SZIWX v Minister for Immigration
[2008] FMCA 368
•28 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIWX v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 368 |
| MIGRATION – Review of RRT decision – where Tribunal found corroborative documents provided by the applicant to be false – where Tribunal found applicant was not a credible witness – whether a dispositive finding was made on a mistake of fact – whether applicant was given adequate opportunity to give evidence and present arguments on “the issues arising in relation to the decision under review”. |
| Migration Act 1958, ss.424(1), 424A, 425 |
| SZBEL v Minister for Immigration (2006) 231 ALR 592 |
| Applicant: | SZIWX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1543 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 18 March 2008 |
| Date of last submission: | 18 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 28 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp, pro bono publico |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Counsel for the Respondent: | Mr J Mitchell |
| Solicitors for First Respondent: | DLA Phillips Fox |
ORDERS
A writ of certiorari issue bringing the Tribunal’s decision into this Court to be quashed.
A writ of prohibition issue to restrain the First Respondent, his servants and agents, from acting upon the Second Respondent’s decision.
A writ of mandamus issue remitting the matter to the Second Respondent and directing the Second Respondent to reconsider and redetermine the Applicant’s application for a protection visa according to law.
The First Respondent to pay the Applicant’s costs assessed in the sum of $5,000.00.
The name of the First Respondent be amended to “Minister for Immigration & Citizenship”.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1543 of 2006
| SZIWX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Pakistan. He arrived in Australia on 4 September 2005. On 6 October 2005 he applied to the Department of Immigration and Multicultural Affairs for a protection (class XA) visa. A delegate of the Minister refused to grant a protection visa on 15 December 2005. On 9 January 2006 the applicant applied for review of the decision by the Refugee Review Tribunal. On 15 January 2006 the Tribunal wrote to the applicant inviting him to a hearing that was to take place on 15 February 2006. On 20 January 2006 the Tribunal wrote to the applicant requesting information from him pursuant to s.424(1) Migration Act 1958 (“the Act”) [CB 74-75]. On the same day the Tribunal wrote another letter to the applicant pursuant to s.424A of the Act [CB 76-77]. On 22 January 2006 the applicant responded to those letters [CB 80-82]. Paragraph 6 of the letter from the applicant stated:
“I also along with these submissions am submitting my Member ship card of the Women Rights Organisation and letter written by there in charge outlining my activities and that why I left the country. Along with these supportive documents I am also submitting a letter from the Local Representative of my region explaining the problems and dangers I would be facing if I go back to my home country. I am also submitting my member ship card of Pakistan-Awami Tehrik, a political party, of which I was a member and also worked from that forum for the rights of freedom of women and poor.”
The letter from the Female Human Rights Organisation (FHRO) was dated 16 November 2005 [CB 83]. It is signed by a person whose signature commences with the letter “A” over a stamp on which the following words appear:
“INCHARGE
Female Human Rights OrganIzatian Teh: Kabal
Distt: Swat: Pakistan”
The membership card of the FHRO is found at [CB 103] and a blown up version of the document is found at [CB 85-86]. The membership card of the political party is found at [CB 91]. It has a photograph of the applicant and a logo of a party there described as “Pakistan Tehreek Insaf”. The membership card of the FHRO has a photograph of the applicant, a seal or stamp of the organisation over which is another stamp identical in its wording to the one previously described and signed by a person whose name appears to be “Ajmal Khan”. At the bottom of the card there are two printed designations. The first on the left-hand side is “Division Co-ordinator” and on the right-hand side underneath the photograph is the word “INCHARGE”.
On 17 February 2006, two days after the hearing, the Tribunal wrote two further letters to the applicant. Again, the first [CB105] was sent pursuant to s.424(1) and the second [CB106-107] pursuant to s.424A(1) of the Act. On 10 March 2006 the applicant responded to both letters [CB111-114]. On 11 April 2006 the Tribunal determined to affirm the decision under review and handed that decision down on 9 May 2006.
The substantive ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was the problems he claimed to have experienced with Nepazi Sharia Group activists as a result of the work which he did supporting women’s social activities and the right of women to be educated. The applicant was a seaman and jumped ship in Fremantle. He had left behind him a wife and children in Swat but indicated that the fundamentalist group Nafaz-e-Shariat-e-Mohammadi (“TNSM”) had threatened him and his family.
The Tribunal accepted that TNSM, a powerful Taliban-style organisation, operated in the north-west frontier province and in towns such as Swat. The Tribunal also accepted that the FHRO operated in the Swat district. In its findings and reasons commencing at [CB146], the Tribunal deals with the claims made by the applicant and the matters which caused it to affirm the decision of the delegate. It dealt first with the applicant’s claim to be a member of a political party, Pakistan Awami Tehrik. The Tribunal noted that it was only on 22 January 2006 that the applicant had first raised the question of his membership of the party and that although he had referred to it as the Pakistan Awami Tehrik, the actual card called it the “Pakistan Tehreek-E-Insaf”. The English translation of this membership card [CB102] described the applicant as the general secretary. At [CB148] the Tribunal deals with some discrepancies in the description of the political party which the applicant belonged to, and the concerns it had that the applicant appeared to be talking about two parties as if they were one:
“It is noted by the Tribunal that the membership card refers to Insaf as being spelt ‘Insaf’ rather than ‘Insaaf,’ as the applicant has spelt it in the two paragraphs above. The Tribunal finds that when the applicant refers to ‘Tehrik Insaaf’, he is referring to ‘Tehrik-e-Insaf’. The Tribunal finds that ‘Tehrik-e-Insaf’ is not the same organization as ‘Pakistan Awami Tehrik’ … As a result, the Tribunal finds that the applicant is not aware of the different character of the two organizations, which leads the Tribunal to find that he was not a member of either organization. The Tribunal therefore also finds that the applicant’s membership card is a fake or false document. Supporting this finding is, the applicant’s membership card which refers to him as ‘General Secretary’ which is a claim that he never made. Further, country information that document fraud is extremely common in Pakistan supports this finding.”
The Tribunal then passes on to consideration of the applicant’s membership of the FHRO. At [CB149] it says:
“The Tribunal also raised with the applicant at the hearing the nature of his position in the FHRO. He said he was an ordinary member of the organisation. He stated he had no leadership role, and he was told what places to go to. The Tribunal indicated that he had asserted in his letter dated 22 January 2006 (at point 2) that he was the local co-ordinator for FHRO. The applicant’s photocopied membership card of the FHRO also states on its face that the applicant’s designation is ‘Local Coordinator.’ At the hearing the applicant responded that he didn’t understand that word the Tribunal had used. He then stated that he was a member working in that area. The Tribunal also notes that the membership card states on it ‘INCHARGE, Female Human Rights Organization’ and also under the photo of the applicant are the words ‘In Charge.’ On the basis of the applicant’s responses at the hearing, the Tribunal finds that the applicant was not the local coordinator for FHRO, not was he ‘in charge’. The Tribunal consequently finds that there is an inconsistency between the document and the applicant’s responses. Based on the applicant’s evidence and the country information, and that the word ‘Human’ is misspelt on the membership card as ‘Humam’, the Tribunal finds that the FHRO document is also false. As this document is false, the Tribunal finds that all the applicant’s documents are false. The Tribunal also finds that the applicant’s evidence is not credible in this regard, and it does not accept that the applicant was a member of FHRO, or interested in female human rights issues or other human rights issues including the poor.”
The Tribunal then made another finding concerning the applicant’s credibility regarding dates upon which he claimed to have travelled, saying at [CB149]:
“On the basis of this and the other findings, the Tribunal finds that the applicant is not credible and it rejects all his claims.”
At the hearing before me, the applicant filed a second further amended application. The grounds of that application are:
“1. The Tribunal failed to disclose issues that arose on its review, and therefore failed to comply with s.425(1) Migration Act.
Particulars
(a) Failure to disclose its observation that the copy of the membership card of the Female Rights Organisation in its file identified the applicant as being, “In charge”.
(b) Failure to disclose that the veracity of documents submitted by the applicant was being questioned, and went to the applicant’s credit.”
The applicant tendered a transcript of evidence. At [T15] the Tribunal takes up with the applicant his membership of a political party:
Mr Wilson: You raised in your letter that you’re a member of Pakistan
Awami Tareek. Is that correct?The Interpreter: I don’t understand.
Mr Wilson: You claim in your letter that you’re a member of Pakistan
Awami Tareek.The Interpreter: Yes, Tareek Insaf. Can I ask him he could explain it, to repeat it
please?Mr Wilson: Yes.
The Interpreter: Yeah, Tareek Insaf it was run by … , so I worked with them and
also some of the leaders of ANP and also the Muslim League.
Yeah, I worked with this.Mr Wilson: Now these claims weren’t made in your original application, is
there any reason for it?The Interpreter: Yeah, I explained all these things to Muller and I didn’t know he
didn’t write it down in the formal note and he didn’t ask me to
put documentation in relation to these things and later on my
friends advised me to bring this and ask to provide evidence;
these are important things that I have to do.There are no other questions relating to the political party and the membership card. There is no discussion between the Tribunal and the applicant which would indicate that the Tribunal had a concern that the organisations were different. In the transcript the Tribunal turns immediately after consideration of the political party to the applicant’s position in the FHRO. The questions regarding that organisation commence at [T16]:
Mr Wilson: Now, what role – what position did you hold in the Female
Human Rights Organisation?The Interpreter: That was an ordinary member of that organisation.
Mr Wilson: Did you have any other leadership role?
The Interpreter: No, there’s no leadership.
Mr Wilson: Did you help to arrange activities?
The Interpreter: He says what do you mean by that?
Mr Wilson: Well, say for example you were going out to call on people in a
village, were you the one who organised that or did someone
else say, okay, this today we’re going to go to this village or
we’re going to see so and so?The Interpreter: Yeah, the organisation they advised us to go where so it was not
my responsibility. Yeah, those who were responsible for this,
they were sending people into the area that they’re familiar or
they’re living in those areas, so they were sending people to
those villages.Mr Wilson: Now that is interesting because in your letter you assert that in
your area you were the local coordinator for the Female Human
Rights Organisation.The Interpreter: He says I don’t understand.
Mr Wilson: Well, your letter says:
Through the forum of the Female Human Rights
Organisation in my area, Swat - - -Sorry
I kept on working for this cause through the forum of
Female Human Rights Organisation in my area, Swat, as
the local coordinator.The Interpreter: Yeah, he says I didn’t understand the word that you used but
yes, I was a member working in that area.Mr Wilson: Now you say that you can’t relocate or go and live somewhere
else in Pakistan. Can you tell me why anyone – you know, you
also you would be recognised in some of the larger towns and
cities.No other questions were asked relating to the membership card, although at [T5]-[T11] the applicant is questioned about the work which he did for FHRO.
Discussion
The Act provides a scheme whereby persons who wish to claim the benefit of Australia’s protection obligations under the Refugee Conventions can make application for a protection visa. Their applications are considered by a delegate of the Minister. If the applicant is dissatisfied with the decision of the delegate, he or she is entitled to seek a full merits review from the Refugee Review Tribunal. The way in which the Tribunal is required to conduct these reviews is the subject of statutory control in Division 4 of the Act, commencing at s.422B. That section states that the Division is to be taken as an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. The subsections which follow deal with documents to be given to the Tribunal, the ability of the Tribunal to seek extra information, the requirement to give the applicant certain information, and the manner in which an invitation to give information addressed to the applicant should be handled. In s.425 the Tribunal is mandated to invite the applicant to appear before it to give evidence and present arguments relating to the issues relating to the decision under review.
The High Court has accepted that in conducting the hearing that has been convened, consequent upon the applicant accepting the Tribunal’s invitation, the Tribunal must provide the applicant with procedural fairness. The extent to which an applicant should be made aware of the matters of concern for the Tribunal was considered authoritatively in SZBEL v Minister for Immigration (2006) 231 ALR 592. The court considered that the phrase in s.425 “the issues arising in relation to the decision under review” was important and that what was required was that those issues should be identified. The Tribunal would not be confined to the issues that the delegate had considered, but if it was to take these into consideration then they would have to be identified and the applicant would have to have an opportunity to give evidence and present arguments in relation to them. It is accepted that the issues with which the High Court was concerned were those issues that could be classed as dispositive. As the court said at [47]:
“First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.” [emphasis in original]
The two documents that were considered by the Tribunal and which were found to be false, leading to a general finding of lack of credibility on the part of the applicant, were documents that were produced only to the Tribunal and not to the delegate. They were important corroborative documents so far as the applicant was concerned and he could expect to be asked questions about them. The conclusions reached by the Tribunal in respect of the membership of the political party are found at [CB148] and extracted at [9] of these reasons.
The discussion between the applicant and the Tribunal concerning this organisation was short. There is no suggestion in it that the Tribunal thinks there is anything sinister in the way in which the word “Insaf” was spelt on the card or that the applicant referred to what appears to be two organisations as if they were one. Whether fairness required that the Tribunal should raise that with the applicant is a matter open to debate, but the Tribunal came to the conclusion which it did about the document on other bases. It noted that the membership card described the applicant as “General Secretary” and he at no time suggested that he was such. The Tribunal noted that false documentation was prevalent in Pakistan, and had raised that matter with the applicant. It seems to me that these two matters were equally dispositive of the political party membership card issue as the failure to spell the name or appreciate the difference between the two organisations. The card had been provided to the Tribunal by the applicant and there was therefore no necessity for the Tribunal to proceed under s.424A(1) because of the exception contained in s.424A(3)(b). The information concerning document fraud is information which is excluded from the provisions of s.424A(1) by s.424A(3)(a).
I am not so sanguine about the findings in relation to the membership card of FHRO, set out at [5] of these reasons. The dispositive finding by the Tribunal in relation to this document was that the applicant was not a local coordinator and was not “In Charge”. It also had concerns about the validity of the document because of the misspelling of the word “human” as “Humam”. I have extracted at [8] of these reasons that part of the conversation between the Tribunal and the applicant concerning the designation on the card of “local co-ordinator”, which also appeared in the letter that the applicant wrote to the Tribunal on 3 February 2006 at para.3 in [CB94]. One interpretation of that conversation could be that, so far as the applicant was concerned, the English descriptor “local coordinator” applied to the work that he did. It could be argued that the Tribunal should have been awake to such a possibility and therefore should have explained to the applicant that it regarded a local coordinator as something more than a member. On the other hand, the Tribunal did ask whether he had any other leadership roles and when the Tribunal was asked to explain what was meant, did so. I think that it would be looking at the decision with an eye too closely attuned to error to make a finding that the Tribunal’s failure to better explain itself constituted a jurisdictional error in this case.
The Tribunal also concluded that the applicant was not “In Charge”. I am of the view that all the evidence available to the Tribunal indicated that the words “In Charge” referred to the signer of the document, and not to the applicant. Firstly, the applicant at [CB81] states:
“I also along with these submissions am submitting my Member ship card of the Women Rights Organisation and letter written by there in charge outlining my activities and that why I left the country.”
The letter that he refers to is found at [CB83] and as I have already pointed out is signed by a person who I believe is Ajmal Khan, just above the words “INCHARGE”. That is the way that Ms Khan has also signed and stamped the membership card. It is Ms Khan who is “in charge”. True it is that the words “INCHARGE” appear under the applicant’s photograph. But that may well be because the photograph was not intended to be put in that place, or the signature was meant to be lower down. The Tribunal says nothing about the use of the title “Division Co-ordinator” on the left-hand side of the membership card. I believe that the Tribunal made a mistake of fact about the applicant’s designation of himself as “In Charge”. Coming to a mistake of fact is not a jurisdictional error. But if you are going to base a dispositive finding upon a mistake of fact, then there is no way that an applicant can expect to be able to respond to it unless the mistaken fact is put to him. In this case I am of the view that in order to comply with the requirements of procedural fairness as interpreted by the High Court in SZBEL, the Tribunal was under an obligation to clarify for the applicant its concerns that he was a person “In Charge” and that this was inconsistent with the evidence that he had previously given. Because of the importance of this finding by the Tribunal to its general conclusions as to the applicant’s credibility, I do not believe that it would be safe to allow the decision to stand. I will therefore grant the applicant the constitutional writs requested and order that the respondent pay the applicant’s costs which I assess in the sum of $5,000.00.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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