SZVBC v Minister for Immigration and Border Protection
[2017] FCA 816
•26 July 2017
FEDERAL COURT OF AUSTRALIA
SZVBC v Minister for Immigration and Border Protection [2017] FCA 816
Appeal from: SZVBC & Ors v Minister for Immigration and Border Protection & Anor [2016] FCCA 3205 File number(s): NSD 7 of 2017 Judge(s): JAGOT J Date of judgment: 26 July 2017 Catchwords: MIGRATION – application for Protection (Class XA) visa – whether Federal Circuit Court erred in failing to find jurisdictional error in Tribunal’s decision – whether Tribunal gave a fair opportunity to be heard Legislation: Migration Act 1958 (Cth), ss 422B, 424AA, 424A, 425 Cases cited: Minister for Immigration and Citizenship v Li [2013] HCA 18 (2013); 249 CLR 332
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 20/2002 [2003] HCA 30; (2003) 198 ALR 59
SZVBC & Ors v Minister for Immigration and Border Protection & Anor [2016] FCCA 3205
Date of hearing: 19 May 2017 Date of last submissions: 23 June 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 30 Counsel for the Appellants: The appellants appeared in person Counsel for the First Respondent: Mr PM Knowles Solicitor for the First Respondent: DLA Piper Australia ORDERS
NSD 7 of 2017 BETWEEN: SZVBC
First Appellant
SZVBD
Second Appellant
SZVBE (and another named in the Schedule)
Third Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
26 JULY 2017
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.Orders (2) and (3) of the Federal Circuit Court of Australia made on 12 December 2016 be set aside.
3.In lieu thereof it be ordered that:
(a)The decision of the Refugee Review Tribunal dated 15 August 2014 affirming the decision not to grant the applicants a Protection (Class XA) visa be set aside.
(b)The application be remitted to the Administrative Appeals Tribunal for determination in accordance with law.
(c)The first respondent pay the applicants’ costs of the application for review, as agreed or taxed.
4.The first respondent pay the appellants’ costs of the appeal, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
REASONS FOR JUDGMENT
JAGOT J:
This is an appeal from the orders of the Federal Circuit Court of Australia dismissing the appellants’ application for review of a decision of the former Refugee Review Tribunal which had affirmed the decision of the Minister’s delegate to refuse to grant the appellants Protection (Class XA) visas. The orders of the Federal Circuit Court were consequential on reasons for judgment in SZVBC & Ors v Minister for Immigration and Border Protection & Anor [2016] FCCA 3205.
The appeal must be allowed for the following reasons.
Basic facts
The appellants are a husband and wife (the first and second appellants respectively). They have two children (the third and fourth appellants) who did not make individual claims but were considered part of the family unit. All are citizens of Pakistan. As set out in [3] – [10] of reasons of the Federal Circuit Court, the appellants applied for protection visas on 4 June 2013. The application included a statutory declaration from the husband referring to violent encounters and threats to his family by the Labour Union, which he claimed were the result of his political views, his perceived support of his then employer, the Karachi Electricity Supply Corporation (KESC), and his opposition to trade unions. He also claimed to fear harm on account of his religious beliefs and ethnicity.
On 20 November 2013, the wife provided an affidavit which was said to be “in support of my husband’s application for a protection visa.” In addition to her account of the issues which had arisen as a result of her husband’s employment at KESC, she also claimed that she was a very social and moderate person who did not adhere to conservative Islamic rules. She used to wear jeans and did not wear a hijab. The Labour Union (which was targeting her family due to her husband’s role at KESC) has strong links with Sunni extremists and she feared Sunni extremists would target her for not adhering to conservative Islamic rules.
On 10 December 2013, the Minister’s delegate refused the appellants’ claims for protection visas. The delegate was satisfied that the appellants were credible and that they feared serious harm amounting to persecution. However, the delegate found that the fear of harm was not well founded as there was not a real chance of persecution.
On 19 December 2013 the appellants applied to the Tribunal for a review of the delegate’s decision. On 15 August 2014, following a hearing before the Tribunal on 22 July 2014, the Tribunal affirmed the decision of the delegate but on the basis that the appellants’ claims were not credible. The appellants appealed the decision to the Federal Circuit Court, on the grounds that the Tribunal had not given the second applicant a fair opportunity to be heard. As noted, the Federal Circuit Court dismissed the application for review.
By their notice of appeal filed on 6 January 2017 the appellants challenged the decision of the Federal Circuit Court contending that:
1Our grounds remain the same on which we had laid our case upon.
2We believe that our grounds have been misinterpreted and shall be heard again in a broader way (accordingly).
I granted the appellants leave to file further submissions in support of their appeal. In those further submissions the appellants contended, as they had done before the Federal Circuit Court, that the Tribunal had breached s 425 of the Migration Act 1958 (Cth) by denying the wife a fair opportunity to be heard and had also breached ss 424A and 424AA of the Act.
Sections 424A and 424AA
Sections 424A and 424AA, in common with s 425, are contained in Div 4 of Pt 7 of the Act. Section 422B of the Act, in the same division, provides that:
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2)Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3)In applying this Division, the Tribunal must act in a way that is fair and just.
Under s 424A the Tribunal is required to give to the applicant “clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” (s 424A(1)(a)), but this obligation does not extend to certain information as set out in s 424A(3). Section 424AA(1) provides that if the applicant is appearing before the Tribunal this information may be given to the applicant orally.
The appellants’ contentions about breach of these provisions are difficult to understand. They appear to be contentions of breach of the obligation to give the second appellant a fair hearing (the ground dealt with below) or are otherwise unclear. As the Minister submitted, these contentions do not have substance. The evidence of the husband and the wife was mutually corroborative. As such, this information did not engage s 424A as it was not the reason, or a part of the reason, for affirming the decision that is under review. The Federal Circuit Court’s conclusions about these provisions are not affected by error.
The real issue in this matter is the way in which the Tribunal dealt with the second appellant and whether, in so doing, the Tribunal complied with its obligation in s 425 of the Act to ensure that the appellants were given a fair opportunity “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. I turn to that issue now.
A fair hearing?
The Federal Circuit Court concluded at [62] that the second appellant was given a fair opportunity “to give her evidence and make her arguments in relation to the issues dispositive of the review” so that the alleged breach of s 425 of the Act (which provides that the “[t]he 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”) by reason of denial of a fair hearing could not be sustained.
It is common ground that a person in the position of the second appellant, who submitted her own claims for protection, was entitled to a “real chance” to present her case given the terms of s 425 (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [61]).
I do not accept that aspect of the appellants’ arguments to the effect that the Tribunal’s reasons disclose that it focused on the first appellant’s claims alone. The Federal Circuit Court was right to reject this aspect of the argument for the appellants. The Tribunal knew that the second appellant had made her own claims for protection, as disclosed in para 1 of its reasons. While the Tribunal’s reasons do focus on its the assessment of the first appellant’s claims and evidence, it is apparent from those reasons that it also considered the individual claims of the second appellant. Accordingly, at para 34 the Tribunal accepted that the second appellant wore jeans and did not wear a hijab. The Tribunal returned to this topic at para 58. It must also be inferred that the Tribunal took this material into account in its cumulative assessment of the risks of harm at paras 64 to 67 of its reasons.
The Tribunal’s reasons, however, are not the end of the matter. There remains the question whether the appellants got a fair hearing as required by s 425.
The transcript of the hearing before the Tribunal is in evidence. It is apparent that the Tribunal asked the second appellant to leave the hearing room while the first appellant gave evidence. This was appropriate in the circumstances. After the first appellant had completed his evidence, the second appellant was invited back into the hearing room. After some initial formal questions the Tribunal member said this:
Now I’ve read the – your statutory declaration that you’ve done, and I’ve listened to your evidence when you’re interviewed by the Immigration Department, and also your husband has – has told me about the different incidents that happened, so I’ve just assumed that you will give the same evidence as him about what happened in these different incidents.
The Tribunal then summarised the second appellant’s evidence in a long statement and asked her if she wished to comment on the summary. It is apparent that the second appellant did not understand the question, which is not unexpected because the summary involved 13 lines of text in the transcript.
The Tribunal member then repeated his concern in a slightly more abbreviated form which was that the appellants had a visa which would have allowed them to return to Australia in July 2012 but they remained in Pakistan until May 2013 despite their claims of incidents of serious harm to them before that time. The appellant understood the concern, responding that at times it looked as if the problem would be solved because the government would intervene. The Tribunal then asked why they had returned from Rawalpindi to the area where they had been threatened. The answer provided by the second appellant appears to relate to the reasons they went to Rawalpindi. The second appellant also said they did not leave in 2012 because her mother lives by herself. The Tribunal then said that the husband had told him the second appellant wore jeans and did not wear a hijab and did not change this practice before leaving for Australia. The Tribunal asked “…why would you continue to dress that way and put yourself – and make this situation worse”. The second appellant said “many people wear this [western] dress over there”. She said she did fear the extremist links of the unions and that they might target her and her family for that. The Tribunal then asked again that if Sunni extremists could use the way you dress as a reason to target you, why would you keep dressing that way? The second appellant responded that she used to dress like this from the beginning and why should she change for others. The Tribunal then asked the same question again to which the second appellant said that the union knew who she was and it would not make any difference. The exchange continued on a range of topics thereafter including why the second appellant thought they would be targeted in Karachi, why they could not live elsewhere, and her responses to various aspects of country information.
It should be apparent why the course of the hearing before the Tribunal is of concern. First, the Tribunal assumed the second appellant’s version of events would corroborate that of her husband so gave her no opportunity to recount what had occurred in Pakistan yet decided the review against the appellants on the basis of their credit. Second, instead of allowing the second appellant to explain what fears she held as a result of her wearing western clothes and being a moderate person who may be perceived as not sufficiently Islamic, the Tribunal instead repeatedly challenged the second appellant as to why she would wear western clothes if that would expose her to harm.
In respect of the first of these issues, the Federal Circuit Court at [52] of its reasons concluded that it was reasonably open to the Tribunal to assume that the second appellant would not contradict her husband’s account given that her statutory declaration in support of the application and evidence before the delegate corroborated her husband’s account. The relevant question, however, is whether the second appellant was given a real chance to present her case. The Minister relied on the balance of the transcript and, in particular, the more open questions the Tribunal asked about the second appellant’s fears if they were to return to Pakistan to support the proposition that the hearing was fair, including a general question at the end of the hearing where the Tribunal asked the second appellant “is there anything else you want to say you feel we haven’t covered?”.
The problem with the subsequent questions asked by the Tribunal, however, is that they did not concern the evidence the second appellant could have given about the events in Pakistan which would have been relevant to the credibility of her husband. The subsequent questions concerned only the fears of the second appellant if they were required to return to Pakistan having regard to matters of interest to the Tribunal such as country information. Further, the problem with the final general question is that on any reasonable view of it, understood in context, the Tribunal was not seeking the second appellant’s version of the events in Pakistan which her husband had described. The framework had already been set by the Tribunal’s initial statement that, insofar as those events were concerned, the Tribunal had heard the first appellant’s version and assumed the second appellant “will give the same evidence as him about what happened in these different incidents”. It is unrealistic to assume that the second appellant, despite this statement, felt free to give her version of those events, and the fact is that she did not do so. It must be inferred from the hearing as a whole that the second appellant reasonably and rightly believed that the Tribunal did not wish to hear her version of those events.
The difficulty with this approach is that the principal basis for the Tribunal’s decision against the appellants was its conclusion that the appellants were not witnesses of truth. As such, the Tribunal did not accept the first appellant’s evidence of the threats and harm to which he and his family had been exposed in Pakistan as a result of his employment at KESC. It necessarily follows that, despite not having heard the second appellant’s account of the same events, the Tribunal also disbelieved the second appellant. This was not a fair process to either the first or the second appellant. It was not fair to the second appellant because she was disbelieved about a version of events she never in fact got any opportunity to present to the Tribunal by reason of the Tribunal’s assumption that her evidence would be the same as that of her husband. What the Tribunal made no allowance for, however, was that the second appellant might have appeared to it to be a witness of truth with the consequence that her evidence ought to be believed. Without hearing the second appellant’s version of the events in Pakistan, the Tribunal had no way of knowing if the second appellant should be believed or not. It was also unfair to the first appellant because it denied the first appellant the potentially corroborative effect of the second appellant’s evidence.
In short, if the Tribunal had given the second appellant an opportunity to be heard about the events, it might have believed her. If it had believed her, that belief would be relevant to the assessment of the credibility of the first appellant. By making the assumption it did and effectively by-passing the second appellant’s version of events, but nevertheless concluding that the appellants were not credible witnesses, the Tribunal breached the fundamental requirement of affording the first and second appellants a fair hearing.
The reasoning in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [49] that it may be open to a tribunal of fact to decide that no amount of corroborative evidence can support the credibility of a party because the “well has been poisoned beyond redemption” is not apposite in the present circumstances. This observation concerns the weight which may be given or not given to evidence. In the present case, the second appellant was effectively denied the opportunity to give potentially corroborative evidence in circumstances where that evidence might have been credible, with the consequence that she should be believed and, as a necessary further consequence, that the first appellant should also be believed. It is that opportunity which was lost by the Tribunal’s conduct of the hearing, as a result of which the hearing did not meet the basic requirements of a fair opportunity “to give evidence and present arguments relating to the issues arising in relation to the decision under review”.
Accordingly, I am unable to agree with the conclusion of the Federal Circuit Court that the second appellant was given a fair opportunity to be heard and, as a result, I am satisfied that the first appellant was also denied a fair hearing, in breach of s 425.
The second issue is not as clear cut. The issue is whether the Tribunal’s approach to the second appellant’s claims that, given the union had strong links to Sunni extremists, she would be targeted because of her wearing of western clothes, not wearing the hijab, and her moderate views, also breached s 425. It is at least arguable that instead of giving the second appellant a real chance to be heard about these claims, the Tribunal diverted itself by focusing solely on why she wore western clothes and did not wear the hijab given the events about which her husband (but not she, as she never got the chance) had given evidence.
While the Tribunal was entitled to ask this question as part of its overall assessment of the claims, it still had an obligation to ensure the second appellant got a real opportunity to present her claims. Her wearing of western clothes, not wearing the hijab, and moderate views were relevant not only for the purpose of exposing a potential inconsistency in her evidence (which is the issue in which the Tribunal was interested). They were relevant to her claims of fearing harm. The subsequent broader questions the Tribunal asked the second appellant about what she feared would happen if they returned to Pakistan did not elicit anything further about this aspect of her claims. Read in context, it is apparent that these questions concerned only fears based on the incidents involving her husband and family, and not her fears based on perceptions of her dress and moderate views. The final general question referred to above, understood in context, was not reasonably capable of being understood as permitting the second appellant to deal with topics that had, as the Tribunal would have it, already been “covered”. As such, we are left with the Tribunal’s repeated questions about why the second appellant would choose to wear jeans and not wear the hijab rather than how these facts (which the Tribunal accepted) related to her claimed fears of harm.
It is true that the second appellant managed to say something about her fears at one point (when she said “I did fear for that. They might target us because of that”) but it is difficult to escape the impression that the only issue about which the Tribunal was interested in obtaining evidence was why the second appellant continued to wear western clothes and not wear the hijab when the incidents about which her husband had given evidence had occurred. While the Tribunal is an inquisitorial body, and entitled to ask questions (both bluntly and repeatedly if need be), the hearing must nevertheless provide an applicant with a real opportunity to be heard. In the present case it is not possible to resolve this issue in isolation from the conclusion I have already reached that the Tribunal’s statement of its assumption about the second appellant’s evidence effectively denied her the opportunity to say anything about the events on which her claims were based and thus also how her wearing of western clothing, not wearing the hijab and moderate views related to those events and her fears of harm.
Conclusions
The appeal must be allowed and consequential orders made to remit the matter to the Tribunal.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot . Associate:
Dated: 26 July 2017
SCHEDULE OF PARTIES
NSD 7 of 2017 Appellants
Fourth Appellant:
SZVBF
0
5
1