SZUNU v Minister for Immigration
[2016] FCCA 2334
•15 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUNU v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2334 |
| Catchwords: MIGRATION – Application for protection visa – review of decision of Refugee Review Tribunal – whether the Tribunal erred by failing to give the applicant particulars of information in accordance with s.424A of the Migration Act 1958 (Cth) – whether the translation of an email in Farsi provided to the Tribunal was “information” within the meaning of s.424A – whether the Tribunal decision was affected by unreasonableness – jurisdictional error – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 424AA, 477 |
| Cases cited: AIL15 v Minister for Immigration & Border Protection (2016) 307 FLR 99; [2016] FCCA 1088 Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396; [2001] FCA 1196 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 SZRHL v Minister for Immigration & Citizenship (2013) 136 ALD 641; [2013] FCA 1093 |
| Applicant: | SZUNU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 802 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 25 July 2016 |
| Date of Last Submission: | 25 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 15 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr N Poynder |
| Solicitors for the Respondents: | Mr M Glavac, Clayton Utz |
ORDERS
The name of the second respondent be amended to “Administrative Appeals Tribunal”.
A writ of certiorari issue directed to the Administrative Appeals Tribunal quashing the decision of the Tribunal dated 13 February 2015.
A writ of mandamus issue directed to the Tribunal requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 5 July 2013 in accordance with the law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 802 of 2015
| SZUNU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Iran who arrived in Australia on 13 April 2012. He lodged an application for a protection visa on 16 July 2012 which was refused by a delegate of the Minister on 5 July 2013. The applicant applied to the Refugee Review Tribunal[1] for review of that decision. On 13 February 2015 the Tribunal affirmed the delegate’s decision. On 24 March 2015 the applicant applied to this Court for judicial review of the Tribunal’s decision.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
The application for review was one day outside the time limit imposed by s.477(1) of the Migration Act 1958 (Cth). At the hearing of the matter I made an order under s.477(2) of the Act extending the time for making such an application and the matter was then heard on a final basis.
There are three grounds in the amended application. The first two entail an alleged failure by the Tribunal to give the applicant particulars of information in accordance with its obligation under s.424A of the Act. The third ground concerns the effect of the mistake of fact made by the Tribunal about certain evidence given by the applicant. For the reasons that follow the first two of these grounds will fail but the third will succeed and the application will be allowed.
Background facts and claims
The applicant arrived in Australia as an illegal maritime arrival and was taken into immigration detention. He was interviewed on 15 May 2012 and was asked why he left his country of nationality. The essential part of his response was:
The subject of my case is based on my fiance, she has Baha’i faith and in order to marry her, I had to convert to Baha’i and both our families had issue with that. Because my fiance and I have been engaged for a long time and every one knew about it. Being a member of Basij, there’s an interview. This interview can be done in two parts, one is theoretical where you sit down and answer questions and the other part is where they go and assess you, do a search on you. In the second part of the interview they did the research on me and they found out about my relationship with my fiance and knowing that if I’m going to marry her I’d have to convert, that made my situation very dangerous. This was going to put my life in danger and for that reason I decided to leave the country and go overseas.
He claimed that his life would be in danger because people who convert from Islam to another religion would be classed as a kaffir, who is an infidel, and the punishment is execution.
On 16 July 2012 the applicant lodged his application for a protection visa. He claimed that in Iran he wanted to drink alcohol, choose his hairstyle and clothing and also his religion. The applicant said that on many occasions he was stopped by the Basij, harassed and questioned about why he had a girl with him in the car, or to check to see whether they were drinking alcohol or just to search his car.
The applicant stated that he met his fiancée two years previously in Iran and discovered that she was an Iranian/Canadian citizen who had come back to Iran on holiday. His fiancée normally resided in the United States with her family and was studying to become a pilot. They communicated with each other and met twice before she left for the United States about three months later; they then communicated via phone and internet for the next six months before she again returned to Iran. This time she stayed for over 12 months. During this time they got to know each other more and their relationship became serious. The applicant came to know that his fiancée adhered to the Baha’i faith and her family said that he had to convert if they were going to accept his marriage to their daughter.
The applicant then said that he was asked to go for an interview with the Basij who wanted him to join them. Although they invited him on a number of occasions, he kept giving them excuses as to why he could not attend. In January 2012 the applicant’s neighbours told him that some people had been investigating him and asking about his background and his family. The applicant’s fiancée also told him that unknown people had also been following her for a while. They both knew that that was the Basij.
The applicant said that he wanted to marry his fiancée but that that was not possible in Iran. For that reason he left Iran and travelled to Australia.
On 5 July 2013, a delegate of the Minister made a decision not to grant the applicant a protection visa and the applicant applied to the Tribunal for review of that decision. On 26 May 2014 the Tribunal affirmed the delegate’s decision; however, this decision was set aside by an order of this Court and the matter was remitted to the Tribunal to complete its review.
The applicant attended a hearing conducted by the reconstituted Tribunal on 15 January 2015. It will be necessary to return to some of the passages of evidence given during the hearing. For present purposes, it is sufficient to note that the applicant gave evidence that he wanted to apply for a job as a sports teacher but that he was rejected because he failed the religious part of an interview in connection with his application. The Tribunal asked whether the applicant had mentioned that before and the applicant replied that he had said it at his entry interview, namely the interview that took place on 15 May 2012 and is referred to at [4] above.
After the hearing the applicant sent the Tribunal an email dated 21 January 2015 attaching a number of documents and photos concerning his relationship with his fiancée, including a number of emails apparently in the Farsi language although written in the Roman alphabet. In his email to the Tribunal the applicant wrote:
…
I cannot afford to pay for a Naati translator at the moment. Otherwise if you need all documents translated I will approach my Parliamentary Representative to help me then I will be needing an additional week to arrange for it. I am confident that the evidence I presented is enough to support my case.
The Tribunal did not wait for the applicant to send it translated copies of these documents but instead had the latest one read orally to it by a Farsi speaker. The Tribunal recorded that the email purportedly from the applicant’s fiancée which detailed her circumstances and explained at [53];
… essentially that she was in an abusive relationship with her husband in the US who beat her, kept electronic surveillance on all her communication devices, wouldn’t let her out alone and had hidden all of her identity documents so she wouldn’t leave. Her husband wouldn’t agree to a divorce and she asked the applicant to leave her alone.
On 13 February 2015 the Tribunal made a decision affirming the decision of the delegate.
Tribunal’s decision
The Tribunal found that the applicant’s evidence lacked credibility and that he was not a reliable, credible or truthful witness and his claims were fabricated.
In particular, the Tribunal did not accept that the applicant had a United States based, Canadian citizen, Baha’i fiancée who introduced him to the Baha’i faith. The Tribunal gave a number of reasons for this including:
a)the applicant did not know what university she studied at in the United States or what city or town she lived in, only that she lived in Michigan;
b)the applicant was unable to produce any evidence of his fiancée’s identity;
c)the emails produced by the applicant from his fiancée were written by or with the collusion of the applicant to explain his inability to provide any evidence of his fiancée’s existence, nationality, travel or academic records in light of the fact that:
i)they had the address “[email protected]” which did not indicate that the fiancée had anything to do with the address and could easily have been set up by the applicant himself, or a friend, and the earliest emails were dated after the applicant had arrived in Australia; and
ii)the latest one lacked credibility in light of the fact that Baha’i faith men and women have equal right of divorce;
d)none of the photos given to the Tribunal had any date stamps, for some it was impossible to tell the gender of the person in the photograph, and the photograph alleged to have been taken in Michigan had no identifying features that could indicate what country, let alone what state it was taken in. Three other photos show the applicant with another woman but there was nothing in those photos to indicate that they were in a romantic relationship or that the woman was a Canadian by the name of the applicant’s fiancée.
The Tribunal rejected the claim that the Basij had any interest in the applicant because he had gone out with a Baha’i girl, in light of its previous finding that he was not involved with such a girl. The Tribunal also rejected the applicant’s claim that the Basij continually pressured him to work for them.
The Tribunal also rejected the applicant’s claim to have genuinely converted to the Baha’i faith but found that he had done so in a deliberate and targeted manner for the sole purpose of strengthening his refugee claim. The first reason for this finding was that it had rejected the applicant’s claim to have had a Baha’i fiancée.
The Tribunal did not accept that the applicant was refused a job as a sports teacher because he failed the second part of the interview that dealt with religious knowledge. The Tribunal explained that the applicant had failed to mention that previously and, although he claimed that he had mentioned it at the entry interview, the account the applicant gave then, was inconsistent in that he stated that the second part of the interview was as a member of the Basij and that this involved a background search.
The Tribunal also rejected the applicant’s claim that he would be harmed on return to Iran as a failed asylum seeker and concluded that the applicant did not satisfy the criteria for the grant of a protection visa and so affirmed the decision of the delegate.
Consideration
First ground: failure to comply with s.424A – the arrival interview
Although the ground was formulated as a breach of s.424AA of the Act, the applicant recognised that a failure to comply with that section does not itself constitute a jurisdictional error: SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415; [2009] FCAFC 46 at [74] (Tracey and Foster JJ). Section 424AA simply provides another method of complying with the obligation under s.424A. For that reason, the real question is whether the Tribunal failed to comply with any obligation under s.424A.
The applicant argued that an obligation arose under s.424A in respect of information that the applicant had given orally to the Department of Immigration during his arrival interview. The information he gave was that he had been interviewed in two parts by the Basij, the second part of which was an assessment during which a search was done on the interviewee. It will be recalled that the Tribunal rejected the applicant’s claim made at the hearing that he was refused employment as a teacher because he failed the religious aspect of an interview as that claim had not been made before, and was inconsistent with what the applicant had said at the arrival interview.
The applicant submitted that this was clearly information that was part of the reason for affirming the decision under review, in that it undermined the credibility of the applicant’s claim to have been refused employment as a teacher.
The applicant did not press the first particular of this ground as set out in the amended application.
In his written submissions, the applicant referred to the decision of the Full Court of the Federal Court in ATP15 v Minister for Immigration & Border Protection [2016] FCAFC 53 (“ATP15”) particularly at [42] (Tracey and Griffiths JJ). However, that passage does not support the applicant’s argument. Their Honours said:
[42]It is well settled that, for s 424A(1)(a) of the Act to be engaged, the material in question must in its terms contain a “rejection, denial or undermining” of the review applicant’s claims (see SZBYR & Anor v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 96 ALD 1 at [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ and Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 at [22] per French CJ, Heydon, Crennan, Kiefel and Bell JJ). The information provided in Mrs B’s response was largely information about her travel arrangements, travel to Australia and living arrangements in Australia and was not of a character which was caught by s 424A(1) (see, in not dissimilar circumstances, the observations of Yates J in Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052 at [31]-[32]).
The applicant argued that this passage applied because the information undermined a particular claim made by the applicant, namely that made at the hearing before the Tribunal. However, that submission was based on a misunderstanding of the effect of s.424A. The first part of the observations of Yates J referred to by Tracey and Griffiths JJ in Minister for Immigration & Border Protection v SZTJF (2015) 149 ALD 552; [2015] FCA 1052 were:
[31]There are two matters to note concerning the information referred to in [21] of the decision record. First, it is not information which contains a rejection, denial or undermining of the first respondent’s claims to protection as summarised in [7] above. Put another way, the information was not of “dispositive relevance” to the Convention claims advanced by the first respondent: MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483 at [27]-[29]; SZMDS v Minister for Immigration and Citizenship (2009) 107 ALD 361 at [14]. It was simply information about the first respondent’s travel arrangements and travel to Australia and her living arrangements in Australia. Secondly, as the Minister submits, the information itself is “mere inconsistency” or “evidence that [came to be] relied upon to find inconsistency”. I reject the first respondent’s submissions to the contrary.
The point made here is that information does not fall within s.424A simply because it is inconsistent with a later claim. It must, taken by itself, undermine the applicant’s claim to be a refugee or otherwise to be owed protection obligations. I emphasise the words “taken by itself” because the moment that the information is compared to other information, and is found to be at least potentially inconsistent with it, it is the Tribunal’s thought processes, rather than the information itself, which has the potential impact upon the decision. There is no question that s.424A does not apply to the Tribunal’s thought processes: SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ approving the observations of Finn and Stone JJ in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 236 FCR 549; [2004] FCAFC 123 at 476‑477, citing Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 at [54]; Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396; [2001] FCA 1196 at 428; Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 1679 at [25]; WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276; [2002] FCAFC 266 at 282‑284.
The statement made by the applicant at his arrival interview was not, by itself, inconsistent with the applicant’s claim to be a refugee or otherwise to be owed protection obligations. For that reason, it did not fall within s.424A. In light of that, it is unnecessary to consider whether the Tribunal complied with the procedures set out in s.424AA and the first ground must be rejected.
Second ground: breach of s.424A – translation of the email
The applicant contends that the translation of the email in Farsi sent by him to the Tribunal was “information” within the meaning of s.424A.
There are a number of difficulties with this contention. The first is the implicit assumption that there is a distinction between what was written in Farsi and the translation of it into English. In my view, subject to one thing, there is no such distinction. There is no difference between the information contained in Farsi and the information contained, for example, on a compact disc (CD) or USB stick. The Tribunal is unable to understand that information without the assistance of some intermediary. In the case of information electronically stored on a CD or USB stick, that intermediary may be a computer. In times past, information was more frequently stored on magnetic tapes and vinyl disks and could be accessed and so understood by means of a machine. In each case, the fact that an intermediary is required in order for the information to be accessed and understood does not make the information any different. Once that is accepted, as I think it must, the information in this case was given by the applicant to the Tribunal and so, by operation of sub-s.424(3)(b) of the Act, did not fall within s.424A.
The proviso mentioned in the previous paragraph is that the translation must be accurate. Perhaps more accurately, in order to establish that the information in Farsi fell within s.424A, the applicant had to show that the translation was not accurate. He did not do that.
Even if I were wrong about that, there is a second difficulty that is fatal to this ground. That is, that the translation did not itself undermine the applicant’s claims to be owed protection obligations. For that additional reason, the translation did not fall within s.424A of the Act and the second ground must be rejected.
Third ground: error of fact
This ground is based upon the fact that one of the reasons for which the Tribunal rejected the applicant’s claim to have had a Baha’i fiancée was factually incorrect.
At [50] of its reasons, the Tribunal stated that the applicant “did not know what university she studied at in the United States, or what city or town she lived in, only that she lived in Michigan.” However, at the hearing, the applicant gave evidence that his fiancée lived in Detroit. At the hearing, the Tribunal asked the applicant a number of questions about his fiancée. The relevant passage of the transcript is [T10.39-11.16]:
Tribunal:What was she doing in the US?
Applicant:She was studying at uni.
Tribunal:what was she studying at university?
Applicant: Pilot. To be a pilot.
Tribunal:At university? What university was she at?
Applicant:I don’t know.
Tribunal:You don’t know what university she was at?
Applicant:No.
Tribunal:Do you know what state or city she was in?
Applicant:Michigan.
Tribunal:What city in Michigan?
Applicant: Detroit, Michigan.
This passage shows that the Tribunal was wrong to say that the applicant did not know what city his fiancée lived in. The Minister did not contend otherwise and it was not in issue that Detroit is a city in Michigan. The question is whether that error amounts to jurisdictional error.
The applicant argued that the error made by the Tribunal could be characterised as a failure to have regard to a critical fact, or that the decision itself could be said to have been illogical or irrational because it was based upon a false factual premise. The applicant relied upon the following statement in the judgment of Buchanan J in Minister for Immigration & Border Protection v SZSNW (2014) 229 FCR 197; [2014] FCAFC 145 in respect of the first of these characterisations:
[91]In my view, in the present case there was an error of law committed by the IMR[2] when he disregarded the plain fact that the first respondent had raised claims to have been sexually assaulted during an interview which took place on Christmas Island directed specifically to assessing his claim to be a refugee. The IMR became bound to take that fact into account when it embarked on findings adverse to the credit of the first respondent, based on the false premise that he had not, as he asserted, made such a claim.
[2] Independent Merits Reviewer.
He relied upon the following statement by Logan J in SZRHL v Minister for Immigration & Citizenship (2013) 136 ALD 641; [2013] FCA 1093 (“SZRHL”) at [35] in support of the second proposition:
[35]One way of characterising the Tribunal’s reasoning as to the first appellant’s absence of credibility is that it, based as it is upon a false premise, it is illogical or irrational. That is the alternative way in which the appellants grounded their challenge in the court below to the Tribunal’s decision and, in this Court, put their case that the Federal Magistrates Court had fallen into error. A decision so based is not “within the range of possible acceptable outcomes” (Li at [105]).
The applicant accepted that not every failure to consider relevant material will result in, or constitute jurisdictional error: see for example, SZRHL at [22]. The difficult question however, is how to determine which failure will, and which failure will not, result in such an error.
I examined the relevant authorities on this issue in detail in SZUZE v Minister for Immigration & Border Protection [2015] FCCA 1767 at [22] – [32] and concluded that the principle to be applied is that stated by Robertson J in Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 (“SZRKT”) at 130-131. There have been no developments since that decision that change my view on the issue.
In SZRKT Robertson J relevantly said:
[111]… The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
[112]As the Full Court said in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims. To the extent that the Minister’s submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal’s reasons I do not agree.
In the later decision of AIL15 v Minister for Immigration & Border Protection (2016) 307 FLR 99; [2016] FCCA 1088 I referred to the growing body of authority in respect of this issue and noted that the question is the impact of that error on the Tribunal’s exercise of jurisdiction. Thus, as the duty to review requires the Tribunal to consider available material and the claims that arise from it, an error that deflects the Tribunal from that task will amount to jurisdictional error.
The Minister’s submissions in respect of this ground were, first, that the question of the fiancée’s location was not a “critical fact” and, secondly, that the error was not critical to the Tribunal’s decision because it was merely one of a number of findings that independently led to the Tribunal’s ultimate conclusion. Those submissions do not properly address the issue. The place of a particular finding in the Tribunal’s reasons for decision can be identified neither on an a priori basis nor without any appreciation of the immediate impact of the finding.
Here, while it is true that the location of the applicant’s purported fiancée was not a critical fact, that does not mean that it had no impact upon the decision. Indeed, in my view, it had an important, and in the applicant’s words, cascading impact upon the decision. One of the critical findings made by the Tribunal was that the applicant did not in fact have a fiancée who lived in the United States and was of the Baha’i faith. That was critical because it led the Tribunal to reject a number of the other claims made by the applicant, including the interest in him shown by the Basij and the genuineness of his conversion to the Baha’i faith. Those subsequent findings were not, as the Minister appears to have submitted, independent of the finding relating to the applicant’s fiancée. They depended upon it. The rejection of those claims led inexorably to the Tribunal’s ultimate decision to affirm the delegate’s decision. In that way, there was a close connection between the rejection by the Tribunal of the applicant’s claim to have a United States based fiancée of the Baha’i faith and its ultimate decision.
Further, there was a direct connection between the error of fact made by the Tribunal and its rejection of the applicant’s claim to have a fiancée in the United States. There were a number of reasons given by the Tribunal for its rejection of that claim. However, none of them was independent of the other. It was significant to the Tribunal that the applicant, who claimed to have known his fiancée in Iran over a period of time and spoken to her over the phone when she was allegedly studying in the United States, did not enquire about the city in which his fiancée lived: see [50]. That concern arose from the Tribunal’s mistaken belief that the applicant did not know which city or town his fiancée lived in.
It is important to recall in this context that findings of credit are often matters of impression which turn upon issues that might not seem important to a person not making the decision: see for example Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [4] (Gleeson CJ). That is another reason why I do not accept the Minister’s submission that the Tribunal’s error did not materially affect its decision or that the other reasons given by it for rejecting the applicant’s evidence were the “real problem.”
There is no question that the applicant’s evidence at the hearing was cogent. Detroit is in Michigan and was consistent with his evidence that his fiancée lived in that State in the United States.
For those reasons, I conclude that, by overlooking the applicant’s evidence given at the hearing before it, and acting on the mistaken belief that the applicant did not know where his fiancée lived, the Tribunal fell into jurisdictional error.
The Tribunal’s decision is affected by jurisdictional error. Writs of certiorari and mandamus will issue quashing the Tribunal’s decision and requiring the Tribunal to determine the application for review according to law.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 15 September 2016
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