MZZVI v Minister for Immigration

[2014] FCCA 2538

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZVI & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2538

Catchwords:
MIGRATION – application for protection visa – whether Tribunal considered applicant’s claims – whether Tribunal failed to consider properly or at all applicant’s evidence – whether Tribunal complied with s.424AA and s.424A of the Act to give “clear particulars of information” - jurisdictional error – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.424AA, 424A, 36(2)(a), 36(2)(aa), 36(2)(b) and (c)

Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114 Minister for Immigration & Citizenship v SZLSP 187 FCR 362 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR 407 W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 Toro Martinez v Minister for Immigration & Citizenship [2009] FCA 528 Tefonu Pty Ltd v Insurance & Superannuation Commisioner (1193) 44 FCR 361 Minister for Aboriginal Affairs & Anor v Peko Wallsend Ltd & Ors (1986) 162 CLR 24 SZINP v Minister for Immigration & Citizenship [2007] FCA 1747 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal & Anor; Ex parte & Anor (2001) 179 ALR 425 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 688 Minister for Immigration & Indigenous Affairs v SBAN [2002] FCAFC 431 VFAB v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCA 872 NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) ALR 264 SZNKO v Minister for Immigration & Citizenship [2010] FCA 297 SZMUK v Minister for Immigration & Citizenship [2009] FCA 1372 SZMCD v Minister for Immigration and Citizenship[2009] FCAFC 46, 174 FCR 415 at 429 to 430

First Applicant:

MZZVI

Second Applicant: MZZVJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1865 of 2013

Judgment of: Judge Jones

Hearing date: 6 August 2014

Date of Last Submission: 6 August 2014

Delivered at: Melbourne

Delivered on: 7 November 2014

REPRESENTATION

Counsel for the Applicant: Self represented

Solicitors for the Applicant: Self represented

Counsel for the Respondent: Mr Wood

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 1 October 2013.

2. A writ of mandamus issue remitting the matter to the Second Respondent and requiring it to determine according to law the application made to it by the applicants for review of the delegate of the First Respondent’s decision.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1865 of 2013

MZZVI

First Applicant

MZZVJ

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 1 October 2013, affirming a decision of a delegate of the then Minister for Immigration & Citizenship (“the Minister”) not to grant the applicants’ Protection (Class XA) visas (“ the visas”).

Background

1. The primary applicant (“the wife”) is the wife and the second applicant (“the husband”). On October 2011, the wife and husband applied for protection visas. The wife made claims to be owed protection obligations pursuant to s.36(2)(a) and (aa) (CB11 to 26). The husband relied only on his membership of the same family unit as the wife (s.36(2)(b) and (c)) (CB27 to 33).

2. Both the wife and husband were born in Pakistan and are nationals of Pakistan.  The wife is from Sarmast Mira Khel, Bannu, Pakistan. She left her home in 1999 to study at the University of Prashad, Peshawar. She lived in Islamabad from 2001 to 2002 and worked in Kohat from 2002 to 2005 with a Family Planning Association and then worked in social work in Islamabad from 2005 to 2007 (CB39). From 2008 to 2009 she worked as a research associate/project coordinator.

3. The wife and husband married on 27 September 2008 in Pakistan. The husband is from the Sinh province. He entered Australia on a temporary student visa in May 2004 and was granted a further student visa on 21 July 2008. The wife applied for and was granted a student visa as a dependent to her husband on 25 September 2009. She first arrived in Australia on 2 February 2010.

4. The wife’s husband applied for a further student visa on 10 September 2010. The primary applicant was a dependant on that visa application. That visa was refused and an appeal against that decision was affirmed by the MRT on 30 January 2012.

The wife’s claims to protection obligations

1. The wife’s claims to protection obligations are set out in her application for a protection visa dated 10 October 2011. They can be summarised as (CB18):

   ·she married her husband, who was from a different ethnic clan, for love, in secret in Islamabad in defiance of a marriage arranged by her parents;

   ·her parents had arranged the marriage with a man from her cast without consulting her. This man was killed and in accordance with tribal tradition the  arrangement to marry was transferred to his elder brother;

   ·she had to escape from her home to marry her husband in Islamabad. She cannot “share” how she managed to escape and hide during this time before coming to Australia. Her husband’s parents were also unaware of the marriage;

   ·whilst in Australia she started communicating with her mother and then her father who started showing his acceptance of this marriage. Her husband also informed his family of the marriage. They were very angry but later things seemed to be getting normal;

   ·she went back to Pakistan on 16 September 2011 to visit her parents. When she arrived in Bannu, her family welcomed them and pretended they had accepted their marriage. However, when her husband went back to Karachi her mother told her that her father and brother intended to kill her. It was an issue of honour killing as her marriage had so embarrassed them in the tribe. This was the only way to regain the “EGO/EZZAT” in the tribe;

   ·with the assistance of her mother she escaped to Islamabad and stayed there until she and her husband got tickets to Melbourne on 8 August 2011. Their return tickets were originally 13 October 2011;

   ·she fears that if she returns to her country they will try to kill her in order to regain their lost respect in front of the tribe.

2. On 27 April 2012, the Department of Immigration and Citizenship wrote to the wife requesting her to comment on adverse information received in relation to her application for a visa (CB104 to 107). The adverse information in respect of which the wife was invited to comment is extracted from the correspondence below:

   · During your Protection Visa interview on Wednesday 18 April 2012 you stated that you were married in Islamabad, Pakistan, in a secret ceremony which was witnessed only by a friend and their family. You stated that you kept your marriage secret from your family and tribe until you arrived in Australia.

   However, the department has on file a copy of your Nikah Nama certificate, which indicates that you were married in Mira Khel, Bannu district, Pakistan, which you have previously advised is your home town. The certificate also indicates that your brother-in-law and cousin witnessed the event. This information leads me to consider that you did not marry MZZVJ in secret and that your family and tribe were aware of your marriage from the time it was contracted in 2008.

   · At the interview you stated that due to your ex-fiancé’s death in 2008 you would be subject to an imminent arranged marriage with your ex-fiancés elder brother, in accordance with your tribes tradition. You stated that your marriage to MZZVJ was contracted as an emergency, in response to this situation. You also stated that you received a notice of marriage from your family around the time that you applied for your Australian visa in early 2009.

   Departmental records indicate that you were granted an Australian visa on 25 September 2009, but did not arrive in Australia until 2 February 2010, over four months from the time the visa was granted. This delay leads me to consider that there was no urgency in your departure from Pakistan and that it is unlikely you had received a notice of an arranged marriage.

   · During your interview you also stated that your husband’s family withdrew their financial support from him in 2010 after they were advised of your marriage.

   However, information before the department indicates that MZZVJ’s parents continued to provide financial support for him in 2010 and 2011. This leads me to consider that MZZVJ family have supported your marriage since they became aware of it.

3. The wife responded to this adverse information by way of a statement attached in correspondence dated 14 May 2012 to the Departmental officer under cover of her migration agent. (CB 109 to 111) She stated :

   ·      she was married in secret in a Islamabad. However in order to obtain a spouse visa to Australia, she was advised of the importance of a Nika Nama certificate being registered in her home district. She registered a Nika Nama in her home district in order to maximise the chances of obtaining a visa with the Australian High Commission. The Nika Nama was fake (CB40 to 41);

   ·      the delay between the grant of an Australian visa on 25 September 2009 and her arrival in Australia on 2 February 2010, was because she was “hiding here and there” so that her family could not get her and because of the unavailability of finance;

   ·      her husband’s family stopped communicating with them from the time they came to know about the marriage and they ceased providing financial support from the time she arrived in Australia;

   ·      the complete name of her tribe is Hoji Khel;

   ·      the details of her visit to Pakistan from 16 September 2011 to 9 October 2011 were as follows:

   ·    they arrived at her in-laws town and stayed there for 6 days;

   ·    her husband stayed in her hometown for two days and then left for Karachi via Peshawar. She stayed for 3 days in her hometown, on the fourth day she escaped with the assistance of the mother to Islamabad. She stayed at the house of her friend’s aunty until her husband booked the return ticket to Melbourne on 8 October 2011;

   ·    she went to Karachi on 7 October 2011, staying one night at the home of her husband’s friend;

   ·    her husband returned to Karachi from his home town when she escaped and remained there to arrange tickets, staying with his friends and in a guesthouse in Karachi;

   ·    she met her husband in Karachi a day before their flights to Melbourne at his friend’s house. She said that it took her husband one week to arrange tickets to Melbourne as it was a very busy season due to Hajj flights.

4. In his decision record the delegate summarised the claims made by the wife in her written application and an interview on 18 April 2012 as:

   Arranged marriage and ‘love marriage’

   · While studying at university, between 1999 and 2001, (the wife’s) father arranged a marriage between her and her cousin. She was not aware that the arrangement had been made, but her mother later informed her of it.

   · (The wife) has lived away from her hometown since 1999. She wanted to get away from her family and tribal customs, including wearing the burqa.

   ·  In 2006 (the wife) met the secondary applicant through an internet messaging service. She first met (the husband) in person when he visited Pakistan in 2008 for their clandestine wedding.

   ·  In 2008 (the wife’s) then arranged fiancé was killed during a tribal land dispute. This ongoing dispute was the reason the arranged marriage had not yet taken place. It is a tradition in the applicant’s tribe that an arranged marriage would transfer to the dead fiancé’s elder brother.

   · (The wife) believed her arranged marriage would be contracted imminently, so she had to marry (the husband) urgently. In September 2008 they married in secret in Islamabad, in a simple ceremony before a few friends. She could not risk letting her family know she had married a man of her own choice.

   · In early 2009, around the time (the wife) applied for an Australian visa to be reunited with (the husband), (the wife’s) family gave her notice of her arranged marriage to her fiancé’s elder brother. (The wife) went into hiding from her family.

   · The couple informed their parents of their ‘love marriage’ after (the wife’s) arrival in Australia, where she felt safe. (The wife’s) family were upset with her. (The husband’s) family did not support their son’s marriage, due to (the wife’s) different ethnicity, and withdrew their financial support.

   · (The wife) contacted her father on several occasions after informing her family of the marriage. On the first occasion he threatened to kill her if she ever returned and on other occasions remained silent and hung up on her. Her mother suggested she visit the family and apologise to her father, in the hope he would forgive her for the marriage.

   2011 visit to Bannu

   · On 16 September 2011 (the wife) and (the husband) departed Australia to visit their respective families in Pakistan. In spite of the threat by her father (the wife) took the risk to visit as she missed her mother and family.

   · When they visited (the wife’s) family, her father, brother and other members of her tribe did not greet her. After two days (the husband) departed for Karachi to see his family, leaving (the wife) alone.

   · On the third or fourth day of the visit (the wife’s) mother took her for a drive, ostensibly to visit a doctor regarding her pregnancy. On the way her mother informed her that her father, brother and elders of her tribe had decided to kill her. This was to restore honour to the tribe as (the wife) had rejected an arranged marriage and contracted a ‘love marriage’ on her own. (The wife) claims they had arranged a ‘slaughterhouse’ for her.

   · (The wife’s) mother helped her to escape by car to an acquaintance’s boarding house in the outer suburbs of Islamabad. She and her husband reunited in Karachi and arranged an early return to Australia.

   · (The husband’s) family received phone calls from (the wife’s) family threatening to kill (the husband). His family want the couple to divorce, as they do not wish to risk their son’s life.

   · (The wife) has not been in contact with her family since her visit to Pakistan, and is unaware if anything has happened to her mother.

   ·(The wife) stated they could not relocate anywhere else in Pakistan as her tribe could track her down, and as her family had political connections.

5. On 7 June 2012, the wife and husband applied to the Tribunal for a review of the delegate’s decision. The applicants’ nominated a migration agent as the authorised recipient (CB134 to 139). On 22 February 2013, the applicants’ were invited to appear before the Tribunal to give evidence and present arguments relating to the issues in their case (CB143 to 144). The wife and husband requested an adjournment of the hearing due to the wife’s impending delivery of her child. The hearing was postponed and, on 23 May 2013, a further invitation was sent to the applicants’ for them to appear before the Tribunal on 25 July 2013. By a statement dated 24 July 2013 sent to the Tribunal the wife provided a written response to the matters raised by the “case officer’ (the delegate) (CB172 to 175). In her statement the wife said:

   ·      her marriage with her husband was an emergency marriage. In her culture women are not taken into consideration of any decision about their life. It is very common for girls to be engaged/married at an early age, it all depends on the elders decisions. This was so in her case;

   ·      it is a profound tradition in her culture that if a fiancé or husband dies the woman has to marry the brothers;

   ·      their emergency marriage can be verified by the fact that her husband came to Islamabad instead of Karachi (his hometown). He returned to Australia in October 2008 from Karachi because he stayed with her in Islamabad after their marriage (she attached a copy of that part of her husband’s passport showing his entry and exit to Islamabad in 2008 for the marriage);

   ·      she went to hiding after getting the “notice of marriage” from her family with the elder brother of her ex-fiancee, not after her marriage with her husband;

   ·      she never claimed that her father had showed acceptance of a marriage, rather it was her assumption of his acceptance by “hanging the phone calls or as my mother told me that he may forgive me.” It was her assumption that things might get better after apologising to her father. She wanted to avail herself of the opportunity that she might be accepted by her family but was proved wrong;

   ·      it was a case of “honour killing.” It became an issue of restoration of tribal prestige her tribe wanted to regain by killing her. The police and local administration do not want to get involved in it. They do not want to make an issue of sectarian conflicts by killing her husband as a husband belongs to the “Sindhi Memom Cast” and there is a long deeply rooted history of sectarian clashes between Pathan and Sindhi;

   ·      her family were not aware that they were married despite the Nika Nama being registered in their home town because she never told her family. She was not in her hometown when she married and she barely objected to her engagement with the elder brother of her ex-fiancé;

   ·      she could not provide specific details of her hiding during the four months, she never kept the documents regarding the contacts in places she stayed;

   ·      she had a steady job until her visa was granted. Out of her basic rate of pay she was paying for her living, rent and other expenses as well as her parents. She was not fully financially independent. Her coming to Australia was delayed due to lack of money for the tickets. She stated her husband’s parents withdrew their financial support to her husband once they found out about their marriage. The bank statements for visa extension were limited to papers only at that time. Her husband later told her that they were all fake documents that he provided with the help of his friends and Pakistan and, as a consequence of which, his visa was rejected;

   ·      although she was able to hide for a few months from her family before they knew about her marriage she will not be able to do so if she returns to Pakistan. At any big city in Pakistan, where they both have to work, their location would be discovered by her family and tribe due to political connections. It is possible that her husband’s family might accept him and their baby due to his current mental situation, but she would not be accepted as they are also threatened by her tribe after their escape from Pakistan in 2011;

   ·      she is highly qualified and experienced in working in social sector and would not leave this on the basis she feared for her life;

   ·      the situation is now even worse due to her husband’s mental situation. He has psychological trauma and physical injury.

6. Copies of newspaper clippings regarding honour killings in Pakistan were attached to the wife’s statement (CB196 to 230).

Tribunal decision and conduct of the proceedings

1. In its decision record the Tribunal noted that the wife, her husband and her adviser appeared before the Tribunal. The Tribunal stated at (CB262 [58] and [59]):

   [58] The primary applicant was a confident and dominant person who, on several occasions said that she wanted the opportunity to give full and clear explanations of situations. On each occasion the Tribunal agreed to these requests.

   [59] Although there were times when the primary applicant became tearful she presented as a strong and able person in full control and not submissive in any way.

1. The Tribunal noted that at the hearing held 25 July 2013, in the course of the wife’s response, her adviser collapsed and the Tribunal arranged for him to be treated. The Tribunal informed the wife that the hearing would be adjourned as her adviser’s collapse would have had an impact on her being able to provide evidence (CB263 [64]). The hearing resumed on 30 August 2013. The Tribunal noted the wife chose to speak in English but asked the Tribunal to be mindful of unintentional grammatical errors. The wife was reminded by the Tribunal about her option to have an interpreter. The Tribunal noted that at times the wife appeared emotional and consequently it reassured her that she could take time to compose herself before she continued (CB263 [65] and [68]).

2. In its decision record, under the heading “Consideration of Claims and Evidence”. The Tribunal stated (CB257 [30]):

   [30] The issue in this case is that the primary applicant fears harm amounting to persecution at the hands of members of her family in the form of an honour killing to marry in an arranged marriage.

3. The Tribunal later identified the wife’s claims when it stated at (CB269 [136]):

   [136] The primary applicant said that she wanted to say that because of the trauma and the situation that she had escaped death and this was in her mind twenty four hours a day. She said that she had tried to commit suicide. She said that if she had to return to her tribe and her family it would be better if she killed herself. She said that it was a declaration of the local Jirga (council) that she had to be killed at all cost. She added that she was therefore at risk from the Jirga, the family and the Taliban. She said that Taliban could trace her via media.

4. The Tribunal extracted, in full, the wife’s written statement for a protection visa (CB257 to 258). The decision record of the delegate setting out the wife’s claims from her written application and interview (CB258 to 259), the correspondence from the delegate dated 27 April 2012 requesting the wife to comment on a number of issues (CB259 to 260) and the wife’s written response provided on 14 May 2012 (CB260). The Tribunal also summarised the claims made by the wife in her signed statement addressed to the Tribunal dated 24 July 2013 (CB262 at [50] to [55]).

5. The Tribunal identified, in its decision record, the issues it raised with the wife at the hearing, including:

   ·      reconciling her claim that her father had entered into an arranged marriage agreement binding her against the evidence that he permitted her to study at the University in Peshawar, to live apart from the family from 1999 until her departure for Australia in 2010 (CB263[61] and [69]). The Tribunal recorded the applicant’s response (CB263 [70] to [71];

   · reconciling her claim that her father had bound her in marriage with the fact that she was of marriageable age and yet for 8 years no demands had been made on her to marry, rather she had been allowed to be independent and live apart from the family and work. The Tribunal stated that this seemed a very lengthy period for an arranged marriage in a conventional Islamic context (CB264 [72]). The Tribunal recorded the applicant’s response (at [73] to 78]);

   ·      the evidence given by the wife to the Tribunal that her tasks with a family planning organisation involved contraception. The country information before the Tribunal was that the Islam and Muslim faith did not oppose contraception but fundamentalist Muslims did, particularly women working in the area (CB264 [79] to [80]). The Tribunal recorded the applicant’s response (CB265 [81]);

   ·      whether the wife had ever tried to find out details of her arranged marriage and her response to this question (CB 265 [84];

   ·      the circumstances of her relationship with her husband;

   ·      the wife’s claims as to a secret marriage in Islamabad compared to the details on the Nika Nama. The wife’s response to this was also recorded ( CB265 [87] to [91]);

   ·      the Tribunal confirmed with the wife that she was still claiming that the marriage had to be urgent because of the risk of being married to the brother of the man she was first engaged to and that this had occurred as a consequence of the first man’s death as a result of a land dispute (CB266 [92]);

   ·      its concerns regarding the delay by the wife in leaving Pakistan after being told of the plan to marry her to the older brother of her fiance and after being granted a visa in September 2009. The Tribunal recorded that both the wife and husband claimed the reasons for delay was lack of money (CB266 [95] to [96]);

   ·      the wife’s employment history set out in the application for a protection visa disclose she continued to work until December 2009. Consequently her family could readily have found her at work. The Tribunal recorded the wife’s response that she had mistakenly said that she continued to work until then however she had stopped work prior to that date (CB266 [97]);

   ·      the wife’s evidence in relation to the time that she went into hiding, being limited to “here and there” was vague. The Tribunal noted that at the hearing the wife continued to say that she had been hiding “here and there” (CB266 [103] to [104];

6. The Tribunal identified, in its decision record, the issues it raised with the husband at the hearing. This was his claim that they didn’t have enough money to leave Pakistan shortly after they obtained a visa. However, there were two letters of financial support from the husband’s parents after the date he claimed his parents find out about the marriage. The Tribunal recorded the husband’s response that his father had indeed provided a letter of financial support by letter dated 6 December 2010. However, this was so that the husband could continue to have his student visa. In fact his father had stopped providing any financial assistance. The second letter dated 19 January 2011 from his mother was fraudulent (CB266 [95] to [101]).

7. The Tribunal formed an adverse assessment of the wife’s credibility (CB 271 [161]). This adverse assessment was informed by a number of factors identified under particular sub-headings;

   ·The “arranged” marriage: The Tribunal considered it implausible that, in relation to the arrangement made between 1999 and 2001 (at a time when the applicant was already 21 or 22 years old), the wife neither questioned the arrangement nor sought to find out when the marriage would occur at any time before 2009 (CB273-274 [192]-[200]). The Tribunal also considered it implausible that, having regard to the alleged arrangement, the wife would not have been pressed to marry at any time before 2009, and that she would have been allowed the degree of freedom in her life that she had in fact been allowed in the intervening period (CB 274 [202]-[204]).

   ·The applicants’ marriage: The Tribunal did not accept that the wife married the husband in order to avoid an arranged marriage with her cousin’s elder brother. The Tribunal considered that, if this had occurred, the wife would have fled Pakistan at the earliest opportunity. But, instead, there was a gap of 6 months after the wedding before she applied for a visa, and a gap of over 4 months after the visa was granted before she left Pakistan (CB 275 [206]-[212]). The Tribunal did not accept the wife’s explanation that she was unable to afford to buy a ticket before then: the Tribunal noted that the wife had worked for 16 or 17 months after the wedding; and the Tribunal accepted as genuine letters of financial support from the husband’s parents (CB 275 [209], [213]-[220]). The Tribunal did not accept that the husband’s parents had “cut their son off”, given that the applicants stayed with them when they returned to Pakistan in 2011 (CB 276 [219]).

   ·The wife’s period in “hiding”: The Tribunal did not accept that the wife went into “hiding” after her marriage. The Tribunal noted that the wife had given evidence that her family had “regularly visited her at work places”, and considered that the family could therefore have traced her to her workplace in Islamabad until December 2009. The Tribunal did not accept the wife’s “eleventh hour” change in her evidence to the effect that she has ceased working in September 2009. The Tribunal noted that, in any event, that evidence did not explain how she managed to “hide” after March 2009. The Tribunal also considered her account of her “hiding” to be “extremely vague” (CB 276 [221]-[223]).

   ·The applicants’ visit to Pakistan in 2011: The Tribunal had great concern with the applicant’s evidence regarding her visit to Pakistan in 2011, having regard to a “background knowledge of how her tribe and family would react”. The Tribunal considered that the wife had given “differing accounts” of the threat that she faced when she visited Pakistan in 2011, First, the wife initially claimed that, despite the death threat from her father, she “felt confident that she could apologise to her father and all would be forgiven”; whereas the wife subsequently claimed that her father did not have power to “forgive and spare her” and that this was a matter for the “tribe as a whole”. Secondly, the wife initially claimed that the father had threatened to kill her when she informed him of her marriage and thereafter “hung up on her every time she called”; whereas the wife subsequently claimed that her father had “started showing his acceptance of [the] marriage”. Thirdly, the wife initially claimed that her family (including her father) “did not greet her”; whereas the wife subsequently claimed that her family “welcomed [the applicants] and pretended that they have accepted [the] marriage”. The Tribunal considered that these inconsistencies suggested that the wife had fabricated her claim (CB 276-277 [255]-[233]).    

8. Having regard to its adverse credibility assessment, the Tribunal found that the applicants’ account of the arranged marriage was false. The Tribunal accepted that the marriage certificate (CB 40-41) was genuine, and that the information in it showed that the applicants’ had married in the wife’s home area. The Tribunal was therefore not satisfied that the wife met the “Convention” criterion in s 36(2)(a) of the Act:

   “As the Tribunal has found the applicant’s claims in regard to the arranged marriage are not credible it follows that the claims to fear harm at the hands of the local Jirga, her family and Taliban are not accepted since this harm is claimed to be because of her failure to accept an arranged marriage and to have entered into a marriage of love” (CB 277 [235]-[238]).

9. With respect to the “complementary protection” criterion in s 36(6)(aa) of the Act, the Tribunal accepted that there is a “level of instability” in her home area and that it is “vulnerable to Taliban insurgents”. However, the Tribunal was not satisfied that there was a “real risk” that the wife would experience “significant harm” if she returned there. The Tribunal found that, in any event, she could relocate to a safer area, such as Islamabad, and that it would be reasonable for her to do so. The Tribunal noted that she was a well-educated woman with significant work experience. The Tribunal also noted that she had lived in various cities in Pakistan (including Islamabad) for ten years before coming to Australia, and had not faced any significant harm in any of those cities during that period. Accordingly, the Tribunal was not satisfied that the wife met the criterion in s 36(2)(aa), including having regard to the operation of s 36(2B)(a) (CB 277-278 [240]-[250]).

Judicial Review Grounds

1. The grounds for judicial review set out in the wife’s amended application are:

   1.Denial procedural fairness by coming to pre- judgmental decision.

   2.Failing to give proper attention and consideration by tribunal member on critical ad very important key factors of my appeal.

   (1.)My husband arrival and departure from Melbourne to Islamabad and vice versa in September for our marriage.( evidence attached for review)

   3.My mis-carriage have had occurred during that time frame when I was passing through such a trauma but unfortunately tribunal member did not consider at all which is not just for me but very crucial and important for any woman (miscarriage reports and tests result attached)

   4.Misunderstood my husband statement where he stated that he had organized air ticket for me to travel Australia but did took it alternative as it stated by tribunal that my husband had sent me money to obtain tickets which is totally untrue.

   5.In one instance, the respected tribunal member accepted the marriage took place secretly and all the arrangements have been dome by Sami and Ambreen but o another hand he stated that ( it is not important this ceremony had done to avoid arrange family marriage with the elder brother of my ex-fiance who was killed due to land dispute.)   

   If do so……

   (1)  Why we had performed marriage secretly?

   (2) Why it took place in Islamabad, instead would have done in my hometown Bannu or my husband home town

   (3)Why both the families were not there in this secret marriage?

   6.Misinterpretation by respected tribunal member that delaying my marriage because of land dispute which is not right. In fact I have had stated that my Ex-fiancé was killed because of land dispute by another tribe.

   7.Failed to consider, the emergency travel evidence dated 8^th of October instead of scadualed itinerary from Pakistan by 14^th October 2011.

   8.Failed to provide proper attention to my claim, for example, at one place the tribunal member mentioned about my escape from home town by bus and in another place he stated of a car.

   9.Mis-interpretaion of my claim about the enough money and ticket issue. The Tribunal Member claimed that me and my husband brought enough money while coming to Australia, But my husband was already in Australia when I first came to Australia in 2010.

2. As a model litigant the Minister identified an issue not articulated by the applicants’ which may give rise to jurisdictional error; this being whether the Tribunal complied with its obligations under s.424A. This is dealt with below.

3. The wife filed a submission on 9 April 2014. In this submission she raises numerous concerns (around 17) with the Tribunal’s decision. Many of these arise from what she submits are incorrect records of the evidence by the Tribunal. For example, she maintains the Tribunal member was incorrect (at [36(xii)] of its decision) as her mother helped her to escape to Islamabad by taxi and not by car. Other issues arise from the wife disputing inferences or conclusions the Tribunal drew from the evidence. For example, she states that the Tribunal member (at [117] of its decision) took her education and employment as an act of independence. She disputes this conclusion maintaining she did what she was told by the family. Another category of issues raised by the wife related to her submissions that the Tribunal member failed to properly and fairly consider her evidence. For example, her evidence regarding her arranged marriage and the length of time it took for the arrangement to be given effect to by her parents. Also her evidence explaining the delay between her wedding and visa application and the four month gap between the granting of a visa and her departure from Pakistan. The next category of concerns raised by the wife is the failure of the Tribunal to consider at all, certain evidence; for example, her miscarriage in October 2011 and the subsequent trauma and her husband’s psychological condition.

4. A final category of concern raised by the wife, which I have treated as a claim by the wife that the Tribunal failed to deal with an integer of her claim, is the wife’s complaint that the Tribunal failed to deal with her claim that her fear of persecution (by way of honour killing) arose both because of her family and the whole tribe.

5. As the wife was self-represented, I explained to her at the commencement of the wife’s Court proceedings the nature of judicial review proceedings. I explained that the function of the Court was to examine the decision of the Tribunal and decide whether it had made a ‘legal mistake’ or jurisdictional error. I gave the wife examples of circumstances where jurisdictional error may be found.  I emphasised that the Court’s function was not to consider the merits of her claim. Although the wife was self-represented, she struck me as a passionate and competent advocate for her claims to protection obligations.

6. The wife had many issues to raise with respect to the Tribunal’s decision as is apparent from the applicant submission she filed with her application for review. I attempted to clarify with the wife how the submissions she made fell within the parameters of each of her grounds for judicial review. For example, I clarified with her that with respect to her first ground she was submitting that because the Tribunal did not consider certain documents in the way it should have she was denied procedural fairness. It seems to me that the applicant’s grounds for judicial review can be usefully characterised as:

   a)failure to accord the wife procedural fairness by failing to consider properly, or at all, her evidence;

   b)failure to consider the wife’s claim that she would be persecuted (by honour killing) by her family and her tribe; and

   c)the Tribunal member was biased.

7. It must be emphasised that although I have for the purpose of structuring the wife’s grounds for judicial review, made a distinction between her claims and her evidence, I am conscious of the line of authority commencing with his Honour Justice Robertson’s decision in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT), and developed by the Full Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (MZYTS). The effect of this line of authority may be briefly summarised as follows:

   a)The distinction between claims and evidence is no longer as bright or as encompassing;

   b)The jurisdictional or non–jurisdictional distinction between claims and errors may be disavowed;

   c)Jurisdictional error fundamentally arises from a failure to form a state of satisfaction (one way or the other) required for the purposes of the review in respect of the relevant statutory provisions; in this case the criterion in s.36(2)(a) and 36(2)(aa) of the Act;

   d)the Court is entitled take the reasons of the Tribunal setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings in made. Representing as it does what the Tribunal itself considered important and material, what is present (and what is absent) from the reasons may, in a given case, enable a Court on review to find jurisdictional error;

   e)the fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error;

   f)the fact that the Tribunal referred to a claim or an asserted fact that raised a material question does not necessarily mean it considered that claim or asserted fact. The Tribunal’s reasons must disclose a “consciousness of the contents” of the claim “as opposed to their existence” and an evaluation of the material or a process of weighing evidence and preferring some evidence over the other: MZYTS at [41], [45] and [52].

8. In all cases, other than cases alleging actual bias or bad faith, whether or not the Tribunal failed in its statutory task to review a decision by failing to consider a claim or an asserted fact that raised a material question of fact, must be assessed by reference to the Tribunal’s reasons: Minister for Immigration and Citizenship v SZLSP 187 FCR 362 at 380 per Kenny J (for the majority).

Procedural Fairness ground- failure to consider evidence

1. The wife’s claim articulated in oral submissions is that because the Tribunal misunderstood or failed to consider properly, or at all, evidence she and her husband provided, they were denied procedural fairness.

2. The wife identified the following evidence which she submits the Tribunal failed to consider properly or at all:

   ·      documents being extracts from her husband’s passport disclosing his arrival and departure date from Islamabad which she claimed was proof of their ‘secret marriage’;

   ·      the delay in obtaining a visa, after her marriage, was due to the fact that, as it was a secret marriage, she was required to do all the documentation for her dependent spouse visa on her own rather than relying on her family or in-laws;

   ·      the online ticket obtained by her husband for her travel from Pakistan to Australia. If it was an arranged marriage then her family or in-laws would have arranged the tickets. This was proof that the marriage was secret;

   ·      she denied ever saying to the delegate that she and her husband brought enough money to Australia (as she was recorded as saying to the delegate at CB 261 [46] of the Tribunal decision);

   ·      she told the Tribunal that her admission and attendance at the University of Prashad, Peshawar was all under the guidance and supervision of her family. In finding that she acted independently, the Tribunal overlooked this evidence;

   ·      she questioned why the Tribunal believed in the validity of the Nika Nama (which she claimed was a false document) but do not believe other documents such as the departure and arrival of her husband to Islamabad as disclosed in the extract from his passports;

   ·      the Tribunal overlooked her clarification regarding the time period between the arranged engagement and the decision to marry her deceased fiancé’s brother. The Tribunal failed to take into account that it is a well-known tradition that the elders, in her case her father, decide whether, when and with whom a girl is to be married;

   ·      the Tribunal did not properly consider the evidence that she and her husband’s return ticket from Pakistan to Australia was 13 October 2011. An earlier flight was arranged by her husband on 8 October 2011. This was evidence of her fleeing Pakistan or a fear of persecution at the hands of her family and tribe;

   ·      the Tribunal failed to consider that the stress of fleeing from Pakistan to Australia contributed to her miscarriage in October 2011. The wife maintained that she provided to the Tribunal medical evidence that her miscarriage was caused by stress or trauma.

3. The wife identified the following matters which the Tribunal incorrectly stated in its decision record she had given in evidence:

   ·      the Tribunal stated “she did not want her representative to make oral submissions as she could put her case herself.” (CB273 [186] The wife denied saying this;

   ·      the Tribunal stated that she worked in a family planning clinic when she did not (CB272 [179]). She maintains that although she worked for an organisation she worked in a different project.

4. During the proceedings I explained to the wife that I was unable to make findings as to whether or not the Tribunal’s record of evidence given during the course of the Tribunal’s hearing was accurate because there was no transcript of those proceedings before the Court. The wife made submissions that she could obtain a copy of the transcript. This was, in effect, an application for adjournment of the Court proceedings to provide evidence to the Court. The Minister opposed an adjournment on this basis. Counsel for the Minister pointed out that the consent Orders made by Registrar Caporale on 22 January 2014 provided for the wife to file and serve on or before 5 March 2014, inter alia, “Evidence of the content of any sound recording (to) be presented as a transcript verified by affidavit.” The wife did not do so. Further the Minister states it would be apparent, having regard to the Minister’s Outline of Submissions (at 17]), that the absence of transcript of the hearing was an issue. 

5. I am satisfied the wife was on notice that, if she wished to press her claim that the Tribunal’s record of the evidence given by her was incorrect, she would need to take steps to reduce the sound recording to writing and have it available in the appropriate form for the Court proceeding. In the circumstances, I did not adjourn the proceedings.

6. In relation to her claim that she had provided medical evidence that her miscarriage in October 2011 was caused by stress or trauma, I have carefully examined the Tribunal file (contained in the Court Book) and cannot find such a document.

7. The Minister submits that the wife’s submissions, on the one hand, amount to a requirement that the Tribunal set out every piece of evidence before it and, on the other, invite the Court to engage in impermissible merits review. Neither of these basis, it is submitted, amount to jurisdictional error. For the reason set out below I agree with the Minister’s submissions.

8. The wife, in her oral submissions, particularly emphasised the fact that the Tribunal, in her view, gave insufficient weight to the evidence she provided regarding her husband’s travels to Islamabad. For her, this was proof that their marriage was a secret marriage because, she reasoned, why would her husband travel to Islamabad and not Karachi (his hometown) if the marriage was an open one.

9. It is evident that the Tribunal was aware of the evidence of the husband’s travel and understood the wife’s argument in relation to this material (see CB262 [50]). It is also the case, on a fair reading of the Tribunal’s decision record, that the Tribunal did not expressly refer to this evidence in its reasoning. By contrast the Tribunal focused on other matters which it treated as material facts; such as, the wife’s tertiary qualifications and employment history and the length of time between the alleged engagement and decision that she should marry. As frustrating as it may be for the wife that evidence which she believed was conclusive was not so treated by the Tribunal, the Tribunal was entitled to exercise its powers in this way.

10. In Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR 407 his Honour Justice McHugh stated at [67]:

    “If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged.”

11. The Tribunal’s conclusion that the wife was not credible and her claims untrue are findings of fact: see W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 and Durairajasingham at [67].

12. As held in Toro Martinez v Minister for Immigration & Citizenship [2009] FCA 528 per Rares J at [46]:

    “The Tribunal is not required to address every piece of evidence before it, provided that it considers the intergers of the claim: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at 342 [79] per Allsop J with whom Heerey J agreed. But as French, Sackville and Hely JJ observed in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at 641 [47] “the inference that the Tribunal had failed to consider an issue may be drawn from its failure expressly to deal with that issue in its reasons.” However, they said that where the reasons are otherwise comprehensive and the issue at least has been identified at some point the inference will not be drawn too readily and continued:

    It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

13. In Tefonu Pty Ltd v Insurance & Superannuation Commissioner (1993) 44 FCR 361 Beazley J stated at p.374:

    “The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230, 233-234).”

14. The decision must be “so unreasonable that no reasonable person could have come to it”: see Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 at p.41.

15. The Court does not make that finding in this case.

16. In SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] Collier J stated:

    “Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quinn [1990] HCA 21; (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors.”

    And at [29]:

    “While the appellant may feel that insufficient weight was ascribed to evidence which he considered important, it is clear that:

    ·     the weight given by the Tribunal to evidence before it, both oral and written evidence, is a matter for the Tribunal in its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, and

    ·     if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36], Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510.”

17. I am not satisfied that the complaints by the wife regarding the way in which her evidence was considered by the Tribunal discloses jurisdictional error. I am satisfied that the Tribunal consciously considered her claims or evidence in relation to:

    a)Her claim that she was the subject of an arranged marriage entered into by her family/father; and

    b)Her claim that, in defiance for this arrangement, she secretly married her husband.

18. The Tribunal identified these as material questions of fact necessary for it to address the claims to protection obligations made by the wife.

Integer of claim ground

1. I am satisfied that a clearly articulated claim of the wife to protection obligations was her fear of persecution, by way of honour killing, on return to Pakistan by her family and her tribe because she married her husband in defiance of the arranged marriage.

2. I am not satisfied however that the Tribunal failed to consider her claim that she feared persecution from her tribe because she married her husband in defiance of the arranged marriage. I agree with the Minister’s submission that the wife’s claim to face persecution at the hands of her tribe was premised on the same factual allegations that she feared persecution from her family. These factual allegations were that; firstly, there had been an arrangement for the wife to marry another man; and secondly, that the wife had defied the arrangement by “secretly” marrying the husband.

3. The Tribunal found that:

   ·      the wife’s claim of an arranged marriage was fabricated;

   ·      the wife did not marry her husband in order to avoid an arranged marriage;

   ·       the wife felt no urgency after her marriage to leave Pakistan;

   ·      the wife’s claims about going into hiding after her “love” marriage was not genuine; and

   ·      the wife’s claim that her father threatened to kill her was fabricated.

4. Given these findings, the Tribunal did not accept the claims by the wife to fear harm at the hands of the local tribe (the Jirga).

5. The wife’s claim that she feared persecution from the Taliban arises from her evidence that many of her relatives were Taliban. The persecution from the Taliban also related to tribal prestige (CB268 [128]). Consequently the wife’s claim in relation to the Taleban was inextricably linked to her claim that she entered into a secret marriage in defiance of the arranged marriage. This claim was rejected by the Tribunal.

6. Nevertheless, the Tribunal proceeded to deal with the wife’s claim in respect of the Taliban as if it were a broader claim that she would be caught up in terrorism under the complementary protection provisions. The wife did not press a claim of jurisdictional error in relation to the Tribunal’s consideration of the complementary protection provisions: s.36(2)(aa).

Bias ground

1. The wife’s claim that the Tribunal member was biased arises from her view that the Tribunal member gave weight to evidence, which was not favourable to her claims to protection obligations (such as, the Nika Nama) but failed to give weight to evidence which was favourable to her claims to protection obligations (such as, the evidence disclosing the husbands movements in and out of Islamabad and not Karachi).

2. I agree with the Minister that it is not clear whether the allegation of bias is one of actual or apprehended bias.

3. In order to make out a case of actual bias on a decision-maker’s part, the person alleging bias must establish that, before a conclusion could be properly reached, the decision-maker has made up his or her mind and was incapable of being persuaded differently: see Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at p.531 per Gleeson CJ and Gummow J.

4. A party alleging bias carries a heavy onus. The allegation must be “distinctly made and clearly proved”: see Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (Jia Legeng) at p.531 per Gleeson CJ and Gummow J and 546 per Kirby J. A case of actual bias is seldom made out by reference solely to the decision-maker’s reasons for decision.

5. In Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425 at p.434, the High Court stated (citing Ebner v Official Trustee in Bankruptcy (M131 of 1999) (2000) 176 ALR 644 at p.647 per Gleeson CJ, McHugh, Gummow and Hayne JJ) that:

   “The test for apprehended bias in relation to curial proceedings 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.”

6. The Court refers to the following passage in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]:

   “Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.”

7. Further, the fact that the Tribunal did not believe the wife’s claim is not evidence of bias: see Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 and VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872.

8. There is nothing to show that a “fair-minded lay observer might reasonably apprehend that the Tribunal member might not bring an impartial mind to the resolution of the question to be decided”. Bias has not been established.

9. The Minister submits correctly that the Tribunal was not required to uncritically accept the wife’s claims as genuine and the matters set out at [15] above were matters that could reasonably reflect on her credibility: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at 268 [16] ; Jia Legeng at [72].

10. The Tribunal’s decision record shows that it engaged in a detailed analysis of the relevant evidence. The Tribunal was sensitive in the conduct of the hearing to the needs of the wife and, I am satisfied, took all reasonable steps to provide the wife and husband with an opportunity to give evidence and present their case.

11. I am not satisfied there is any basis for finding the Tribunal prejudged the question of the wife’s credibility, her claims and evidence.

12. I do not find jurisdictional error on this ground.

S.424A  Ground

1. Before dealing with the issues which the Minister identified as matters which may be said to constitute jurisdictional error on the part of the Tribunal, it is appropriate to first set out the relevant statutory provisions.

67.Section 424A of the  Act provides as follows:

Information and invitation given in writing by Tribunal

(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.

(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.

1. S.424AA of the Act provides as follows:

   Information and invitation given orally by Tribunal while applicant appearing

   If an applicant is appearing before the Tribunal because of an invitation under section 425:
   (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
   (b) if the Tribunal does so—the Tribunal must:
   (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
   (ii) orally invite the applicant to comment on or respond to the information; and
   (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
   (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

1. The issue that arises in relation to this case relates to the obligation under s.424A and s.424AA to provide “clear particulars of information”. It can be seen that subsections (2A) and (3) of s.424A provides exceptions to the obligation under s.424A to provide “particulars of information.” A Tribunal is not obliged to provide written particulars of information if it provides those particulars orally at a hearing:s.424A(2A). Further certain specified information does not fall within the scope of the obligation under s.424A (1): s.424A(3).

2. It is accepted that, where an applicant attaches to his or her application a copy of the decision record of the delegate, then that decision record is to be treated as falling within the exception of s.424A(3)(b).

3. In SZNKO v Minister for Immigration and Citizenship [2010] FCA 297 (SZNKO) his Honour Flick J, relying on the observations of the High Court in SZBYR v Minister for Immigration and Citizenship[2007] HCA 26 at [17] to [19], said at [7]:

   “Information” for the purposes of s 424A does not extend to information provided by an applicant in support of a claim for a protection visa or the “thought processes” of the Tribunal itself”

4. Flick J observed that s.424AA does not itself create obligations on the Tribunal but rather [8]:

   “…is an enabling provision which permits the Tribunal, if it wishes, to give particulars at an oral hearing”: SZMUK v Minister for Immigration and Citizenship [2009] FCA 1372 at [22] per Perram J.”

5. His Honour noted that the evolution of these two provisions has been recounted by Tracey and Foster JJ in SZMCD v Minister for Immigration and Citizenship[2009] FCAFC 46, 174 FCR 415 at 429 to 430 who then observed:

   [71] The policy and purpose reflected in s 424A is that the Tribunal should be compelled:

(a) To put the visa applicant on fair notice in writing of critical matters of concern to the Tribunal;
(b) To ensure that the visa applicant understands the significance of those matters to the decision under review; and
(c) To give the applicant a reasonable opportunity to comment on or to respond to those matters of concern.

[72] It is evident that the same policy and purpose underpin s 424AA.

1. In SZNKO the “information” being considered within the context of section 424AA was correspondence the Tribunal member was aware of as a consequence of another letter he had come across in an unrelated preceding. The applicant in SZNKO was seeking to rely upon a letter supporting his claim that he was a Christian. The Tribunal member referred to the other letter, stating it was substantially the same as the letter the applicant sought to rely on and that his concern was whether the letter relied on by the applicant was a ‘ made to order’ one. In its reasons for decision the Tribunal found that the applicant did not give a truthful and credible account of his past experience. Its concerns as to the reliability of the letter “only fuelled the reservations that the Tribunal member had formed about the present (applicants) credibility” (at [14]).

2. In the Tribunal proceedings, the member referred to another case he was reviewing in which another person from Bangladesh had provided a letter from a different union Council signed by different person. The Tribunal member stated to the applicant “Apart from the parts of this letter that identify you, that letter is identical to this letter. It uses identical phrasing and some of it is quite unusual phrasing.”: SZNKO at [15].

3. It is evident that the applicant in SZNKO was not provided with the copy of the letter referred to by the Tribunal member, the source of the letter was referred to in only general terms and the content of the letter described as being identical to the letter the applicant provided.

4. The issue before the Court was whether the correspondence referred to by the Tribunal member was “information” within the meaning of section 424A.

5. His Honour relevantly stated at [20] to [23]:

   “20. It is not considered that “information” falling within s 424A was intended to be confined to the similarity in the content of the two letters such as to provoke concern as to whether the letter relied upon by the now Appellant was “made to order”. The content of the two letters and the similarity in their content, it has been correctly concluded, “would be ... part of the reason, for affirming the decision” to refuse the visa. The similarity in the two letters was, at the very least, part of the basis upon which the Tribunal Member expressed the concern that they may have been “made to order”.

   21.   But “information” for the purposes of s 424A in the present proceeding is not to be so confined.

   22.   Moreover, and irrespective of whether it is s 424A or s 424AA which is the means invoked whereby “information” is communicated to an applicant, both s 424A(1)(a) and s 424AA(a) impose the requirement that “clear particulars” of the information in question be “give[n]”.

   23. There may be circumstances in which the requirement to “give” information to which s 424A applies may not extend to a requirement to disclose the entirety of any document in which such “information” is contained. In those cases it may not matter for the purposes of making a decision affirming a refusal of a protection visa that the “information” in question is but part of a document or report touching other matters or containing diverse other matters. In those cases the disclosure of that specific part of a much lengthier document may be sufficient. But “information” for the purposes of s 424A cannot in all cases be clinically divorced from the context it which it appears. How much of that surrounding context must also be disclosed must necessarily depend upon the facts and circumstances of each individual case. In some cases it may be necessary to identify the “source” from which information has been obtained. Thus, in SZLIQ v Minister for Immigration and Citizenship [2008] FCA 1405 Buchanan J concluded that extracts from a published book and the source of that material should have been disclosed. Indeed, the extent of disclosure may not necessarily be confined to the disclosure of material which ensures that a particular part is not rendered misleading; the touchstone is that s 424A and s 424AA require the disclosure of so much as to ensure that the opportunity to “comment... or respond...” is meaningful. In some cases the disclosure of the “substance” of information may be sufficient (NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99 at [33]); in other cases “clear particulars” may require more.”

6. His Honour concluded at [25] to [27]:

   “25. But in the present proceeding and where the “information” is contained within a comparatively short letter which has come to the attention of a Tribunal Member, and which was presumably readily available, it is respectfully considered that details as to who wrote that other letter, the capacity of the person who wrote that letter and its date must be disclosed if “clear particulars” of that letter are to be given. Other than the similarity in the content of the two letters, the only other “particulars” disclosed in respect to that other letter are that it emanated “from a different union council” and was “signed by a different person”. That is not sufficient in the present case.

   26.   Although the concern of the present Tribunal Member that such letters can be “made to order” may not be without substance, such limited procedural protections as remain within Part 7 Division 4 of the Migration Act are to be given full force. Sections 424A and 424AA ensure that the decision-making function of the Tribunal in respect to “information” that forms “a part of the reason” for affirming the decision under review is assisted by an applicant’s “comment ... or respon[se]”.

   27.   A meaningful opportunity to “comment ... or respond” in the present proceeding required the disclosure of information that was withheld. An explanation may have been forthcoming if the applicant had been told more about the other letter that the Tribunal Member had come across. The reservations of the Tribunal Member, especially given his other concerns as to the credibility of the now Appellant, may not have been misplaced. No further “comment ... or respon[se]” may in fact have been forthcoming. But the opportunity to “comment ... or respond” is the very procedural safeguard which enables an applicant to at least have an opportunity to address those reservations. An opportunity to “comment ... or respond” to the other letter is only a meaningful opportunity if there has been disclosure of such particulars as enables an applicant to put that other letter into context. Letters in the same terms, but dated years apart, may be more difficult for an applicant to explain (for example) than letters written relatively contemporaneously in much the same circumstances.”

7. There are two classes of information which the Minister has identified which were given by the Tribunal during the course of its proceedings to the wife which could be said to be a reason, or part of the reasons, for the Tribunal affirming the decision under review. The issue for determination is whether the Tribunal gave the “clear particulars” of the information.

8. The first class of information is a chronology, apparently prepared by the Department, in relation to the wife and husband (CB39). The chronology  records the following information in relation to the wife:

   “19 March 2009 apply for TU572”

9. The reference to “TU572” is a reference to the spouse visa. It is to be recalled that the date of the wife and husband’s wedding was 27 September 2008. In its decision record, the Tribunal placed significance on the fact that there was a gap of 6 months between the date of the marriage and the application by the wife or spouse visa (CB 275 [211]) when it stated:

   “211.     Thus there was a gap of 6 months from the wedding before she applied for the visa and a further gap of over 4 months from the time the visa was granted to the time she left Pakistan. This does not lead the Tribunal to a finding of a well- founded fear for the reasons of a refusal to enter into an arranged marriage. Instead it leads to a finding that the primary applicant felt no urgency to leave Pakistan”.

10. As the Minister points out the only information given by the applicant regarding her application for a spouse visa was in her response to the invitation from the Department to comment on information, wherein she stated (at CB 110):

    “I applied for my Visa in early 2009”

11. A copy of the chronology was not provided to the wife or husband either prior to or during the proceedings. There is no dispute that the Tribunal member did not inform the wife or husband during the proceedings that the date she applied for the spousal visa was, according to the departmental records, 19 March 2009.

12. I am satisfied the Tribunal did not give the wife information of the actual date of her application for spousal visa nor did the wife give the Tribunal this information. In that sense, clear particulars were not given.

13. However, I agree with the Minister’s submissions that the reason, or part of the reasons, for the Tribunal affirming the decision under review arose from the delay between the wedding date and her application for spousal visa and the delay between the granting of the spousal visa and her arrival in Australia. This delay, of a period of around 10 months, caused the Tribunal to find against the applicant’s claim that her refusal to enter into an arranged marriage caused her to fear persecution and consequently leave Pakistan.

14. The applicant had given evidence both of her wedding date, 27 September 2008 and that she applied for the spousal visa in early 2009. It is reasonable to conclude that she gave information to the Tribunal that there was a gap between her wedding date and her application for the spousal visa. It can be safely inferred that the applicant knew this was at least a minimum of three to four months delay. The applicant gave the Tribunal information on the grant of her spousal visa on 25 September 2009 and her arrival in Australia on 2 February 2010 (CB83). Consequently, she also gave information to the Tribunal that there was a gap between the grant of the spousal visa and her departure from Pakistan.

15. I am satisfied that the precise date of the wife’s application for spousal visa did not, in itself, constitute information which would be a reason, or part of the reasons, for the Tribunal affirming the decision under review. It was the delay of some months between her wedding date and her application for a spousal visa that would be a reason, or part of the reasons, for the Tribunal affirming the decision under review.

16. Consequently, I am satisfied the Tribunal did give the applicant clear particulars of information which would be a reason, or part of the reasons, for the Tribunal affirming the decision under review.

17. The second class of information relates to the issue of financial support provided to the husband by his parents. The wife and husband claimed that a reason for the time it took for the wife to leave Pakistan, after she was granted a spousal visa, was that they could not afford the airfares. The Tribunal did not accept this explanation. As is apparent, this delay was treated by the Tribunal as a material question of fact which caused it to find there was no urgency in the wife leaving Pakistan. This absence of urgency led the Tribunal to disbelieve the wife’s claim she fled Pakistan because she feared persecution by her family in the form of an honour killing.

18. The provision of financial support by the husband’s parents was first raised by the delegate of the Department in correspondence to the wife dated 27 April 2012. The delegate stated (CB105):

    “During your interview you also stated that your husband’s family withdrew their financial support for him in 2010 after they were advised of your marriage.

    However, information before the department indicates that (the husband’s) parents continued to provide financial support for him in 2010 and 2011….”

19. The information referred to by the Department were two letters; one under the husband’s mother’s name and dated 19 January 2011, and the other, under the husband’s fathers name and dated 12 December 2010 (CB43 to 44). These letters were provided by the husband to the Department in the course of different proceedings; namely, his application for a student visa. The copies of the letters in the Court Book are not very clear, indeed the letter from the mother is impossible to read. The letter from the father begins by stating that he will support his son for all expenses relating to his studies.

20. Copies of these letters were not provided to the wife or husband by the delegate in the course of its consideration of the application for protection visas.

21. In its decision, the delegate stated (at CB127):

    “Letters from (the husband’s) father dated 6 December 2010, and mother, dated 19 January 2011 (see folio 79-81), submitted in support of the husband’s applications indicate that they are providing financial support to the husband. The letters were provided after (the wife) stated they were informed of the couple’s marriage. This contradicts (the wife’s) claims that (the husband’s) withdrew financial support in response to the news of their marriage.”

22. In its decision record, the Tribunal described the manner in which it referred to these letters and the husband’s responses as follows (CB266 [99] to [101]):

    “99.   The Tribunal put to (the husband) that there appeared to be an issue in that regard too. It reminded him that the delegate had pointed out that there were two letters of financial support after the date he had claimed his parent’s found out about the marriage.

    100.  In regard to the letter from his father he admitted that the letter dated 6 December 2010 had been written and signed by his father but, he said that his father had done that so that he could continue to have his visa but, in fact his father had stopped providing any financial support.      

    101. In regard to the second letter, dated 19 January 2011, from his mother the secondary applicant said the letter was fraudulent.”

23. Copies of these letters were not provided by the Tribunal to the husband and wife during the course of the review proceedings.

24. The Tribunal later found that the wife and husband did have the finances for her to travel immediately after the marriage, subject to having obtained a visa, if she had wanted to (CB275 [209]). The Tribunal made this finding having regard to its findings of fact that the wife continued to work after the marriage and they had financial support provided by the husband’s parents (CB275 [214] to [217]):

    “214.    Her husband was in receipt of financial support from his parents and together, I find they could have raised the funds for the airfare.

    215.  The (husband) has claimed that his parents cut him off financially after they married. However, this is contrary to the letter of financial support from his parents which the Tribunal accepts as genuine.

    216.  Although the secondary applicant, the husband, has claimed that one letter is fraudulent and the other was provided solely to enable him to keep his student visa the Tribunal does not accept this is the case.

    217.  The Tribunal does not accept the secondary applicant’s account that his father, angry enough to financially cut his son off, would at the same time be benevolent enough to allow him to study.”

25. The Minister submits that the Court must first determine what is the nature or characterisation of the information that the Tribunal thought would have been a reason for affirming the decision under review. The Minister submits that the answer to this is the fact of the provision of financial support by the husband’s parents and nothing more. This is, the Minister argues, despite the fact that the information was contained in a more specific or enriched form in those documents.

26. There is no dispute that the provision of financial support from the husband’s parents would be a reason or part of a reason for the Tribunal’s decision to affirm the decision under review.

27. The question before the Court is whether the obligations under s.424A and s.424AA to give “clear particulars of information” was satisfied by the provision by the Tribunal of information that the husband’s parents had written letters of financial support for the husband.

28. In SZNKO his  Honour Flick J observed that identifying the scope of the obligation to give clear particulars of the information should not in all cases be clinically divorced from the context in which it appears and that how much of the surrounding context must be disclosed depends on the facts and circumstances of the individual case. His Honour held that the “touchstone is that s.424A and s.424AA require the disclosure of so much as to ensure that the opportunity to “comment or respond” is meaningful.” (at [23]).

29. The circumstances in this case are as follows. The wife claims that she fled Pakistan because she feared persecution (honour killing) by her family and her tribe because she married her husband for love in defiance of an arranged marriage. The Tribunal, during the course of the hearing, informed the wife and husband that it was concerned that the delay by the wife in first, obtaining a spousal visa after their marriage and secondly, leaving Pakistan after she obtained the visa, suggested there was no urgency in her departure from Pakistan as she alleged. In relation to the delay between obtaining the visa and leaving Pakistan, the wife and husband explained that they did not have the finances to pay for an airfare. The Tribunal did not accept this explanation because it found that the wife had worked up until she left Pakistan and because the husband’s parents had provided the husband with financial support.

30. The finding of fact that the husband had financial support from his parent’s after the couple’s marriage was a critical reason for the Tribunal not accepting the wife and husband’s explanation for the delay in leaving Pakistan after she was granted a spousal visa.

1. The information regarding financial support was first brought to the husband and wife’s attention when the delegate wrote to them inviting them to comment on adverse information. The reference by the delegate to the information was in very general terms: see [91] above. In his decision refusing to grant the wife and husband the visas, the delegate referred to the source of the letters and the dates they were written: see [94] above. In the course of the hearing, it is apparent from the Tribunal’s decision record, that the Tribunal member reminded the husband of the delegate’s findings that there were two letters of financial support from his parents after the date he claimed they had ceased providing financial support. The husband responded that the letter from his mother was fraudulent and the letter from his father was written only for improper purposes.

2. The Tribunal held that both letters were genuine. The Tribunal does not set out its reasons for making this finding. It may have been that it formed this view having regard to the format, wording or other content of the letters which could only be discerned by visually sighting the documents in question. It may be the Tribunal formed this view for a reason or reasons completely unrelated to these matters.

3. In the context where the husband was claiming the letters were not genuine and the Tribunal found they were and where, in addition, this finding was a critical one to the Tribunals disbelief of the wife’s claims, I am satisfied that a meaningful opportunity to comment or respond to the information required the husband and wife be provided with copies of the letters. The Tribunal did not do so. Consequently, I find that the Tribunal did not, as it was required to do, under s.424A(1)(a) and s.424AA(a) give clear particulars of information which would be a reason or reasons for the Tribunal affirming the decision under review.

4. In failing to comply with s.424A, the Tribunal fell into jurisdictional error.

Conclusion

1. For the reasons set out above I would issue an order in the nature of certiorari quashing the decision of the Tribunal dated 1 October 2013 and order the matter be remitted to the second respondent requiring it be determined according to law.

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate: 

Date:  7 November 2014