SZUCJ and Ors v Minister for Immigration and Anor (No.2)
[2015] FCCA 3266
•18 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUCJ & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2015] FCCA 3266 |
| Catchwords: MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – whether the Tribunal acted irrationally or unreasonably by considering whether to give credit to apparently corroborative evidence of the applicants’ claims after the Tribunal had concluded the applicants were not credible – whether the Tribunal properly considered apparently corroborative evidence – whether the Tribunal was obliged to give to the applicants notice it might consider corroborative evidence to be false and to inform the applicants of the significance and probative value of that evidence – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.360, 424A, 425 |
| Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 Kaur & Anor v Minister for Immigration & Anor [2013] FCCA 1162 Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 SZSRB v Minister for Immigration & Anor [2013] FCCA 1382 SZUCJ & Ors v Minister for Immigration & Anor [2014] FCCA 2624 VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74; (2004) 80 ALD 568 |
| First Applicant: | SZUCJ |
| Second Applicant: | SZUCL |
| Third Applicant: | SZUCM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 775 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing dates: | 29 October 2014; 17 September 2015 |
| Date of Last Submission: | 17 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2015 |
REPRESENTATION
| Solicitors for the Applicants: | The applicants appeared in person on 29 October 2014; Mr N Dobbie of Dobbie and Devine Immigration Lawyers on 17 September 2015 |
| Counsel for the Respondents: | Mr M Cleary on 29 October 2014; Ms Burnett of Clayton Utz on 17 September 2015 |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The applicants have leave to reopen their case to the extent necessary to advance the three grounds of application specified in the draft amended application attached to the applicants’ written submissions filed on 28 January 2015.
The applicants have leave to file an amended application in the form of the draft amended application referred to in order 1.
The amended application shall be taken to have been filed on 28 January 2015.
The amended application is dismissed.
The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 775 of 2014
| SZUCJ |
First Applicant
| SZUCL |
Second Applicant
| SZUCM |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants, a husband, wife, and their child, are citizens of Pakistan, and Sunni Muslims. They seek judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants Protection (Class XA) visas (Protection visa).
The matter was first listed for hearing before me on 29 October 2014. On that day the applicants, who at the time were not legally represented, applied for an adjournment to give them an opportunity to obtain legal representation. I refused that application.[1] I granted the applicants leave, however, to file an application in a case to reopen their case by 28 January 2015, and I ordered that if no such application were made by that date I would consider the hearing concluded and give judgment based on the evidence adduced and the submissions made at the hearing on 29 October 2014.
[1] SZUCJ & Ors v Minister for Immigration & Anor [2014] FCCA 2624
In the event, on 28 January 2015 lawyers representing the applicants filed submissions in support of an application for leave to reopen the applicants’ case, together with a draft amended application and submissions in support of the grounds set out in the draft amended application. By consent, I directed the Minister file submissions in response. At the request of the applicants, I listed the application for leave to reopen for hearing on 17 September 2015. On that day I heard submissions on three questions: whether I should grant the applicants leave to reopen their case; assuming I grant the applicants leave to reopen their case, whether I should grant the applicants leave to file an amended application; and, if leave to amend the application were granted, whether the Tribunal made the jurisdictional errors claimed in the proposed amended application.
Before I consider these issues, it will be necessary to set out the applicants’ claims for protection, and the Tribunal’s reasons for not accepting them.
The applicants’ claims for protection
The alleged facts on which the applicants claimed protection were first set out in a detailed statement contained in their application for Protection visas.[2] The alleged facts are as follows.
[2] CB33-44
In 2008 the first applicant (the husband) worked in a bank in Lahore. He countersigned documents that had been prepared by a fellow employee that were later found to have been fraudulent. The husband also received a four-page “charge sheet”.[3] That was a letter from the bank to the husband in which it alleged the husband had engaged in gross misconduct in relation to the husband’s involvement in his fellow employee’s frauds, and required the husband to respond to the allegations.[4] By a subsequent letter, the bank imposed “punishments” in relation to the matters alleged in the charge sheet.[5] These were the “[s]toppage of increment and Bonuses for the year 2008” and the “[i]ssuance of a Letter of Reprimand”.[6]
[3] CB33; CB381-384
[4] CB381
[5] CB385
[6] CB385
To salvage his career at the bank, and to stop his financial position from deteriorating, the husband and the second applicant (the wife) “joined the Shia sect on 08 October 2008” because “they control the promotions in” the bank.[7] In support of that claim, the husband and the wife provided two documents, one purportedly signed by the husband,[8] and one purportedly signed by the wife.[9] The document purportedly signed by the husband certified that “on 08-10-2008” “[h]e changed his sect from Sunni to Shia”, and the document purportedly signed by the wife certified that “on 08-10-2008” “[s]he changed his [sic] sect from Sunni to Shia”.
[7] CB33
[8] CB389
[9] CB388
After the husband and the wife changed to the Shi’a sect the husband’s “career was salvaged and my salary was restored and my bonuses, allowances and increments were immediately restored”.[10] The husband supported this claim with what he described to be a letter from the bank.[11] That letter, which is dated 13 March 2010, stated that the husband’s “services have been confirmed in Bank with effect from 17th August 2006 [sic], subject to the usual terms and conditions”. The husband supported his claims with additional letters from the bank stating that his salary had been increased.[12]
[10] CB34
[11] CB463
[12] CB464-465
After converting to the Shi’a sect life for the husband and the wife greatly improved. The husband and the wife, however, intended to return to the Sunni community “when the time was right”; and they did so “by breaking off our relationships with the Shia mosque by not attending the Mosque for worship or prayers”.[13] The husband and the wife began to receive threatening, abusive, and harassing telephone calls and threatening letters because “we converted back to the Sunni sect”.[14] Articles also appeared in “the Pakistani and English language newspapers advising that we have converted back to the Sunni sect which would identify where we live and who I work for and my work location”.[15]
[13] CB34
[14] CB34
[15] CB34-35
On one occasion, when walking across a road outside their house, a car sped by from nowhere and nearly knocked over the husband. This was done to intimidate the husband.[16] On 17 June 2010 the husband received a threatening letter stating “[w]e have come to know that you have converted from being a believer in Fiqah-e-Jafaria to become a Sunni” and “[y]ou have not done any good to yourself by doing this”.[17] The letter stated the husband was being monitored “by the system” and warned him that if he did not return to the fold of Fiqah-e-Jafaria “we will make you, your son and your wife to learn a lesson”, including “even go to the extent of killing all three of you”.[18] The husband also received a letter dated 28 September 2010 stating “we had previously forbidden you to mend your ways but you did not listen to us”, and “we will teach a lesson for converting to ‘Sunnism’”.[19]
[16] CB35
[17] CB164
[18] CB164
[19] CB167
In October 2010 the wife was present at a Shi’a religious procession during “on or about the tenth day of Mohoram [sic]” where devotees were whipping themselves. A man approached the wife, and said that the third applicant (the child), who was then 1 year and eight months old, was old enough to whip himself.[20] The man insisted the child do so, and “go and touch the horse”.[21] In response the wife declared the husband and the wife were not Shi’a and the child, therefore, was not obliged to whip himself. The man told the wife she and the husband had taken a lot of benefits from joining the Shi’a community and they will have to pay.[22]
[20] CB35
[21] CB35
[22] CB36
Although not stated in the husband’s application, before the Tribunal the applicants claimed that in October 2010 the applicants converted back to the Sunni faith by engaging a solicitor to prepare documents declaring that the husband and the wife had returned to the Sunni sect. Those documents were lodged with a court, sent to the Shi’a community, and their contents published in a newspaper.[23]
[23] CB549, [15]
On 10 October 2010 the husband was attacked by four or five persons who jumped out of a car at a roundabout. One of the attackers had a gun which he used to intimidate the husband, and the persons bashed the husband until he passed out.[24] The husband reported the incident to police.[25] The husband then received another threatening letter.[26]
[24] CB36
[25] CB170-171
[26] CB174
The husband believed that, once he left for Australia, the Shi’a “will not see me and they will forget us”.[27] After the husband arrived in Australia in February 2011, however, the wife received a letter dated 16 May 2011 [sic] which stated that “[w]e have come to know” that the applicant “has fled to Australia”, and now it was the wife’s turn.[28] Out of concern for the wife’s safety, the husband advised the wife to go to Dubai and reside with her mother.[29] The wife went to Dubai in February 2011 [sic], but could only stay there for three months, so she returned to Pakistan on 12 May 2011.[30]
[27] CB36
[28] CB36; CB176
[29] CB36
[30] CB36
On 24 May 2011 some four or five male persons broke into the husband’s and the wife’s home in Pakistan and violently bashed the wife with sticks and terrorised the child.[31] The wife was treated at the hospital,[32] and she made a complaint to the police which was recorded in writing.[33] To cope with the danger, the wife and the child moved around and resided with relatives for two or three weeks.[34] The husband decided it would be best to bring the wife and child to Australia; and they arrived in Australia on 27 January 2012. The threats in Pakistan, however, did not stop. The husband’s father received a letter dated 4 February 2012. It stated that the husband and the wife “may go to whatever place on earth, we will not spare them”, and that the husband and the wife will be chased “until they re-join Fiqah-e-Jafaria”.[35] That was followed by a letter dated 15 June 2012 to the husband’s father, this time threatening the father.[36] The husband stated:[37]
From the chronology above it is obvious that our situation has become worse over time since returning to the Sunni sect. If our situation was not so dangerous to live in Pakistan we would return after I complete my studies. However, the situation in Pakistan is intolerable and will lead to my wife and son and I being bashed, raped and killed so we are asking for protection of Australia and so a protection visa.
[31] CB37
[32] CB37
[33] CB37; CB179
[34] CB37
[35] CB37; CB183
[36] CB37; CB186
[37] CB38
Before the Tribunal
On 12 December 2013 the husband and the wife appeared before the Tribunal to give evidence and present arguments.[38] In addition, the husband and the wife presented a witness (Mr S) who had also prepared a statutory declaration dated 2 December 2013.[39] The Tribunal summarised the effect of the evidence Mr S gave as follows:[40]
Mr [S] is a national of Pakistan who came to Australia in June 2012 as the holder of a student Visa. He claimed that he was a customer of the bank where the applicant worked and met him by that means. He claimed that in October 2010 while walking on the street he saw a number of men assaulting the applicant (as the applicant had claimed occurred once he converted back to the Sunni sect).
He heard the attackers say words to the effect that the applicant had to return to the Shi’a sect. After this incident he saw the applicant at the bank and the applicant told him about his conversion between the two sects. He said that he and a friend took the applicant to hospital to treat his injuries.
[38] CB302
[39] CB563, [118]
[40] CB563, [119]-[120]
There is in evidence the statutory declaration made by Mr S.[41] It includes the following statements:
[41] CB386
(1) I know [the husband] as a teller in . . . Bank at . . . Lahore Pakistan.
(2) I know him from when he worked at . . . Bank at . . . Lahore Pakistan.
. . .
(5) I know that [the husband] was a member of the Sunni sect and converted to Shia sect and he after some time converted back to Sunni sect.
(6) I witnessed [the husband] being bashed near the round about near the marketplace in Lahore in October 2010 due to that he converted back to Sunni sect.
(7) I witnessed some 4 or 5 men bashing [the husband] and they said that he has insulted them for joining the Shia sect then converting back to Sunni sect and that he better convert back to Shia sect otherwise they will bash him and kill him.
(8) A friend that was with me at the time and I took [the husband] to the . . . Hospital after the bashing as he was hurt.
There is in evidence a transcript of the evidence Mr S gave before the Tribunal. That evidence included the following:[42]
[42] Affidavit of the husband, 28.01.2015, annexure “A”
TM:So what happened?
W:I was with a couple of friends because it was one of my friends birthday.
W:So we were celebrating as there are many restaurants in that area
W:Saw when saw him there, there was a lot of crowd
W:So like there were 5 people there.
W:and they attacked him
TM:So did you see the people attacking [the husband]
W:I saw but there was a lot of crowd and it was night time.
TM:So what, you just saw a little bit, what was that?
W:I saw that they had sticks their hand
W:And one of them had a gun, the big one
W:So like they said you insulted our religion and degraded it.
W:So we wont leave you like this
TM:Did they say what he had done to insult his religion?
W:It was something similar to saying that you have insulted our religion and you should live like us
W:and they said if you cannot do it its going to it its going to be disadvantageous for you
W:So when there was a crowd there we came forward
W:So when I came forward I saw he had blood as well as injuries
W:When I saw him thats when I recognized him that I have seen him at the bank
TM:Did he say anything to you?
W:No he didn’t he was out of his senses at that time
TM:He told us that at some stage he became a shia and then he became a sunni again. Do you know that?
W:Everyone has their own personal life, what I am trying to tell you is a week after the incident in the bank
W:when i asked him what was the problem?
W:then he just said casually that there was some problem I had in the bank
W:Because you know everyone was in the bank and he couldn’t tell me everything and neither did have a relationship with him
TM:do you know if [the husband] converted into being a shia?
W:Yes, because those people were shia people and in the crowd it was also the same people who were beating him up they were shias
TM:and did you know that he gave back to being a sunni?
W:Yes because, they were saying in the crowd that you converted you didn’t do the right thing and you insulted us
Correspondence after hearing
After the hearing, the Tribunal sent to the applicants a letter dated 8 January 2014 in which it identified particulars of information the Tribunal considered would, subject to comments the applicants may make, be the reason or part of the reasons for affirming the delegate’s decision.[43] The letter identified seven matters.
[43] CB325
The first was what the Tribunal considered to be three inconsistencies between the husband’s and the wife’s written claims, and the evidence they gave before the Tribunal.
a)The first was that, in their statements, the husband and the wife stated that the wife was pressured into declaring she was a Sunni after a Shi’a man at the religious procession during the tenth day of Mohorram stated that the child was old enough to whip himself. Before the Tribunal, however, the husband said this occurred in 2009, and that it was from that time that the husband and the wife started slowly to withdraw from the Shi’a religion, and that the last gathering they attended was in March 2010.[44] The wife also said to the Tribunal that the incident occurred in 2009.
b)The second inconsistency was that, before the Tribunal, the husband and the wife both said they had converted back to the Sunni religion on 10 October 2010. The husband said that they did that by their solicitor lodging an affidavit at court, sending a letter to the Shi’a community to which the husband and the wife had previously belonged, and placing an advertisement in the newspaper. The Tribunal noted the husband and the wife did not mention these matters in their written applications for Protection visas.[45] Rather, the husband’s and the wife’s statements “convey the impression that well before October 2010 articles were placed in newspapers alleging they had converted back to the Shi’a sect”.[46]
c)The third inconsistency was that, in their statements, the husband and the wife said they intended to return to the Sunni community when the time was right. Before the Tribunal, however, the husband said he had “no plan about that; he said he was just trying to safeguard his future and his family”.[47]
[44] CB326
[45] CB326
[46] CB326
[47] CB327
The second matter the Tribunal identified as being a reason for the Tribunal affirming the delegate’s decision was the inconsistency between the husband’s and the wife’s evidence about the consequences of converting from the Sunni to the Shi’a sects. The husband and the wife said they were unaware, at the time of their conversion to the Shi’a sect, of sectarian violence in Pakistan in which Sunnis had killed Shi’as, and they did not perceive any risk of suffering harm by converting to that sect. The husband also said he was unaware of the differences between Sunnis and Shi’as, that some Sunnis regarded Shi’as as non-believers, and he did not expect Shi’as to be angry and wanting to harm him and his family when they left that sect. The Tribunal said this was inconsistent with country information which indicated that, for some years, sectarian violence between Sunnis and Shi’as had been taking place in Pakistan and, for that reason, it was difficult to accept the husband’s and the wife’s claims they were unaware of the differences between Sunnis and Shi’as at the time they converted and they did not perceive any risks in converting.[48]
[48] CB327
The third matter the Tribunal considered as being a reason for the Tribunal affirming the delegate’s decision related to the husband’s and the wife’s claims concerning the procedure by which they converted. The Tribunal said it “may” have difficulty in accepting that the procedures the applicants followed in converting were in fact required and that conversion took place without any in-depth conversations with the husband and the wife about their conversions.[49]
[49] CB328
The fourth matter the Tribunal considered was that the husband and the wife gave differing accounts before the Tribunal about when they attended the office of the solicitor who prepared the documents in relation to their converting back to the Sunni sect. The husband and wife initially said it was 10 October 2010. The husband then said it was the day before, and the wife said it was three days before.
The fifth matter the Tribunal considered would be a reason for affirming the delegate’s decision was what the Tribunal considered to be inconsistencies in the evidence the husband and the wife gave to the Tribunal and to the delegate of the circumstances in which the husband’s and the wife’s conversion back to the Sunni sect was advertised in the newspaper. Before the delegate, the husband said he advertised his conversion because his father advised him that he should properly declare it; and the husband further said that a public declaration was made in a newspaper because he wanted to declare to the Shi’as that if something happened they were responsible. Before the Tribunal, however, the husband said he was not aware the solicitor whose office he attended in October 2010 to sign documents relating to the husband’s and the wife’s conversion was actually going to publicise their conversion including by placing an advertisement in the newspaper.[50]
[50] CB329
The sixth matter the Tribunal considered would be a reason for affirming the delegate’s decision was that the husband told the Tribunal that when he left Pakistan in February 2011 he left by himself because he did not think his wife would be attacked, and his plan was to return to Pakistan after he completed his studies in Australia.[51] That information was relevant because the Tribunal had difficulty in accepting the husband would honestly think it would be safe to return to Pakistan and for the wife to remain there given the experiences he claimed to have had before he left for Australia.[52]
[51] CB329
[52] CB330
The seventh matter the Tribunal considered would be a reason for affirming the delegate’s decision was the delay in the applicant’s applying for protection. The husband left Pakistan in February 2011, yet he did not apply for protection until August 2012. The Tribunal said this was relevant because the husband had told the Tribunal that one of the reasons he applied for a student visa to come to Australia was because of the harm he feared from Shi’as.[53]
[53] CB330
The applicants responded to the Tribunal’s letter through their agent by letter dated 17 February 2014.[54]
[54] CB496
Tribunal’s reasons
The Tribunal’s reasons are structured as follows. First, after stating the relevant law, the Tribunal set out the applicants’ claims. In that section, the Tribunal identified country information to the effect that the “incidence of fraudulent documentation in Pakistan is high”.[55] Next, the Tribunal set out its findings. This part of the Tribunal’s reasons largely follows the structure of its letter to the applicants dated 8 January 2014. The Tribunal in part repeats verbatim the matters it stated in its letter that would be the reason or part of the reason for affirming the delegate’s decision, sets out the applicants’ responses to the Tribunal’s letter, and the Tribunal’s findings in relation to the applicants’ responses.
[55] CB551, [23]
The first matter related to the inconsistencies the Tribunal identified in its letter. The Tribunal noted that, in their response of 17 February 2014, the applicants said:
a)the account they gave to the Tribunal was correct;[56] they submitted it was during the ceremony in Moharram held in December 2009 that the wife declared she had returned to the Sunni sect, and that the date given in the statement was incorrect, and the mistaken date of 2010 was inadvertently given to the representative at the time their application for protection was prepared;[57]
b)the account given to the Tribunal about a solicitor preparing the documents that were used to convert back to the Sunni sect was correct, and that they had omitted to include that information in their written application for Protection visas because they did not think it was important, and they did not want to burden the Department with minor issues;[58] and
c)the husband was stressed and anxious at the hearing, and he meant to say that, at the time he converted to the Shi’a sect, he intended to convert back to the Sunni sect.[59]
[56] CB554, [47]
[57] CB554, [48]
[58] CB555, [51]
[59] CB555, [54]
The Tribunal did not accept these explanations. As to the first explanation, the Tribunal could not believe the husband and the wife would mistakenly put forward the wrong date in their written application.[60] As to the second explanation, the Tribunal found that converting back to the Sunni sect would have been a significant event in their lives, and the Tribunal did not believe the applicants would omit details in relation to that conversion because they thought it was unimportant or minor.[61] As for the third explanation, the Tribunal said it could appreciate the husband would be nervous at the hearing. However, the Tribunal did not believe the husband meant to say to the Tribunal that, at the time he converted to the Shi’a sect, he intended to convert back to the Sunni sect.[62]
[60] CB555, [50]
[61] CB555, [52]
[62] CB555, [55]
The Tribunal concluded this part of its reasons as follows:[63]
Overall, there is significant difference between the evidence given to the Tribunal and the evidence in the written statements of the applicant and his wife about very important matters. According to their written statements, as late as October 2010 they were still participating in Shi’a events; the only public declarations in newspapers about them returning to the Sunni sect were made by Shi’as with the intention of harming them and there was no mention of them attending a solicitor’s office as they told the Tribunal.
Also inconsistent was the evidence about the intentions of the applicant when he became a Shi’a with respect to how long he would remain in that sect and whether he would convert back to being a Sunni. No adequate explanation has been provided for these discrepancies and they reflect poorly on the credibility of the applicant and his wife.
[63] CB555-556, [56]-[57]
The Tribunal then considered the applicants’ responses to the Tribunal’s concerns about the applicant’s claims they were unaware of the differences between Sunnis and Shi’as, and did not perceive any risk in converting. The Tribunal accepted the wife’s response that she had grown up in Dubai, and started to live in Pakistan in 2008, although it was sceptical of the wife’s explanation.[64] The Tribunal, however, did not accept the husband’s explanations.[65]
[64] CB557, [67]
[65] CB557, [67]
The husband claimed he did not see sectarian violence had anything to do with his converting; he claimed that, due to restrictions placed on the media in Pakistan, sectarian violence in one part of Pakistan would not be reported in other parts.[66] The husband claimed it was not until after he converted to the Shi’a sect that he found out the two sects had differences about the timing, frequency, and manner of prayer, when fasting is broken, and also about “kalma”.[67] Although the Tribunal was willing to accept it was only after the applicant converted to Shi’a that he found out about differences between the Sunni and Shi’a sects, the Tribunal rejected the husband’s claims he was unaware of violence between Sunnis and Shi’as;[68] and, consequently, the Tribunal disbelieved the husband’s claim that he underestimated or was mistaken in thinking he would not suffer harm from Shi’as for converting back to the Sunni sect.[69]
[66] CB557, [68]
[67] CB557, [69]
[68] CB558, [75]
[69] CB558, [76]
Next, the Tribunal considered the husband’s response to the Tribunal’s concerns with the husband’s evidence that he was not concerned for the safety of his wife when he left Pakistan, and that he planned to return to Pakistan. In their response, the applicants submitted they took a calculated risk and thought the wife and the child would be safe,[70] and that the risk of harm was reduced because the wife and the child lived with different relatives, and so the Shi’as would lose interest in them.[71] The Tribunal concluded:[72]
In essence, the applicant and his wife claim that the applicant thought that if he left Pakistan his wife and child would not be harmed including if they stayed with different relatives and stayed temporarily in Dubai. The Tribunal does not accept the applicant would honestly have held those views when, since early 2010, he said he and his wife received threats to return to the Shi’a community, in writing, in person and over the telephone and those threats included harm to his wife and child.
In addition, his wife had converted to the Shi’s sect and then converted back to the Sunni sect just as he had done. In all of these claimed circumstances, the Tribunal does not accept that the applicant would think that only he was of interest to the Shia’s.
[70] CB559, [82]
[71] CB559, [83]
[72] CB559, [86], [87]
Finally, the Tribunal considered the applicants’ explanation for their delay in applying for protection. At the hearing, the husband said he first made enquiries about obtaining protection in Australia after the wife and the child arrived in January 2012. After the wife arrived, however, the husband and the wife were trying to work out what to do. The husband thought he would apply for a visa to study in Australia and then go to Kuwait because he has a brother-in-law there. The husband contacted the brother-in-law who told him he could not apply for protection, but should do so in Australia.[73] In their response to the Tribunal’s letter of 8 January 2014, the applicants submitted, among other things, they did not think the difficulties with the Shi’as would last so long because the husband thought that if he left Pakistan to study in Australia that would resolve the problem.[74] The Tribunal did not accept these explanations:[75]
Overall, the applicant’s inaction to make inquiries once he came to Australia and, in particular, from May 2011 when his wife was attacked, is inconsistent with a person genuinely in fear of harm. His inaction, in his claimed circumstances, is inconceivable.
[73] CB560, [92]
[74] CB560, [97]. In their submission to the Tribunal, the representative stated that the applicant “advised he did not think that his problem with the Shia would last so long and that it would accelerate so much as he thought that leaving Pakistan to study in Australia would resolve the problem and that after studying in Australia he would go to a good well paid job and life would return to normal but that did not materialize. However, when he arrived in Australia and studied at a college he did not realize that he could apply for a Protection Visa but if he knew that his problem with the Shia is not going to go away and that he can apply for a Protection Visa in Australia he would have done so a long time ago.” (CB504-505)
[75] CB561, [105]
The Tribunal then made findings on the husband’s and the wife’s credibility. The applicant found the husband was not a witness of truth, and the account of events on which his protection claims were based was false.[76] The Tribunal also found that, although the wife purported to corroborate the husband’s account of the events on which their protection claims were based, the Tribunal was of the view that, for the reasons it relied for not accepting the husband’s account, the Tribunal considered the wife’s account also to be false.[77] The Tribunal accepted the husband was under investigation by the bank, but was eventually exonerated, but not because the husband had converted to the Shi’a sect.[78] Critical to the applicants’ challenge to the Tribunal’s decision is the following finding:[79]
The Tribunal finds that there is no credible evidence that the applicant, his wife and child were ever harmed by anyone in Pakistan and there is no credible evidence that anyone or any group wishes to harm them. There is no credible evidence as to why they left Pakistan and why they do not want to return there.
[76] CB561, [106]
[77] CB562, [108]
[78] CB562, [111]
[79] CB562, [112]
The Tribunal did refer to the statutory declaration provided by Mr S, and to the evidence he gave at the hearing.[80] After setting out the effect of Mr S’s evidence, the Tribunal said:[81]
The Tribunal has carefully considered the evidence of Mr [S] but the fact that he has claimed to have witnessed the applicant being attacked by Shi’as in October 2010 does not persuade the Tribunal that the account of events advanced by the applicants on which their protection claims are based is true.
The concerns about the credibility discussed above in this decision, in the Tribunal’s view, significantly discredit them as witnesses. Those concerns colour the credibility of the entire account and not just one incident in October 2010. The evidence of this particular witness does not outweigh or alleviate those credibility concerns.
Accordingly, the Tribunal accepts that this witness was a customer at the bank where the applicant worked and knew him in that context. The Tribunal finds his evidence about witnessing the attack on the applicant in October 2010 and this being related to the applicant converting from the Shi’a sect to the Sunni sect is false.
[80] CB563, [118]-[120]
[81] CB563, [121]-[123]
The Tribunal found that the documents on which the applicants relied “considered separately or cumulatively” did not “alleviate to overcome the concerns the Tribunal holds about the applicants’ credibility”,[82] and the Tribunal also was of the view it had to consider available country information about the prevalence of false documents in Pakistan.[83] For those reasons:[84]
[T]he Tribunal finds that it cannot and does not attribute evidentiary weight to these documents which have been produced to the department and Tribunal to support the protection claims of the applicants. The Tribunal remains of the view that those claims are false.
[82] CB566, [135]
[83] CB566, [135]
[84] CB566, [136]
Should leave be granted to reopen?
The Minister submits that the applicants have not complied with the orders I made on 29 October 2014 that the applicants file an application in a case by 28 January 2015. The applicants only filed written submissions attaching a draft proposed amended application. That is a formal objection. In their written submissions, the applicants specifically sought leave to reopen their case. In other words, the applicants have in substance complied with the orders I made. I propose to proceed on the basis that, by filing their written submissions and draft amended application by 28 January 2015, they have complied with the orders I made on 29 October 2014.
The only other ground on which the Minister opposes the application for leave to reopen and, hence, leave to amend the application, is that the proposed grounds of review do not have reasonable prospects of success. For the reasons that will be apparent, the proposed grounds do have reasonable prospects of success. In my opinion, it is in the interests of the administration of justice that I grant the applicants leave to reopen their case.
I propose to order, therefore, that the applicants have leave to reopen their case to the extent necessary to apply to amend their application and to make submissions in support of the grounds contained in the proposed amended application. I will also grant the applicants leave to file an amended application in the form of the draft attached to the applicants’ written submissions that were filed on 28 January 2015.
Ground 1 – unreasonable and irrational rejection of the evidence of Mr S
The first ground of the amended application is directed to the Tribunal’s finding that there was no credible evidence the husband, the wife, and the child were ever harmed by anyone in Pakistan. The applicants submit the finding is irrational, or unreasonable, or both; and the finding is irrational, or unreasonable because there was credible evidence before the Tribunal that, if accepted, showed the husband had been attacked in October 2010, just as the husband had claimed. The applicants submit the Tribunal’s reasoning was circular. On the one hand, the Tribunal found there was no credible evidence the applicants had been harmed; yet, on the other hand, it found Mr S’s evidence was not credible for reasons that included the Tribunal’s finding that there was no credible evidence to support the applicants’ claims of harm.[85]
[85] Applicants’ Outline Of Submissions, [10]
The applicants’ submission is premised on the proposition that the evidence of Mr S was credible. Whether or not Mr S’s evidence was credible, however, is not a question for this Court to determine; it was a matter for the Tribunal to determine. The Court does, of course, have jurisdiction to review a decision made by the Tribunal based on the Tribunal’s credibility findings; but that jurisdiction is limited to intervening where the Tribunal’s credibility findings are irrational, or unreasonable, or where the Tribunal arrived at the credibility findings in some other manner that discloses jurisdictional error. The relevant question is whether it was reasonably open to the Tribunal to reject Mr S’s evidence for the reasons it gave.
The first step in answering that question is to properly characterise the Tribunal’s reasoning. The applicants are correct in submitting that the Tribunal first considered and made adverse findings about the husband’s and the wife’s credibility before the Tribunal considered whether to give credit to Mr S’s evidence, having regard to those adverse findings. The Tribunal committed no jurisdictional error, however, in taking that approach.
It is true it has been held that the Tribunal may make a jurisdictional error if, having made adverse credibility findings against an applicant, the Tribunal decides not to consider evidence that corroborates the applicant’s claims; and the Tribunal will make a jurisdictional error in those circumstances unless the applicant’s claims have been so comprehensively discredited by findings of dishonesty or untruthfulness that the corroborative evidence is negated.[86] In other words, it is not:[87]
…open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error.
[86] WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74; (2004) 80 ALD 568 at [27] (Lee and Moore JJ)
[87] WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74; (2004) 80 ALD 568 at [27] (Lee and Moore JJ)
On the other hand, it is open to the Tribunal to reject corroborative evidence because the Tribunal made adverse credibility findings against an applicant, or an applicant’s claims, provided the Tribunal considered the corroborative evidence. That is what the Full Court of the Federal Court held in Minister for Immigration and Citizenship v SZNSP.[88] In that case the Tribunal found the applicant had fabricated her claim of fear of persecution and, because of the adverse credibility findings it made of the applicant, the Tribunal decided not to give any weight to a witness statement that apparently corroborated the applicant’s claims. The words the Tribunal used were: “Given the adverse credibility finding, the Tribunal does not give weight to the document”.[89] The Full Federal Court said:[90]
Thus, consistently with Applicant S20/2002 198 ALR 59 it was open to the RRT to assess the credit of the first respondent and then, in the light of that assessment, consider what weight should be given to the witness statement. This was the process followed by the RRT which it described in the sentence “Given the adverse credibility finding, the Tribunal does not give weight to the document”. Although expressed in the most cryptic terms, this statement shows that the RRT made an assessment of the value of the witness statement and then considered its effect in the light of the view it had formed to that point about the credibility of the first respondent.
[88] [2010] FCAFC 50; (2010) 184 FCR 485 (North, Lander and Katzmann JJ)
[89] [2010] FCAFC 50; (2010) 184 FCR 485 at [13]
[90] [2010] FCAFC 50; (2010) 184 FCR 485 at [33] (North and Lander JJ; Katzmann J agreeing at [42])
What the Full Federal Court said about the Tribunal’s not accepting the witness statement in SZNSP applies with greater force to the Tribunal’s approach in not accepting Mr S’s evidence; the Tribunal in the case before me exhibited more detailed reasoning for not accepting Mr S’s evidence than did the Tribunal in SZNSP. The Tribunal in the case before me held it had concerns about the husband’s and the wife’s credibility, not only in relation to one element of their claims for protection, namely, the husband’s claimed attack in October 2010, but in relation to most other elements. These included the circumstances in which the husband and the wife claimed they had converted back to the Sunni sect which, the Tribunal found, contained important inconsistencies between their written claims, and the evidence they gave to the Tribunal. The Tribunal was unpersuaded that the apparent corroboration of one element of the applicants’ claims was sufficient to remove the Tribunal’s reasons for doubting other elements of their accounts and, therefore, for doubting their entire case for protection. It was reasonably open to the Tribunal to reason in that way.
The logic of the Tribunal’s approach can be described in greater detail. The Tribunal had before it apparently direct evidence given by the husband and the wife of events which, if accepted, would prove they suffered the harm and the threat of harm from Shi’as they claimed to have suffered; and there was additional apparently direct evidence from Mr S which, if accepted, would corroborate the husband’s evidence of one of those events. On the other hand, there were matters (adverse matters) on the basis of which it was reasonably open to the Tribunal not to accept, not only the evidence of the husband and the wife, but also the evidence of Mr S. The adverse matters consisted of the inconsistencies the Tribunal identified between the evidence the husband and the wife gave before the Tribunal and the accounts they gave in their written application for Protection visas, their delay in applying for Protection visas, and the explanations the husband and the wife gave for the inconsistencies and for their delay in applying for Protection visas. The adverse matters largely related to the testimony the husband and the wife gave of events other than the claimed attack on the husband in October 2010, being the event that was apparently corroborated by the evidence of Mr S. That is, the adverse matters related to events the husband and the wife testified had occurred which could not have been corroborated by the evidence of Mr S, assuming his evidence were accepted. The Tribunal, as it was reasonably open for it to do, found that the adverse matters, relating as they did to the testimony of the husband and the wife of events other than the claimed attack of 10 October 2010, prevented the Tribunal from being satisfied that those events had occurred. Having so concluded, the Tribunal considered whether to assign credibility to Mr S’s evidence. It found it could assign no credibility to Mr S’s evidence, given that it did not accept the husband and the wife’s evidence that events that were not apparently corroborated by Mr S’s evidence did occur. In those circumstances, it was reasonably open to the Tribunal not to assign credibility to the evidence of Mr S.
For these reasons, ground 1 of the amended application fails.
Ground 2 – failure to review
The second ground of the amended application is that the Tribunal failed to discharge its core function to review the decision because it did not have proper regard to the evidence of Mr S. The applicants submit the Tribunal failed to have proper regard to the evidence of Mr S because it made an arbitrary finding that his evidence was false “merely because it had credibility concerns about the” husband and the wife.[91]
[91] Applicants’ Outline Of Submissions, [12]
I do not accept this submission. The Tribunal did consider and did have proper regard to the evidence of Mr S. When dealing with the evidence of Mr S, the Tribunal said that its concerns with the credibility of the husband and the wife coloured the credibility of the husband’s and the wife’s entire account, and not just the account of one incident, being the incident the evidence of Mr S purported to corroborate. The Tribunal said that the apparently corroborative evidence of Mr S did not alleviate the Tribunal’s concerns.[92] That indicates that the Tribunal considered whether the existence of apparently corroborative evidence of one of a number of events on which the husband and the wife relied, namely, the attack on the husband on 10 October 2010, was sufficient to cause the Tribunal to overcome the concerns the Tribunal had with the credibility of the husband’s and the wife’s accounts, not only of the claimed attack but of all other critical events on which the husband and the wife relied. That manifests a due consideration by the Tribunal of the apparently corroborative evidence of Mr S. It was reasonably open to the Tribunal to conclude, as it did, that Mr S’s evidence was insufficient to cause the Tribunal to overcome its concerns.
[92] CB563, [122]
Ground 2 of the amended application, therefore, also fails.
Ground 3 – failure to alert applicants that evidence of Mr S may be found to be false
The third ground is that the Tribunal failed to comply with s.425 of the Migration Act 1958 (Cth) (Act) because it failed to put to Mr S that his evidence was false, and it failed to put to the husband that the Tribunal considered Mr S’s evidence to be false. The applicants rely on the decision of Judge Driver in Kaur & Anor v Minister for Immigration & Anor.[93]
[93] [2013] FCCA 1162
In Kaur, the Migration Review Tribunal (MRT) affirmed a decision of a delegate of the Minister not to grant to Ms Kaur a Skilled Residence (Class VB) visa. The delegate did not grant the visa because the delegate was not satisfied Ms Kaur had not provided a bogus document, and it was not satisfied that the requirement that Ms Kaur not have provided a bogus document should be waived. Before the MRT, Ms Kaur submitted that the requirement should be waived because there were compelling circumstances that affected the interests of Australia. The asserted compelling circumstances related to Ms Kaur’s sister. As described by Judge Driver, the asserted circumstances were “Ms Kaur’s sister, and her sister’s husband work, in order to make ends meet; they were able to work because Ms Kaur looked after her sister’s child; Ms Kaur’s sister and her family would suffer significant hardship if the visa were not granted, because no one would be able to look after the child if Ms Kaur had to depart Australia (if the Class VB visa was not granted)”. [94] Ms Kaur’s sister, Ms Begum, gave evidence before the MRT, but the MRT did not accept her evidence. Judge Driver held the MRT did not, as it was required to do by s.360 of the Act, give Ms Kaur the opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review. His Honour so held because the review before the MRT “turned on the probative value of Ms Begum’s” evidence, and the MRT “needed to ensure that Ms Kaur understood that the essential and significant issue upon which the review would turn was the probative value of Ms Begum’s evidence”.[95]
[94] [2013] FCCA 1162 at [14]
[95] [2013] FCCA 1162 at [67]
The applicants submit that his Honour’s reasoning in Kaur applies to their circumstances. They submit that s.360 of the Act is in the same terms as s.425; as the MRT failed to do in Kaur, so the Tribunal in the application before me failed to put to Mr S that it considered his evidence to be false, and it failed to explain the significance of Mr S’s evidence and the probative value of that evidence to the applicants.[96]
[96] Applicants’ Outline Of Submissions, [17]
The facts in Kaur are, however, distinguishable. In Kaur, the assertions of the witness in question that were made before the Tribunal “did not figure in the delegate’s decision”.[97] That is not the case in the application before me. The applicants claimed in their written application that the husband was attacked in October 2010, and this assertion, together with the wife’s assertions of having been beaten, figured in the delegate’s decision. The delegate said she had “serious doubts about the genuineness of these claims”.[98]
[97] [2013] FCCA 1162 at [64]
[98] CB229
In any event, Kaur would be plainly wrong if it were read as authority for the proposition that the Tribunal is obliged give to the applicant notice of the evidence that is before it which the Tribunal might not accept or might consider to be false, and must also give notice of the significance and probative value of that evidence. That would be so for two reasons. First, such obligation would exceed the obligation imposed on the Tribunal by s.424A of the Act to notify the applicant of particulars of “information” on which the Tribunal might act to affirm the decision under review. The “information” to which s.424A applies “does not encompass the tribunal’s subjective appraisals, thought processes or determinations”; nor “does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps”.[99] The meaning of “information” is “related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”.[100] To read Kaur as requiring the Tribunal to notify an applicant that it may consider evidence given to it as false would, contrary to what s.424A of the Act has been held to require, require the Tribunal to at least give the applicant notice of its “subjective appraisals, thought processes or determinations”.
[99] VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 at [477] (Finn and Stone JJ) quoted with approval by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at 616 ([18]).
[100] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at 616 ([18])
Second, if Kaur were read as obliging the Tribunal to give to an applicant notice of the evidence that is before it which the Tribunal might not accept, and must also give notice of the significance and probative value of that evidence, such obligation would exceed the obligations the Tribunal has under s.425 of the Act to give notice. Those obligations were identified by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs.[101] In SZSRB v Minister for Immigration & Anor I summarised the principles the High Court articulated in SZBEL as follows:[102]
a)At common law, a duty to accord procedural fairness consists in providing to the person likely to be affected by the decision with an opportunity to put information and submissions to the decision-maker in support of the outcome the persons seeks.[103]
b)The duty extends to the decision-maker identifying to the person likely to be affected “any issue critical to the decision which is not apparent from its nature or the terms under which it is made”, and advising the person to be affected “of any adverse conclusion which has been arrived at which would not obviously be open on the known material”.[104]
c)Section 425 of the Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal.[105] It requires the Tribunal to invite the applicant to “give evidence and present arguments relating to the issues arising in relation to the decision under review”. Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa.[106]
d)The issues that arise in relation to the decision are to be identified by the Tribunal. If “the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are ‘the issues arising in relation to the decision under review’”.[107]
e)There may be cases where 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 . . . But where . . . 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.[108]
[101] [2006] HCA 63; (2006) 228 CLR 152
[102] [2013] FCCA 1382 at [46]
[103] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [29].
[104] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [29]. The quoted passages are from Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 591-592 (Northrop, Miles and French JJ).
[105] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [33]
[106] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [34]
[107] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [35]
[108] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [47]
Further, the High Court said:[109]
If the issues on the review of the delegate’s decision by the Tribunal are identified no more particularly than by the question “is the applicant entitled to a protection visa?” rejection of some or all aspects of his account of the past events said to found his fears of persecution would self-evidently be a conclusion open to the Tribunal. The conclusion would be open because every aspect of the applicant’s claim would be in issue in the Tribunal’s review of the delegate’s decision, but if the issues are to be identified more particularly, other questions arise.
[109] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [39]
Returning to the circumstances of the case before me, the delegate did not accept the husband’s claim that he was attacked in October 2010. That meant the applicants were on notice that whether or not the husband was attacked as he claimed would be one of the issues that would be before the Tribunal. In those circumstances, rejection of this aspect of the applicant’s claims was self-evidently a conclusion open to the Tribunal. That necessarily implies that the rejection of any apparently corroborative evidence was also a conclusion open to the Tribunal without the Tribunal being obliged to give any further notice to the applicant. The Tribunal, therefore, was under no obligation to give to the applicants notice of any of the matters of which the applicants submit the Tribunal should have given to them.
Ground 3 of the amended application, therefore, also fails.
Conclusion and disposition
The applicants have not succeeded on any of the three grounds stated in the amended application. I propose, therefore, to dismiss the application. I will also order that the Administrative Appeals Tribunal be substituted as the second respondent. I will hear the parties on costs.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 18 December 2015
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