SZUXE v Minister for Immigration

[2016] FCCA 309

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUXE & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 309

Catchwords:
MIGRATION – Review of decision of the former Refugee Review Tribunal – refusal of protection visas – applicant claiming persecution in Yemen – applicant’s claims of past harm not believed – applicant’s fears otherwise found not to be well-founded – substantial change to the circumstances in Yemen following the Tribunal decision – whether the Tribunal erred in considering the ability of the applicant to live in Saudi Arabia – whether the Tribunal decision is vitiated by an apprehension of bias considered.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.36, 48B, 424A

AZAEY v Minister for Immigration [2015] FCAFC 193
Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407
SZRTC v Minister for Immigration [2014] FCAFC 43; (2014) 224 FCR 570; 141 ALD 264

First Applicant: SZUXE

Second Applicant: SZUXF

Third Applicant: SZUXG

Fourth Applicant: SZUXH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2242 of 2014

Judgment of: Judge Driver

Hearing date: 16 February 2016

Delivered at: Sydney

Delivered on: 16 March 2016

REPRESENTATION

Counsel for the Applicant: Mr B Symons, pro bono publico

Solicitors for the Applicant: Wotton & Kearney Lawyers,
pro bono publico

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application as amended on 5 February 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2242 of 2014

SZUXE

First Applicant

SXUXF

Second Applicant

SZUXG

Third Applicant

SZUXH

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 7 July 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.  There are four applicants who are a father, his wife and their two children.  The relevant protection claims were made by the first applicant (the applicant father).  Any references in this judgment to “the applicant” are intended to be references to him.

2. The following statement of background facts is derived from the submissions of the parties.

3. The applicant was born in Saudi Arabia but is a citizen of Yemen.  He grew up in Saudi Arabia.

4. Only the first named applicant advanced claims in support of the application.[1]  He was living in Saudi Arabia sponsored by his uncle, but since the applicant arrived in Australia that uncle has died and the applicant claimed that he therefore could not return to Saudi Arabia and would be forced to return to Yemen.  He claimed to fear harm in Yemen due to his religion as a Zaydi Shia Muslim.  The applicant claimed that Zaydi Shias were persecuted in Yemen by the government, Al Qaeda and Sunni Muslims.  The applicant provided country information in support of his claims.[2]

   [1] Which appear at CB 103-113.

   [2] CB 130-166, CB 170-177.

5. The application was refused by a delegate of the Minister on 12 November 2013[3] and the applicants applied to the Tribunal for review of the decision on 13 December 2013.[4]  The applicant provided a statement with the application to the Tribunal addressing the delegate's findings.[5]  The applicant also provided further country information to the Tribunal.[6]

   [3] CB 187-204.

   [4] CB 205-210.

   [5] CB 246-261.

   [6] CB 262-289.

6. The applicants appeared at a hearing before the Tribunal on 27 May 2014.[7]  At the hearing the applicant advanced a new claim, to fear harm in Yemen due to his father having killed a man there during a land/tribe dispute.[8]  He claimed he had only been told of this by his mother after his application was refused by the delegate.  He claimed that this was why his family had originally moved from Yemen to Saudi Arabia. 

   [7] CB 339-342.

   [8] CB 3770 [11]-[15].

7. On 11 June 2014 the Tribunal sent a letter to the applicants inviting them to comment on or respond to information.[9]  The information put to the applicants was that DFAT had spoken to the Yemeni Embassy in Riyadh who advised that in their experience a Saudi woman can sponsor her Yemeni husband to reside in Saudi Arabia.  The applicant’s wife is a Saudi national.

   [9] CB 344-346.

8. The Tribunal indicated that this was relevant because the applicant had given evidence that he would need to work in someone's business to be sponsored.  It was also relevant because the lack of effort on the part of the applicant to ascertain the real situation through official enquiries called into question his claim to fear being killed in Yemen.

9. The applicants' migration agent provided submissions in response to the Tribunal’s letter on 4 July 2014.[10]  The submissions stated that the applicant had previously been unaware of the right his wife had to sponsor him as a spouse and that he had not made official inquiries with Saudi authorities because of a fear of raising any suspicions that his wife would not return to Saudi Arabia.  The submissions stated that the applicant had now contacted the Saudi immigration office which had told the applicant that he would need to return to Yemen to apply for a visa to enter Saudi Arabia.  Further country information was also provided.[11]

   [10] CB 350-355.

   [11] CB 356-365.

10. The Tribunal made a decision on 7 July 2014 affirming the decision under review.[12]

    [12] CB 368-376.

The decision of the Tribunal

1. The Tribunal found at [36][13] that the applicant was not a reliable, credible or truthful witness, and that he had fabricated his claims.

   [13] CB 373.

2. The Tribunal did not accept that the applicant's father had killed a person and that the applicant would be targeted as a result.[14]  The Tribunal did not accept that the applicant's mother would have kept this a secret and therefore did not accept the explanation as to why this was raised for the first time at the Tribunal hearing.  The Tribunal expressed other concerns with this claim at [41]-[43].[15]

   [14] See CB 374 at [40].

   [15] CB 374.

3. The Tribunal did not accept that the applicant would be killed due to being a Zaydi Shia, on the basis of country information.[16]

   [16] See CB 374-375 at [44]-[45].

4. The Tribunal had regard to the evidence given by two witnesses at the hearing, and placed little weight on that evidence as the witnesses had no first-hand knowledge of the applicant's situation.

5. The Tribunal concluded at [47] that the applicant did not have a well-founded fear of persecution, and concluded at [49] that there were not substantial grounds for believing that the applicant would suffer significant harm if returned to Yemen.[17]

   [17] CB 375.

The judicial review application

1. These proceedings began with a show cause application filed on 11 August 2014.  I conducted a show cause hearing in the matter on 12 May 2015 and, relevantly, made the following show cause order:

   1.Pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), the Minister is to show cause why relief should not be granted in relation to the following issues:

   (a)whether at [37]-[39] of the Tribunal decision, the Tribunal took into account an irrelevant consideration in circumstances where the Tribunal made no inquiry for the purposes of s.36(3) of the Migration Act 1958 (Cth); and

   (b) whether the Tribunal’s reference to the presiding member’s doctorate and knowledge and somewhat dismissive language employed at [20] of the Tribunal decision indicates pre-judgement or apprehended bias.

2. Pursuant to Part 12 of the Federal Circuit Court Rules 2001 (Cth), the Court issued a certificate for the applicant to receive pro bono legal assistance for preparation for a final hearing and representation at the hearing.  The applicant was ably represented at trial by Mr Symons of counsel, instructed by Ms Heidi Nash-Smith of Wotton & Kearney.  The Court is grateful to the practitioners for their assistance in representing the applicant on a pro bono basis.

3. The applicants now rely upon an amended application filed on 5 February 2016.  The grounds in the application reflect the show cause order made by me:

   Ground 1:

   1. The decision of the Second Respondent (Tribunal) was affected by jurisdictional error because the decision of the Tribunal took [into] account an irrelevant consideration.

   Particulars

   The reasoning of the Tribunal at paragraphs [37]-[39] of its decision constituted an irrelevant consideration because it was made in circumstances where the Tribunal made no inquiry for the purposes of s.36(3) of the Migration Act (Cth).

   Ground 2:

   2. The decision of the Tribunal was affected by jurisdictional error because of the Tribunal’s pre-[judgement] or apprehended bias.

   Particulars

   The Tribunal’s reference to the presiding member’s doctorate, the fact that he had worked in the Australian embassy in Saudi Arabia and somewhat dismissive language employed at [20] of the Tribunal’s decision indicates pre-judgement or apprehended bias.  The Tribunal closed its mind in relation to the Applicant’s submissions about Zaydism.

4. I have before me as evidence the court book filed on 9 September 2014 and the affidavit of Michelle Elizabeth Stone made on 15 September 2015, to which is annexed the transcript of the hearing conducted by the Tribunal on 27 May 2014.  The applicant and the Minister both made oral and written submissions.

Consideration

Ground 1 – did the Tribunal take into account an irrelevant consideration in considering the capacity for the applicant (and his family) to live in Saudi Arabia without making any enquiry for the purposes of s.36(3) of the Migration Act?

1. At [37]-[39][18] the Tribunal dealt with what it described as a “credibility issue” in the following terms:

   The applicant had claimed that because his uncle (who had previously sponsored him) had died while the applicant had been in Australia he would no longer be able to return to Saudi Arabia. He had been informed of a 2013 direction in Saudi Arabia that allowed women who were Saudi citizens to sponsor their non-Saudi husbands.  The applicant firstly claimed that the Saudis would never implement a law, and that he had asked his wife’s relatives in Saudi Arabia who said that the law was not in place.  He had not approached the Saudi Arabian embassy in Australia to check whether this law was in place. 

   The Yemeni Embassy in Riyadh was approached by DFAT and advised that in their experience a Saudi woman could sponsor her Yemeni husband’s Saudi Arabian residency and that he could then work in any field.    While not germane to his fear of persecution in Yemen, it is relevant to the issue of his credibility.  The applicant was advised of this information and invited to comment in accordance with s 424A.  Given he was a Yemeni national married to a Saudi citizen it is reasonable to believe that his or his wife’s family in Saudi Arabia would have been interested in such a development and informed him of it shortly after it was made public. 

   Regardless, the information was told to him by the delegate in November 2013 and he still had made no contact with any Saudi or Yemeni government official to clarify the procedures or entitlements.  It was not until after the s 424A letter was sent to him that he claimed to have contacted the Saudi Arabian embassy in Canberra who advised him that such a law had been implemented.  As a consequence, his claim during the Tribunal hearing that the Saudis would never implement such a law even though he had been told about it by DIBP six months previously is illustrative not only of a lack of interest in researching this key issue, but also of a lack of credibility on the part of the applicant. 

   [18] CB 373-374.

2. The applicant contends that, in the absence of any consideration for the purposes of s.36(3) of the Migration Act 1958 (Cth) (Migration Act), the Tribunal’s examination of the potential right of the applicant (and his family) to live in Saudi Arabia was irrelevant to the review.

3. The Minister submits that the Tribunal at [37]-[39][19] was noting that the applicant’s account of his knowledge of and investigation into a Saudi Arabian law that would allow his wife to sponsor him was not credible. Given that the Tribunal did not find that the applicant was entitled to a protection visa under one of the criteria in s.36(2), the potential application of s.36(3) (which is a qualification to s.36(2)) did not arise.[20] The Tribunal was thus not obliged to make inquiries about the application of s.36(3) as the ground seems to suggest. However it was entitled to take account of the applicant’s evidence in relation to an assessment of his credit, which is a factual matter for the Tribunal par excellence.[21]  

   [19] CB 373-374.

   [20] see SZRTC v Minister for Immigration [2014] FCAFC 43; (2014) 224 FCR 570; 141 ALD 264 at [24]-[25] and cases there cited.

   [21] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67].

4. I accept that submission by the Minister.  The Tribunal was not considering whether the applicant had a right to enter and reside in Saudi Arabia.  The Tribunal was postulating, rather, that the applicant had an opportunity to apply to be sponsored by his Saudi wife to live in Saudi Arabia.  The Tribunal reasoned that if the applicant was truly afraid to return to Yemen he would have investigated that opportunity and yet he had not.  In my opinion, it was open to the Tribunal to draw an adverse credibility conclusion based upon the failure of the applicant to investigate the possibility of him living in Saudi Arabia on the strength of his wife’s citizenship of that country, as his sponsor.

5. I conclude that the first ground in the amended application has not been established.

Ground 2 – is the Tribunal decision vitiated by an apprehension of bias?

1. The Tribunal in its statement of reasons at [10]-[31][22] recites what occurred at the hearing conducted by the Tribunal.  In particular, the Tribunal explored with the applicant his fears of returning to Yemen based upon his Zaydi Shi’a religion.  At [20] the Tribunal said:[23]

   He claimed that Zaydis had different groups, some of which were close to Sunnism but he was Shi’a which wasn’t close to Sunnism.  It was put to the applicant that the Tribunal member had a doctorate in Shi’a political development and had served in the embassy in Saudi Arabia which had responsibility for Yemen and what he claimed didn’t make sense doctrinally or practically and he was asked to explain what he meant.  He claimed that he lived in Saudi Arabia and his experience in Saudi Arabia and what he heard from his mother was that some elements of Zaydis were closer to Sunnis and others weren’t. 

   [22] CB 370-372.

   [23] CB 371.

2. That paragraph reflects the following observations by the presiding member at the hearing, drawn from the transcript:[24]

   [MEMBER]: What do you mean you are far away?  What branch of Zaydism do you follow?  I have a PhD in Shia political development, so I’m very familiar with Shiism, so please feel free to go into detail.  And I’ve worked in the embassy in Saudi Arabia and I’ve travelled around Yemen, so I’m quite familiar with the issues in Yemen and Saudi, so feel free to go into detail.  So what – the picture that you’re painting about the situation regarding Zaydis in Yemen doesn’t correlate with the country information that I have or my personal experience.

   THE INTERPRETER: I lived in Saudi Arabia, and because of my experience with Shia in Saudi Arabia and according to what I heard from my mother that – Zaydis have different groups and different minorities.  Some of them are understanding and gets along very well with Sunnis, but some of them are more strict and opposed to being friends with Sunnis.

   [MEMBER]: What group?  What group are you?  Growing up, you must’ve known which branch of Zaydism that you were – that you were part of.

   [24] page 11 at line 31.

3. The applicant contends that a reasonable fair minded observer would have, at the very least, apprehended from this that the Tribunal member had closed his mind to the applicant’s claims in relation to Yemen and Saudi Arabia and pre-judged the applicant’s claims.  The Minister contends that the Tribunal member was merely indicating his knowledge and experience of circumstances in Yemen and Saudi Arabia, and indicating that the applicant’s account of circumstances for Zaydis in Yemen did not correlate with the member’s knowledge of country information or his own experience.  The Minister relies on the recent decision of the Full Federal Court in AZAEY v Minister for Immigration.[25]

   [25] [2015] FCAFC 193 at [16]-[22].

4. In my opinion, the claim of apprehended bias is fairly arguable but fails.  It is plain from the transcript and the Tribunal’s statement of reasons that the presiding member brought to bear on the case his personal experience and expertise.  He was entitled to do that and, indeed, Tribunal members with particular expertise in relation to certain countries are encouraged to draw upon it.

5. There are, however, risks in relation to the reliance on personal experience and expertise.  The first risk is that the Tribunal cannot use personal experience or expertise to silence an applicant.  It is arguable that, while the presiding member in the present case was, in terms, encouraging the applicant to debate with him, the effect of his words was the reverse.  The passage in the transcript, however, has to be read in context.  It is not apparent to me that the applicant was over-awed by the presiding member and he continued to discuss the issue with him. 

6. The second risk is that a Tribunal member with particular experience or expertise must not allow himself or herself to become a prisoner of that knowledge, which is almost invariably rooted in the past.  The Tribunal must make a forward looking assessment and cannot assume that past experience is a reliable guide to the future.  The present case is an object lesson in that risk.  The Tribunal decision was made in mid 2014.  At [44][26] the Tribunal said the following in relation to its forward looking assessment:

   I also do not accept that he would be killed because he was a Zaydi Shi’a, and that Shi’a were targeted in Yemen.  Zaydis make up an estimated 35% of the Yemeni population, and relations between them and the majority Sunnis have traditionally been amicable.[27]  Fighting involving the Zaydi community is largely a product of conflict between the Houthi Movement (a politico-religious movement centred around Sa‘ada and parts of al-Jawf governorates in the north of the country) and Salafist groups.[28] 

   [26] CB 374.

   [27]Yemen International Religious Freedom Report, US State Department 2012, Huthis from Saada to Sanaa”, International Crisis Group Middle East Report no 154, 10 June 2014, accessed 7 July 2014.

7. The passage of time strongly indicates that that assessment by the Tribunal was wrong.  In 2015 the situation in Yemen degenerated into full scale civil war.  That war continues to rage with a Houthi (Shia) and Salafist government based in Sana’a fighting a Saudi backed government based in Aden.  Foreign forces have intervened in Yemen in support of the Saudi backed government.  The war has developed into a proxy war between Saudi Arabia and its allies and Iran.  Parts of the country, including the applicant’s home province of Hadramawt, are dominated by Al Qaeda and those areas are subject to attack from the forces of the United States of America.

1. None of this was foreseen by the Tribunal. To be fair, neither was it foreseen by the applicant. Nevertheless, the applicant maintained that the situation in Yemen was worse than the Tribunal would accept and the Tribunal’s view of the benign nature of relations between the Shi’a and Sunni communities in Yemen has not been borne out. It is arguable that the Tribunal’s favourable assessment of circumstances in Yemen was influenced by the background and experience of the presiding member. That, however, does not establish that a fair minded observer, aware of all of the circumstances, might reasonably apprehend that the presiding member did not bring an unprejudiced mind to the task of the review. Rather, it establishes that circumstances in Yemen have changed dramatically since the Tribunal decision. That suggests that the applicant might be well advised to seek the agreement of the Minister to him making a fresh protection visa application, pursuant to s.48B of the Migration Act, given the changed circumstances. That is a matter beyond the scope of this proceeding.

Conclusion

1. I conclude that the applicants have failed to establish that the Tribunal decision is affected by jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.

2. I will hear the parties as to costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  16 March 2016