MZZNP v Minister for Immigration

[2015] FCCA 62

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZNP v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 62

Catchwords:
MIGRATION – Refugee Review Tribunal – whether the Tribunal erred by failing to make an obvious inquiry into a critical fact – no matter of principle – application dismissed.

Legislation:  
Migration Act 1958

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429; (2009) 111 ALD 15; (2009) 83 ALJR 1123

Applicant: MZZNP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1045 of 2013

Judgment of: Judge Riethmuller

Hearing date: 17 October 2014

Date of Last Submission: 17 October 2014

Delivered at: Melbourne

Delivered on: 23 January 2015

REPRESENTATION

Counsel for the Applicant: Mr Hugahan

Solicitors for the Applicant: Clothier Anderson & Associates

Counsel for the First Respondent: Mr Brown

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The Application filed on 11 July 2013 and the Amended Application filed 29 May 2014 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 1045 of 2013

MZZNP

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant seeks judicial review of a decision of the Refugee Review Tribunal dated 17 June 2013.  In that decision the Tribunal affirmed a decision of the delegate of the Minister to refuse to grant the Applicant a protection visa. 

2. The Applicant is a citizen of Pakistan who came to Australia in September 2011 on a student visa.  In October 2011 he applied for a protection visa, completing the relevant forms and setting out the reasons for his claim for protection.  He was accorded an interview on 15 November 2011, and on the same day the department was advised by a firm of solicitors [SML] that the Applicant had appointed them to represent him in his visa application.  The solicitors forwarded information on 15 December 2011, apparently in accordance with their instructions. 

3. On 28 March 2012 the department wrote to the Applicant to advise of the introduction of the complimentary protection provisions and to provide him with an opportunity to make further submissions in that regard.  No further submissions were forthcoming. 

4. On 10 October 2012 the delegate of the Minister refused the Applicant’s application for a protection visa, taking a negative view of the applicant’s credibility at the interview, finding that his evidence was:

   on the whole … broad, generalised and lacking any substantive detail.

5. On 19 October 2012 the Applicant applied to the Tribunal for a review of the delegate’s decision.  A hearing was held on 20 May 2013 where the Applicant attended and gave evidence with the assistance of an interpreter.  The initial interpreter had difficulties in translating, and so the hearing was adjourned to 4 June 2013 to proceed with a different interpreter.

6. On 17 June the Tribunal affirmed the decision of the delegate, refusing the Applicant’s protection visa application. 

7. The Tribunal found, at paras.123 and 124, the following:

   123. In my view the applicant has made an eleventh hour bid to elevate his profile with an account of him reporting two Taliban adherents to the Pakistani authorities in 2009.

   124. I do not accept his account of the reporting of two Taliban people to the authorities.  If it was factual I am of the view that he would have made claim to that regardless of whether or not the father of one man had been released since, the mere fact that he had done this, in his home area would have posed a potential risk.  That he did not make any report of this until the Tribunal hearing or to his advisor after the delegate’s decision  and to his psychological counsellor for the April 2013 report leads me to find that this claim is not a fact and has been added to embellish.

8. The Tribunal sets out earlier in its decision the facts and circumstances that led to this finding where the Tribunal member says:

   57. At the end of the hearing the applicant made an additional claim.  He claimed that in August 2009, after the family had returned and Taliban had defeated the military asked him if he knew of anyone in the village who had been Taliban during their occupation.  The applicant claimed that he had known a neighbour who was and the military asked him to show them where that man lived.  He said that he took the military to the house and the father of the man opened the door but said that his son wasn’t there.  The military went into the house and found the son and arrested him.

   58, The applicant then said they asked him if he knew anyone else and, in front of the father of the man who had just been arrested he said that he did and showed them where that house was.  He said that the father of the man who had just been arrested looked at him strangely.

   59. The other man he had identified was arrested as was the father of the first man.  The two men who had been with Taliban were later found by the side of the road killed.

   60. The Tribunal put to the applicant that this claim, coming when it did raised doubts in regard to credibility.

   61. The applicant went on to say that the father of the first man he had reported to the military had only been released recently and the applicant’s brother only told him about the release in December 2012.

   62. The Tribunal informed the applicant and the adviser that it was adjourning and that it would give the applicant and the adviser an opportunity to discuss issues of concern.

   63. The Tribunal said that the issues of concern that it had were firstly the credibility of the applicant’s claim in regard to the newly raised issue, secondly, as the applicant and his family had demonstrated that they had been able to relocate to both Karachi and to Peshawar for periods of time in 2007 and 2009 that the Tribunal was of the view that the applicant could, in the event of there being a real chance of serious harm in his home area, relocate.

   …

   67. Following the adjournment the applicant’s representative submitted that, in response to the Tribunal’s first issue of the late claim that there was a mention of the release of prisoners in the final paragraph of the Psychologists report of 7 April 2013.  Where it reported:

   He (the applicant) also informed me that some of his family’s enemies who were in prison are now released.  [The applicant] is dreading that if he goes back to Pakistan they will definitely seek him out and kill him.

   68. The adviser said that his client (the applicant) had also advised him that they had been released on 10 November 2012 and he was advised of this in the New Year.

   …

   76. He said that, in regard to the new claims he had made that he discussed this with a migration agent, after his brother told him about the situation.  He said that the agent was not the one at the hearing, and she had advised him not to raise those claims as they could raise questions of credibility.

9. The Applicant seeks judicial review on the following bases:

   1. The Tribunal erred in failing to exercise the jurisdiction conferred upon the Tribunal by s 414 of the Act to review the delegate’s decision.

   Particulars

   (a) The Tribunal concluded that the Applicant “embellished” his case by raising a claim for the first time at the hearing before the Tribunal, i.e. that he had informed to the authorities the identities of the two men, who had been Taliban.  The two men were later killed and the father of one of the men had been arrested.

   (b) This conclusion was critical to the Tribunal’s adverse decision, as the Tribunal itself stated that “the mere fact that he had done this, in his home area, would have posed a potential risk”, i.e. if that claim were true there was the potential risk of serious harm to the Applicant.

   (c) The Applicant stated that he discussed this with a migration agent (not being the agent who attended the hearing with him) the circumstances as to his having “informed” on other persons in the village who were members of the Taliban, and if so when that occurred and the response of the agent.

   (d) The Tribunal failed to make an obvious inquiry into a critical fact, the existence of which was readily ascertainable, i.e. whether the Applicant had previously reported to his migration agent (not the agent who attended with him at the hearing) the circumstances as to his having “informed” on other persons in the village who were members of the Taliban, and if so when that occurred and the response of the agent.

10. The applicant also pointed to the report of a psychologist that had been before the tribunal whom the applicant had attended upon from 10 November 2012 for 10 one-hour consultations wherein the psychologist alluded to the facts relevant to this part of the claim, saying:

    [The Applicant] is extremely worried about the outcome of his case as his current status has affected his mental wellbeing.  He also informed me that some of his family’s enemies who were in prison are now released.  [The Applicant] is dreading that if he goes back to Pakistan they will definitely seek him out and kill him.

11. The transcript of the tribunal hearing is also before the Court where the relevant exchanges for the purposes of this decision are as follows:

    [THE APPLICANT VIA HIS INTERPRETER]: In 2012, December, my brother told me that [M] has been released by the police – by the Army.  [M] – [Z’s] family moved to Karachi in 2009 but [M] still visits our village and he has – he is linked with Taliban groups and he has told people that my son and my family – my son’s murderer is [the Applicant].

    [TRIBUNAL MEMBER]: Okay.  It appears to me, correct me if I’m wrong, it appears to me this is the first time you have told this story.

    …

    [TRIBUNAL MEMBER]: Okay.  I’ve looked roughly through your original application, but I’m more closely looking at a statement which you made yourself and sent to us on 20 May 2013, five months after your claim that [M] was released, and no mention of this in this statement.

    [THE APPLICANT VIA HIS INTERPRETER]: That statement that I have written to the immigration in 2011.  It is exactly the ---

    [TRIBUNAL MEMBER]: My point is this.  That this cover letter is dated 20 May 2013.  You had a professional agent.  Now, I’m certainly not going to ask you what you said to your professional agent.  That’s against the law, as he will explain to you.  That is a privilege what you said to him.  But since there is no mention of it, then what I am finding is this is the first time it has been mentioned to any decision maker.  So I have to say, it gives me some questions about whether or not this is genuine or whether it has been fabricated just recently.  You don’t need to comment now.  As I said, I will be leaving you to talk with your adviser.  He may have some ideas in terms of how he wants to present this, or how he’s suggesting that you present it.  But I can see he’s noting down.  Now I presume he’s noting down my concerns in this regard.

    Before we proceed, there are issues that I would like you to discuss with your representative I guess.  The first one is the credibility of this particular that you have just raised.  The second issue is that the rest of your quite large family has remained and continues to run their business in your home area to this day with one uncle being able to operate a service whereby he drives from your area to Peshawar on a regular basis.

    …

    [TRIBUNAL MEMBER]: Okay.  So I think your adviser has three issues clearly in his mind.  I would like to offer you the opportunity now to discuss those issues with your adviser.  Nothing will be recorded.  Even though the interpreter will be the same interpreter, her code of ethics is such that she knows she cannot tell me anything that takes place in a private conversation between yourself and your representative.  Adviser, could Iask you what period of time you would like?

    [ADVISER]: Would 10 minutes – 10 minutes to 15 minutes.

    [TRIBUNAL MEMBER]: Okay.  Let’s make it 20 minutes to give your applicant – sorry, to give your client an opportunity to use the toilet if he wishes to and then 15 minutes to discuss with him.  Is that agreeable?

    [ADVISER]: Yes, sir, that’s fine.

    [TRIBUNAL MEMBER]: Okay, fine.  All right.  In that case, the hearing is adjourned at 4.30 South Australian time.

    ADJOURNED  [4.30 pm]

    RESUMED  [4.53 pm] 

    HEARING OFFICER: The Member has re-entered the hearing room and the hearing is resumed at 4.53 pm.

    [TRIBUNAL MEMBER]: [Applicant], I’m going to turn to your adviser first of all and ask if he has any oral submissions that he would like to put at this stage, and then I’ll come back to you and see if there was anything further that you feel that I should know before I go ahead and make a decision.

    [ADVISER]: [The Applicant] put a claim together, the claim that was filed on 20 May, but he did that when he originally made the claim, even though it’s not referred to in the DEAC decision, it was given to DEAC at the interview.  He made that statement with the help of a friend.  In December – I understand the interview was in November.  In December he heard from his brother about the father of the – people who were killed, being released from jail.  He had been told that he can’t change his statement to include that because of the story’s credibility.  However, in the report of [RM} psychologist, which was filed on 20 May, in the last paragraph of the statement is referring to – “He has also informed me that some of his family’s enemies who were imprisoned are now released.  [The Applicant] is dreading that if he goes back to Pakistan they will definitely seek him out and kill him.”  And he has seen [the psychologist], and as the report says from 10 November 2012.  This reports states him seeing 10 times, and he advised me that he advised [the psychologist] in the New Year of his fears about the person being released.  He says that that person family no longer live in his village but family members come and go and threats have been made.

12. At no stage did the Applicant or his advisors seek an adjournment to obtain further evidence to place before the Tribunal, nor (even after the break for the Applicant to obtain confidential advice) did the Applicant advise the Tribunal member that he was content to waive any privilege he may have with respect to the advice given to him by his previous migration agent, despite the statements by the Tribunal member that he was not intending to ignore that privilege.

13. The Applicant subsequently (through his advisor) provided information about that advice, thereby effectively waiving the privilege, but did not seek any opportunity to obtain his file from the previous agent or obtain a statement from her.  Nor did the Applicant set out to the Tribunal member the full name of the agent, although that would have been readily ascertainable. 

14. Advice to an Applicant not to disclose a basis for a protection visa that has arisen after the initial visa application on the basis that it will be seen as a ‘change in the story’ appears to me to be entirely misconceived.  It cannot be a change in their story if it is based on an event that has arisen after the version of events as first been given.  It is advice that would be remarkable even if it were given by an inexperienced agent.  It is difficult to see how any agent who had given any thought to the fact-finding processes could have given the advice that was allegedly given, if the facts and circumstances the Applicant alleges took place.   Although the claim therefore appears weak, at best, it is not fanciful.

15. A question then arises as to the steps that the Tribunal was required to take on becoming aware of these allegations, in the absence of any request for an adjournment to allow the Applicant to provide further evidence in the form of the agent’s file or to obtain evidence from the agent.

16. Ultimately it is for the Applicant to make out their case before the Tribunal.  The Applicant relied upon submissions that the Tribunal was inquisitorial in nature.  In this regard, however, as was explained by the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429; (2009) 111 ALD 15; (2009) 83 ALJR 1123, the majority said:

    18. It has been said in this Court on more than one occasion that proceedings before the Tribunal are inquisitorial, rather than adversarial in their general character.  There is no joinder of issues as understood between parties to adversarial litigation. The word "inquisitorial" has been used to indicate that the Tribunal, which can exerciseall the powers and discretions of the primary decision-maker, is not itself a contradictor to the cause of the applicant for review. Nor does the primary decision-maker appear before the Tribunal as a contradictor. The relevant ordinary meaning of "inquisitorial" is "having or exercising the function of an inquisitor", that is to say "one whose official duty it is to inquire, examine or investigate". As applied to the Tribunal "inquisitorial" does not carry that full ordinary meaning. It merely delimits the nature of the Tribunal's functions. They are to be found in the provisions of the Migration Act. The core function, in the words of s 414 of the Act, is to "review the decision" which is the subject of a valid application made to the Tribunal under s 412 of the Act.

17. Given the careful steps taken by the Tribunal member in identifying this issue, and giving the Applicant’s advisor time to obtain confidential instructions before making further submissions, it could not be contended that there was, in any sense, a lack of procedural fairness in the conduct of this review.

18. As the High Court said at para.25:

    25. Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

19. In this case the factual issue is not a central factual question relating to the Applicant’s claim but a collateral issue that went to his credibility.  Had the inquiry been made of the agent, and the agent agreed with the Applicant, it would have led to a further issue as to whether or not the Tribunal ought to have accepted the credibility of the particular agent in circumstances where acceptance of the Applicant’s version of events would also have demonstrated, at best, significant negligence on the part of the agent, and at worst advising the Applicant not to conduct himself in a full and frank manner before the Tribunal.  As with the facts that occurred in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429; (2009) 111 ALD 15; (2009) 83 ALJR 1123, the inquiry was unlikely to lead to a determination of a question of fact that could be easily ascertained. The Applicant therefore confronts two difficulties with his argument.

20. First, the fact at issue in this case was not a central factual matter relating to his claim but a collateral issue affecting his credibility.  Secondly, the inquiry that the Tribunal was obliged to carry out was not likely to result in an easily ascertainable fact in this matter.  For example, this is quite different to an inquiry of another Australian government agency as to the contents of their records on a particular issue, or an inquiry of a reputable library for a copy of a newspaper in which it is said that something has been published.  

1. In the circumstances of this case I am not persuaded that the Applicant has made out his grounds for review. I therefore dismiss the Applicant’s application. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  23 January 2015