for Immigration & Anor, Annexure A, p.8 at lines 25-34; Affidavit of Mathew James Kenneally filed 26 June 2013 in MLG 416 of 2013 MZZIZ v Minister for Immigration & Anor, Annexure B, p.8 at lines 25-34.
MZZIY: It was, I think, AK-47.
TRIBUNAL MEMBER: An AK-47.
MZZIY: Yes
TRIBUNAL MEMBER: It’s probably very accurate, an
AK-47. From 15 metres, they missed everyone. Is that right?[54]
·The exchange between the Tribunal member and MZZIY concerning the invitation to attend a Sunni mosque begins with the Tribunal member suggesting that it was a normal thing for people to invite strangers in a city to a mosque. The Applicant MZZIY has just suggested that the invitation was a means of testing whether the Applicants were Shi’a or Sunni Muslims.
The Tribunal member says, “So I’m having difficulty seeing any persecution in this”, and when MZZIY explains further, says, “Okay. So we’re not – there’s no harm being done. There’s a suspicion on your part about their motives”.[55]
[54] Ibid, Annexure A, p.12 at lines 24-33; Ibid, Annexure B, p.12 at lines 24-33.
[55] Affidavit of Mathew James Kenneally filed 26 June 2013 in MLG 415 of 2013 MZZIY v Minister for Immigration & Anor, Annexure A, p.9 at line 34 and p.10 at lines 26-27; Affidavit of Mathew James Kenneally filed 26 June 2013 in MLG 416 of 2013 MZZIZ v Minister for Immigration & Anor, Annexure B, p.9 at lines 34 and p.10 at lines 26-27.
The Tribunal member was rigorous in his examination of the Applicants, which he was entitled to be. The Tribunal member,
from time to time, expresses the view that what he was interested in was establishing persecution and harm, and further indicates where he forms the view that MZZIY did not personally suffer any harm or persecution.
In SZRUI, Flick J makes the point that:
…it should be recognised that the proper expression of tentative views by an administrative decision-maker may actually enhance the fairness of the administrative process by alerting a claimant to perceived deficiencies in the claim being made and affording an opportunity to the claimant to address those perceived deficiencies.[56]
[56] [2013] FCAFC 80, at para.27.
There is clearly a line, however, between a tentative expression of a view and a statement of disbelief.
With respect to MZZIY’s claims of intimidation at the University, MZZIY had already given evidence that he had attended University in Karachi for almost two years, and that he had attended the University from 7.00 a.m. to 6.00 p.m., five days per week. The Applicant MZZIY was asked if he experienced any harassment, harm, persecution or threats while he was there, and his response was that, when he sat the entrance exam, an unnamed and unknown person came up to him and asked him if he was from Parachinar, and then told him that “…some people are here to hurt you”.[57]
[57] Affidavit of Mathew James Kenneally filed 26 June 2013 in MLG 415 of 2013 MZZIY v Minister for Immigration & Anor, Annexure A, p.7 at line 39; Affidavit of Mathew James Kenneally filed 26 June 2013 in MLG 416 of 2013 MZZIZ v Minister for Immigration & Anor, Annexure B, p.7 at line 39.
The Applicant MZZIY then gave evidence that his aim was not to get involved in anything political and that he just went to school and came home.
It is in that context that the Tribunal member asks, “did you personally suffer any harm or persecution while you were at university for two years?”[58] The Tribunal member’s conclusions should be seen in the context of the whole exchange. In that context, I do not consider that the exchanges about suffering harm while at the University would cause a reasonable person to conclude that from the outset, the Tribunal member might not have brought to the hearing a mind capable of being persuaded that MZZIY suffered harm for a Convention-related reason.
[58] Affidavit of Mathew James Kenneally filed 26 June 2013 in MLG 415 of 2013 MZZIY v Minister for Immigration & Anor, Annexure A, p.8 at lines 22-23; Affidavit of Mathew James Kenneally filed 26 June 2013 in MLG 416 of 2013 MZZIZ v Minister for Immigration & Anor, Annexure B, p.8 at lines 22-23.
The exchange in relation to the shooting incident may indicate insensitivity on the part of the Tribunal. The Tribunal, however, was eventually able to elucidate MZZIY’s claims with respect to the incident. The decision not to accept that claim was based essentially on the documentary evidence, and not substantially on MZZIY’s description of the event. Of itself, I would not consider the question to provide the basis for a finding of apprehended bias.
The exchange in relation to the invitations to attend a Sunni mosque can be read as a questioning technique on the part of the Tribunal, designed to elucidate why MZZIY considered the invitations to be threatening. By proffering an innocent motivation for the invitations, MZZIY is being invited to say why he considered the invitations to amount to persecution.
The Applicant MZZIY goes on to explain his suspicion that the purpose of those offering the invitations was to find out information about his father. It is on this basis that the Tribunal suggests that there was no harm being done to him.
Having read the transcript and listened to the recording, I am unable to agree with the Applicants that the Tribunal member’s tone was aggressive or combative. He did, at times, use language which, in my view, was inappropriate, but not to the extent to suggest that his mind was closed to any argument advanced by the Applicants. While the Tribunal member did interrupt from time to time, he also apologised for his interruptions. The interruptions appeared to be more a sign of the Tribunal’s impatience rather than an unwillingness to consider what the Applicants were putting.
Given the cross-over between the two claims, I do not consider that the Tribunal’s ‘cut and paste’ approach to the decision-writing is indicative of, or would create, an apprehension of bias. Clearly, the decisions were not properly proof read.
Taken as a whole, I am not satisfied that a reasonable observer might reasonably apprehend that the Tribunal had approached the hearing with a fixed view and was not open to be persuaded, no matter what was put by the Applicants, that there were grounds for finding that the Applicants had a well-founded fear of persecution for a
Convention-related reason.
The Second Ground
The second ground goes to the quality of the translation. The affidavit of Ms Wardak[59] was not disputed by the First Respondent, save for her expressions of opinion. Ms Wardak identified:
·Numerous incidents where the interpreter omitted words or sentences in translating the Tribunal’s questions and the Applicants’ responses;
·Passages where the interpreter added to the words used by the Tribunal and the Applicants; and
·Passages where the translation is a distortion of what was actually said.
[59] Affidavit of Marzia Wardak filed 26 July 2013.
Whether any inadequacy in translation has been such as to deprive an applicant of a hearing in accordance with s.425 of the Act requires an examination of not only the errors, but whether they related to matters of substance and whether they impacted on the reasons for decision.
In Perera, Kenny J discussed the role of interpreters in Tribunal proceedings:
An interpreter provides the means for communication between the applicant, the tribunal and other participants in the tribunal hearing, in cases where the applicant's own linguistic capacities are not, on their own, sufficient to that end.[60]
[60] (1999) 56 ALD 231, at para.24.
The principles arising from Perera recognise that the standard of interpretation is not one of perfection. The criteria are those of precision or accuracy and competence:
“…the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language”.[61]
[61] Ibid, at para.29.
In Perera, her Honour identified the factors which might lead to a conclusion that an applicant has been effectively prevented from giving their evidence as:
…the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made and, more generally, any evident confusion in exchanges between the tribunal and the interpreter: cf Gonzales v Zurbrick 45 F 2 at 936–7; United States v Urena 27 F 3 at 1492 (10th Cir 1994); Acewicz v US Immigration and Naturalization Service 984 F 2 at 1062.[62]
[62] Ibid, at para.41.
Further, not every departure from the standard of interpretation will be sufficient to establish that the applicant was denied the opportunity to a hearing under s.45 of the Act. The onus is on the applicant to demonstrate that the departure related to a matter of significance to his or her claims and there was a sufficient connection between the inadequate translation and the Tribunal’s decision.[63]
[63] See SZOYU v Minister for Immigration and Citizenship [2012] FCA 936, at para.31.
With respect to MZZIY, the Tribunal dealt firstly with the issue of credibility (the findings in this regard are identical with respect to MZZIZ). The Tribunal referred to the central importance of the Applicants’ claims about the family residence in Parachinar being subject to a grenade attack, and that their father and brother R were both subsequently shot dead in two separate incidents. The findings of the Tribunal with respect to credibility were based almost entirely on the Tribunal’s conclusions about documentary evidence relating to the death certificates, and the applications and supporting documents used by the Applicants for their student visas, and the responses given by the Applicants to questions about these.
That material was the subject of a s.424A letter sent after the hearing and the responses to that letter. The Tribunal made adverse credit findings against both of the Applicants based on that material.
Despite those adverse findings, the Tribunal accepted that they may face a real chance of persecution for reasons of ethnicity, religion and imputed political opinion, should they return to Parachinar/Kurram Agency/FATA.
It was in the context of relocation that the Tribunal went on to consider the Applicants’ claims regarding their father and family.
The Tribunal did not accept that the Applicants’ father was a Malik or a well-known figure, or that he was killed for the reasons, and in the circumstances, claimed. The Tribunal, in coming to that conclusion, referred to the previous findings about the Applicants’ lack of credibility. The discussion with MZZIY about his father is at pages 17 and 18 of the transcript.[64] While Ms Wardak has identified some distortions and omissions in the translation of questions on those pages, they do not, in my view, show that the substance of what was said was not conveyed.
[64] Affidavit of Mathew James Kenneally filed 26 June 2013 in MLG 415 of 2013 MZZIY v Minister for Immigration & Anor, Annexure A, at pp.17-18; Affidavit of Mathew James Kenneally filed 26 June 2013 in MLG 416 of 2013 MZZIZ v Minister for Immigration & Anor, Annexure B, at pp.17-18.
The questioning of MZZIZ about his father is at pages 38 to 40 of the transcript.[65] Ms Wardak deals with this at pages 14 to 16 of her affidavit.[66] It is clear that what MZZIZ said was much clearer and more concise than the transcript reveals.
[65] Ibid, Annexure A, at pp.38-40; Ibid, Annexure B, at pp.38-40.
[66] Affidavit of Marzia Wardak filed 26 July 2013.
It is clear that the Tribunal’s findings about the Applicants’ credibility with respect to the deaths of their brother R and father affected the findings that the Applicants were targeted by the Taliban in Parachinar and by the SSP in Karachi.
The questioning of MZZIY about the grenade attacks on the house in Parachinar is at pages 15 and 16 of the transcript.[67] While Ms Wardak notes that the interpretation of this part involves some distortion and addition by the interpreter, the gist of the Applicants’ claim that they were targeted because their father spoke out against the Taliban and the grenades were thrown over the walls, is conveyed. It was MZZIZ’s evidence that he was not present when this event occurred.
[67] Affidavit of Mathew James Kenneally filed 26 June 2013 in MLG 415 of 2013 MZZIY v Minister for Immigration & Anor, Annexure A, at pp.15-16; Affidavit of Mathew James Kenneally filed 26 June 2013 in MLG 416 of 2013 MZZIZ v Minister for Immigration & Anor, Annexure B, at pp.15-16.
In paragraph [76] of the decision, the Tribunal refers to the adverse credibility findings (as previously discussed above):
…the vagueness of his claims, especially those relating to alleged and rumoured events of which he has no direct knowledge, and his inability at the hearing to cite a single specific instance of harm that he himself suffered or directly witnessed…[68]
[68] Court Book filed 22 May 2013 in MLG 415 of 2013 MZZIY v Minister for Immigration & Anor, at p.341.
The difficulty is that the same wording appears in both decisions.[69] With respect to MZZIZ, such a finding is unremarkable given that he was, on his own evidence, not present when any of the significant events occurred and, save from being confined to the house when he visited the family in Karachi because of his father’s concerns about him being recognised, gave no examples of being personally exposed to harm.
[69] Court Book filed 3 May 2013 in MLG 416 of 2013 MZZIZ v Minister for Immigration & Anor, p.340 at para.78.
That sentence goes on to refer to the Tribunal’s non-acceptance that:
…the applicant or any member of his family experienced any harm or threat of harm for any Convention reason while residing in Peshawar or Karachi, or that he was constrained to remain indoors for his safety when he was not attending university”.[70]
This part is clearly a reference to MZZIY.
[70] Court Book filed 22 May 2013 in MLG 415 of 2013 MZZIY v Minister for Immigration & Anor, p.341 at para.76.
The questioning of MZZIY about his experiences in Karachi is at pages 6 to 10 of the transcript.[71] Ms Wardak identifies several distortions and omissions in this part of the transcript. What MZZIY says is much clearer than how it is translated. There is nothing to link, however, that part of the transcript with the Tribunal’s finding that the Applicants’ claims were vague when the Tribunal links this with “those relating to alleged and rumoured events of which he has no direct knowledge”,[72] when this account relates to his own experiences.
[71] Affidavit of Mathew James Kenneally filed 26 June 2013 in MLG 415 of 2013 MZZIY v Minister for Immigration & Anor, Annexure A, at pp.6-10; Affidavit of Mathew James Kenneally filed 26 June 2013 in MLG 416 of 2013 MZZIZ v Minister for Immigration & Anor, Annexure B, at pp.6-10.
[72] Court Book filed 22 May 2013 in MLG 415 of 2013 MZZIY v Minister for Immigration & Anor, p.341 at para.76; Court Book filed 3 May 2013 in MLG 416 of 2013 MZZIZ v Minister for Immigration & Anor, p.340 at para.78.
The Tribunal’s findings in paragraph [77][73] of its decision cannot, with one exception, be linked to errors of translation. The Tribunal refers to MZZIY “convincing others that he was from Peshawar”.[74]
This appears to derive from a passage at page 8 of the transcript where MZZIY is translated as saying, “My aim was to study. If I – yes, if I put my head up, I would have been, but nobody touched me, as long as I kept my head down and told people I’m from Peshawar…”.[75]
Ms Wardak’s translation is, “No I didn’t see anything else because I was going to study and coming back home. I didn’t say anything and nobody knew I was from Parachinar”.[76]
[73] Court Book filed 22 May 2013 in MLG 415 of 2013 MZZIY v Minister for Immigration & Anor, p.342 at para.77.
[74] Ibid.
[75] Affidavit of Mathew James Kenneally filed 26 June 2013 in MLG 415 of 2013 MZZIY v Minister for Immigration & Anor, Annexure A, p.8 at lines 25-27; Affidavit of Mathew James Kenneally filed 26 June 2013 in MLG 416 of 2013 MZZIZ v Minister for Immigration & Anor, Annexure B, p.8 at lines 25-27.
[76] Affidavit of Marzia Wardak filed 26 July 2013, at p.8.
This also appears to be the source of the Tribunal’s later statement that MZZIY was able to pass himself off as a native of Peshawar.
This mistranslation may have affected the Tribunal’s conclusion that MZZIY would not be immediately identified as a Shi’a Muslim from Parachinar, although the statutory declaration of 12 July 2012,[77] referred to at paragraph [39][78] of the decision, would also lend support to that finding, however, the conclusion that, even if he was required to show identification, MZZIY would not be subject to threat, outside of the FATA, was based on country information.
[77] Court Book filed 22 May 2013 in MLG 415 of 2013 MZZIY v Minister for Immigration & Anor, at pp.173-180.
[78] Ibid, at p.325.
I accept that there were errors of translation, and, especially with respect to MZZIY, these were more than isolated examples.
However, from an analysis of the Tribunal’s reasons for decision, I am unable to find that the Applicants were unable to express their claims, or that the Tribunal failed to understand them and/or that any errors in translation can be expressly connected to the Tribunal’s reasons for its decision.
The Third Ground
The third ground, in essence, relates to the following sentence in paragraph [98] of the Tribunal’s decision with respect to MZZIZ:
It also notes the inconsistency of this claim [the claim to be exposed to persecution because of his race or ethnicity outside of Parachinar/Kurram Agency/FATA] with the statement in the applicant’s joint statutory declaration of 12 July 2012 with his co-applicant that he was misidentified as an Afghani, and that his brother passed himself off as a native of Peshawar.[79]
[79] Court Book filed 3 May 2013 in MLG 416 of 2013 MZZIZ v Minister for Immigration & Anor, at pp.346-347.
Two things need to be noted about this sentence:
·First, it is a note following the Tribunal’s findings on other grounds that MZZIZ would not be exposed to persecution; and
·Second, it appears to be a conclusion reached by the Tribunal on the basis of a mistranslation of MZZIY’s evidence and in the context of paragraph [39][80] of the statutory declaration of MZZIZ of 12 July 2012.[81]
[80] Ibid, at p.177.
[81] Ibid, at pp.173 -180.
The Applicants’ contention is that the Tribunal’s conclusion about the capacity of MZZIY to pass himself off as a native of Peshawar was used to dismiss the claim of MZZIZ that he would be identified as a Parachinar Shi’a, because of the way he looked. That information should have been put to MZZIZ under the provisions of s.424A of the Act.
The First Respondent submits that, in order for evidence to be ‘information’ for the purposes of s.424A of the Act, it would require the evidence to be a rejection, denial or undermining of the Applicants’ claims to be owed protection obligations.
The Applicants relied on the decision of the High Court in SAAP.
In that case, the applicant’s daughter gave evidence in the applicant’s absence which directly contradicted evidence given by the applicant. That evidence was considered to be information which went directly to the applicant’s claims to have suffered persecution, and was therefore information which would be part of the reason for affirming the delegate’s decision.
The First Respondent referred the Court to the decisions of SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 (“SZBYR”) and Minister for Immigration and Citizenship v SZLFX and Another (2009) 258 ALR 448 (“SZLFX”). The case of SZBYR concerned a claim that the Tribunal had breached s.424A of the Act with respect to a failure to put in writing to the applicant, inconsistencies between a statutory declaration made by him in support of his visa application, and oral evidence given by the applicant at the hearing.
The High Court found as follows:
[17]…The use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of
s 424A(1)(a) is to be determined in advance — and independently — of the tribunal’s particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa.
The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review
[18]Thirdly and conversely, if the reason why the tribunal affirmed the decision under review was the tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1). Again, if the tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”:
… does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc …
If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined,
its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.
The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.[82]
[82] SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609, at paras.17-18.
In SZLFX, the issue concerned a file note concerning a telephone call between an employee of the Tribunal and an organisation with which the applicant claimed to be involved. The Tribunal did not mention the matters in the file note in the reasons for decision. The High Court considered:
[24]
As a Full Court of the Federal Court of Australia
(Dowsett, Bennett and Edmonds JJ) pointed out correctly, shortly after SZBYR, in SZKLG v Minister for Immigration and Citizenship, s 424A depends on the RRT’s “consideration”, that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review. Here, there was no evidence or necessary inference that the RRT had “considered” or had any opinion about the file note.
[25]
As observed equally correctly by Heerey J in
MZXBQ v Minister for Immigration and Citizenship, s 424A speaks of information which “would”, not which “could” or “might”, be the reason or part of the reason for affirming the decision under review.[83]
[83] Minister for Immigration and Citizenship v SZLFX and Another (2009) 258 ALR 448, at paras.24-25.
First, the view that MZZIY could pass himself off as a native of Peshawar could not be, of itself, a rejection of the claims of MZZIZ to fear persecution because of his race or ethnicity. The evidence was that MZZIZ had never lived in Peshawar. The sentence seems to suggest that he, MZZIZ, could not, on the one hand, claim to be mistaken for an Afghani and, at the same time, readily identify as Turi and a Khushi and that MZZIY, who was of the same ethnicity, could pass for a native of Peshawar.
Second, the information about the capacity of MZZIY to tell people he was from Peshawar, despite his Parachinar accent, is referred to in a statutory declaration supplied in response to a s.424A letter and relied upon by MZZIZ.
Third, it is clear that the Tribunal had already concluded:
The evidence before the Tribunal does not support an inference that membership of the Turi or Khushi race/ethnicity will, either in itself or by virtue of any alleged imputations and associations, give rise to a real chance of persecution in the foreseeable future outside Parachinar/Kurram Agency/FATA.[84]
The ‘information’ was therefore not evidence which would be a reason, or part of a reason, for rejecting the Applicants’ claim for protection.
[84] Court Book filed 22 May 2013 in in MLG 415 of 2013 MZZIY v Minister for Immigration & Anor, p.348 at para.97; Court Book filed 3 May 2013 in MLG 416 of 2013 MZZIZ v Minister for Immigration & Anor, p.346 at para.98.
The fourth ground
The fourth ground relates to the Tribunal’s findings at paragraph [76][85] of the decision in relation to MZZIY, to which reference has already been made. In particular, MZZIY refers to the finding of the Tribunal, “…his inability at the hearing to cite a single specific instance of harm that he himself suffered or directly witnessed…”.[86]
[85] Court Book filed 22 May 2013 in MLG 415 of 2013 MZZIY v Minister for Immigration & Anor, pp.341-342 at para.76.
[86] Ibid.
Clearly, MZZIY had referred to the grenade attack on the family home in Parachinar and his brother R’s killing in Peshawar as instances of harm he had directly witnessed.
The Applicant MZZIY submitted that the reference by the Tribunal should lead to the inference that it had not considered the Applicants’ claims.
The First Respondent submits that, while the statement is clearly incorrect, it is apparent from the Tribunal’s findings that it had understood and considered the claims and rejected them.
I accept that the contents of paragraph [76][87] of the Tribunal’s decision provide an example of the dangers of ‘cutting and pasting’ when writing a decision. The contents of paragraph [76] appear in both decisions[88] and contain statements that do not relate to the particular Applicant to whom the decision relates.
[87] Ibid.
[88] Ibid; Court Book filed on 3 May 2013 in MLG 416 of 2013 MZZIZ v Minister for Immigration & Anor, pp.340-341 at para.78.
The contents of paragraph [76][89] of the decision, however, cannot be read in isolation. It is clear from the content of the decision, in each case, that the Tribunal was aware of the Applicants’ claims, considered those claims in the light of all of the evidence before it, and rejected most of those claims on the basis of its adverse credibility findings.
[89] Ibid.
As I have rejected each of the grounds advanced by the Applicants,
I find that the applications are without merit. I am, therefore, not satisfied that it is necessary, in the interests of the administration of justice, to make an order extending time for the matter to be heard.
I certify that the preceding one hundred and thirty one (131) paragraphs are a true copy of the reasons for judgment of Judge Whelan.
Date: 20 November 2013
See SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80;
(2009) 111 ALD 59.
SZJBD v Minister for Immigration and Citizenship and Another
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