MZZWO v Minister for Immigration
[2014] FCCA 3007
•10 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZWO v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 3007 |
| Catchwords: MIGRATION – Whether the Tribunal erred in failing to take into account the Guidance on Vulnerable Persons – whether the Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth) – Guidance document not a mandatory consideration – no failure to comply with s.424A of the Migration Act 1958 (Cth) as s.424A(3)(a) applied. |
| Legislation: Migration Act 1958 (Cth), ss.420, 420A(1), 424, 424A(3), 430, 499 |
| Applicants M16 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs and Anor (2005) 148 FCR 46 Migration Review Tribunal and Refugee Review Tribunal, “Guidance on Vulnerable Persons”, June 2014 |
| Applicant: | MZZWO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 2074 of 2013 |
| Judgment of: | Judge Whelan |
| Hearing date: | 10 November 2014 |
| Date of Last Submission: | 10 November 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 10 November 2014 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr Wood |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The Amended Application filed 14 October 2014 be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2074 of 2013
| MZZWO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As revised from transcript)
This is an application[1] for judicial review of a decision made by the Refugee Review Tribunal (“the Tribunal”) to affirm a decision made by a delegate of the Minister to refuse to grant the Applicant a Protection (Class XA) visa.
[1] Application filed 29 November 2013.
Background
The Applicant is a national of Pakistan. He arrived in Australia on
27 January 2011 on a student visa. That visa expired on 6 January 2012. He applied for a further student visa but this was refused on
3 July 2012. The Applicant then applied for a protection visa on 27 November 2012. He was over the age of 18 at the time he made his application.
On 25 February 2013, his application was rejected by a delegate of the Minister. On 1 April 2013, he lodged an application for review of that decision with the Tribunal. He was invited to appear before the Tribunal on 24 September 2013. At that hearing he was represented by a migration agent. On 22 October 2013, the Tribunal affirmed the decision of the delegate and on 28 November 2013, the Applicant lodged this application for a review.
The Applicant’s claims
The Applicant claimed protection on the basis of a fear of harm in Pakistan because of his political opinion and on a complementary protection basis. He claims that he was involved in a political movement known as the All Pakistan Mohajir Student Organisation, (“the APMSO”), while he was a student in Pakistan and was joint in charge of the Adamjee Government College APMSO branch.
The Applicant also claimed to be a close friend of K, a prominent Pakistani political figure with whom his father grew up. K was a senior member of the political movement known as MQM-A but left it in 1991 and founded his own party known as MQM-H in 1992. MQM-H ended after the split of the two leaders in 2006 and, in May 2011, K announced he was rejoining MQM-A.[2]
[2] Applicant’s Outline of Submissions filed 14 October 2014, p.1 at para.5.
The Applicant claimed to regularly visit K in gaol when the Applicant was a child together with K’s nephew: “The Applicant claims that on one occasion after such a visit he and [K’s nephew] were blindfolded and kidnapped for about 12 hours. The Applicant was a minor at the time”.[3] He says he was “tied to a chair and beaten. Lit cigarettes were rubbed into his arm, among other things”.[4] The Applicant also claimed he was “threatened and told not to go to the hospital or to police”.[5] The Applicant claims that they were later dropped off by car in a location near his house where he was found by his younger brother.
[3] Ibid, p.2 at para.7.
[4] Ibid.
[5] Ibid.
The Applicant made other claims to have been kidnapped and tortured by political opponents. K’s nephew was shot dead in March 2011, a few months after the Applicant arrived in Australia. The Applicant’s father also came to Australia from Pakistan in 2012 and lodged a separate protection visa application.
The Tribunal decision
The Tribunal, in its decision, found that the Applicant was not a credible witness or a witness of truth.
In particular, having regard to ‘considerable and serious concerns with the applicant’s contradictory, vague and inconsistent evidence on key parts of his claims’, the Tribunal found that it could not rely on any evidence given by the applicant in support (sic)his claims (CB 90 [27]).[6]
[6] First Respondent’s Submissions filed 3 November 2014, p.2 at para.5.
The Tribunal identified a range of factors that caused it to form an adverse view of the Applicant’s credibility. Among those factors included the Applicant’s:
·Inconsistent evidence about incidents of past persecution;
·Inconsistent and unconvincing evidence about K and his late nephew; and
·Limited knowledge of relevant political organisations.
The Tribunal “accepted that the applicant had some scarring, but rejected the applicant’s claim that the scarring had been inflicted on him by others, such as by torture (CB 90 [26])”.[7]
[7] Ibid, p.3 at para.8.1.
It also rejected the Applicant’s claims that he had “a familial or other relationship” with K and found that he could not have “been associated with any other persons who were politically active (CB 95 [26], 96 [40])”.[8]
[8] Ibid at para.8.2.
The Tribunal found that the Applicant had “never been a member of APMSO or related political organisations, and that he had not been politically active in Pakistan or Australia (CB 96 [40])”.[9] The Tribunal found the Applicant did not face a “real chance of suffering from violence in Karachi for speaking Urdu for being a Mohajir (CB 97 [45])”.[10]
[9] Ibid at para.8.3.
[10] First Respondent’s Submissions filed 3 November 2014, p.3 at para.8.4.
Grounds of Review
The Applicant raised two grounds in his amended application for review:[11]
·Ground 1 is that the Tribunal erred by failing to take into account a relevant consideration in the ‘Peko-Wallsend’ sense[12] being the Guidance on Vulnerable Persons (“the Guidance document”) published by the Tribunal in June 2012; and
·
Ground 2 is that the Tribunal failed to comply with its obligations under s.424A of the Migration Act 1958 (Cth)
(“the Act”) by failing to give the Applicant an opportunity to respond to information that the Tribunal relied upon to make a finding that it is a “combination of ethnicity and political affiliation which leads to most of the violence in Karachi”.[13]
[11] Amended Application under the Migration Act 1958 filed 14 October 2014.
[12] See Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
[13] Amended Application under the Migration Act 1958 filed 14 October 2014, p.2 at para.2.
The Applicant submitted that there were two reasons which were known to the Tribunal which required that the Applicant was entitled to the benefit of the Tribunal’s the Guidance document, namely his age and his psychological condition:
·First, the Applicant submits that he was born on 21 February 1994 and that his claims for protection related to a period when he was aged between seven and 16 years of age. He arrived in Australia at the age of 16 and had only recently turned 18 at the time of his protection visa application; and
·Second, the Applicant gave evidence to the Tribunal that he was:
‘very mentally stressed’, ‘very upset’, ‘mentally stressed’, ‘totally mentally stressed’, ‘very mentally sick’ and ‘totally out of my mind’.
On their own, or in combination these factors meant that the Tribunal’s own Guidance was a relevant consideration in the Peko‑Wallsend sense. The failure of the Tribunal to consider that Guidance led it into legal error.[14]
[14] Applicant’s Outline of Submissions filed 14 October 2014, p.3 at para.16.
The Applicant, in written submissions, refers to a number of matters contained within the Guidance document but does not specifically indicate which of those matters the Applicant relies upon in claiming that he was eligible to the benefit of the Guidance document. The Applicant submitted that the Tribunal was required by law to consider the Guidance document.
In particular, the Tribunal ought to have considered:
·The “immature perspective” the Applicant brought to the claimed incidents of past persecution;
·The availability of the Applicant’s father attending to “assist and support the Applicant”; and
·The “incoherence of some of the evidence given by the Applicant being an indication of [his] vulnerable status”.[15]
[15] Ibid, p.6 at para.23.
The Applicant referred to the following cases in support of his application:
·Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 24;
·Re Slavko Nikac and Ors v Minister for Immigration, Local Government and Ethnic Affairs (1988) 20 FCR 65 at pp.81-82;
·Applicants M16 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs and Anor (2005) 148 FCR 46 at 48-49 (“Applicants M16”); and
·MZXFJ v Minister for Immigration and Multicultural Affairs and Anor [2006] FMCA 1465 (“MZXFJ”).
The First Respondent’s Submissions
The First Respondent, in response to Ground 1, submitted that the Applicant must contend that the Act imposed a mandatory requirement on the Tribunal to consider the Guidance document and that it was “incumbent on the applicant to identify the source of the alleged mandatory requirement in the Act”.[16] The First Respondent submitted that it appears that the Applicant seeks to “imply that the Guidance Document forms part of a direction by the Principal Member of the Tribunal under s 420A of the Act … But if that implication is sought to be made, then it should be rejected.”[17]
[16] First Respondent’s Submissions filed 3 November 2014, p.4 at para.10.
[17] Ibid, p.4 at para.11.
The Guidance document was not issued by the Principal Member under s.420A of the Act, nor was it incorporated into the Principal Member’s Direction 04:
The only reference in that direction to the Guidance Document is a sentence … which gives certain directions to the Tribunal hearing cases involving a review applicant who is a child (‘that is, under 18 years of age’).
…
Furthermore, even if the Principal Member did, in Principal Member Direction 04, direct the Tribunal to comply with the Guidance Document in cases involving a review applicant who is a child,
which, in this case, the Applicant was not,
and even if that direction applied to the review applicant in this case … that would not assist the applicant’s argument in this case.[18]
[18] Ibid at paras.12-13.
Section 420A(3) of the Act provides that non-compliance by the Tribunal with a direction under s.420A(1) of the Act does not mean that the Tribunal’s decision on a review is an invalid decision:
Furthermore, in SZGLH [sic] v Minister for Immigration and Citizenship, the Federal Court held that the status of a principal member direction under s 420A was akin to that of a practice direction of a court, and … ‘is not of any relevance to the question of jurisdictional error’.[19]
[19] First Respondent’s Submissions filed 3 November 2014, pp.4-5 at para.13.
The First Respondent submits that the Act imposed “no requirement on the Tribunal to consider the Guidance Document”.[20] The only source of power in the Act for giving of binding directions in the manner to which the Tribunal is to perform its functions is contained in s.499 of the Act which:
[A]uthorises the Minister to give binding directions that are not inconsistent with the Act or the regulations … the Guidance Document is not a direction that has been given by the Minister under s 499.[21]
[20] Ibid, p.5 at para.15.
[21] Ibid.
The First Respondent referred to the decision of Riley FM, as her Honour then was, in M100 of 2004 v Minister for Immigration and Citizenship (2007) 213 FLR 63 (“M100 of 2004”) in relation to a comparable set of guidelines, where her Honour said the guidance document was “prepared by public servants for the guidance of other public servants. It is axiomatic that such a document cannot bind the Tribunal”[22] and there is nothing in the Act that “expressly or impliedly”[23] requires the Tribunal to consider guidelines of that nature.
[22] (2007) 213 FLR 63, p.97 at para.90.
[23] Ibid, p.99 at para.102.
The First Respondent submits that each of the cases cited by the Applicant was “expressly, and correctly, distinguished by Riley FM in M100”.[24] That is, each of those with the exception of the decision of McGuinness FM in MZXFJ which the First Respondent dealt with separately. The First Respondent submitted that the Court should follow the decision in M100 of 2004 and that at least two judgments of this Court had supported that finding.
[24] First Respondent’s Submissions filed 3 November 2014, p.5 at para.17.
The First Respondent took the Court to the judgment of McGuinness FM in MZXFJ where his Honour, in considering the gender guidelines, expressed the view that they go beyond procedural issues and, where it appeared to rely on the judgment of Gray J in Applicants M16 to support the proposition that they ought to be properly regarded as relevant in a ‘Peko-Wallsend’ sense.
His Honour also relied on the decision of the Full Court of the Federal Court in SAAK v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 185 (“SAAK”) to support the proposition that the guidelines ought to be expressly referred to and the Tribunal decision should provide evidence that the guidelines had been followed. The First Respondent submitted that on a proper reading of Applicants M16, Gray J does not state that the guidelines were relevant in the
‘Peko-Wallsend’ sense and that Riley FM had dealt with Applicants M16 appropriately in her decision in M100 of 2004.
It was also submitted that SAAK did not stand for the proposition suggested by McGuinness FM and the proper approach was that expressed in the judgment of Gummow J in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594. At paragraph 69 of that judgment, his Honour said:
Contrary to the reasoning in the Federal Court, para (b) of
s 430(1) does not create any requirement that the Tribunal record generally “what it did” in conducting its review, and does not require the Tribunal, in every case, to describe or state the procedural steps taken by it in reviewing the relevant decision.The First Respondent went on to say, in any event, the Court should not infer that the Tribunal did not consider the Guidance document. The Tribunal was only required, by s.430 of the Act, to set out its finding on those questions of fact which it considered to be material to the decision which was made and to the reasons it had for reaching that decision. If the Tribunal formed the view that the Guidance document was inapplicable or if the Tribunal formed the view that the Guidance document was applicable and applied it, then it would not have been obliged to record that view in discharging its obligations under s.430 of the Act.
The First Respondent submits that:
It would have been open to the Tribunal to form the view that the Guidance Document was inapplicable. The applicant was not a ‘child’ within the meaning of the Guidance Document at any point in time during the application or review process. While the applicant may have been a ‘young person’ in a general sense, the Tribunal may not have accepted that his youth made him ‘vulnerable’ in the sense that he was not ‘able to fully comprehend the context of the review’ or that he had not ‘developed the capacity or the knowledge to understand the wider implications for [him] of the review’. Certainly, there was no medical evidence that the applicant was suffering from any ‘physical, mental, psychological or intellectual condition or disability’. Accordingly, the absence of any reference in the statement of reasons to the Guidance Document does not demonstrate that the Tribunal failed to consider the question of the potential applicability of the Guidance Document; it is consistent with the proposition that the Tribunal considered that question and formed the view that the Guidance Document was inapplicable.[25]
[25] First Respondent’s Submissions filed 3 November 2014, p.6 at para.20.
Further, even if the Guidance document was applicable, it is “not prescriptive as to the manner in which the Tribunal should conduct a review”.[26] It merely states that it “sets out a number of procedural approaches that the Tribunal ‘may’ adopt in relation to vulnerable persons, and that identified procedures ‘may not be appropriate in all cases’ ”.[27]
[26] Ibid, p.7 at para.21.
[27] Ibid.
It suggests certain measures that may be considered to assist in the taking of evidence from a vulnerable person:
The Guidance Document identifies a range of ‘strategies’ that the Tribunal ‘may’ deploy where review applicants exhibit ‘constraints’ on their ‘ability to participate in the review process’ (paragraph [45]). But in this case there is no evidence that the applicant ever expressed or experienced any particular difficulty in participating in the review process. Nor is there any evidence that the Tribunal member was insensitive to the applicant, or mindless as to the difficulties involved in giving evidence.[28]
[28] Ibid.
The Tribunal advised the Applicant that:
·He could take a break at any time:
·It was very important that the Applicant understood questions he was being asked and information being put to him; and
·He could seek more time if he could not respond immediately.
In addition, the Applicant was assisted by a representative throughout the hearing.
With respect to Ground 2 of the application, the Applicant submitted that s.424A of the Act requires that the Tribunal put certain adverse information to the review applicant, and to provide the review applicant an opportunity to comment on any such information. The Applicant submitted that the Tribunal member failed to fulfil this obligation by failing to put to the Applicant the substance of the information and the conclusion it reached on the basis of that information, namely, “that ‘it is a combination of ethnicity and political affiliation which leads to most of the violence’ in Karachi”.[29]
[29] First Respondent’s Submissions filed 3 November 2014, p.7 at para.23.
The Applicant submits that this is not merely a technical breach of procedural fairness. This conclusion was used as a basis to reject the Applicant’s claim to complementary protection, and had the Applicant been made aware that the member would base his decision, in part, on this information, he would have taken the opportunity to respond to it.
With respect to Ground 2, the First Respondent submits, the information referred to was characterised by the Applicant as country information. That information is not information specifically about the Applicant or another person, and therefore is covered by the exception to the general duty in s.424A(1) of the Act, which is set out in s.424A(3)(a) of the Act and, therefore, there was no failure to apply those provisions.
Conclusions
As the First Respondent submitted, the Guidance document was not a document issued by the Principal Member of the Tribunal under s.420A of the Act, and nor was it a direction given to the Tribunal by the Minister under s.499 of the Act. As only a direction issued by the Minister under s.499 of the Act could be mandatory, there is no provision within the Act which would mandate the Tribunal to take the Guidance document into account.
I am satisfied that the Guidance document falls into the same category as the gender and credibility guidelines considered by Judge Riley in M100 of 2004. I am satisfied that Judge Riley was not plainly wrong in that case and have previously followed that decision myself in MZZOG and Ors v Minister for Immigration and Border Protection and Anor [2014] FCCA 1901. At paragraph 64 of that decision I said the following:
I am satisfied that the contentions of the Applicants with respect to ground one of the application raise nothing to persuade me that the determination of Riley FM (as she then was) in M100 of 2004 is not applicable to the circumstances of this case. In that matter, her Honour made the following observations with respect to the predecessor Credibility Guidelines:
The credibility guidelines were published by the Tribunal itself. However, that does not mean that the credibility guidelines bind a particular Tribunal member in making a decision about a particular case. The credibility guidelines begin with the words, “This paper sets out general guidance concerning the assessment of credibility by” the Tribunal. It contains statements of general principle rather than directions on the particular decision that should be made in a case having particular features.
And further:
In my view, the Act does not expressly or impliedly require the Tribunal to have regard to the gender guidelines or the credibility guidelines. The gender and credibility guidelines consist of statements of general principle and educational guidance about matters including the demeanour of the Tribunal. I do not perceive anything in the Act that expressly or impliedly requires the Tribunal to consider guidelines of that nature, such that a failure to do so would vitiate the Tribunal’s decision.[30]
[30] [2014] FCCA 1901, p.24 at para.64.
With respect to the decision of McGuinness FM in MZXFJ and, in particular to paragraph [48] of that judgment, I refer to the findings of Riley FM in M100 of 2004 and in particular to the following parts of that judgment. In paragraph 90, her Honour said:
The gender guidelines were prepared by public servants for the guidance of other public servants. It is axiomatic that such a document cannot bind the Tribunal or fetter its discretion. The Parliament has invested the Tribunal with the power to determine refugee claims. The Parliament, in s.499 of the Act, has given the Minister the power to publish binding guidelines. The gender and credibility guidelines were not published under s.499 of the Act and are not binding on the Tribunal.[31]
[31] (2007) 213 FLR 63 p.97 at para.90.
Her Honour went on to consider the cases that had been referred to in that matter by the Applicant and, in particular, the decision of Gray J in Applicants M16, a case referred to by McGuinness FM. At paragraphs [94] and [95] of the judgment she says as follows:
Gray J in M16 of 2004 said at [48], in relation to the gender guidelines, that:
It would be anomalous, if not offensive to reason, to suggest that the Tribunal could ignore guidelines prepared for the benefit of officers of the Department when exercising powers as delegates of the Minister.
His Honour went on to find that a jurisdictional error had been made in that case consisting of a failure to afford procedural fairness in circumstances where it was considered that a woman who claimed to have been the victim of sexual violence was inhibited from giving a full account of her experiences. There can be no doubt that a failure to afford procedural fairness is a jurisdictional error.[32]
[32] Ibid at p.98.
That is consistent with what Gray J said in Applicants M16, where his Honour says the following at paragraph 49:
The gender guidelines are not some heavy-handed regime imposed on decision-makers as a result of the adoption of some particular policy position. Nor can they be reduced to the status of ideals, promulgated to the public, but ignored by decision-makers whenever their application would give rise to inconvenience. They represent nothing more or less than the recognition of the appropriate way in which to deal with the difficulties some people have in expressing themselves publicly about some matters, as a result of cultural constraints. The Tribunal does not afford a proper hearing to a person when it fails to give that person an opportunity, readily available, to communicate about such matters.[33]
[33] (2005) 148 FCR 46, p.59 at para.49.
I am satisfied that way the matter is dealt with by her Honour in M100 of 2004 and by Gray J in Applicants M16 does not support the contention in paragraph 48 of the decision of McGuinness FM that the judgment in Applicants M16 provides a basis for finding that guidelines such as the credibility guidelines, the gender guidelines or, in this case, the guidelines with respect to vulnerable persons ought to properly be regarded as relevant in the ‘Peko-Wallsend’ sense, that is, to an application under consideration by the Tribunal.
Further, I accept the finding of Riley FM that the correct conclusion from the decision in SAAK is that it is not necessary for the Tribunal to set out in its reasons each of the principles that it is applying. As the Court noted in SAAK, the reasons of the Tribunal should disclose whether the proper approach has, in fact, been taken. The process of the evaluation undertaken need not be expressly stated.
In this case, the Guidance document sets out statements of general principle which may assist a Tribunal member in certain circumstances. The Applicant does not specifically refer to what in the guidelines the Tribunal failed to consider. However, in this case, the Applicant was not a child at the time he made the application. He was born in February 1994, he made his application in November 2012 and was interviewed by the Tribunal in September 2013. The Applicant had been in Australia since January 2011 and was here for over 12 months before his father arrived.
From the transcript of proceedings before the Tribunal,[34] the Applicant did not appear to have any difficulty in participating in the proceedings, and despite claims to have been mentally stressed and sick, produced no medical evidence either before or after the hearing to support this contention. He, at no stage, made any request, from the transcript, that another adult be present or that some special consideration should be given to him. There is nothing in the transcript to suggest that the Tribunal member was insensitive or inappropriate in the conduct of the hearing.
[34] Affidavit of Karyn Anderson filed 16 October 2014 at “Annexure KA-1”.
The Applicant changed his version of events on more than one occasion. The Tribunal concluded that his evidence was unreliable. These were findings of fact which were open to the Tribunal to make. I am not satisfied to the extent that the Guideline document is relevant to the proceedings that the Tribunal failed to act in accordance with the general principles it suggested.
With respect to Ground 2, the Applicant refers only to that part of s.424A(1) of the Act which sets out the duty of the Tribunal to provide an applicant with an opportunity to comment on information which may be relevant to the Tribunal’s decision. However, s.424A(3) of the Act sets out particular exceptions to this general rule. One of those refers to information which is not specifically about the applicant or another person. The Courts have consistently held that the general information about the situation in a country or location falls into that category. The Tribunal was therefore not obliged to put to the Applicant country information in the form of an article titled “Conflict Dynamics in Karachi”. For these reasons, Ground 2 also fails.
On that basis, I am satisfied that the application in this matter should be dismissed.
The Applicant is to pay the First Respondent’s costs in the sum of $6,825.00.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 23 December 2014
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