SZQQM v Minister for Immigration

[2012] FMCA 279

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQQM v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 279

MIGRATION – Review of decision of the Refugee Review Tribunal – whether failure by the Tribunal to make an inquiry may constitute a failure to review – when the Tribunal is obliged to make an inquiry – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.420, 424, 425, 427, 476

Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
SZNZJ v Minister for Immigration & Anor [2009] FMCA 1290
Minister for Immigration and Citizenship v MZYCE [2010] FCA 767
SZNWF v Minister for Immigration & Citizenship [2010] FCA
1041
Minister for Immigration and Citizenship v Le [2007 ] FCA 1318
SZOVP v Minister for Immigration and Citizenship [2012] FCA 244
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575

Applicant: SZQQM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2093 of 2011

Judgment of: Nicholls FM

Hearing date: 29 March 2012

Date of Last Submission: 29 March 2012

Delivered at: Sydney

Delivered on: 5 April 2012

REPRESENTATION

Appearing for the Applicant: Mr M Newman

Solicitors for the Applicant: Newman & Associates

Counsel for the Respondents: Mr O Jones

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 16 September 2011, and amended on 29 March 2012, is dismissed.

2. The applicant pay the first respondent’s costs, set in the amount of $4,904.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2093 of 2011

SZQQM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 16 September 2011, and amended on 29 March 2012, made under s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The applicant is a citizen of Nepal. He arrived in Australia on 7 June 2008 on a student visa and first applied for a protection visa on 15 December 2010 ([21] at Court Book – “CB” – CB 69). This application was found to be invalid, and he subsequently applied for a protection visa again on 8 February 2011 (CB 1 to CB 30). The applicant was represented by a registered migration agent (CB 28).

Claims to Protection

1. The applicant’s claims to protection were initially set out in a statutory declaration attached to this application (CB 31 to CB 36). The applicant’s claims were that his family were loyal to, and supporters of, the monarchy in Nepal and that his father had been employed at the palace up until the removal of the monarchy.

2. He claimed that opposition Maoists had threatened his family and extorted money over some years. To some extent they were “protected” by a relative who was a commander of the Maoists in his home area. Nonetheless his parents, fearful of growing Maoist influence and violence, organised an “exit strategy” from Nepal for the applicant and his then wife. Following their subsequent separation, the “protection” afforded by the relative (who was an in-law) was no longer available.

3. The applicant also claimed to have developed an interest in Christianity and claimed that if he changed his religion and returned to Nepal he would be at further risk from Maoists and Hindus.

The Delegate

1. The delegate refused the application (CB 43 to CB 51). The delegate found that while the applicant’s claims suggested a Convention nexus, the applicant’s election not to avail himself of the opportunity to attend an interview, left the delegate in a position where the requisite level of satisfaction such that the visa must be granted could not be attained on what had been presented.

The Tribunal

1. The applicant applied for review to the Tribunal on 21 April 2011 (CB 52 to CB 55). He continued to be represented by a registered migration agent (CB 53). The applicant attended a hearing before the Tribunal on 3 August 2011 (CB 59 to CB 60). He has provided no evidence to the Court to challenge the Tribunal’s account of what occurred at the hearing ([24] at CB 71 to [44] at CB 75).

2. The Tribunal found that there were significant inconsistencies in the applicant’s evidence. It is important to note that these inconsistencies, according to the Tribunal’s unchallenged account of the hearing, were numerous and spread across the entire spectrum of the applicant’s account as to past events.

3. The Tribunal found that these inconsistencies remained unexplained, or where explanations were proffered, they were not credible ([78] at CB 84). The Tribunal also found that the significant delay in making the protection visa application after arrival in Australia (two and a half years), the applicant’s actions in visiting the United Kingdom to visit his uncle (where presumably he could have applied for asylum), and his actions in seeking a student visa in Australia in 2010 instead of a protection visa, were all inconsistent with his claim to fear persecutory harm if he were to return to Nepal.

4. The Tribunal found the accumulation of all these matters led it to conclude that the applicant had not provided a truthful account of his experiences in Nepal, nor given a genuine account of his fear of returning to Nepal ([76] at CB 83 and [87] at CB 86). It therefore did not accept the applicant’s factual account of past events and found he did not have a well founded fear of persecution if he were to return to Nepal ([91] at CB 87).

Application to the Court

1. The application to the Court, in its amended form, is in the following terms:

   “1. At the hearing the Applicant when asked about dates of various events told the tribunal that he was ‘confused with the dates’; that his ‘brain had gone dull’ and that he ‘does not remember dates’; that he ‘had had an accident’ and was ‘making an insurance claim’.

   Particulars

   a. On or about 8 July 2010, the applicant whilst travelling in Queensland was stationary at traffic lights waiting to turn right when the vehicle he driving was struck from behind causing extensive damage to his vehicle and a whiplash type injury to himself.

   b. The police attended with an ambulance and he was conveyed to Childers Hospital where he was detained for several hours and prescribed analgesics which he continues to take on an intermittent basis.

   c. The applicant was unaware of civil damages entitlements but did make a claim for property damage which was paid out by the third party insurer.

   2. The Tribunal having become cognisant of the injury to the applicant and consequential medical problems was under a duty to enquire about the magnitude of the injury, its possible effects and to consider whether the applicant was well enough that day to be interrogated or whether it was prudent to have adjourned the hearing.”

Before the Court

1. At the hearing, Mr M Newman appeared for the applicant and Mr O Jones appeared for the first respondent.

2. The Court had before it the respondent’s written submissions and the Court Book. The applicant’s written submissions and amended application were presented out of time. Leave was granted for them to be filed in Court. 

3. It must be noted that the solicitor on the record, Mr Newman, certified at the time of the making of the application that he believed that this litigation had reasonable prospects of success. In light of what has been presented to the Court, the state of the evidence, and bearing in mind relevant authority, it is difficult to see that there was a probative basis for holding this belief.

The Grounds of the Application

1. The applicant’s grounds, that is the single complaint arising from both grounds, is without merit.

2. In essence the complaint was explained as follows. In Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 (“SZIAI”) the High Court said that there may be circumstances where a failure by the Tribunal to make an inquiry may constitute a failure to review (a duty imposed on the Tribunal by the Act) and if so, this may lead to jurisdictional error.

3. Paragraph 25 of SZIAI is in the following terms:

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

   [Footnote omitted.]

4. Mr Newman submitted that under questioning from the Tribunal the applicant became “terribly muddled” and the Tribunal was “not happy about this”. The Court was referred to [41] at CB 74:

   “When asked when his father stopped driving for the king, the applicant said it was 2006 or 2008; he cannot remember. When asked about his father’s work for the applicant, the applicant said he drove him. The Tribunal noted that when his father stopped working for the king must have been significant. When asked when this was, the applicant said he does not remember exactly; it was at the start of the revolution when his father started his driving business. He said it was 2006 or 2007 or 2008. The Tribunal said it was concerned that the applicant could not remember the year of such a significant event. The applicant said there a range of significant events. He said he had an accident and he is having a lot of mental problems. When asked whether he had any medical evidence, the applicant said he did not but he has made an insurance claim. When asked how long before he left Australia did his father stop working for the king, the applicant said it was 2006 or a bit before that. The Tribunal noted that he had said in the statement attached to his protection visa application that it was 2008. The applicant said that he did not know how that could be. He said he was doing his own driving and going back from time-to-time.”

   [Emphasis added.]

5. Subsequently, the Court was also taken to [83] at CB 85:

   “The applicant’s evidence about when he last had contact with, and provided financial support for, his wife. At first he stated that he last had contact and provided financial support to his wife in about September 2009 but later stated that he continued to give her money until August or September 2010. When the inconsistency was raised with the applicant, he said he gave money to his wife through friends. He said that his brain is dull, he has so much on his mind and he does not remember dates. The Tribunal does not accept that the applicant’s explanation adequately explains why there would be such inconsistencies in his evidence about when he separated from his wife, when he left the address in Melbourne and when he last contacted and provided his wife with support. In the Tribunal’s view, the inconsistencies, and the preparedness to adapt and change his evidence in this way, leads the Tribunal to doubt the truthfulness of the applicant’s evidence and leads the Tribunal to doubt the truthfulness of his claims.”

   [Emphasis added.]

6. The submission was that the applicant gave “stark” and direct evidence to explain his inability to remember dates. The Tribunal’s adverse credibility finding, which was the basis for the adverse outcome, was said to be largely based on the applicant’s inability to accurately recall relevant dates.

7. Mr Newman submitted that there was a “rational” and “plausible” explanation for the applicant’s inconsistent evidence. The argument was that in these circumstances it “may have been encumbent” on the Tribunal to have explored the explanation further.

8. This further “exploration”, or inquiry, should have been for the Tribunal to ask: “Are you unwell?” Later, in further oral submissions it was put that the Tribunal should have adjourned the hearing at the point relevant to what was set out at [41] at CB 74 in the Tribunal’s record. It was unclear whether this was to allow the applicant to provide further evidence or for the Tribunal to have initiated “medical” inquiries (see further below).

9. What first must be noted is that much of what is actually pleaded in the particulars to ground one, and implied in ground two, was not before the Tribunal. Nor for that matter was it put in any evidentiary context before the Court. Although in the circumstances, any such attempt may have floundered on the issue of relevance.

10. In any event, the state of the evidence before the Court, that is the material contained in the Court Book, reveals that the only evidence in relation to the applicant’s claimed “accident” was that contained in the Tribunal’s decision record.

11. This was that in answer to his inability to provide the date, or more exactly the year, when his father ceased working for the king (a significant event in the sequence of the applicant’s account of past events in Nepal), the applicant said that: “… he had an accident and he is having a lot of mental problems …” ([41] at CB 74).

12. When he gave inconsistent evidence to when he last had contact with his wife and the circumstances of any financial support to her, he said: “… that his brain is dull, he has so much on his mind and he does not remember dates” ([83] at CB 85).

13. If the applicant had told the Tribunal at the hearing, or provided any written submissions, that the accident was a car accident, and provided any reference to the details set out in his amended application, then he has not brought any evidence to the Court to say so. For example, any transcript of the hearing.

14. What the Court is left with therefore is that, in explanation in relation to two elements of his account in which he had given inconsistent evidence, the applicant said he had had an accident, he was having mental problems, his brain was “dull” and he had much on his mind. On the evidence, this is what was presented to the Tribunal.

15. Mr Newman took the Court to various sections of the of the Act, I understood, for the purpose of setting out some of the relevant legislative context, and proposed:

    1)Section 427(1)(d): The Tribunal may require the Secretary of the Minister’s department to arrange for any investigation, including “any medical examination”.

    2)Section 424: The Tribunal may get any information that it considers relevant.

    3)Section 420: In carrying out the review the Tribunal is to act fairly.

16. I cannot see that s.427(1)(d), or s.424, of the Act can compel the Tribunal to have made the types of inquiry proposed by the applicant now (“pose the question” or “grant an adjournment”). Both set out powers to be exercised at the discretion of the Tribunal. At best, in the current circumstances, they provide at least two mechanisms that may have been employed by the Tribunal should it have chosen to act in the way the applicant says now it should have. They do not create any obligation to do so.

17. It must be said that the reference to, and relevance of, s.420 of the Act remained unexplained. True it is that the section directs the Tribunal to fairness, and acting in a just manner. However, this is directed to the pursuit of the objectives of the mechanism of the review. I do not see that it creates any additional obligation than that otherwise set out in the relevant parts of the Act (see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [49] per Gleeson CJ and McHugh J, and as I have previously discussed in SZNZJ v Minister for Immigration & Anor [2009] FMCA 1290 at [26] – [36].)

18. In relation to the appropriate mechanism to provide fairness and a just process, this is relevantly set out in Div. 4 of Pt. 7 of the Act, which includes s.427 and s.424. It also includes s.425 and the invitation to, and consequence of, the conduct of a hearing.

19. This brings us back to SZIAI. That part relied on now by the applicant at [25], is preceded by:

    “24. Mason CJ and Deane J in Teoh also rejected the proposition that failure by the decision-maker to initiate enquiries could constitute a departure from common law standards of natural justice or procedural fairness. It is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law. The facts of this case, in any event, even considered without reference to s.422B of the Migration Act, do not show a basis for a complaint of want of procedural fairness.”

    [Footnote omitted.]

20. When read in context therefore I respectfully understand [25] of SZIAI to provide limited, or rare and exceptional, circumstances where, to avoid any failure in its duty to review, the Tribunal could make an “… obvious inquiry about a critical fact, the existence of which is easily ascertained and could, in some circumstances, supply a sufficient link to the outcome…” (Minister for Immigration and Citizenship v MZYCE [2010] FCA 767 at [36] per Gray J and SZNWF v Minister for Immigration & Citizenship [2010] FCA 1041 per Nicholas J at [33] – [39], and see with reference to Minister for Immigration and Citizenship v Le [2007 ] FCA 1318 at [60] per Kenny J).

21. Ultimately, I understood the applicant’s submission to be that the basis for the Tribunal’s adverse conclusion particularly arose from its finding of the applicant’s inability to remember key dates. The submission was that the applicant had quite a plausible explanation for this.

22. When pressed to put this in context of SZIAI (the case on which the applicant solely relied), I understood the position to be that the critical fact was whether the applicant was medically disabled such as to support his otherwise “plausible” explanation as to his inability to remember dates. The Tribunal could easily have asked a relevant question at the hearing, or adjourned for the inquiry to be made. The link to the outcome is said to be that if that evidence had been available then the Tribunal’s conclusion as to the applicant’s credibility may well have been different.

23. Putting to one side whether this is the type of critical fact referred to in SZIAI (there was no satisfactory submission or any analogy between the authenticity of certificates in SZIAI and the evaluation of the applicant’s oral evidence as in the current case), what is clear in the current case is that the Tribunal did make an inquiry.

24. On presentation of his explanation as to the matter of dates, the applicant said he had been in an accident and had mental problems. Whether the two were linked, other than in presentation of the explanation, was not made clear. But what is clear is that the Tribunal immediately asked the applicant if he had any medical evidence to support his claim. He said he did not. But that he had made an insurance claim.

25. It is not clear what obvious easily ascertained inquiry the Tribunal could have made beyond this. If there was no medical evidence (on the applicant’s own evidence) then there was nothing for the Tribunal to obviously further investigate in that regard.

26. In my view a distinction can be drawn between an applicant who says “yes there is some evidence” and if you give me the opportunity to produce it, or ask my agent or doctor, you can easily ascertain this relevant fact, and an applicant who says there is no evidence to be inquired about other than some vague reference to an insurance claim.

1. In any event, and further as the Minister submits, the answer to the matter under consideration is to be found in the direction provided by the relevant authorities and as referred to in SZOVP v Minister for Immigration and Citizenship [2012] FCA 244 per Collier J (“SZOVP”).

2. One of the grounds pressed by the applicant in that case was that the Tribunal failed to invite the applicant to appear in accordance with s.425 of the Act because the invitation was vitiated by the applicant’s “severe mental impairment”. Reference was also made to s.427(1)(d) and the argument was that s.425 should be read with it (at [28] of SZOVP).

3. While the applicant in the current case has not presented his case on the same legal basis, where the current argument and the argument in SZOVP converge is that both raise the question of whether the Tribunal is required to engage in further inquiry. In SZOVP reference was made to the particular circumstances considered in SZIAI by the High Court and to [25] – [26] in that case (at [29] of SZOVP).

4. The Court also referred to Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 (“SZGUR”) for the proposition (per Gummow J) that, with reference specifically to the observations in SZIAI, in the circumstances of SZGUR, no obligation existed on the Tribunal to obtain a medical report (at [87] of SZGUR).

5. The circumstances in SZGUR relevantly involved an applicant who claimed to be suffering from bipolar mood disorder, depression and forgetfulness and his agents’ request of the Tribunal to obtain an independent medical report.

6. Reference was also made to Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 at [20] per Keane CJ:

   “In my respectful opinion, s 425 of the Act did not require the Tribunal to press the respondent to call further evidence of his psychological problems or to expand his arguments relating to the ramifications of his problems for any aspect of the case he sought to present. Nothing in this Court’s decision in SCAR supports the contrary view, and in the recent decision of Gilmour J in SZMSA v Minister for Immigration and Citizenship [2010] FCA 345, especially at [20] – [25], the contention that an applicant’s psychological difficulties were such as to deprive him of the ‘meaningful opportunity’ required by s 425 of the Act was rejected, correctly in my respectful opinion, on the footing that the applicant’s condition was not shown to be such as to deny him the capacity to give an account of his experiences, to present argument in support of his claims, to understand and to respond to questions put to him.”

7. What is also instructive for current purposes is that in SZOVP the Tribunal was aware at the time of the hearing that the applicant was suffering from a medical/psychological condition. The lack of clarity in how any further inquiry by the Tribunal, pursuant to s. 427(1)(d) of the Act, could have assisted the applicant in providing a fair and just hearing was of importance in the applicant’s failure to establish legal error on the part of the Tribunal.

8. In the current case the Tribunal was told by the applicant that he had had an accident, had mental problems, his brain was dull and he had a lot on his mind. The Tribunal asked him if he had any medical evidence to support his claims. He said no. It is difficult in the circumstances to see what further the Tribunal could have satisfactorily or reasonably done. The applicant has not satisfactorily explained now what further inquiry the Tribunal could have made beyond asserting that it should have done so.

9. The answer that the Tribunal should have asked him “are you unwell?” is fanciful and ignores that the Tribunal did ask for any existing medical evidence.

10. Further, there is nothing in the evidence before the Court (the Tribunal’s unchallenged account of the hearing), to even suggest that the applicant was not capable of meaningfully participating in the hearing because of any medical condition. To the contrary the Tribunal’s account shows that the applicant was able to at least adequately participate. That his answers to some questions did not satisfy the Tribunal that he had a well-founded fear of persecution is not, without anything else, indicative that he was not given a meaningful opportunity to put his case.

11. Importantly, even though the applicant said he had problems, there is nothing to show that he sought any adjournment. Even though the Tribunal had told him at the hearing that it had some concerns about the inconsistencies in his evidence, his response was that “… he was pleased to have had the chance to say what he wanted to say” ([44] at CB 75).

12. Before the Court the applicant has been unable to show that the Tribunal was under an obligation to make any further inquiry or that his circumstances fall within the observation at [25] of SZIAI. Although not pleaded as such, the applicant has failed to show any failure pursuant to s.425.

13. The applicant’s grounds lack any merit. The failure to refer to relevant authorities, or the ignoring of these authorities, only serves to expose and reveal the lack of merit.

Conclusion

1. The applicant was put in the position at the Tribunal hearing that he needed to provide an explanation for deficiencies in his claims and evidence. On two occasions he chose to explain these by reference to his poor memory. It was not clear that this resulted from the claimed accident. In relation to his failure to provide consistent evidence as to the dates of contact with his wife (the year) his answer was that in effect he was not good with dates.

2. As the Minister submits, in the circumstances the Tribunal was entitled to conclude that the applicant deliberately became vague and evasive in order to explain some of the perceived inconsistencies in his evidence. No legal error is revealed in these circumstances.

3. The applicant would need to show jurisdictional error, at least, in the Tribunal’s decision if he were to succeed before the Court. The grounds of the application, and as explained in submissions, do not reveal such error. The application should be dismissed. I will make an order accordingly.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  5 April 2012