SZRKT v Minister for Immigration
[2012] FMCA 950
•12 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRKT v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 950 |
| MIGRATION – RRT decision – refugee claims of Pakistani – Tribunal’s disbelief based upon a finding that the applicant had not completed a course in Persian – no reference made by Tribunal to a University certificate of studies in the documents forwarded by Department – evidence probably overlooked and ignored by Tribunal – jurisdiction error established – matter remitted. |
| Migration Act 1958 (Cth), s.418(3) |
| Craig v South Australia (1995) 184 CLR 163, [1995] HCA 58 SZMSD v Minister for Immigration & Anor [2009] FMCA 96 Minister for Immigration & Citizenship v SZMOK (2009) 257 ALR 427, [2009] FCAFC 83 Minister for Immigration & Citizenship v SZNPG (2010) 115 ALD 303, [2010] FCAFC 51 Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485, [2010] FCAFC 50 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, [2001] HCA 30 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568, [2004] FCAFC 74 WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 |
| Applicant: | SZRKT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 909 of 2012 |
| Judgment of: | Smith FM |
| Hearing date: | 12 October 2012 |
| Delivered at: | Sydney |
| Delivered on: | 12 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Chia |
| Counsel for the First Respondent: | Mr J Smith |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
A writ of certiorari issue directed to the second respondent, to quash the decision of the second respondent made on 21 March 2012 in matter 1107742.
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 5 July 2011.
The first respondent pay the applicant’s costs in the sum of $4,500. Note that the applicant, by his counsel, authorises the first respondent to pay the outstanding Court setting down fee from that amount.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 909 of 2012
| SZRKT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks judicial review of a decision of the Tribunal made on 21 March 2012, which affirmed the refusal of a protection visa. As I shall explain, I have decided that he has established a jurisdictional error by the Tribunal which warrants the remitter of the matter. This occurred because the Tribunal ignored a piece of evidence submitted by the applicant to the Department of Immigration, which was of potentially critical importance to the reasoning by which the Tribunal ultimately decided that the whole of the applicant’s refugee claims were ‘fabricated’ and should be disbelieved. The document was a certified copy of a record of the applicant’s results in studies through the University of the Punjab in 2008. To understand this issue, it is necessary to trace how this piece of evidence reached the Department and the Tribunal, and how the Tribunal failed to give it any consideration.
The applicant arrived in Australia on a student visa in March 2011. Shortly after he arrived, he lodged an application for a protection visa without professional assistance. In his application lodged on 29 April 2011, he referred to his reasons for seeking protection so that he did not have to return to Pakistan. He said: “I am scared and my life is in danger in that country. Due to this I just got out from Pakistan, and lodging this protection application”. He indicated that he would submit a detailed statement “as soon as possible”.
The Department subsequently received a typed statement which is some 38 pages long. At its end, it listed 22 supportive documents, which were also attached. These are media reports and analyses concerning the general situation in Pakistan concerning the influence of the Taliban and other extremists in that country. The combined statement and attachments show folio numbering 105 to 77. The applicant’s statement is dated 12 May 2011, but does not bear a receipt stamp to show exactly when it was received. The folio numbering of the statement and its attachments might suggest that this bundle accompanied a notice of appointment of a migration agent, which is date stamped as received on 17 May 2011, and has folio numbers 108 to 106. However, it is possible that the visa statement was received a few days earlier with a bundle of personal records which I shall describe below, and became detached from them before the file was forwarded to the Tribunal. I shall consider the inferences from the folio numbering of the documents from the Department’s file further below.
It is not necessary for me to detail the circumstances in which the applicant claimed to have become fearful of Islamic extremists, and that he would not be protected by the government of Pakistan. In short, he claimed that he and his parents had been pressured to agree that he would be educated and recruited by extremists, while his family were living in Islamabad. He said that this happened before and after a well‑recorded siege of premises known as the Red Mosque in mid‑2007, in which government authorities were pursuing militants. The applicant claimed that he and his parents had been resisting that pressure, inter alia, by the applicant pursuing education at home “privately” through the Punjab University. However, the approaches of militants continued, and reached crisis in late 2010 and early 2011, when the applicant was taken to the northwest frontier province and pressured to train with the militants. He claimed to have convinced them that he should return briefly to his home, and he had then fled the country.
The Court Book contains an additional bundle of eight documents, which has a receipt stamp of 13 May 2011, and which has folio numbers 8 through 1, with an inference that 8 was at the top of the bundle on the file. This bundle contains documents personal to the applicant, including a birth certificate, copies of identity cards, a copy of pages of his passport, a record of a secondary school study, and two records of intermediate school studies. The last page of the bundle, marked with folio number 1, is a document headed:
UNIVERSITY OF THE PUNJAB
RESULT INTIMATION CARD
Bachelor of Arts, Annual Examination 2008
Pass Result Intimation
Roll Number [number]
Registered Number [number]
Name of the Candidate [applicant’s name]
Father’s Name [name]
Institute/District ISLAMABAD
He has passed the Bachelor of Arts, Annual Examination 2008, held in Mar-Apr 2008 in the 2nd Division obtaining 372/800 marks. The examination was taken [illegible]
Marks obtained by him in each paper are given below
Sr.
No.Subjects Detail of Marks Marks
ObtainedMax
MarksRemarks Theory Practical/ Viva A B C A B C 1 Islamic Studies/
Ethics and Pakistan Studies (Comp)30 17 47 100 2 English Language (Compulsory) (B.A) 36 67 103 200 3 Education 33 36 69 200 4 Journalism 14 50 66 200 5 Persian (Optional) 87 87 100 … Total 372 800
The copy of this document carries a certificate by a JP for New South Wales that “I certify this to be a true copy of the document shown and reported to me as the original”, dated 29 April 2011.
The critical issue in the case before me is whether the Tribunal member has ignored that particular document, in the sense that the member never was aware of, or gave any thought about, its contents and potential evidentiary significance. In particular, whether it was entirely overlooked when the credibility of the applicant’s claim to have studied Persian in 2008 at home through the University of the Punjab became critical to the Tribunal’s adverse findings on the credibility of all of the applicant’s account of events in Pakistan giving rise to his claimed fears of persecution.
I have referred above to the folio numbering of the other documents submitted by the applicant which are now before me in the Court Book. There may not be an inference that the numbering reflects the dates when various documents were received by the Department, but it does suggest a sequence of documents on the Department’s file when it was forwarded to the Tribunal pursuant to s.418(3) of the Migration Act. If so, the bundle of personal records was on the bottom of the file, with the critical document being the last folio on the file. The visa application forms were above this bundle, including Forms B and C at folios 45 to 21. The visa statement and supporting media documents were then above the visa application, at folios 105 to 77. If this was the sequence of the Department’s file, then it might account for the Tribunal’s possible oversight. However, I accept that this is an inference which is somewhat tenuous on the evidence before the Court, in the absence of direct evidence as to the form of the Department’s file when it reached the Tribunal.
It is, at least, common ground that the bundle of personal academic documents, including the critical document, was in fact contained in the file of documents reaching the Tribunal from the Secretary.
The adverse decision on the visa application was made by a delegate of the Minister on 5 July 2011, after interviewing the applicant. There is nothing in the statement of reasons of the delegate, which was brief, indicating that the delegate disbelieved the applicant’s claims about his educational activities, or gave any significance to the applicant’s claim to have studied a course of ‘Persian’ in 2008 through the University of the Punjab while living in Islamabad. The delegate did, however, disbelieve the applicant for various reasons, in so far as he claimed to have a genuine and present fear of persecution by militants. The delegate also said that, if the applicant had been pressured to join the militants, he could relocate within Pakistan to avoid them.
The applicant’s appeal to the Tribunal was lodged on 1 August 2011. He did not appoint an agent, and appears not to have had any assistance in the course of the proceedings in the Tribunal. He did not present further documents to the Tribunal, other than evidence of a change of address.
The applicant accepted an invitation to attend a hearing held on 25 January 2012. A transcript of the hearing is in evidence. Unfortunately, the transcript does not make clear the parts of the hearing in which the applicant responded to the Tribunal in English, as distinct from the parts where he responded in Urdu and which was translated to the Tribunal.
It is relevant to examine those parts of the transcript which might provide evidence whether or not the document at folio 1 on the Department’s file was overlooked by the Tribunal, both at the hearing and later when arriving at its decision.
At the start of the hearing, after the Tribunal member had described his function and how he proposed to ask questions of the applicant, he said to the applicant:
TRIBUNAL:
And in your case the Department of Immigration provided this file here.
And that has on it the application form that you gave to the Immigration Department.
And I understand that that was given to the Department on the 29th April 2011.
There is also a copy of the witness statement which was provided to the Department on the 13th May 2011.
And er – that statement had with it a range of documents about your circumstances.
There is a recording of an interview with you by an officer of the Immigration Department.
And that interview, I think was on the 4th July last year 2011.
And there is a copy of the decision by the Immigration Department which was a decision to refuse you a Visa.
And that decision was made on the 5th July 2011 and that is the decision that I am reviewing.
In addition to that, the Tribunal has this file here.
And that has on it all the information that you have sent directly to the Tribunal.
And I think most of the information you have sent to the Tribunal relates to your change of addresses in Australia.
Did you have any other written documents that you wanted me to look at today?
APPLICANT:
No I don’t have. No I don’t have anything.
This evidence does not clarify to my satisfaction what it was that the Tribunal referred to as “in addition to that, the Tribunal has this file here”, but it may be that the second file was the Tribunal’s file. I was invited by the Minister’s counsel to infer from the reference by the Tribunal member to “there is also a copy of the witness statement which was provided to the Department on the 13th May 2011”, an inference that the witness statement had accompanied the bundle of personal academic documents. This is possible, but if so, it is difficult to explain the non‑consecutive folio numbers. Even if this comment suggests that the Tribunal was aware that the file contained some personal documents with the date‑stamped folio 8 on top, the transcript does not satisfy me positively that the Tribunal member had digested all of these documents on the bottom of the file, and was specifically aware of the Punjab University record at folio 1 at any stage or during or after the hearing.
It is common ground that at no subsequent time in the hearing was anything said which might show the Tribunal’s awareness of the contents of this document received from the Department. The possibility that, in fact, the Tribunal was unaware of its presence on the file, then emerges due to its pertinence to a line of questioning of the Tribunal about the applicant’s studies with Punjab University, in which it might be expected that the Tribunal would have referred to it, if the Tribunal was aware of it. This part of the transcript was:
TRIBUNAL
When did he retire?
APPLICANT:
I don’t remember exactly when it was a long time ago. Maybe 2002/3.
TRIBUNAL
So how old were you when your father retired?
APPLICANT:
My age - -
TRIBUNAL
Yes do you remember how old you were when your father retired?
APPLICANT:
Maybe 22, 23 years.
TRIBUNAL
And you were still living with him at that time?
APPLICANT:
Yes.
TRIBUNAL
And what were you doing at the time when he retired?
APPLICANT:
I was a student?
TRIBUNAL
Where at?
APPLICANT:
In College.
TRIBUNAL
Which college?
APPLICANT:
Islamabad College 363.
TRIBUNAL
And what were you studying at that time?
APPLICANT:
Ah three science.
TRIBUNAL
And when did you finish that study in science?
APPLICANT:
Ah I finished my three in 2002/2003. I finished my college at that time.
TRIBUNAL
And did you do any further study after that?
APPLICANT:
After that I did a private bachelor.
TRIBUNAL
Where did you study for that?
APPLICANT:
Punjab.
TRIBUNAL
When did you finish that study?
APPLICANT:
I finished the college in 2008.
TRIBUNAL
So when you say you did private study, what do you mean?
APPLICANT:
I didn’t go to the College I used the three at home and after then I went for the exams.
TRIBUNAL
And where did you go for exams?
APPLICANT:
… [indecipherable]
TRIBUNAL
Where did you have, did you have the exams at a college or somewhere else?
APPLICANT:
That is some college they used to inform us to letter back a lot of place where we have to go for our exam … [indecipherable]
TRIBUNAL
So you finished studying for your science qualification in 2002 or 2003?
APPLICANT:
Yes.
TRIBUNAL
And when did you start your private study?
APPLICANT:
Ah I started preparation in 2006 after that I applied for admission and then after I called my exam date.
TRIBUNAL
So when you say you started your preparation in 2006, what do you mean by that?
APPLICANT:
Ah the process which we have we have to get the books is by yourself and yet there is no need to go to college and after that we apply for the exam and when we get the date we usually sit an exam.
TRIBUNAL
So you started studying privately in 2006?
APPLICANT:
Yes.
TRIBUNAL
And what were you studying?
APPLICANT:
I was studying education, journalism and Persian.
TRIBUNAL
Sorry, what was the last word? Persian
APPLICANT:
Persian language.
TRIBUNAL
And what bachelor degrees were you awarded?
APPLICANT:
Bachelor of Arts.
TRIBUNAL
Through what institution?
APPLICANT:
Punjab University.
TRIBUNAL
Can you tell me a little bit about what you learned about education?
APPLICANT:
After now what I learn from is that how we live and I learned that.
And er they taught us how to live in good society and how we should present ourselves as a good citizen. And how you should used to live yourself in the society and from Persian from journalism how they use the newspaper.
TRIBUNAL
And so you are able to write in Persian are you?
APPLICANT:
No I don’t understand it, I can’t write.
TRIBUNAL
I thought you said you studied Persian?
APPLICANT:
Yeah there are some language some things which we have in Persian … [indecipherable]
TRIBUNAL
Right, I thought you said you study Persian languages, the Persian language?
APPLICANT:
Ah the language is not in that matter it is that it is about some kind of things about old people and in this we have to study about some people for example Sheikh Saadi about his background because he was his background was from Persian and some other people like that.
TRIBUNAL
So you never had to read or write in Persian when you were studying the Persian language.
APPLICANT:
We used to memorise the Urdu in the printing of the Persian interpreting and we used to sit an exam. The whole thing is in Urdu but there are some words that were taken from Persian.
TRIBUNAL
What are all the words that were taken from Persian?
APPLICANT:
I don’t know any Persian words.
TRIBUNAL
How long did you study the Persian language for?
APPLICANT:
2 years.
TRIBUNAL
And you can’t remember any Persian words?
APPLICANT:
I don’t know anything I don’t remember anything because we have to study everything in Urdu and we understand everything from a script.
TRIBUNAL
I might have thought someone who studied the Persian language for 2 years might be able to tell me one word in Persian.
APPLICANT:
If I tried about maybe I remember something but I don’t remember now.
TRIBUNAL
Are you sure you are telling me the truth about your study because it seems unusual to me that you wouldn’t remember anything in Persian?
APPLICANT:
Whatever I am saying all of it is the truth. We were having a really small book so I don’t remember anything from that.
TRIBUNAL
There was a really small book with Persian words in it?
APPLICANT:
Yes.
TRIBUNAL
Was it written in Persian?
APPLICANT:
That book was in Urdu but there were one or two pages in the book we call it Fasi oh sorry in Persian.
TRIBUNAL
Okay. So when you say you studied privately did you study in your home or did you go somewhere else and study?
APPLICANT:
I used usually most of the time I used to study at home but if sometimes if I had any difficulty I used to go some of the institute.
TRIBUNAL
So where would you go to institutes?
APPLICANT:
The College was near to my house where I used to go.
TRIBUNAL
What was it called?
APPLICANT:
Millat the name of the college was Millat M I L L AT.
TRIBUNAL
Did you ever go to the Punjab University?
APPLICANT:
What do you mean?
TRIBUNAL
Well I thought it was the institution that gave you a bachelor’s degree.
APPLICANT:
Punjab University is in Lahore. We have to get our admission on line through letter.
TRIBUNAL
So have you ever been to the Punjab University in Lahore?
APPLICANT:
That’s right.
TRIBUNAL
So have you ever attended there for classes or do exams or any other reasons?
APPLICANT:
No, no I didn’t.
TRIBUNAL
So when did you see it?
APPLICANT:
Ah, long before when I went with my father to Lahore I saw the university.
TRIBUNAL
So you did exams in Islamabad?
APPLICANT:
Yes.
TRIBUNAL
When did you do those?
APPLICANT:
It was in the middle of 2008.
TRIBUNAL
So you started studying in 2006?
APPLICANT:
Yes.
TRIBUNAL
Did you do any exams in 2006?
APPLICANT:
No.
TRIBUNAL
Did you do any exams in 2007?
APPLICANT:
No.
TRIBUNAL
Where you studying during 2007?
APPLICANT:
I used to study in 2007 and after that I sent for admission and they gave me admission in 2008. I got an examination date in 2008.
TRIBUNAL
But you did those exams in Islamabad?
APPLICANT:
Yes.
TRIBUNAL
When during 2008 where the exams held, in the middle of the year, the beginning of the year or the end of the year?
APPLICANT:
Begin from the start to the middle.
TRIBUNAL
Do you remember what month?
APPLICANT:
I don’t remember exactly.
TRIBUNAL
Tell me about what you fear if you return to Pakistan now?
APPLICANT:
My life is in danger so therefore I forgot a lot of things. My memory, my internal condition, whatever I used to feel before it it has changed now.
Ah I I have a fear now and I used to have some dreams, some dreams which are fearful dreams.
With my dreams never be more because my family is now in a very bad situation. …
The hearing then continued, with close questioning by the Tribunal concerning the applicant’s claims in relation to the attempts to recruit him to study and train with militant groups, and the claimed circumstances in which the applicant had come to Australia in 2011. There was also questioning to test the applicant’s claims in relation to events of 2007, including detailed questioning about the geography of the Red Mosque and its madrassas or schools. Some of the applicant’s responses on these topics were later regarded by the Tribunal as providing ancilliary reasons for disbelieving the applicant’s refugee claims, and is the subject of two grounds of review before me, but it is unnecessary for me to address that part of the case.
The Tribunal made a decision on 21 March 2012, in which it decided to affirm the delegate’s decision. The Tribunal’s statement of reasons is relatively short. It included the usual boilerplate description of the “relevant law”. It identified the applicant’s refugee claims by reciting verbatim the applicant’s visa statement, in so far as it dealt with his claimed personal history. It did not refer to, list or summarise the applicant’s personal records at the bottom of the Department’s file, including the document from the Punjab University.
However, it said:
19.The Tribunal has had regard to material contained on tribunal case file 1107742, departmental file CLF2011/66617 and oral evidence given at a hearing before it.
The Tribunal did refer to a “range of media reports” which were attached to the applicant’s visa statement. It referred to the attendance of the applicant at the hearing, and included a summary or outline of the hearing. This did not purport to be a full account of the hearing. Thus, recounting the applicant’s oral evidence concerning his studies in Pakistan, the Tribunal said:
26.The applicant had studied science at the G63 College in Islamabad finishing in 2002 or 2003. He then studied Education, Journalism and Persian language privately before undertaking examinations through Punjab University in 2008. He commenced arrangements for this study in 2006 and studied Persian language for two years. Asked whether he could speak or write any Persian words, he indicated that he could not. He explained that the study of Persian language had been mostly in Urdu. He explained that he had only used a small book, most of which was in Urdu and with only one or two pages in Persian. He explained that if given time he could recall a Persian word. He indicated that he was telling the truth about his study.
The Tribunal then set out verbatim two news reports, upon which it built a conclusion that the applicant had not, in fact, ever attended at a madrassa associated with the Red Mosque. It also briefly referred to some general country information concerning the situation in Pakistan.
Under the heading “Findings and Reasons”, the Tribunal found that the applicant was a national of Pakistan. It then continued:
45.Beyond the issue of his nationality, the tribunal does not believe the applicant has otherwise given a truthful account of his circumstances. Considered overall, the evidence leads the tribunal to the conclusion that the applicant has fabricated claims of past events and experiences and fears of return to Pakistan in order to try to obtain a protection visa. The tribunal does not believe that the applicant genuinely holds any fear of harm for reasons of race, religion, nationality, membership of a particular social group or political opinion. In the tribunal’s view if he held such fears he would have presented a credible and consistent account of any relevant fears, which he has failed to do.
46.The tribunal believes the applicant has been untruthful about his past experiences in Pakistan because it believes he has not been truthful about his former study in that country. The applicant has claimed in his written application that during the period 2006 to 2008 he was involved in private study through Punjab University which he did at this home. His written statement indicates that this was in part motivated by his pleas to his father to undertake further education rather than enter study at madrassa associated with the Red Mosque. He claimed to the tribunal to have undertaken two years of tertiary level study in the Persian language during this period. When asked by the tribunal whether he could say or write any Persian word he was not able to do so. In the tribunal’s view this indicates that he is not being truthful about his study during this period and this indicates that he is prepared to be untruthful in respect of this application.
47.In the tribunal’s view, had the applicant spent two years studying the Persian language at tertiary level so recently he would have been able to recall a Persian word, either in writing or in speech. He could not and his only explanation was completely implausible, that the study of the Persian language was undertaken in Urdu and he only had a small book with some Persian which he could not recall. The tribunal does not accept this explanation as plausible and finds instead that the applicant is not being truthful about his experiences in Pakistan.
The Tribunal then gave two additional reasons for disbelieving the applicant’s claimed history entirely. The first reason was that it “[did] not accept that the applicant or any member of his family has had the close and ongoing relationship with senior leaders of the Red Mosque as he has claimed”. This finding was based upon what was perceived to be a lack of knowledge by the applicant about two madrassas associated with the Red Mosque. The second reason was that the Tribunal thought that the applicant had given different reasons for his release by militants when taken to the NWFP in 2011.
The Tribunal concluded:
53.In the tribunal’s view, the applicant has fabricated claims of past experiences in Pakistan trying to establish some interest in him by militant groups operating in the country. While there is evidence that militant groups do undertake forced recruitment of members and act violently against those who are seen as against their aims, the tribunal does not believe the applicant is such a person. In the tribunal’s view, being aware that some people have been targeted by militant groups in the past, the applicant decided to make up such a claim in respect of himself to found his application. During the hearing before the tribunal the applicant indicated that he had no fear other than that elucidated in his written statements and oral claims about return to Pakistan. Given that the tribunal does not believe those claims, it finds that there is no evidence which would support a conclusion that the applicant holds well-founded fear of being persecuted by reason of race, religion, nationality, membership of a particular social group or political opinion in Pakistan at the current time or foreseeable future. While there are high levels of violence reported in some areas of Pakistan and militant groups also operate with brutality in some regions, one could expect that if the applicant held fears on any plausible basis in this regard he would have presented them for consideration.
54.Given these conclusions, the applicant is not a refugee within the terms of Article 1A of the Refugees Convention and is not owed protection obligations by Australia on this basis. Nor is he the member of the same family unit as such a person. This being the case, he cannot satisfy any criteria for a Class XA visa prescribed at s.36 of the Act and the grant of such a visa to him must be refused under s.65 of the Act. The delegate’s decision to this effect should be affirmed.
The applicant now seeks orders setting aside the Tribunal’s decision and remitting the matter. I have power to make these orders only if I am satisfied that the decision is affected by jurisdictional error. I do not have power myself to decide whether the applicant should have been believed in whole or part, nor whether he qualifies for any permission to stay in Australia.
The applicant was represented by counsel today, who relied on a further amended application containing three grounds. Ground 1 focused upon the Tribunal’s finding of disbelief that the applicant had spent two years studying the Persian language at a tertiary level. Grounds 2 and 3 attacked the Tribunal’s reasoning in relation to its second reason for finding that the applicant had “fabricated claims of past experiences in Pakistan”.
Due to pressures on the time available to me today, and with the consent of both counsel, I heard submissions concerning Ground 1 separately, and deferred consideration of the other two grounds until I could decide whether this would be necessary. After fully hearing counsel’s submissions, I have decided that it is not necessary to consider the other grounds, and that Ground 1 should be upheld for the reasons which follow.
Ground 1 is framed as follows:
1.In finding at [45] and [46] (CB141) that the applicant has not been truthful about his experiences in Pakistan, the Second Respondent failed to take into consideration a relevant consideration.
Particulars
The Tribunal placed primary emphasis on the fact that the applicant said that he had studied Persian but was not able to recall a Persian word at [47] (CB141).
No consideration was given by the Tribunal to independent corroborative material before the Tribunal, namely an academic transcript from the University of Punjab (CB70).
As developed in the applicant’s counsel’s written and oral submissions, the ground might best be understood to be the ground of ‘ignoring relevant material’, rather than failing to consider a relevant consideration. The distinction is not always apparent or significant, since a decision‑maker’s ignoring of a critical piece of evidence may evidence a failure to address a factual or legal issue to which the piece of evidence relates. However, the distinction is important in circumstances such as the present, where it is not submitted that the Tribunal incorrectly weighed a relevant piece of evidence when deciding an issue, but that it failed entirely to be aware of, and to consider the weight to be given to, a critical piece of corroborative evidence submitted by an applicant relevant to an issue upon which the Tribunal based an adverse credibility finding concerning the whole of the applicant’s evidence.
In SZMSD v Minister for Immigration & Anor [2009] FMCA 96, I outlined my understanding of the relevant High Court authority that such an error amounts to jurisdictional error:
23.The jurisdictional error which is relied upon, has been described in the High Court as that of ‘ignoring relevant material’. In a well known passage in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ said at [82]:
82It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)
“falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it”.
“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.
(citations omitted)
24.The error of ‘ignoring relevant material’ is related to the jurisdictional error of ‘failing to take into account a relevant consideration’, which was explained by Mason J in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39 and following. However, as their Honours in Yusuf suggested at [74], the latter is more concerned with how a decision-maker has identified legal and factual issues which were required to be addressed when the relevant legislation is applied to the particular matter for decision, than with “the process of making the particular findings of fact upon which the decision-maker acts”.
25.In relation to a decision-maker’s consideration of the evidence, it is well established that no jurisdictional error occurs, if the decision-maker makes a ‘mere’ error of fact when considering or weighing a piece of evidence in the course of deciding an issue of fact or law arising in the matter (cf. NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [52]-[54] and [68]). Moreover, the Full Court has warned against drawing an inference that either an issue has been overlooked, or that evidence was overlooked, merely because a piece of evidence was not expressly discussed in the course of a decision-maker’s stated reasons, since “it is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons” (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at [46]). However, an error in the assessment of a material piece of evidence is one thing, and failing to be aware of evidence which is material to the decision, and of which the decision-maker should be aware, is another.
26.The jurisdictional error of ‘ignoring’, or failing to be aware of, or totally disregarding, relevant evidence has been traced to a general duty implicit in a statutory power of decision, that the decision-maker “is required to make his decision on the basis of material available to him at the time the decision is made” (see Mason J in Peko-Wallsend (supra) at 45, also Gibbs CJ at 30, Dawson J at 71, Brennan J at 67 and Deane J at 70).
27.It has been suggested that a statutory duty to be aware of the evidence submitted by an applicant is subject to a qualification that the evidence is material to the issues to be decided and is not ‘insignificant or insubstantial’ (cf. Gibbs CJ in Peko-Wallsend (supra) at 31). To the same practical effect, are suggestions that the materiality and significance of allegedly overlooked evidence should be considered, before drawing conclusions from the decision-maker’s reasons as to whether, in fact, the decision-maker was unaware of, or uninformed as to, that evidence (cf. Sackville J in Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 152 at 165 and following). These tests also come into play at a discretionary level, since relief will be refused if the Court is satisfied that the overlooking of evidence was of no possible significance to the decision which was made (cf. SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26 at [28]-[29], [55]-[59], [91], Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1 at [85]-[86]).
28.In the present case, I have considered the need to be cautious before concluding that the Tribunal overlooked a piece of evidence which was in the documents which the Secretary forwarded as “relevant to the review” pursuant to s.418(3) of the Migration Act. I must also read the Tribunal’s statement of reasons so as to give it the benefit of doubts (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277 and 291). However, the Tribunal was under a statutory duty both to be aware of those documents, and to include in its statement of reasons its findings on what it thought was the material evidence. An inference can be drawn, if appropriate, from the absence of reference to significant evidence forwarded by the Department, that it was overlooked (see Yusuf (supra) at [10], [35], [69], and [75]).
I remain of the opinion that my above discussion reflects a proper understanding of High Court authority. I do not consider that it is inconsistent with subsequent Federal Court authority.
In particular, I do not accept the submission of counsel for the Minister that it can never be a jurisdictional error to ignore a critical piece of corroborative evidence, relying upon the statement of the Full Court in Minister for Immigration & Citizenship v SZNPG (2010) 115 ALD 303, [2010] FCAFC 51. In that judgment, North and Lander JJ said:
[27]Of course, if the RRT failed to consider an element of an applicant’s claim, that would amount to jurisdictional error because Div IV of Pt 7 of the Act requires a review of the whole of the applicant’s claims. In that case, the RRT would have failed to discharge its “imperative duties”: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; [2002] HCA 11; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; 219 ALR 27; [2004] FCAFC 263.
[28]However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294.
However, what their Honours said has to be understood in its entirety and also in the context of the facts of the case upon which they gave judgment. Their judgment concerned how a Tribunal had assessed the weight to be given to a baptismal certificate, which was a document which the Tribunal undoubtedly took into account and expressly said that it had considered (see their Honours at [9]). This is not the situation which is raised by the ground of review which I am addressing.
Moreover, a general proposition that “overlooking an item of evidence … is not jurisdictional error” is manifestly inconsistent with the well‑known statement of principle from Craig and Yusuf, which I have quoted above, and requires qualification. Taken out of context from their Honours’ statement in SZNPG, it is inconsistent with previous authority of Full Courts, which have accepted the existence of jurisdictional error where evidence is overlooked in some circumstances (see VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [68]-[79]).
Moreover, North and Lander JJ said in a judgment delivered with SZNPG, Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485, [2010] FCAFC 50:
37Several further observations should be made concerning the type of situation addressed in Applicant S20/2002 77 ALJR 1165; 198 ALR 59. The case does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence.
38The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. Applicant S20/2002 77 ALJR 1165; 198 ALR 59 does not sanction a practice of disregarding corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence. Consequently, the observation concerning the dicta of McHugh and Gummow JJ at [49] in Applicant S20/2002 77 ALJR 1165; 198 ALR 59 made in SZDGC 105 ALD 25 at [23] is probably misdirected. Those observations addressed the situation where the corroborative evidence was disregarded.
These observations are consistent with other judgments in the Full Court, which have found jurisdictional error where a Tribunal consciously ignored, or put out of mind entirely, a consideration of a piece of corroborative evidence which was relevant to a finding on credibility (see WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568, [2004] FCAFC 74 at [49]-[52], and distinguish WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [70], and Minister for Immigration & Citizenship v SZMOK (2009) 257 ALR 427, [2009] FCAFC 83 at [59]). If, on these authorities, it is a jurisdictional error for a decision‑maker deliberately to refuse to weigh the evidentiary significance of a piece of evidence relevant to a material issue of credibility, then it must also be such an error unconsciously to ignore corroborative evidence by reason of inadvertence or other reason. It may be difficult to conclude that a total ignoring or overlooking of evidence has occurred, as distinct from an error of fact when weighing relevant evidence, but the distinction is, in my opinion, well established on good authority binding this Court.
As I recognised in SZMSD, there is an onus on an applicant to persuade the Court on judicial review that the existence of a piece of corroborative evidence which was among the documents forwarded by the Secretary to the Tribunal has, in fact, not been appreciated by the Tribunal when making critical findings. However, the Court is entitled to assess the course of the proceedings at the hearing, and the manner in which the Tribunal has written its reasons, when deciding whether this has in fact occurred.
In the present case, the Punjab University student record appears to me to be of such obvious corroborative importance to the issue which ultimately became paramount in the Tribunal’s reasoning as to the applicant’s general credibility, as to point to a very high likelihood that, if the Tribunal had been aware of its existence, its possible falsity would have been raised by the Tribunal at or after the hearing. It also appears to me that the Tribunal would have expressly identified and discussed it in its statement of reasons, when making the applicant’s study of Persian the touchstone for his general credibility.
I say this not only because of the document’s prima facie weight as a piece of evidence corroborating that the applicant had in fact undertaken a course of studies in a subject named “Persian (Optional)”, but also because of considerations of procedural fairness. It is not necessary to decide, and no ground has been taken concerning, the fairness of the Tribunal’s failure to advert at the hearing to the student record and to the possibility that it might be given no weight in relation to an issue of credibility whose significance to the credibility of the applicant’s refugee claims was by no means obvious, i.e. whether or not the applicant had studied a course called ‘Persian’. Even if raising this prospect was not required under the procedures of the Tribunal, it would be usual and fair to expect that the Tribunal would have referred to the student record, if it had been aware of it at the hearing or subsequently. Particularly, since a reading of the transcript suggests that the applicant’s description of his studies and examination in his Persian course was open to other interpretations. These included that the applicant was a less than perfect student, who had managed to pass a correspondence or internet course in Persian which was of a cultural nature, and from which he might emerge without gaining knowledge of Persian words which would be available for instant recall three years later. Certainly, a reader of the Tribunal’s subsequent decision is left wondering why, if the Tribunal had been aware of the student record, it was not put to him that the student record was false, and explained why that piece of evidence might not be given weight when the reasons were written.
In my opinion, the absence of any reference to this document in either the course of the hearing, or in the reasons of the Tribunal, points towards the likelihood that the Tribunal was unaware of its existence on the file of the Department, when it came to decide the matter based on an adverse finding that the applicant had not studied a course of Persian in the manner he described at the hearing. The evidence as to the likely folio numbering of the Department’s file, in which this document was at the bottom and separated from the applicant’s visa statement and attachments, tends to support that inference.
More important to this inference, in my opinion, is the manner in which the Tribunal reasoned in paragraphs 45 to 47. Its reasoning focused entirely on the applicant’s oral evidence about his studies at Punjab University, and assessed its veracity upon an assumption that this exercise was to be performed without any assistance from any available extrinsic and possibly corroborative evidence. The adverse finding was based entirely upon the Tribunal’s opinion of the intrinsic plausibility of the applicant’s oral evidence. This is shown in its final sentence, which rejected the applicant’s explanation for his inability to recall a Persian word: “the tribunal does not accept this explanation as plausible and finds instead that the applicant is not being truthful about his experiences in Pakistan”. To draw this conclusion without adverting to the critically relevant corroborative evidence shows, in my opinion, that the Tribunal ignored the available extrinsic evidence, and probably did so through inadvertence.
Considering all the evidence which is before me, there is, in my opinion, not a skerrick of specific evidence showing that the Tribunal was aware of the critical document when it made this finding, or was aware that the document was in the papers which had reached it from the Department. In view of the points I have made above, I am not persuaded otherwise by the Tribunal’s general and formulaic statement that it had regard to the material on the Department and Tribunal files. On the balance of probabilities, I conclude that the Tribunal overlooked and gave no consideration whatsoever to the document, when it made its adverse findings.
I therefore accept the applicant’s submissions that this is a case within the principles identified in Craig and Yusuf, where a piece of evidence which the Tribunal was required by law to take into consideration has been ignored.
As I explained in my discussion in SZMSD, this might not be enough to establish jurisdictional error, unless the Court was also satisfied that the piece of evidence was of significance to the decision that was made, and therefore material to the Tribunal’s purported exercise of its jurisdiction. Counsel for the Minister did not focus upon this issue in his submissions, and I consider its outcome is clear. In my opinion, the reasoning followed by the Tribunal shows that the applicant’s undertaking of a course in Persian did achieve significance in the reasoning of the Tribunal, so as to come within the principle I have identified above. Its disbelief of this fact provided its principal reason for totally disbelieving all of the applicant’s case for refugee status. I am, at least, unable to be persuaded, in the language of the Full Court in VAAD at [79]:
While it is impossible to know whether the Tribunal’s assessment of the applicant’s credibility would have been different if the error about the UNP letter had not been made, or had been corrected, it is not possible to say that the error could not have affected the outcome.
I am therefore satisfied that all the ingredients of the jurisdictional error coming within Ground 1 have been made out, and that it is appropriate to grant relief based on my satisfaction as to that error.
As I have explained above, I have concluded that it is unnecessary for me to address the other grounds of review raised by the further amended application. My above reasoning has assumed that those grounds would not succeed, and that the error raised by Ground 1 is the only jurisdictional error affecting the Tribunal’s exercise of jurisdiction. I consider that both counsel were correct, when accepting that Ground 1 could be addressed separately, and that jurisdictional error identified under that ground was discrete, and not dependent upon a finding of error affecting subsequent parts of the Tribunal’s reasoning. It is clear, in my opinion, that the reasoning relevant to Ground 1 provided an indispensible element, if not the chief foundation, for the Tribunal’s general conclusion that the applicant’s claimed history should be rejected in its entirety, and that he should be regarded generally as a person who has “fabricated claims of past experiences in Pakistan”.
I therefore propose to grant relief in the usual terms.
I certify that the preceding forty‑seven (47) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate:
Date: 22 October 2012
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