SZVAP v Minister for Immigration

[2015] FCCA 1380

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVAP & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1380

Catchwords:
MIGRATION – Protection visa – claimed persecution due to spousal relationship – refusal – review of Refugee Review Tribunal decision – whether the Tribunal failed to the put the applicants on notice that the genuineness of their entire relationship was an issue in the review – whether decision of Tribunal was arbitrary, illogical or irrational – no denial of procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.425

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

First Applicant: SZVAP

Second Applicant: SZVAQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2501 of 2014

Judgment of: Judge Smith

Hearing date: 24 March 2015

Date of Last Submission: 24 March 2015

Delivered at: Sydney

Delivered on: 26 May 2015

REPRESENTATION

Solicitors for the Applicant: Mr N. Dobbie of Dobbie & Devine

Counsel for the Respondents: Mr H.P.T Bevan

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2501 of 2014

SZVAP

First Applicant

SZVAQ

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first applicant is a Muslim man from Pakistan who arrived in Australia on 7 January 2008. The second applicant is a Sikh woman from India who arrived in Australia on 13 June 2009. They were married in Australia on 26 October 2012 and on 3 June 2013 lodged applications for protection visas on the basis of their relationship. They each claimed that if they were to return to their own country with the other they would be harmed because of their mixed relationship.

2. On 5 December 2013 a delegate of the first respondent (“Minister”) refused to grant the applicants protection visas. While he accepted that the applicants had met and fallen in love with each other in Australia, the delegate did not accept that their families would harm or kill either of them if they were to return to Pakistan or India. The applicants applied to the second respondent (“Tribunal”) for review of the delegate’s decision. The Tribunal affirmed the delegate’s decision because it did not believe that the applicants were in a genuine relationship and found that they would not seek to live together in their respective countries.

3. The applicants seek judicial review of the Tribunal’s decision. They argue that the Tribunal breached its obligations under s.425 of the Migration Act 1958 (“Act”) because it failed to put them on notice that the genuineness of their entire relationship was an issue in the review. They also argue that the decision of the Tribunal was arbitrary, illogical or irrational. For the reasons that follow, both grounds are to be rejected.

Consideration

Ground 1

1. Section 425 of the Act relevantly provides:

   (1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

2. The Minister accepted that if the Tribunal had failed to comply with the obligation under s.425 of the Act it would have fallen into jurisdictional error. That much must be accepted: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 (“SZBEL”).

3. In SZBEL, the applicant claimed that he feared for his safety in Iran because the captain of the ship upon which he was employed knew of his interest in the Christian religion. He claimed that the captain had learnt of this interest from rumours circulating in his home town. The delegate refused to grant the applicant a protection visa because the delegate was not satisfied that he had a genuine commitment to Christianity. Before the Tribunal the applicant gave further material directed wholly to demonstrating his commitment to Christianity. At the hearing, the Tribunal asked the applicant questions about various matters including how the captain had any idea he was interested in Christianity. The Tribunal rejected the applicant’s claims for a number of reasons including the fact that it found the basis upon which the captain came to believe that the applicant was involved in Christianity was “so tenuous as to be implausible” and that the way in which the applicant claimed that the captain had reacted to this knowledge was implausible. The question for the Court was whether the issues which were decisive of the review by the Tribunal had been adequately notified to the applicant.

4. The Court found that there had been no adequate notice and that the Tribunal had not accorded the applicant procedural fairness because it had not given him sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review. The Court found that the applicant had not been on notice that his account of how his ship’s captain came to know of this interest in Christianity, and his account of the captain’s reaction to that knowledge were issues arising in relation to the decision under review. It explained:

   [43]The delegate had not based its decision on either of these aspects of the matter. Nothing in the delegate’s reasons for decision indicated that these aspects of his account were in issue. And the Tribunal did not identify these aspects of his account as important issues. The Tribunal did not challenge what the appellant said. It did not say anything to him that would have revealed to him that these were live issues. Based on what the delegate had decided, the appellant would, and should, have understood the central and determinative question on the review to be the nature and extent of his Christian commitment. Nothing the Tribunal said or did added to the issues that arose on the review.

5. The Court went on to make a number of general points, the first of which was as follows:

   [47] First, there may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal 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. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are many 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.

6. This case is readily distinguishable from SZBEL. First, there were two essential elements to the applicants’ claims: the genuineness of the relationship, and the risk that that relationship would cause the families of the applicants to harm them upon their return to either India or Pakistan. As already noted, the delegate dealt only with the second of those issues. However, that is not to say that the only issue on the review was that aspect of the claims. As the High Court noted in SZBEL, the Tribunal is not confined to the issues as determined by the delegate. After the applicants had been invited to attend a hearing by the Tribunal their migration agent and solicitor sent submissions to the Tribunal together with further evidence. All of that further evidence addressed the issue of the genuineness of the spousal relationship. None of the further evidence concerned the country information which had been the basis of the delegate’s decision although the agent’s submission did state that the applicants relied on the country information before the delegate and provided an extract from an additional article about inter-religious marriages in Pakistan.

7. Mr Bevan, who appeared for the Minister, argued that the submission provided by the applicants’ agent was sufficient to show that they were aware that the genuineness of the relationship was an issue on the review. I accept that submission with one qualification. The agent’s submission certainly shows that, unlike the visa applicant in SZBEL, the applicants did not understand that the issue that would be determinative of the review was the same as had been the case before the delegate. The qualification is that, in my view, even though the applicants understood, at one point in the review, that other matters were in issue, that may not have remained the case. The question of whether applicants have been denied procedural fairness, whether by reason of a breach of s.425 or otherwise, must be determined on the basis of the whole conduct of the review. For that reason it is necessary to have regard to the conduct of the hearing by the Tribunal. In support of their arguments, the applicants relied on a transcript of the Tribunal hearing, as annexed to an affidavit of Ma Rosario Xiella Devine affirmed on 5 January 2015. However, as will be seen, the hearing confirms that the applicants were sufficiently on notice of the issues that were determinative of the review.

8. First, at the beginning of the hearing the Tribunal indicated that one of the issues was the applicants’ credibility. It said, at transcript p.4 Q.28:

   And I also do this because I have to decide whether your evidence is credible.

9. I accept the applicants’ submission that this, of itself, would be insufficient to put the applicants on notice that the whole of their claims about the genuineness of their relationship was in issue. Nevertheless, as part of the context for the questions that followed, it supports that conclusion.

10. Secondly, there were no questions and no submissions at the hearing about the country information which formed the basis of the delegate’s decision.

11. Thirdly, the Tribunal asked a series of questions that made it plain that one of the issues was the credibility of the applicants’ evidence that they had been able to keep secret from their family the fact that they were living together. For example, it asked: “how has she been able to fool them that she is not living in [address]” (transcript p.53 Q.561) and later: “so why would your wife allow these cousins to actually go to her place at [suburb], given that the whole thing is meant to be a big secret, and actually let one of them actually come inside…” (transcript p.56, Q.595).

12. Fourthly, the applicants argued before me that there was a distinction in this respect between knowledge of the applicants’ relationship and the possibility that that might lead to harm from their parents on the one hand and the genuineness of the relationship itself on the other. In my view, however, those two issues are very closely related and the Tribunal made it abundantly clear in its questions of the applicants that both of those matters were in issue. Thus, it not only asked questions about other people’s awareness of their relationship, but also how and when their relationship was formed and when they claimed it became serious: transcript pp.67-70.

13. Fifthly, when the Tribunal questioned the applicants about the second applicant’s pregnancy, they confirmed that evidence about that had been given in order to show that their relationship was genuine: transcript p.78 Q.803.

14. Sixthly, the Tribunal specifically raised the issue that even though the applicants claimed that they had been living together for four years they had not applied for a protection until June 2013: transcript p.82 at Q.829 (see also transcript p.84 Q.838).

15. Seventhly, in addition to stating at the beginning of the hearing that one purpose of the Tribunal’s questions was that the assessment of credibility, the Tribunal also indicated that certain aspects of their claims and evidence were not compelling: see for example transcript p.86 Q.849, and transcript p.108 Q.1043.

16. In light of the submissions made by the applicants’ agent together with the questions asked by the Tribunal at the hearing and comments by it in respect of certain aspects of the applicants’ claims, I find not only that the applicants ought to have been aware that the genuineness of all of their relationship was in issue but also that they were in fact aware of that issue. For that reason they were sufficiently on notice of the matters determinative of the Tribunal’s review that they were not denied procedural fairness and, in particular, there was no breach by the Tribunal of s.425 of the Act. For those reasons the first ground is rejected.

Ground 2

1. The applicants’ second ground is that the Tribunal’s decision was arbitrary or illogical. There are two particulars to the ground:

   i.The Tribunal found that the Applicants were not in, and were never in, a genuine and committed relationship, when the evidence before it was such that two minds would not differ in finding that they were in a spousal relationship; and

   ii.There was no logical connection between the evidence before the Tribunal and inferences or conclusions drawn by the Tribunal to find that the Applicants were never in a spousal relationship.

2. Mr Dobbie, who appeared for the applicants, accepted that, in order to establish jurisdictional error, he had to show that there was illogicality or irrationality at the level of the Tribunal’s decision or, more particularly, in respect of its lack of satisfaction that the criteria for the grant of the visas had been met. He submitted that, while this was ordinarily a difficult task, it was established in this case because the decision turned upon the finding that the relationship was not genuine and all the evidence in respect of the genuineness of the spousal relationship went one way. In addition, he submitted that an important aspect of the Tribunal’s conclusions on credibility had no logical connection to the evidence before the Tribunal.

3. That particular aspect related to the applicants’ evidence about the second applicant’s pregnancy and miscarriage in 2011. This evidence had not been given by the applicants to the delegate and arose only before the Tribunal. The Tribunal drew a negative inference from the lateness of the applicants’ reliance upon that evidence. It said:

   [29]The Tribunal can appreciate, as the applicant claimed, that they may not have wished to talk about it or did not want others to know about it. However, they could easily mentioned it in confidence when they made their application and in the interview with the delegate. The Tribunal rejects the response of the applicant’s wife that they did not know that it was something they would need to talk about. If they claimed that it strengthened their relationship the tribunal would expect them to have mentioned this to the department. Their belated mention of this matter just prior to the Tribunal hearing, in the Tribunal’s view, only further reflects their untruthfulness.

4. The applicants argue that the last sentence of this passage was illogical in light of the fact that the Tribunal accepted that the second applicant had in fact been pregnant and had miscarried. The Minister submitted that the word “untruthfulness” in that sentence did not relate to the pregnancy but rather to the overall credit of the applicants. He also submitted that the sentence had to be regarded in its context and in particular, with reference to what was said by the Tribunal at [32], namely:

   As stated above, the couple have produced medical evidence indicating that the applicant’s wife fell pregnant and had a miscarriage in 2011. However, this also does not overcome the concerns the Tribunal holds about the credibility of this couple. The pregnancy and miscarriage do not, per se, demonstrate that these applicants are committed to each other in a genuine relationship (even when considered together with the assertions of witnesses that they are). …

5. There is some difficulty in understanding the logic in [29]. Ordinarily, the failure to raise a matter at the earliest opportunity can give rise to an inference that that matter has been fabricated. Here, however, the Tribunal did not draw the inference that the pregnancy had been fabricated but rather that its connection to the relationship of the applicants was fabricated. That inference is not one that might be readily drawn by many decision makers. Nevertheless, seen in its context, and giving some scope to the way in which administrative decisions must be read by courts, the inference does have a logical basis in the material before the Tribunal.

6. That basis may be seen in the somewhat Delphic use of the words “per se” in [32]. Those words can be understood to mean that the Tribunal is saying either that the second applicant may well have fallen pregnant to someone other than the first applicant or, that even if that were not the case, the fact that two people have sexual intercourse is not a necessary indicator that they are in a genuine relationship. It is those two possibilities that present the logical connection between the late reliance on the pregnancy and untruthfulness. In other words, the fact that the pregnancy was not relied upon earlier could support the inference that either the first applicant was not involved in the pregnancy or that, if he were, that involvement was not as part of a genuine relationship. For those reasons the applicants’ reliance on the last sentence of [29] is misguided. There was no illogicality in it.

7. Similarly, the applicants’ submission that no reasonable decision-maker could arrive at the decision reached by the Tribunal must be rejected. As already noted, the applicants submitted that the evidence in this case was all one way. That submission echoes what was said by Gummow J in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611, at 654 [137]:

   This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion have been met was all one way.

8. There is significant difficulty in applying the last part of that passage to circumstances where the evidence in question is predominantly given by applicants for visas. I do not understand that Gummow J intended that in those circumstances it would be unreasonable to disbelieve those applicants. It is a matter for the Tribunal whether to believe an applicant or not. It is not illogical or irrational for a Tribunal to disbelieve a claim because it finds that claim to be improbable or not to have been satisfactorily explained: see for example Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) at 635 [86] per Heydon J. The result might be different if all of the evidence which was accepted by the Tribunal went one way.

9. Here, the Tribunal gave a number of reasons for disbelieving the applicants’ claims. Only one of those reasons has been directly impugned by the applicants in these proceedings, namely the last sentence in [29] which I have already dealt with. One of the reasons for which the Tribunal found that the applicants were not credible was that they had given inconsistent evidence about the first applicant’s cousin: see [20]-[22]. When the Tribunal identified this inconsistency as a possible reason for disbelieving the applicants, the second applicant sent a statutory declaration to the Tribunal stating that she had not told the truth at the hearing because she thought that, if she did, this would weaken her case. In my view, this admission by the second applicant establishes that, contrary to the applicants’ submission, the evidence did not go all one way. That would be sufficient by itself to reject this ground. However, in addition to that point, all of the Tribunal’s credibility findings were open to it on the material. For that reason, not only was its ultimate decision open on the reasons but it was open to the Tribunal to engage in the process of reasoning in which it did and to make the findings it did make on the material before it: see SZMDS at 648 [133] per Crennan and Bell JJ.

1. The second ground is rejected.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application will be dismissed with costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  26 May 2015