MZZJT v Minister for Immigration

[2013] FCCA 1507

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZJT v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1507

Catchwords:
MIGRATION – Review of a decision made by the Refugee Review Tribunal – alleged failure of the Refugee Review Tribunal to afford procedural fairness – consideration of s.424 of the Migration Act 1958 (Cth) – no error found – application dismissed.

Legislation:  
Migration Act 1958 (Cth), s.424

Minister for Immigration and Citizenship v Li [2013] HCA 18

Applicant: MZZJT

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 536 of 2013

Judgment of: Judge Whelan

Hearing date: 26 August 2013

Date of Last Submission: 26 August 2013

Delivered at: Melbourne

Delivered on: 26 August 2013

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondents: Mr Rogers

Solicitors for the Respondents: Australian Government Solicitor

ORDERS:

1. That the Application filed by the Applicant on 23 April 2013 be dismissed.

2. That the Applicant pay the First Respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 536 of 2013

MZZJT

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction

1. This is an application for review of a decision made by the Refugee Review Tribunal (“the Tribunal”) of 18 March 2013. By that decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration, Multicultural Affairs and Citizenship to refuse to grant the Applicant a protection visa. The Applicant now seeks an order that the decision of the Tribunal be quashed.

2. The Applicant is a Pakistani national. He entered Australia on a student visa on 12 July 2008. He applied for a protection visa on 26 February 2012. 

3. On 10 May 2012, a delegate of the Minister determined that the Applicant was not a person to whom Australia had protection obligations and refused to grant the Applicant the visa. The Applicant then applied to the Tribunal for a review of the delegate’s decision on

   
   

   8 June 2012. He attended a hearing before the Tribunal to give evidence and present arguments on 4 October 2012. 

4. On 12 October 2012, the Applicant was invited to comment on, or respond to, information under s.424A of the Migration Act 1958 (Cth) (“the Act”) with respect to:

   ·a letter purported to have been from the Taliban;

   ·the Applicant’s return to Pakistan in 2011; and,

   ·the events claimed to have occurred on 15 October 2011. 

5. The Applicant provided a response to those matters on

   
   

   26 November 2012. On 25 February 2013, the Applicant’s representative contacted the Tribunal and advised that he would provide further documents and that he would write to the Tribunal to confirm this. Nothing further, however, was received. On

   
   

   14 March 2013, the Tribunal made its decision. On 23 April 2013, the Applicant lodged this Application for Review.

Background

1. The Applicant claims to be a Sunni Muslim from Kurram Agency in Pakistan. He claimed that he had been involved with political parties which had opposed the Taliban, and he also claimed he had assisted and worked for a friend, who was a Shia. 

2. The Applicant claimed his father was a Malik who spoke out against the Taliban, and that his family had been involved in a long-running feud with another family in which the Taliban had become involved. He claimed that he feared harm, for these reasons, from extremist groups as well as personal enemies of his family. He also claimed that he would face increased harm now, because of his involvement in Western culture, and that the Pakistani authorities could not protect him.

The Tribunal’s decision

1. The Tribunal Findings and Reason for Decision are set out in the Court Book at pages 131 to 139. 

2. The Tribunal found that the Applicant was not credible and was not a witness of truth. In particular, the Tribunal found that the letter produced by the Applicant, which was said to be from the Taliban, was a fraud. The Tribunal found the Applicant changed and altered key parts of his claim to address inconsistencies in relation to that letter. The Tribunal rejected the claim that the Applicant’s father was visibly or demonstrably anti-Taliban and rejected the claim that the Applicant’s father and half-brothers were kidnapped and his father was now in hiding. 

3. The Tribunal found that the Applicant had manufactured the claims linked to the Taliban and did not accept that the Applicant was targeted for harm by tribal leaders. The Tribunal found that the Applicant was not politically involved or particularly interested in politics, and did not accept that the Applicant had helped a Shia friend or that his friendship with the cousin of a particular politician would place him at risk of harm. The Tribunal did not accept that harm had befallen the Applicant when he returned to Pakistan in October 2011, and found that he had not been shot at or threatened. 

4. The Tribunal did accept that the Applicant’s father was a Malik and therefore held a position of authority, that the family had moved from D to K and that the Applicant’s home in D had been destroyed, but the Tribunal found that to be as a result of generalised conflict and not for the reasons claimed. The Tribunal accepted that the Applicant’s family was in conflict with his extended family and that this was a source of concern to the Applicant, but not that the feud involved the Taliban or any other group, or that members of the family had become under the influence of the Taliban. 

5. The Tribunal accepted that some of the Applicant’s relatives had been killed, but again, the Tribunal found that this was as a result of generalised violence and not for the reasons claimed. Having regard to the facts that it did accept, the Tribunal considered whether the Applicant faced harm on his return to Pakistan. In relation to the claim to fear persecution, the Tribunal found that country information indicated that the Taliban did target those in authority, and that they had targeted Maliks previously. The Tribunal found that there was more than a remote chance that the Applicant would be targeted for harm as the son of a Malik, if he was returned to his home area. There was more than a remote chance that the Applicant would be harmed on his return to his region due to the family dispute. Therefore, if the Applicant returned to his home region, there was a real risk he would be harmed for a Convention reason. 

6. The Tribunal then proceeded to consider whether the Applicant could reasonably relocate to another part of Pakistan, where, objectively, there would not be a risk of that harm. In relation to the risk of harm outside of the Applicant’s home region, the Tribunal found that:

   ·the Applicant would not be pursued by the Taliban, other insurgent groups, or his family’s enemies if he relocated;

   ·he would not be the target of harm because of the time he spent in Australia for being perceived to be westernised or for any other reason associated with Australia; and

   ·therefore, if the Applicant relocated, he would not face a real risk of harm. 

7. In relation to whether it would be reasonable for the Applicant to relocate, the Tribunal found that the Applicant was young, educated and had worked in Australia for a number of years and that he spoke English, Pashtu, and some Urdu. The Applicant had lived apart from his family for five years in Australia, and apart from them for five years when he was living in Peshawar, and therefore, it was not unreasonable for him to live apart from his family. While the Applicant may have suffered a depressive episode in the past, it was not ongoing and his mental health did not make it unreasonable for him to relocate. Having regard to all the circumstances of the Applicant, it would be reasonable for him to relocate to another part of Pakistan to avoid the fear of harm, and he, therefore, did not have a well-founded fear of persecution meeting the criteria of the Act.

8. The Tribunal found that the complementary protection criteria applied, but, as it would be reasonable for the Applicant to relocate within Pakistan to an area of the country where there would not be a real risk that he would suffer significant harm, he therefore did not meet the criteria for complementary protection.

Grounds

1. The grounds of the application are set out in an attachment to that application:

   - The delegate in a decision dated 10 May 2012 did not properly understand my claims.

   - The delegate failed to understand the principles incorporated in the concept of relocation within Pakistan.

   - The decision maker did not give proper weight to my claims of mental health

   - The Tribunal in its decision to refuse my application for review - failed to understand that I am a Refugee.

   - The Tribunal did not extended (sic) procedural fairness to provide all documents in support of my claim.

   - My personal health and mental health was dismissed by the Tribunal.

   - The Tribunal in applying the principle of relocation did not fully understand the impact of relocation on my personal health and the viability of relocating to another place within Pakistan

   - The Tribunal failed to understand that as the son of a Malik I would be expected to live within the Tribe.

   - The Tribunal failed to understand the impact of the separation as the son of a Malik form (sic) my tribe in Kurram Agency

   - The Tribunal failed to understand tha (sic) as the son of A Malik tha (sic) I am an important figure within the Kurram Agency and therefore a target of the Taliban.[1]

   [1] Application filed 23 April 2013 at Attachment.

2. In oral submissions, the Applicant today reiterated that what he had told the Tribunal was true. He stated that, at the time, his mental health was not good, and he was asked questions that he was not expecting. In relation to the issue of relocation, the Applicant stated:

   ·he had been in Australia for over five years;

   ·he could not live away from his family in Pakistan because he does not have the skills or the money to support them;

   ·life in Pakistan was dangerous and insecure, and even in Islamabad it was not safe;

   ·there is discrimination within Pakistan, and if he went to another area he would be discriminated against and would be unable to work;

   ·the Taliban control the area where his family live – they have networks throughout Pakistan and can find out where you are; they can kidnap or kill you; and

   ·he did spend five years away from his family in Peshawar, but he was a student at that time and now he has the responsibility to support his family. 

3. The Applicant produced a report from a counsellor at Foundation House[2] and a medical report from a doctor dated 4 March 2013.[3] It appears that neither of these documents were provided to the Tribunal. The letter from Foundation House stated that the Applicant exhibited symptoms of depression, anxiety and traumatic stress. The doctor’s report referred to the Applicant’s uncertainty about:

   ·his visa application;

   ·his family in Pakistan; and

   ·his inability to work causing him to suffer anxiety and depression with attendant consequences such as insomnia, lack of concentration, irritability, occasional shortness of breath and forgetfulness.[4]

   [2] Report from Foundation House, dated 21 February 2013.

   [3] Medical Report from Medical One QV dated 4 March 2013.

   [4] Medical Report from Medical One QV dated 4 March 2013.

The First Respondent’s submissions

1. The First Respondent provided both written and oral submissions. The First Respondent’s submission dealt with:

   ·the Applicant’s mental health;

   ·his status as the son of a Malik; and

   ·the provision of procedural fairness.

   With respect to the Applicant’s mental health, the First Respondent contended that the Tribunal took into account the Applicant’s claims relating to his mental health. These claims were considered and rejected as factors explaining inconsistencies in his evidence and as factors relevant to whether he could reasonably relocate within Pakistan. The Tribunal, therefore, considered the claims. The weight it gave to the evidence relating to the Applicant’s mental health was a matter for the Tribunal, and no jurisdictional error was disclosed in relation to the Tribunal’s treatment of these claims.

2. With respect to the Applicant’s status as the son of a Malik, the Applicant made a number of claims. He said that the Tribunal failed to understand:

   ·that as the son of a Malik he would be expected to live with the tribe;

   ·the impact of the separation from his family, as the son of a Malik;  and

   ·that as the son of a Malik, he was an important figure within the Kurram Agency and therefore a target of the Taliban.

   These alleged failures to understand essentially take issue with the Tribunal’s finding of fact, and invite the Court to undertake an impermissible merits review. 

3. The First Respondent contends that it cannot be said that the Tribunal did not consider these matters. The Tribunal accepted that the Applicant’s father was a Malik. This led the Tribunal to accept there was a real chance of the Applicant being harmed for reasons of his status in his home region and that this made him a target in his home region. The Tribunal expressly considered and rejected the claim that the Applicant faced a real risk of harm for this reason, if he was to relocate to another area of Pakistan. The Tribunal found he would not be pursued or sought out by the Taliban or other insurgent groups or his family’s enemies, for any reason, including his status as the son of a Malik. 

4. The Tribunal considered whether the Applicant could reasonably be expected to relocate and live apart from his father, family and tribe.  The Tribunal found that the Applicant had lived apart from his father, other family and tribe for five years while he lived in Peshawar and a further five years in Australia, and was satisfied that the Applicant could reasonably live apart from his family and tribal networks. 

5. In relation to the provision of procedural fairness, the Applicant claimed he was not extended procedural fairness to provide “all documents in support of my claims”.[5] The application does not identify what those documents would have been. 

   [5] Application filed 23 April 2013 at page 3.

6. The First Respondent submitted that the Tribunal noted that the Applicant’s representative had made a number of representations about the provisions of reports from health professionals, and it recorded that, in an email on 24 October 2012, the Applicant’s representative stated the Applicant would be seeing his treating psychologist on 25 October 2012, and that he had a report pending from Foundation House.[6] On 21 November 2012, the Applicant’s representative informed the Tribunal that the Applicant’s treating psychologist was on leave until 26 November 2012 and the report would not be available until after that date.[7] 

   [6] Court Book at page 97.

   [7] Court Book at page 101.

7. On 25 February 2013, the Applicant’s representative claimed he was seeking further reports from health professionals, which would take approximately four weeks to provide.[8] The Tribunal decided not to delay its decision any further, pursuant to the request of

   
   

   25 February 2013, although it did not finalise the decision until 14 March 2013. In doing so, the Tribunal had regard to:

   ·the length of the time sought;

   ·the numerous other occasions on which the Applicant had claimed he was about to provide reports which had not materialised; and

   ·the considerable period of time the Applicant had been afforded to provide such material after the issues with his mental health claims were identified to him at the hearing on 4 October 2012. 

   [8] Court Book at page 108.

8. The First Respondent addressed the decision of the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18 (“Li”). In Li, the High Court held that the failure of the Tribunal to exercise its discretion to adjourn a hearing was unreasonable and resulted in jurisdictional error. The First Respondent submits that Li is clearly distinguishable:

   [It] arose in a context where the review applicant sought an adjournment to allow time for a review of a skills assessment conducted by Trades Recognition Australia. A successful skills assessment was an essential criteria for the grant of the visa. Ms Li … made a request for an adjournment supported by apparently cogent submissions explaining why the pending review of the skills assessment had good prospects of success. The Tribunal in that case refused the adjournment without expressly considering the submissions.[9]

   The First Respondent says that the evidence sought to be obtained in the present case is different from the kind for which Ms Li sought an adjournment:

   The evidence in Ms Li’s case would have shown her to meet an essential condition of the visa, a fact that was readily apparent …. The applicant in this case sought further time to submit further evidence … which would, presumably, at its highest have strengthened his claim to be suffering a mental illness.[10]

   [9] First Respondent’s Contentions of Fact and Law, filed 12 August 2013,  page 9 at paragraph 42.

   [10] First Respondent’s Contentions of Fact and Law, filed 12 August 2013, pp.9-10 at paragraph 43.

9. There is another significant distinction between the decision in Li and the present case, and that is that:

   The High Court inferred error in Li because it was not possible to infer from the Tribunal’s reason any ‘evident or intelligible justification’ for the refusal of an adjournment. By contrast, in this case it is possible to identify a rational and intelligible justification for the Tribunal’s decision to refuse to further adjourn the review.[11]

   [11] First Respondent’s Contentions of Fact and Law filed 12 August 2013 at page 10.

Conclusions

1. A judicial review of a decision by the Tribunal is not a review of the merits of the Applicant’s claim. Finding of facts made by the Tribunal are not generally matters which can be challenged, unless such findings are based on no evidence, or are so unreasonable that they could not be made by a reasonable person exercising their discretion in accordance with the statute.

2. The Applicant has produced to the Court some medical evidence not available to the Tribunal. The Tribunal found that there would be more than a remote chance that the Applicant would be targeted if he was to return to his home region. It is unlikely that that conclusion would have been altered by the evidence produced. With respect to the issue of relocation, nothing in the two reports suggests that the Applicant could not live elsewhere in Pakistan. The Foundation House report recommended counselling and was unable to specify a timeframe for his recovery. The doctor’s report recommended that the Applicant’s situation be clarified as soon as possible to help him cope with his life. I cannot conclude that if the Tribunal had had the benefit of these reports, it would have reached a different conclusion.  This is relevant to the Tribunal’s refusal to grant a further adjournment. 

3. Some of the grounds raised by the Applicant concerned the findings of the delegate and are therefore not matters about which this Court has jurisdiction to review. 

4. Those matters which are addressed to the decision of the Tribunal concern:

   ·the claim in relation to a failure to give proper weight to the Applicant’s mental health in its credibility findings and to his personal health in the context of the Applicant’s ability to relocate in Pakistan;

   ·a failure by the Tribunal to understand matters relating to the Applicant’s status as the son of a Malik;  and

   ·a failure by the Tribunal to afford procedural fairness to provide “all documents in support of [his] claims”.[12] 

   [12] Application filed 23 April 2013 at page 3.

1. The only evidence before the Tribunal with respect to the Applicant’s mental health was a hospital psychiatric clinical record relating to a prescription given to the Applicant on 18 October 2011 when he was in Peshawar.[13]

   [13] Court Book at pages 28-29.

2. The Applicant’s medical situation was raised in the delegate’s decision in a paragraph at page 66 of the Court Book, and I quote:

   The applicant’s medical situation is that he had no prior history of psychiatric or psychological problems until the stresses of not being able to travel to see his mum and of being followed in October 2011. At that time he visited a doctor in Pakistan and was prescribed medication for depression and anxiety. He stated that he needed psychological medical assistance now but could not afford it in Australia.

   So the issue of the Applicant’s mental health was raised as early as the finding by the delegate.

3. Following the Tribunal hearing on 4 October 2012, the Tribunal wrote to the Applicant inviting him to comment on, or respond to a number of matters. His migration agent wrote to the Tribunal on 24 October 2012, seeking an extension of time to respond. That request contained in part:

   My client as advised has been unwell following the RRT hearing held on 4 October 2012. 

   He advises me that he has an appointment to see his treating Psychologist tomorrow, 25 October 2012.  [He] indicates that there is a pending report from Foundation house that will be relevant to his claims for Protection.[14]

   The letter then goes on to discuss other matters and says:

   In view of the above I seek the consideration of the Tribunal to extend the date for the provision of the required response. I believe my client will need another 28 days extension in order to respond.[15]

   [14] Court Book at page 97.

   [15] Ibid.

4. An extension was then granted to 26 November 2012. On

   
   

   21 November 2012, the Applicant’s migration agent again wrote to the Tribunal, seeking an additional 28 days to respond to the matters raised in the letter of 12 October.  He further went on to say:

   The review applicant advises that the treating psychologist is away on leave until 26 November. 

   The report which [he] has been waiting to receive and then present to the Tribunal will not be available until after

   
   

   26 November. 

   . . . He advises that he wishes to have additional time in order to meet the requirements of the RRT as presented in the leeter [sic] of 12 October 2012. 

   My client advises that he will see his treating psychologist after

   
   

   26 November and states that the report from the Psychologist will be presented to the RRT.[16]

   The letter then goes on to deal with other matters. 

   [16] Ibid at page 101.

5. The Tribunal refused the request and a case note in relation to that says:

   - the last request was granted partially on the basis that the applicant was to see his treating psychologist on 25 October, i [sic] do not accept that this was not adequate time for the psychologist to prepare a report. 

   - as Mr V must be aware, it appears the Act only permits the Tribunal to extend the period of time once for a s.424A request. 

   - i [sic] am concerned that Mr V put in his request for an extension at 9.21 pm the day before the response was due. 

   However, the Member is unlikely to make a decision before

   
   

   26 November so the applicant should feel free to submit the psychologist report.[17]

   [17] Court Book at page 103.

6. A response to the s.424A letter was sent by the Applicant’s migration agent on 26 November 2012. It does not raise the issue of the Applicant’s mental health. On 25 February 2013, the Applicant’s migration agent contacted the Tribunal, seeking information about the progress with the case. At page 108 of the Court Book is the recording that the Tribunal made of this:

   Received phone call from representative who wanted an update on the progress of the case. I told him that the case was at the Decision stage and that he would be notified as soon as the Member had made a decision. He then said that the RA had recently informed him he intends to submit further documents being a psychological report, a psychiatric report and a report form [sic] his treating GP. The representative indicated that it could take approximately four weeks before these reports could be submitted, and he asked if I could please bring this to the Member’s attention. I told him that I would do so and that it was at the Member’s discretion when the decision will be made. He then told me he would be writing to the tribunal to confirm the details of our conversation.[18]

   [18] Ibid at page 108.

7. There was no further correspondence from the migration agent. 

8. The Tribunal considered the Applicant’s mental health claims at paragraphs [123] to [125] of the decision.[19] The clinical notes from the hospital in Peshawar were attached to the Applicant’s application for a protection visa, which had been lodged on 20 February 2012. As late as 25 February 2013, the Applicant had still not provided any further material with respect to his mental health. At no point, in response to questions by the Tribunal about his ability to relocate – and I refer to the discussion of this at pages 123-134 of the Court Book – did the Applicant raise his personal health as an issue. The Tribunal gave consideration to the mental health issues but rejected them as factors explaining the inconsistencies in the Applicant’s evidence. The weight given to those matters was a matter for the Tribunal. 

   [19] Ibid at page 134.

9. Likewise, it cannot be said that the Tribunal failed to consider the Applicant’s claims with respect to his status as the son of a Malik. At paragraphs [93] to [98] of the decision, the Tribunal considered country information with respect to Maliks. At paragraph [136] of the decision, the Tribunal accepted that the Applicant was the son of a Malik, and at paragraph [138] of the decision, found that there was more than a remote chance that he would be targeted for harm if he returned to his home region as the son of a Malik. In determining that it was reasonable for the Applicant to relocate, at paragraph [143] of the decision, the Tribunal considered the likelihood of the Applicant being targeted elsewhere in Pakistan as the son of a Malik, and at paragraph [145] of the decision, considered his capacity to live apart from his family in Pakistan. I do not accept that the Tribunal failed to deal with those matters. The real complaint of the Applicant appears to be that the Tribunal’s findings are not accepted by him.

10. The Applicant does not specify what the documents in support of his claim were that the Tribunal failed to allow him to produce, thus denying him procedural fairness. He was given extensive time to respond to the s.424A letter, and although a further extension was refused beyond 26 November 2012, the decision was not made until

    
    

    14 March 2013, and it would appear, from the dates on the documents produced today, that certainly those documents were available to the Applicant prior to that date.

11. The Tribunal gave its reasons for not allowing further time in paragraph [124] of the decision.[20] In Li, the High Court made it clear that a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness. The Tribunal is required to act in a way that is “fair, just, economical, informal and quick”.[21] It is intended that a discretionary power, conferred by the statute, such as the power to grant an extension of time to respond to a s.424A letter, is to be exercised reasonably.

    [20] Court Book at page 134.

    [21] Section 353(1), Migration Act 1958 (Cth)

12. In the context of the statutory requirements imposed on the Tribunal, and in the context of the circumstances of this case, I am not satisfied that the Tribunal acted unreasonably in refusing a second extension of time to respond to the letter of 12 October 2012, and I refer to that part of the decision in Li that was referred to by the First Respondent, in particular at paragraphs [76] and paragraph [82] of the decision.

13. The power to grant the adjournment clearly was one that was open to the Tribunal. It gave cogent reasons why it did not grant such an adjournment. On the basis of the material that has now been produced to the Court, I am not satisfied that had the Tribunal had the benefit of those reports, it would have made a significant difference to how the Tribunal reached its conclusions.

14. For those reasons, the application on this matter is dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date:  1 October 2013