SZVBC v Minister for Immigration
[2016] FCCA 3205
•12 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVBC & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3205 |
| Catchwords: MIGRATION – Application for review of former Refugee Review Tribunal decision – whether breach of s.425 – whether breach of s.424A and s.424AA of the Act – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.424AA, 424A, 425, 476 |
| Cases cited: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 |
| First Applicant: | SZVBC |
| Second Applicant: | SZVBD |
| Third Applicant: | SZVBE |
| Fourth Applicant: | SZVBF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2530 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 2 August 2016 |
| Date of Last Submission: | 2 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Cutler |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr Knowles |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 12 September 2014 is dismissed.
The first and second applicants pay the first respondent’s costs set in the amount of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2530 of 2014
| SZVBC |
First Applicant
| SZVBD |
Second Applicant
| SZVBE |
Third Applicant
| SZVBF |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 12 September 2014 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 15 August 2014, which affirmed the decision of the Minister’s delegate to refuse protection (Class XA) visas to the applicants.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”), and the affidavit of Winnie David, transcriptionist, affirmed on 22 January 2015, annexing a copy of the transcript (“T”) of the hearing before the Tribunal, and filed by the applicant on 17 May 2016.
The applicants are citizens of Pakistan who arrived in Australia as visitors on 5 May 2013. They applied for protection visas on 4 June 2013. The first applicant (“the applicant”) and the second applicant, his wife, made claims to protection. The third and fourth applicants, their children, applied as members of the family unit. The applicants were assisted in their application by a registered migration agent (CB 68 to CB 70).
The applicant provided a Statutory Declaration made by him with the application for the visas, outlining his claims to protection (CB 88 to CB 93). The applicant claimed to practice “Barelvi sect of Islam”. He claimed that he was employed in Pakistan by the “Karachi Electric Supply Corporation” (“KESC”) as “Assistant Manager in the Controlling & Accounting Department within the Finance Group” ([12] at CB 88).
The applicant claimed that in December 2010 to January 2011, KESC retrenched 4500 workers due to economic difficulties, which caused demonstrations and “agitation protests” by the affected employees and their trade union. The applicant claimed that there was “strong belief” that “the trade union activists have a strong political connection with major parties such as the Awami National Party” (“ANP”), the “Peoples’ Aman Committee” (“PAC”) and also have links with the “Sunni Islamic fundamentalist groups” including “Tehreek-e-Taliban Pakistan” (“TTP”). The applicant claimed that during an attack by trade union activists on 20 January 2011, and because the applicant was “known to have supported senior management”, he was physically attacked, his laptop and phone were “smashed”, and he sustained injuries.
The applicant claimed that the situation remained volatile and that trade union activists would continue to threaten managers, including the applicant, with “punishment”. The applicant claimed that he sent his family “interstate” because he was worried about their safety. The applicant referred to a number of instances of threats between January 2011 and March 2013. The applicant claimed that he continued to work for KESC because he “did not want to desert [his] company”.
The applicant claimed that on 30 March 2013, he and his son were directly threatened and a gun was held “to [his] son’s head”. It was then that he and the second applicant decided to leave Pakistan, and “organised” to leave in May 2013. Further, that his wife was also threatened on 22 April 2013 and 30 April 2013. The applicant feared harm on return from his former colleagues for not supporting their cause, and also because of his ethnicity as “Mohajir”, and his religious belief as a “Barelvi”. Further, he claimed that the authorities were highly politicised and would not assist him.
In her application, the second applicant claimed that she feared harm because of the events referred to by the applicant, and because of her membership of the “Mohajir ethnic group”, and her religious belief as “Barelvi”, a sect of Sunni Islam.
The applicants’ representative provided submissions to the Minister’s department, a number of media articles, and correspondence from KESC in support of the applicants’ claims on 15 October 2013 and 16 October 2013 (CB 98 to CB 155 and CB 156 to CB 231). The representative provided further media articles, photocopies of identity documents, and two Statutory Declarations made by the applicant and the second applicant respectively, on 20 November 2013 (CB 235 to CB 281).
In the second applicant’s Statutory Declaration (CB 241 to CB 243), she claimed that she and her children had been targeted by “Labour Union terrorists” as the family members of a KESC manager. Further, that as the applicants had a last name that is “common for Shia Muslim” although they were not Shia, as a result, they would be targeted and would find it difficult to subsist in Pakistan. The second applicant claimed that she did not adhere to Islamic norms, particularly in terms of dress, and feared that she would be targeted by Sunni extremists. The second applicant also claimed to be “suffering from depression because of the effects of trauma which [she] experienced in Pakistan”.
The delegate refused the application for the visas on 10 December 2013 (CB 283 to CB 307). The delegate accepted a majority of the applicants’ factual claims. However, the delegate found that the particular social groups claimed by the applicants did not, on the information before the delegate, constitute groups with a well-founded fear of harm. The delegate the considered the factual claims in relation to the events at KESC with reference to the complementary protection criterion. The delegate found that the applicants would face significant harm on return to Karachi. However, the delegate considered it would be “safe and reasonable” for the applicants to relocate within Pakistan.
The applicants applied for review to the Tribunal on 19 December 2013 (CB 308 to CB 349). They continued to be represented by a registered migration agent.
The applicant provided a further Statutory Declaration on 17 July 2014 (CB 363 to CB 369). It repeated the applicant’s claims to fear harm as a result of the KESC disputes and stated that the applicant and his family would face difficulties in relocating in Pakistan. In particular, the applicant claimed that the extremists associated with the trade union activists would “find” him, that it would be very difficult for his family to relocate, and that the cumulative effect of the applicant’s religious beliefs, and ethnicity, and the KESC dispute put him in greater danger all throughout Pakistan.
The applicants attended a hearing before the Tribunal on 22 July 2014. The applicant and the second applicant gave evidence at this hearing and provided further media articles. Subsequent to the hearing, the applicant provided a yet further Statutory Declaration addressing his claims again, and further media articles (CB 395 to CB 409).
The Tribunal affirmed the delegate’s decision on 15 August 2014. The Tribunal considered that the “primary issue on which [the] review application fell” to be determined, was the “credibility of the applicant and his wife”. The Tribunal found that they were not witnesses of truth and their claims were not credible ([3] at CB 413).
The Tribunal also found that the applicants’ claims to fear harm were inconsistent with their conduct in not leaving Pakistan at an earlier time, given they held visas for travel to Australia ([18] – [19] at CB 417). They also did not relocate to Rawalpindi even though the second applicant had family in that city ([23] – [24] at CB 418). Further, the applicant continued to work for KESC despite the claimed risk of harm ([28] – [29] at CB 419).
The Application Before the Court
The grounds of the application before the Court are in the following terms:
“1. The Tribunal erred by failing to comply with s 425 of the Migration Act 1958 in respect of the Second Applicant.
Particulars
The Second Applicant had made claims in her own right under ss 36(2)(a) and (aa). The Tribunal was required to provide her with a full and meaningful opportunity to give evidence and present arguments relating to the issues arising in her case. Instead it treated her as no more than a witness at the First Applicant’s hearing and made assumptions as to the evidence that she might give.
2. The Tribunal erred by failing to comply with ss 424A and 424AA of the Act.
Particulars
a) In relation to the First Applicant’s case, the Tribunal took evidence from the Second Applicant which contained information that it considered would be the reason or part of the reason for affirming the decision under review, but it failed to comply with ss 424 or 424AA in relation to that information.
b) In relation to the Second Applicant’s case, the Tribunal took evidence from the First Applicant which contained information that it considered would be the reason or part of the reason for affirming the decision under review, but it failed to comply with ss 424 or 424AA in relation to that information.”
At the hearing on 2 August 2016, the applicants and the Minister were represented by their respective counsel.
Consideration
Ground one asserts that the Tribunal breached s.425 of the Act in relation to the second applicant because it denied her a fair hearing by reason that it did not treat her as an independent applicant with claims separate to those of her husband.
The applicants’ submissions pointed to a number of elements in support of this proposition.
First, although the second applicant’s claims arose from the same matrix of facts as the applicant, she claimed to fear harm in her own right. She did not simply base her claim to the protection visa as a member of her husband’s family unit. Therefore, she was entitled to have her claims separately determined. The submission was that the Tribunal did not do this.
Some care must be taken here with the applicants’ submissions. Before the Court, the applicants’ counsel was clear in the submission that the second applicant’s claims were not “determined separately” to those of the applicant.
The word “determined” immediately directs attention to the Tribunal’s published reasons rather than the conduct of the hearing. The Tribunal’s “determinations” are to be derived from its decision record. What the Tribunal says at the hearing cannot be taken as a concluded view unless some pre-judgement (which is not pleaded in this case) can be made out.
The applicants’ ground does not assert bias or a failure to consider claims expressly made or clearly arising from the circumstances of the case (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1, Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26). Rather, it must be remembered that ground one is focused on a claim of a breach of procedural fairness pursuant to the Tribunal’s obligations under s.425 of the Act. Further, there was no express argument in relation to ground one (see further below) that the Tribunal failed to raise with the second applicant at the hearing issues dispositive of the review which were not live issues following the delegate’s decision as required by such authority as SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592 (“SZBEL”).
Second, again with reference to the Tribunal’s decision record, the applicants submitted that notwithstanding any acknowledgement that the two applicants made “individual claims”, the decision record appears to “merge” the interests of the first and second applicants (see [11] of the applicants’ written submissions). That is, the Tribunal treated the applicant as the “main” applicant and the second applicant “merely as a member of the family unit … rather than a person with claims in her own right” (see [12] of the applicants’ written submissions).
The Tribunal’s decision record was said to emphasise this approach with the reference to the first applicant as the “the applicant” and the second applicant as “the applicant’s wife”.
However, a fair reading of the Tribunal’s decision record revels that the Tribunal made clear that the first applicant and the second applicant “both submitted their own claims for protection”, and that this was distinguishable from the third and fourth named applicants “who applied for protection as members of the applicant’s family unit who did not have their own protection claims” ([1] at CB 413).
It must be said that the applicants’ approach in this regard is selective in its reading of the Tribunal decision record. As the High Court described in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (at [31]):
“…the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed … any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”
On a fair reading of its decision record, I do not agree that the Tribunal treated the second applicant, in its “determination”, as “only” or “merely” a member of the family unit. In addition to the statements referred to above (at [27]) which are made in the first paragraph of the Tribunal’s decision record, the Tribunal’s subsequent references to the claims made were for example (see [3] at CB 413):
“[3] … the applicants [plural] claimed protection on the ground that they will suffer harm from members of a labour union and Sunni extremist groups because of the applicant’s [the “first” applicant] employment with an electricity company in Karachi.”
It is clear, as the applicant submitted before the Court, that while the second applicant made claims relevant specifically only to her, her claims to fear harm arose in large part from the same factual matrix advanced by the applicant. That is, they both claimed to fear harm from members of a labour union and Sunni extremists because of the applicant’s employment with an electricity company in Karachi.
The Tribunal had concerns with the applicant’s account of claimed events which were found not to be credible. But it cannot be said that the Tribunal disbelieved the second applicant simply because she was described as the “the applicant’s wife”, a description which is, in any event, factually correct in light of the applicants’ own evidence.
The second applicant’s claims to fear harm, to a large extent derived from what both applicants claimed were the incidents of harm which they said occurred in the context of the applicant’s employment. On any fair reading of her individual, and separate claims, as they were all ultimately presented to the Tribunal, this was at the core (although not exclusively) as to what gave rise to her own, albeit, “separate” fears.
In this light, what the Tribunal set out at [31] of its decision record, and the findings expressed there, particularly as to the lack of credibility, were reasonably open to it ([31] at CB 420):
“At the beginning of the hearing the Tribunal made clear that although the delegate may have accepted aspects of his account, the Tribunal would have to decide whether or not the applicant and his wife were credible witnesses. Considered cumulatively, the concerns the Tribunal holds about the credibility of the applicant lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false. To the department and to the Tribunal, the applicant’s wife has related an account of events consistent with that given by the applicant. However, her credibility is also impugned by the issues discussed above and the Tribunal finds that the applicant’s wife is also not a witness of truth. She has purported to corroborate what the Tribunal finds to be a false account of events.”
It is also important to note, specifically in relation to the second applicant, that this conclusion in relation to her credibility, was reached by the Tribunal on reasoning derived from, and evaluative of, her own evidence.
At [8] (at CB 414), the Tribunal made clear that it was not just the applicant’s credibility that was of concern, but also that of the second applicant (“his wife”):
“The Tribunal has concluded that the decision under review should be affirmed. In this respect, the Tribunal held the following concerns about the credibility of the applicant and his wife.”
While the central core of both their claims were the “consequences” of his employment situation, the second applicant made claims of certain incidents involving her, and, in part, the fourth applicant, their daughter. The Tribunal had specific regard to these claims (see [14] at CB 415).
Given that, in large part, the second applicant’s claims derived from the applicant’s employment situation, it was reasonable for the Tribunal to question the applicant about those matters first, particularly given that he was the only one who could have first-hand knowledge of what had occurred. As is clear from the Tribunal’s account of the hearing, and from the transcript of the hearing, the Tribunal did separately put to the second applicant its concerns about the credibility of her husband’s account, and that of her own.
This latter point was particularly relevant to those past events where she would have been expected to have had some first-hand knowledge. For example, the timing and circumstances of their decision to leave Pakistan (see [16] – [17] at CB 416 and T26), and the reason they did not go to live in Rawalpindi with her family given the localised focus of the claimed fear. This was put to both the applicant (at [21] at CB 417 to CB 418), and separately to the second applicant (at [22] at CB 418). The Tribunal had specific regard to her answers (see also T27).
It is the case that the second applicant did make some claims to fear harm personally, and specifically to her, and advanced primarily by her. These were that she sought asylum in Australia because she wore “western” dress, and did not cover her head because of her religious and ethnic background. The Tribunal considered all of these matters (see [46] at CB 426 to [48] at CB 427, [54] at CB 428, [58] at CB 429 and [62] – [63] at CB 431).
The applicants complain now that the Tribunal described the first applicant as the “applicant” and the second applicant as the “the applicant’s wife”. As the Minister submits, this reflected the approach taken by the applicants’ representative in submissions (see CB 265, CB 362 and CB 395). In any event, on its own, the adoption by the Tribunal of these references does not reveal jurisdictional error (Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [48]).
As set out above, it is therefore to the hearing and the conduct of the hearing to which the applicants ground as pleaded should direct attention.
In this light, and fourth, the applicants submitted that at the commencement of the hearing the Tribunal delivered an “introductory speech” about the process of assessing protection claims, and in particular, the matter of the credibility of the claims (see T1 to T2).
The second applicant was then asked to wait outside while questions were asked of the applicant (T2 lines 42 to 43). The applicants submitted before the Court that there was “no problem” with the Tribunal’s approach in this regard.
The complaint is that when the applicant “finished” giving his evidence (T25 lines 42 to 43), the second applicant was asked to return to the hearing room (T25 line 49). However, she was not subsequently treated in the same way as the applicant. While she was asked to leave while he gave evidence, the applicant was told (T25 lines 45 to 46):
“MEMBER: What I’m going to do now is ask your wife to come in and I’d like you to remain where you are…”
The complaint is that the Tribunal should have conducted two “separate” hearings. That is, given that she was not in the hearing room when he gave evidence, he also should not have been in the hearing room when she gave evidence.
The submission was that when the second applicant came back into the hearing room the Tribunal told her that (T26 lines 36 to 37):
“[MEMBER] … so I’ve just assumed that you will give the same evidence as him about what happened in these different incidents…”
In short, the complaint here is that instead of hearing her evidence about her claims the Tribunal treated her as being a part of her husband’s claims.
The applicants’ ground pleads that the Tribunal therefore failed to comply with s.425 of the Act in relation to the second applicant. That is, as explained in particulars, it did not give her a “meaningful” opportunity to give evidence and present arguments in relation to the issues “arising in her case” (SZBEL and see also Minister forImmigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 and Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41).
The Tribunal’s obligation in this regard was explained by the High Court in SZBEL at [33]:
“The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited ‘to give evidence and present arguments relating to the issues arising in relation to the decision under review’. The reference to ‘the issues arising in relation to the decision under review’ is important.”
As set out above, the second applicant’s claims, to a large extent, derived from the same factual matrix advanced by the applicant in support of his claims, that is, a number of claimed specific incidents which he said occurred as a result of his employment which gave rise to a fear from members of labour unions and Sunni extremist groups.
It is trite to say that the second applicant could only give evidence about the matters she observed, or was told by her husband. This is so, even in the circumstances where the Tribunal is also not bound by the rules of evidence. There was no denial of procedural fairness for the Tribunal to tell the second applicant, at the hearing, that it would assume that she would not contradict her husband in relation to those matters where her claims to fear harm derived from the same factual matrix that he had put forward.
The transcript of the hearing reveals that the Tribunal had read her Statutory Declaration and listened to her evidence given to the delegate (T26). This formed the basis for the Tribunal’s assumption that her evidence would not contradict her husband’s on relevant points. This was reasonably open to the Tribunal on the material before it. The second applicant did not disavow her husband’s account.
The Tribunal then specifically raised with her its concerns about the credibility of this account. Further, it raised with her its concerns about the decision, in which she appeared to have played an active part, as to when the family left Pakistan. In short, the Tribunal put to her that on her husband’s account of events, which it accepted was consistent with her account, the “difficulties” with the applicant’s employment was said to have commenced in 2011, they obtained visas to come to Australia in July 2012, they claimed that a number of incidents of harm occurred including an attack on her car which made her very afraid for her safety, yet even though she had a visa for Australia, the decision to leave Pakistan was not made until March 2013 (T26).
The transcript of the Tribunal hearing then records (T26 lines 48 to 50):
“[Q]…So I have some difficulty accepting that, that when you’ve got that visa, you don’t make up your mind to actually leave until March, some months later. So do you wish to comment on that?”
Further (T27 line 12 to line 19):
“[Q] All right. So I’ll just –I’ll just say that again. My main problem is that you - you and your husband stayed in Pakistan right up until May 2013, all right, when you had a visa to actually come here back in July 2012. You chose to stay in Pakistan even though colleagues of your husband had been killed and attacked. In July 2012 you all had a bad attack in your car. You became afraid for your – for your children as well, you started limiting your movements, the children were not going to school regularly, so why not leave Pakistan as soon as you’ve got that visa?”
Even further (T27 line 32 to T28 line 3):
“[Q]: But also you went to Rawalpindi in May 2011 to get away from the situation, and then you come back in July hoping it would be okay.
[A]: (indistinct)---
[Q]: Just let me finish. You come back in July but there is still problems, so why not go back?
[A]: Because at that time, the problem mainly relating to office – issues were office related, they were not of a personal nature. Because the reason we went there was because all these attacks which were done on the office, they were shown on TV and we didn’t want the children to be affected by that news or by seeing that on TV, and personally at that moment our family, it appeared was not affected.
[Q]: But your husband said this incident in July 2012 indicated to you that your family were affected?
[A]: The family (indistinct) This is – we went there in 2011.
[Q]: That’s right and then you came back ---
[A]: In 2012 we didn’t go for the reason because my mother lives by herself and I didn’t want her to be involved or affected by the problems we were having.”
In relation to the claims made specifically by her (T28 line 5 to line 19):
“[Q]: Your husband told – told me that in Pakistan you used to wear jeans and you didn’t wear Hijab.
[A]: M’mm.
[Q]: All right, and he said that basically you didn’t change that. Right up until you left Pakistan you still would not wear Hijab or – and wore jeans. And in your statutory declaration you say that this could also be another reason for extremists to target you. Do you understand what I’m saying? I’m just wondering, if that’s the case, why would you continue to dress that way and put yourself – and make the situation worse?
[A]: There are many people who wear this sort of dress over there.
[A]: Mainly after the KSE issue, the union members, they have their links with the extremist organisation, and that’s why we have – I did fear for that. They might target us because of that.”
It is important to note that at the hearing, the Tribunal asked both the applicant, and the second applicant separately, as to why each feared harm if they were to return to Pakistan. In relation to the second applicant, who is the focus of ground one, the Tribunal specifically asked her (at T28 lines 37 to 38):
“[Q]: So what do you think would happen – will happen if you go back to Karachi?
The second applicant’s answers reinforced the view that her fear emanated from her husband’s factual account (T28 line 39 to T29 line 13):
“[A]: I think it’s – in Karachi it’s impossible for us to go.
[Q]: Why’s that?
[A]: Because we have been targeted so many times there.
[Q]: So who do you think will target you in Karachi?
[A]: The union.
[Q]: The unions, all right, but your husband’s left the electricity company. He’s not working for them anymore, so why would these unions and their – the groups they’re linked with, why would they want to harm you now?
[A]: They’re still (indistinct).
[Q]: Sorry, I couldn’t understand that.
[A]: Because they consider him as a traitor.
[Q]: Right.
[A]: Because of him (indistinct) they have suffered, but they have suffered because (indistinct).
[Q]: All right, but if – if they thought that, why was it that they didn’t just kill your husband while you were there in Karachi, as he told me, they did to other colleagues that they didn’t like?
[A]: It’s just a – it’s a matter of time I guess.
The Tribunal then put to her (T29 lines 15 to 27):
[Q]: And why couldn’t you live say in Lahore or Rawalpindi, Islamabad. Why wouldn’t your family be safe there?
[A]: The thing is the same. Everywhere the union have their links with the Islamic organisations and they are even more stronger and target.
[Q]: So you say the Islamic organisations are everywhere and the unions are linked to them.
[A]: Yeah, yeah. They have their links with them.
[Q]: All right.
[A]: Jamaat Islami supports the union (Indistinct) Islam has a link with Taliban.”
“[Q]: All right. Now I just wanted to discuss with both of you, just information about Pakistan, and this information comes from the Department of Foreign Affairs, and that’s within the Australian Government. Do you need what I’m saying translated?
The Tribunal then proceeded to put to both applicants country information relevant to their claims (T29 line 29 to line 33) and information relevant to claims made by their representative (T30 line 35 to T32 line 14). This included claims specific to the second applicant concerning “western” clothing, and her ethnic and religious claims.
The transcript reveals that the second applicant was given a fair opportunity to give her evidence and make her arguments in relation to the issues dispositive of the review. Ground one is not made out.
Ground two asserts that the Tribunal failed to comply with s.424A and s.424AA of the Act.
The particulars assert that in relation to the applicant, the Tribunal took evidence from the second applicant, which was information that it considered “would be the reason or a part of the reason” for affirming the delegate’s decision, but failed to comply with s.424A or s.424AA of the Act.
In relation to the second applicant, the Tribunal was said to have taken evidence from the applicant, and similarly failed to meet this statutory obligation.
The applicants’ written submissions do seek to address the important question of whether there was, in any event, “information” for the purposes of s.424A of the Act, and which, therefore, engaged the Tribunal’s obligation under s.424A(1) of the Act (see [22] of the applicants’ written submissions).
A note of caution is necessary here. Section 424A of the Act is concerned with “information” that the Tribunal considers “would be the reason or a part of the reason for affirming the decision under review”. However, the applicant’s written submissions, in part, adopt the concept of “issues” relevant to s.425, and not s.424A of the Act (see [24] – [25] of the applicants’ written submissions).
The written submissions then make reference to the Tribunal statement at the hearing that it would have to decide whether their accounts of past harm (“the incidents”), were credible, and whether the applicants were truthful in relation to their claims and evidence about these incidents. The specific complaint is that there is nothing in the transcript of the Tribunal hearing, or the decision record, to show that the Tribunal put to either applicant that the incidents did not occur. Nor was it put to either applicant that the “other applicant’s” account was not going to be believed. In essence therefore, the complaint in ground two when reduced to its core, is that the Tribunal did not tell the applicants that their respective accounts, were not to be believed.
In this light, it is to be remembered that s.424A and therefore s.424AA of the Act, are concerned with “information”. As the High Court made clear in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) and Minister for Immigration and Citizenship v SZLFX [2009] HCA 31 (“SZLFX”), “information” for the purposes of s.424A does not include the Tribunal’s subjective appraisals of the evidence (SZBYR at [18]):
“Thirdly and conversely, if the reason why the Tribunal affirmed the decision under the review was that the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting ‘information’ within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute ‘information’. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word ‘information’
‘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, etc’.
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant ‘information’ was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.”
Ground two, as explained in written submissions, is not made out.
It may be that with the references to “issues” in these written submissions, the applicants were seeking to raise a complaint that “credibility” was an “issue” in the review, and the Tribunal failed to squarely raise that separately with the applicants.
This is not how the ground was pleaded and no amendment was sought by the applicants. In any event, both applicants were squarely put on notice that the credibility of the factual substratum of their claims was of concern particularly given that, in spite of the claimed danger and the fact they held visas for Australia, they did not leave Pakistan at the first opportunity to do so (see T23 for the first applicant and T26 for the second applicant).
In oral submissions before the Court, the “prime example” of “information” which the Tribunal is said not to have put to the second applicant, was said to be its disbelief of the applicant’s account.
For the sake of completeness, I note as a preliminary point, that the applicant’s evidence to the Tribunal was not “information” for the purposes of s.424A of the Act in relation to the second applicant, because in its terms it did not constitute a “denial, rejection or undermining” of the claims, or for that matter, of his own claims (see SZBYR at [17] and SZLFX at [22]).
I understood the applicants’ argument to be as follows. The “information” that was not put to the second applicant for comment was the Tribunal’s adverse view of the applicant’s evidence about the claimed incidents. This “information” is what the applicants submit should have been put to the second applicant because she was an applicant in her own right.
The answer to the applicants’ complaint is again, that the assessment of credibility, on its own, that is, the Tribunal’s subjective view of the first applicant’s evidence is not “information” for the purposes of s.424A of the Act in relation to the second applicant (see SZBYR and SZLFX). The Tribunal is not obliged to otherwise give a running commentary of its view of the evidence (see SZBEL).
In any event, as the transcript makes clear, the Tribunal put to the second applicant its “difficulty” with the applicant’s evidence in relation to their failure to depart Pakistan as soon as possible (T26 and T27 line 12), and put to her for comment the incidents in which she claimed to have been involved. In any event, even if this was “information” for the purposes of s.424A(1) of the Act, these were matters raised by the applicant in her statutory declaration and therefore fell within one of the exceptions in s.424A(3), that is, s.424A(3)(ba) and (b) of the Act.
In short, the answer to all of the iterations of the applicants’ ground is as follows. One, the Tribunal’s subjective appraisals are not “information” for the purpose of s.424A of the Act, even where there are two applicants who, as in this case, gave consistent, or were taken to have given, consistent evidence.
Two, the Tribunal was not obliged by s.424A of the Act, to tell each of the other applicants of its disbelief of the other’s account. Although given what is set out in the transcript, that would have been clear to both the applicant and the second applicant. The Tribunal told the second applicant and the first applicant that his account, with which hers was consistent, was subject to “difficulties”.
Three, the Tribunal’s approach was that it proceeded on the basis that the second applicant’s evidence was consistent with the first applicant. In that light, the applicant’s evidence in relation to the situation of the second applicant did not contain in its terms a “rejection, denial or undermining” of her claims. The Tribunal’s view that it did not believe the applicant, was a subjective appraisal of the evidence. That is not “information” for the purpose of s.424A of the Act. Given that the obligation in s.424A(1) of the Act was not engaged, the applicants’ complaint that the Tribunal did not properly employ s.424AA of the Act is not made out. Section 424AA of the Act is a mechanism by which the Tribunal may elect to discharge any obligation under s.424A of the Act (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415).
In their submissions, the applicants made reference to SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214 (“SZEEU”) per Justice Allsop (as His Honour then was) at paragraph [221], and in particular, as this was referred to in SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 229 FCR 90 (“SZTGV”) at [13], for the proposition that if the Tribunal considers inconsistency between information to be relevant to the assessment of claims, the information would be a part of the reason for affirming the decision.
In SZTGV at [18] the Full Federal Court said that:
“The reasoning of the High Court in SZBYR and SZLFX is not readily reconcilable with that in SZEEU and NBKS. What is clear from SZBYR and SZLFX is the High Court’s endorsement of the proposition that ‘information’ within the meaning of s 424A(1) of the Act does not extend to the ‘prospective reasoning process’ of the Tribunal. Further, the information must be information that ‘would’, not ‘could’ or ‘might’, be the reason or part of the reason for affirming the decision under review. Such information necessarily involves a rejection, denial or undermining of the applicant’s claims.”
There are at least two reasons why the applicants’ reference to SZEEU does not assist them in the current circumstances. First, in my respectful view, SZBYR and SZLFX both provide relevant and binding High Court authority in relation to the matter raised by the applicants now. Second, as also set out above, there was no inconsistency between the accounts of the two applicants in the current case.
For the sake of completeness I note, as is also set out above, it must be remembered that ground two asserts a breach of s.424A of the Act. The Minister in his submissions properly understood that in oral submissions, the applicants appeared not to distinguish between “information” for the purposes of s.424A of the Act, and in particular the proposition that the Tribunal’s subjective appraisals of the applicant’s evidence was not “information” for the purpose of that section, and the obligation pursuant to s.425 to raise with the applicants at the hearing the issues dispositive of the review.
However, in the current case ground two did not plead a breach of s.425 of the Act. In any event, I ultimately understood the applicant’s submission, as clarified in reply, to be that the second applicant was not given the opportunity to give her “own” evidence and the opportunity to comment on the Tribunal’s disbelief of the applicant’s claims. This has already been dealt with in relation to ground one above.
In all, the grounds of the application do not reveal jurisdictional error in the Tribunal’s decision. It is appropriate that the application to the Court be dismissed. I will make that order accordingly.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 12 December 2016
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Jurisdiction
17
2