SZIOO v Minister for Immigration - [2007] FMCA 1563

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIOO v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1563

MIGRATION – RRT decision – Pakistani applicant fearing persecution as woman – Tribunal failed to address element in claims – jurisdictional error found – matter remitted.

Migration Act 1958 (Cth), ss.48B, 424A, 426(3), 427(1)(a), 427(1)(d), 474, 476

Applicant M164 /2002 v Minister for Immigration & Multicultural [2006] FCAFC 16
Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
NANJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1138

Applicant:

SZIOO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3589 of 2006

Judgment of:

Smith FM

Hearing date:

22 August 2007

Delivered at:

Sydney

Delivered on:

22 August 2007

REPRESENTATION

Counsel for the Applicant:

Mr T Ower

Counsel for the First Respondent:

Mr S Free

Solicitors for the Respondents:

Clayton Utz

ORDERS

A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 7 November 2006 in matter 060649019.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 16 September 2005.
The first respondent pay the applicant’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3589 of 2006

SZIOO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 4 December 2006, which was set down for final hearing under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal dated 12 October 2006 and handed down on 7 November 2006. The Tribunal affirmed a decision of a delegate made on 16 September 2005 refusing to grant a protection visa to the applicant.
Under s.476 the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474 so that I do not have power to remit the matter to the Tribunal unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a protection visa, or any other permission to stay in Australia.
The decision of the Tribunal was the second attempt by the Tribunal to exercise its jurisdiction. A first attempt produced a decision handed down on 2 March 2006. The reasoning followed in that decision does not appear in the material before me, nor do the reasons for a consent order of this Court on 10 July 2006 remitting the matter. The absence of that evidence is perhaps unfortunate, since it might have explained to me more clearly why the present Tribunal took what appears to be an abbreviated approach to both its procedures and reasoning. I am also not assisted in understanding its approach by the absence of a transcript of the hearing held by the first Tribunal on 1 December 2005.
A transcript of a second hearing held by the Tribunal as presently constituted on 1 September 2006 is in evidence before me. This suggests that the Tribunal member decided that he would rely almost entirely upon the investigation of the applicant’s claims by the first Tribunal at the first hearing. He apparently saw only one point which required further investigation. This concerned the immigration status of the applicant’s husband, who was also present in Australia and accompanied the applicant at both hearings. From the transcript, the Tribunal member perceived a simple answer to the applicant’s claim that she would be at risk if she returned to Pakistan as a single woman, which was that she would necessarily return to Pakistan in company with her husband if her own visa application failed.
This point was put to her at the hearing, and also in a s.424A letter which was given to her during the hearing, and which invited her to respond subsequently to the hearing. The transcript shows that the Tribunal gave the letter to the applicant, and then explored this point with her. It also adjourned the hearing briefly to allow her to discuss the situation with her husband. The Tribunal member did not himself feel it necessary to ask questions of the husband, nor to make further inquiries of the Department of Immigration as to his immigration status. Its failure to question the applicant’s husband is the subject of the first ground of review argued before me, and I shall comment upon it below.
The second ground of jurisdictional error is that the Tribunal failed to examine and decide refugee claims made by the applicant which were expressly articulated in the material before the Tribunal or were clearly raised by the material before it (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55]‑[63]). In particular, it was argued that the Tribunal failed to address a significant element in the applicant’s claims to be at risk in Pakistan as a woman with particular characteristics.
The Tribunal purported to address some elements in her claims, including whether she might return without her husband and be at particular risk as a “single woman”. The Tribunal’s reasoning in that respect was challenged, as was the Tribunal’s reasoning on whether she might be at added risk as a woman who might appear to have been “westernised”. However, I do not need to arrive at concluded opinions on the adequacy of the Tribunal’s discussion of those two elements in the applicant’s claims.
This is because I have decided that the Tribunal failed to address a significant third element in her claims related to her gender. This was that she would be at risk of serious physical and other abuse at the hands of government agents if she returned. She claimed, in particular, that she might suffer serious harassment as a woman, in the course of their investigating the circumstances of her previous departure from Pakistan on a false passport. As I shall show, she presented to the Tribunal a past history giving some substance to that concern, and also some supportive country information. I consider that this element in the applicant’s claims was not addressed by the Tribunal, and this gives rise to a clear jurisdictional error upon which I propose to grant relief.

The applicant’s claims

The applicant arrived in Australia in March 1987 on a visitor’s visa stamped in a passport which was accepted in the Department of Immigration and by the Tribunal as being a false passport, that is, one not properly issued to the applicant by the government of Pakistan. In Australia she joined her husband, who had arrived two years earlier as a result of fears of persecution by the then Zia dictatorship in Pakistan. He had been an active participant in politics as a supporter of the PPP party, whose members were then the subject of persecution.
In her application she said in response to the question, “What do you fear may happen to you if you go back to that country [Pakistan]?”:
I will be arrested, imprisoned and tortured.
I left the country on a false passport.
I have remained here for 15 years. If I go back without a valid passport, I will be taken into custody upon my arrival.
Before me, my husband left the country. He was wanted by the Zia government. He campaigned against the ruling party. I was arrested and tortured because of him.
I left the country to avoid persecution.
Also see statement and photos attached.
Also see husband’s statement.
In response to other questions, she claimed that she and her husband were still at risk of political persecution. She said: “in Pakistan, once you become a wanted person you always remain on the wanted list”.
In a statement which was attached to the visa application, she gave a particular history of mistreatment at the hands of the Pakistani police:
After my husband’s departure to Australia I was being continuously persecuted by the police. In [date] I was arrested by the police and held within the police station for a few days. These police officers of this station were after my husband.
They constantly interrogated me. They would not let me communicate with any other person. I could not sleep, no food was given and I was not even allowed to go to the toilet. Knowing that I was living alone and had no one to look to they took advantage of me, induced harassment and constantly sent me death threats, threatening to kill me if I didn’t tell them the whereabouts of my husband. I kept silent all the time at the police station during interrogation. When I didn’t reveal anything about my husband the police officers belted me and hit me using batons.
At the second occasion at the police station in [date], the lady police officer pulled my hair. The male police officer tried to rape me and I kicked him in the leg to escape from him. He then verbally degraded me calling me names and kicked me with his boots. He then belted me and knocked my head against the side of a table within the police station. My forehead started to bleed. The police then took me back home and told me to remain silent about this incident and the head injury, otherwise they would kill me. To this day, I still have the scar of the injury on the forehead.
On the [date], which was few weeks after the second incident at the police station the police officers came to my house again at midnight. They kept on asking me ‘Where is that dog’? (meaning my husband). They then had made death threats to me. They made it clear to me by stating that ‘if you’re husband does not give himself in, we will find him and kill him’. They then went on further to say that ‘If you do not hand your husband over to us then we will gang rape and kill you’.
I feared for my life. I could not handle the torments anymore. I wanted to escape these corrupt police officers.
Fortunately, with the help of my neighbour I was put into the boot of my neighbour’s car and taken to my parent’s house in Lahore. Unfortunately though upon telling my story and troubles to my father he became very ill and died of a sudden heart attack in [date]. During the time that I was living with my mum at Lahore my life was still at risk. My mother was very sick at the time. I faced financial difficulties. I could not even work to help myself and my mother because the working conditions were not safe for women, especially for a woman who was alone and had no support from a man.
Luckily for the help of a good friend who gave me money, I obtained a Pakistani Passport in another person’s name. So I came out to Australia on a visiting visa with a different name, and not having disclosed my married status. I changed my ID in order to protect myself. If I had come out here with my real name and married status then those political parties who were after both me and my husband would have discovered where I had gone to and come after me. My brother who lives in Australia sponsored me for this visa in order for me to escape the torture and hardship in Pakistan and to reunite with my husband.
I am certain that if the govt. officials found me leaving to Australia then they would have placed me under constant fear and stress.
I do not want to have the same fate as those women in Pakistan who are restricted from individual freedoms and have become victims of physical and sexual abuse.
Her statement also said: “I fear that if I am forced to go back to Pakistan I will be arrested and bullied by the officials for coming to Australia with a false passport”.
At the time when the applicant made her visa application in 2005, her husband had been taken into detention at Villawood immigration detention centre, where he was suffering ill health. She tried to include him as a secondary visa applicant in her application, but letters sent from the Department of Immigration dated 12 September 2005 informed her and her solicitor that he had previously lodged an application for protection in 1985, which had been refused in October 1986. The Department told them that it had been decided that the husband’s case did not meet guidelines for the exercise of the Minister’s power to allow a second application under s.48B of the Migration Act. It is unclear whether the applicant or her husband appreciated the significance of that letter, since when she appealed to the Tribunal, her solicitor attempted to incorporate the husband again in the application for review. However, that attempt was ignored by the Tribunal, and there does not appear to have been a valid application to the Tribunal on his part.
When the delegate made his decision on the applicant’s visa application, he only addressed the application by the applicant herself. He found that her fear of persecution “which made her leave Pakistan no longer exists” as a result of the downfall of the Zia regime. He also thought that “effective protection is available through relocation”, and that the applicant’s “gender‑based concern has something to do with problems relating to the treatment of women by the society in general”. He thought that this point took her beyond the cover of the Refugees’ Convention, but his reasoning did not apply the Refugees’ Convention definition in accordance with Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1.
On appeal to the Tribunal, the applicant presented information corroborating her personal account of her and her husband’s persecution before leaving Pakistan. This was not ultimately questioned by the Tribunal. She also presented a significant body of general country information from reputable sources, concerning the vulnerable position of women in general in Pakistan and of certain groups of women in particular. The Tribunal’s ultimate reasons did not question the vulnerable situation of women generally, nor the heightened risks facing women in some particular circumstances.
Some material was sent to the reconstituted Tribunal on 21 August 2006. In a covering note, under the heading “New Documents”, the applicant said:
A woman’s life in Pakistan is full of extreme difficulties. Alone there I had been tormented, tortured both physically and mentally. When I came to Australia the political situation increased in hostility to women as my husband was in Australia and I had no other male relative who could protect me I was at the mercy of violence of the police and religious extremism.
Included in the country material forwarded by the applicant, was a US State Department report from 2005, which addressed the risks facing women taken into detention in Pakistan:
Honor killings continued to a problem, and women were the principal victims. Local human rights organizations documented 1,458 cases during the year, and many more likely went unreported. Sindh province had over half of reported cases, although human rights organizations believed the practice also was prevalent in Punjab, NWFP, and Baluchistan.
Security force personnel continued to torture persons in custody throughout the country. Human rights organizations reported that methods used included beating; burning with cigarettes; whipping the soles of the feet; prolonged isolation; electric shock; denial of food or sleep; hanging upside down; and forced spreading of the legs with bar fetters. Officials from the Human Rights Commission of Pakistan (HRCP) estimated 5,000 cases of police torture annually; the Lawyers for Human Rights and Legal Aid Madadgaar Special women’s police stations with all female staff have been established in response to complaints of custodial abuse of women, including rape. The Government’s National Commission on the Status of Women claimed the stations did not function effectively in large part due to a lack of resources. Court orders and regulations prohibit male police from interacting with female suspects, but women were often detained and interrogated at regular stations. Instances of abuse of women in prisons were less frequent. Sexual abuse of child detainees by police or guards reportedly also was a problem.
The police force was generally considered ineffective, abusive, and corrupt. Failure to punish abuses created a climate of impunity. Police and prison officials frequently used the threat of abuse to extort money from prisoners and their families.
The report also referred to particular risks facing women in relation to domestic violence, and to violence against women generally. It included the statement: “although rape was widespread, prosecutions were rare. It is estimated that less than one‑third of rape cases were reported to the police. Police were at times implicated in the crime”. The report identified a widespread problem with sexual harassment and other discriminatory treatment facing women in Pakistan.
A report from Amnesty International dated October 2005 contained similar evidence. This included under the heading “State Discrimination”:
Although President Musharraf has acknowledged that women in Pakistan are disadvantaged and discriminated against, the record of achievements to amend their situation is scarce. He was recently quoted as saying, “A lot of people say that if you want to go abroad and get a visa from Canada or citizenship and be a millionaire, get yourself raped.” This has drawn outrage from the female community in Pakistan and worldwide. Additionally, many reports indicate that there is significant bias within the Pakistani criminal justice system. It is extremely difficult for women to get their cases heard and taken seriously in Pakistan. The government failure to protect women has been noted by various women’s and human rights groups. The psychological and social cost of this failure is profound. Allegations of rape and abuse by women are often considered to not be credible according to authorities. Such cases are heard [and] tried according to the Hudood ordinances, which criminalise nonmarital rape, extramarital sex, gambling, alcohol, and property offenses. These ordinances set strict standards of evidence and many women who testify do not meet these standards. The laws provide for judicial discrimination in all cases dealing with women.
…
Women are also sexually harassed at work and are unable to report complaints because they are disregarded or the woman is considered to be lying, which can cost her reputation.
Violence under police custody also continues to be a problem in Pakistan. Police continue to use all forms of torture and ill‑treatment against women. These include beating, kicking, electric shock, and hanging upside down, as well as gender specific abuses such as rape, public undressing, and sexual abuse. Discipline is seldom carried out towards the perpetrators of these crimes and nothing has been done to prevent these crimes. Police often cover each other’s tracks and blame the victims for their crimes.
(citations omitted)
An updating report by Amnesty International from August 2006 contained the statements:
Throughout 2006, violence against women remained rampant in Pakistan, including domestic violence, rape, honour killings, acid attacks, trafficking and general discrimination. … Thus, crimes against women remain endemic in Pakistan. …
The applicant also tendered a body of clippings from news reports concerning violence against women in a whole variety of circumstances and locations in Pakistan. This included at least one report of violent attacks on women participants in a marathon race in the applicant’s hometown.

As I have noted above, the Tribunal did not ask the applicant any questions concerning this material at the second hearing convened by it on 1 September 2006, but it raised the immigration status of the applicant’s husband, suggesting that he had no prospects of remaining in Australia if the applicant’s application failed. On this topic, in response to the s.424A letter served at the hearing, the applicant presented a copy of a letter from the Department of Immigration to a solicitor acting for the applicant’s husband, which was dated 31 August 2006. This said:
Mr [husband] made an application for refugee status on 7 June 1985. The application was refused on 9 October 1986 however following recent legal advice the application is considered to be still outstanding before the Department.
There was no material before the Tribunal elucidating this statement, which was inconsistent with the letters sent to the applicant and her husband by the Department in September 2005. The Tribunal did not feel it necessary itself to make inquiries with the Department of Immigration to find out the situation, nor did it feel it necessary to seek further information from either the applicant or her husband. As I have indicated, that failure provides the first ground of jurisdictional error which has been raised before me.
In relation to a concern expressed by the Tribunal about the applicant’s delay in bringing her own application for a protection visa, the applicant’s letter received by the Tribunal on 14 September 2006 said:
The reason for my delay is that I was scared. First I was scared that if I applied for a protection visa and talked about what had happened to me it would be bad for my husband’s health. When I first arrived he had high blood pressure and already showed signs of the heart condition from which he is still suffering. He has in the meantime undergone major heart surgery.
Secondly, when I arrived I was suffering injuries from the torture that I suffered in Pakistan. I have scars from the torture and I was constantly stressed, tired and crying. Thirdly, by the time I had recovered enough to think about what I should do, my visa had expired. Also I was afraid of revealing that I had come to Australia on a false passport. I was afraid that if I approached the department I would be sent back to Pakistan this terrified me as I could be tortured again because of my husband’s political activities. Also, the Pakistani officials will ask me lots of questions at the airport about my false passport and put me in jail. They will also question me because I do not dress the way Muslim women dress in Pakistan.
Due to all these unfortunate and difficult circumstances, and also due to the fact that we had to create a new life for ourselves in this new country, it was not until my husband was taken into immigration detention on [date] August 2005, that I decided that I had to take the risk and apply to help get my husband out of detention, as he became even sicker while he was in there.
It is apparent from this letter that the applicant maintained her concern, which had been expressly articulated in her original visa application, that she would be mistreated when questioned by Pakistani officials in relation to her departure under a false passport. She had, as I have indicated, presented a history of previous mistreatment at the hands of agents of the State. Aspects of her mistreatment would, in the light of the general country information to which I have referred above, be readily seen as raising a case that an element in her mistreatment, if not the essential reason for the mistreatment, was her gender as a woman. In my opinion, that material and the claims made by the applicant to fear mistreatment at the hands of Pakistani law enforcement agents raised a clear claim requiring express consideration by the Tribunal, before it could complete its jurisdictional task of reviewing the delegate’s decision.

The Tribunal failed to address the claim

In its statement of reasons, the Tribunal recited the analysis given by the previous Tribunal of the applicant’s written claims, which included reference to her claims to fear “the dangers of sexual and physical abuse” in Pakistan as a woman, and her concern about being taken into custody because of her departure on a false passport. The present Tribunal also extracted what appears to be the previous Tribunal’s description of the first hearing. This included the following passages:
The previously‑constituted Tribunal asked the Applicant why she would not feel safe given that she was a married woman and that she had a large family of brothers and sisters living in Pakistan, and in reply she [a]greed that she had a large family but stated that they had their own families and their own concerns. She stated that she had been out [of] Pakistan for almost 20 years and it would be difficult for her to reintegrate into Pakistani culture. She also claimed that it was not safe for her husband to return to Pakistan because of what had happened over 20 years ago. Furthermore, she said, her husband did not want to return due to the poor state of his health.
…
The Applicant’s brother told the previously‑constituted Tribunal that life was not good in Pakistan at the moment and that his sister would not be able to work and would have to stay at home. He felt that she also feared that the authorities might hurt her again. He claimed that there would be continuing surveillance on the applicant’s home and that their lives would be in danger. If they relocated to another city neighbours would be suspicious of them. Further, he said, the applicant came to Australia on a false passport and she does not have travel documents to return. She could be arrested at the airport on return because she left with a false passport.
Evidence in the Applicants’ DIMA file supports the claim that she arrived here on a false passport.
The Tribunal extracted some country information, but without identifying material which particularly addressed the applicant’s concerns about the treatment of women detained by police in Pakistan.
It recited the course of the second hearing, and its reasons for serving its s.424A letter. It referred to the applicant’s explanation for her delay in herself applying for protection, and it said: “the Applicant’s explanation about her husband’s 1985 application satisfactorily addressed the Tribunal’s concern”.
The Tribunal then made a single reference to the documentary evidence sent to the Tribunal as to the “mistreatment of women”, in which it categorised a group of women at risk as “usually single women, in some parts of Pakistan, particularly rural areas”. The brevity and inaccuracy of the Tribunal’s description of the material presented to it was the subject of criticism by counsel for the applicant. It is enough for me to note that it reveals no focusing by the Tribunal upon those parts of the country information which gave substance to the applicant’s concern about mistreatment of women taken into custody.
Under the heading “Findings and Reasons”, the Tribunal referred to the obscurity of why the Department of Immigration had decided that a 20‑year‑old protection visa application was “still considered to be outstanding before the Department”. It said only:
The Tribunal accepts that the Applicant’s husband applied for refugee status in 1985 and was refused in 1986. The Tribunal accepts that the Applicant was not, and could not have been, included in that application. The Tribunal accepts that for some reason that matter application “is still considered to be outstanding before the Department.”
The Tribunal then addressed the applicant’s concerns of persecution for actual or perceived political opinions of herself and her husband. Its conclusion was:
The Tribunal finds no basis for accepting that the Applicant’s husband, let alone the Applicant herself, would be perceived as having any significant link to the PPP or its successor in the event of returning to Pakistan, let alone that they would face a real chance of persecution as perceived supporters of that side of politics.
This finding was criticised by counsel for the applicant on the basis that it gave scant regard to material in the country information, which suggested that membership of the PPP was still, under the current regime in Pakistan, a basis for fearing persecution. The Tribunal’s finding also does not appear to address whether the applicant or her husband would again participate in politics associated with the PPP, and might be at risk by reason of that further activity, or whether their abstaining from political activity might have been the effect of either a past or present threat of persecution. However, I do not need to address whether that part of the Tribunal’s reasoning reflects jurisdictional error.
This is because I find clear jurisdictional error in the Tribunal’s discussion of the applicant’s claims of being at risk of harm as a woman. The Tribunal’s brief discussion was:
The Tribunal will now consider the Applicant’s claims about her prospects in Pakistan as a woman, or as a perceived “single woman.”
There is no evidence before the Tribunal to suggest that the husband of the Applicant is currently eligible to apply for a visa, let alone eligible to be issued with one, that would involve the Applicant herself having to return to Pakistan as an effective “single woman” to face the discrimination that she claims women, and especially single women, face in Pakistan. The Tribunal does not accept on the evidence before it that the Applicant would be required by Australian authorities to return to Pakistan without her husband in the event that the current application were unsuccessful. The Tribunal gives no weight to the Applicant’s depiction of herself as a potential “single woman” in Pakistan. In any event, the Tribunal is not satisfied that the Applicant would not be able to call upon the protection of her close and extended family in Pakistan. The Tribunal gives no weight to the claim that the Applicant’s family would be too busy with their own affairs to help protect her. Notwithstanding evidence of a 2002 government‑led campaign to discourage westernized attire in Pakistan, the Tribunal gives no weight to the Applicant’s claim that she would be vulnerable to ill‑treatment from others in Pakistan for reasons of her now more western ways. On the evidence before it, the Tribunal considers the claim about the Applicant’s increased westernization to be unsupported, and the claims about mistreatment to be both speculative and predicated on the assumption that the Applicant would not have adequate protection of her husband and/or her family in Pakistan.
The Tribunal is not satisfied on the evidence before it that the Applicant faces a real chance of Convention‑related persecution in Pakistan. Her claimed fear of such persecution is not well founded. She is not a refugee.
(emphasis in original)
Although the opening sentence in this discussion identifies the applicant as having a claim “as a woman”, its substantive discussion focused only upon the elements in her claims that she would be at risk as a “single woman” or as a “westernised” woman. There is no discussion as to her risk as a woman if detained by police, including as a woman with a past history of abuse by the police. In all the circumstances of the present case, I would draw the inference allowed by Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [35], [69], and [75], that the Tribunal failed to appreciate that there was a significant further element in the claims before it which was required to be addressed.
I therefore find clear jurisdictional error in the failure of the Tribunal to make a finding addressing that element in the applicant’s claims.

Other grounds of review do not need to be decided

My above conclusion means that I do not need to arrive at conclusions on attacks by counsel for the applicant on the Tribunal’s reasoning in relation to the applicant’s risk of persecution as a woman who was “single” or “westernised”.
The Tribunal’s equivocal finding: “the Tribunal does not accept on the evidence before it that the Applicant would be required by Australian authorities to return to Pakistan without her husband in the event that the current application were unsuccessful”, gives rise to further grounds of review which were argued before me. These concerned the procedures followed by the Tribunal concerning the immigration status of the applicant’s husband, which I have narrated above. Although I do not need to reach conclusions upon them, they have merit and deserve to be recorded.
The applicant’s counsel focused upon the failure of the Tribunal to take evidence from the husband, either at the hearing held on 1 September 2006, or by reconvening the hearing after receipt of the applicant’s response to the s.424A letter. Her response presented the obscure letter from the Department of Immigration, which was inconsistent with the Tribunal’s assumption which was put to the applicant at the hearing. Counsel submitted that the Tribunal’s failure to question the husband about this, in circumstances where the applicant had indicated that her husband was presented to the Tribunal as a potential witness, revealed a failure by the Tribunal to properly exercise its discretions in relation to questioning witnesses under s.426(3) and s.427(1)(a). I was referred to Applicant M164 /2002 v Minister for Immigration & Multicultural [2006] FCAFC 16 at [76], where the Full Court said:
76If the material before the Tribunal and the circumstances are such that the need for further inquiry is obvious, and no impediment to the conduct of such an inquiry is apparent, the failure of the Tribunal to exercise the power and proceeding instead to make a decision adverse to an applicant may point to a conclusion that the Tribunal has denied the applicant the conduct of a fair proceeding. In particular that issue will arise where the Tribunal is prepared to draw adverse inferences from material before it on grounds that are slight and in the absence of the assistance to the hearing process that would be provided to the Tribunal by reasonable use of the powers provided under s 427(1)(d).
In response, counsel for the Minister referred to authorities which have emphasised the discretionary nature of the Tribunal’s power to investigate issues and to take evidence from witnesses, and submitted that there was no evidence that a discretion had miscarried in the present situation. He cited NANJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1138 at [49].
In the present situation I was inclined to think that the Tribunal’s duty to assess the “real chance” of the applicant being obliged to return to Pakistan without her husband, whether by reason of his health, or his immigration status, or any other reason, was a matter of such seriousness in the claims made by this applicant in the circumstances revealed in the country information, as to require the Tribunal to seek to arrive at firm conclusions as to the applicant husband’s immigration status, and as to the likelihood that he would be given permission to stay in Australia with his wife. The discovery of information in that respect might appear to have been readily available to the Tribunal, by inquiry to the Department of Immigration. It has express power to “require the Secretary” to inform it about such matters (see s.427(1)(d)).
I therefore consider that there was some substance in the grounds challenging this aspect of the Tribunal’s procedures. However, I do not need to arrive at final conclusions on it, since I prefer to rest my judgment on the jurisdictional error I have identified above.
The point, however, illustrates a general concern which I have identified in other refugee matters concerning members of one family. I have regularly had matters before me where the separate claims of spouses or children, including children born in Australia, have become separated by reason of formal requirements of the Migration Act and Regulations in relation to the making and joining of applications. These impediments arise both when applications are under decision by the Minister, and when they reach the Tribunal. They give rise to most unfortunate fragmentation of decision‑making.
This appears to have occurred in the present case also. I can see no sensible reason why the claims of this husband and wife should not properly be addressed together, both in relation to their protection claims and also any humanitarian or discretionary reasons for giving them permission to stay in Australia. Manifestly, after 20 years of presence in Australia such humanitarian claims probably exist and should be addressed by the Minister. It is unnecessary for me to say more as to those claims. However, it is proper for me to recommend that on the remitter of this matter to the Tribunal, it would be appropriate for the Tribunal to consider obtaining full information as to the status of the husband’s refugee applications. It should also consider the desirability that they should be addressed concurrently with the present applicant’s claims.
For the above reasons I consider that the applicant has made out an entitlement to the relief sought. No discretionary reason being submitted, I propose to make orders by way of certiorari and mandamus.

I certify that the preceding forty‑five (45) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 26 September 2007