SZVUZ v Minister for Immigration

[2016] FCCA 2126

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVUZ v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2126

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal’s findings were speculative – whether the Tribunal’s decision was unreasonable or illogical – whether the Tribunal failed to act in accordance with the statutory regime – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 476

Applicant: SZVUZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3437 of 2014

Judgment of: Judge Street

Hearing date: 17 August 2016

Date of Last Submission: 17 August 2016

Delivered at: Sydney

Delivered on: 17 August 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the First Respondent: Mr M Glavac
Clayton Utz

ORDERS

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal and the need to file any further document in this regard is dispensed with. 

2. The application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3437 of 2014

SZVUZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 14 November 2014, affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Pakistan and her claims were assessed against that country. The applicant first applied for a subclass TU 572 student visa on 11 October 2011. That application was refused on 15 February 2012. The applicant then lodged an application for a subclass TU 573 student visa on 26 October 2012. That visa was granted on 13 December 2012 and it was valid until 24 August 2016. The applicant arrived in Australia on 30 December 2012 and it was not until 19 April 2013 that the applicant lodged an application for protection.

3. The applicant claims to be a Sunni Muslim from a conservative Sunni family. The applicant claims to fear harm by reason of her marriage to a Shia Muslim very shortly after she arrived in Australia. The applicant claims to fear harm in Pakistan as a result of her inter-faith marriage. Specifically, the applicant claims that her father or her family would kill her in an act of “honour killing” because of that marriage.

The Delegate’s Decision

1. On 3 October 2013, the delegate refused to grant the applicant a protection visa. The delegate did not accept that the relationship between the applicant and her husband had developed in the way the applicant had claimed. The delegate found that the applicant’s fears of persecution as defined under the Refugees Convention were not well-founded. The delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there was a real risk that the applicant would be subject to significant harm.

The Tribunal’s Decision

1. The applicant applied for review of the delegate’s decision on 23 October 2013. By letter dated 20 January 2014, the applicant was invited to attend a hearing before the Tribunal on 28 April 2014. That hearing was subsequently rescheduled to 29 October 2014. The applicant appeared before the Tribunal on that date to give evidence and present arguments, and was assisted by her migration representative. The applicant’s husband also attended the Tribunal hearing as a witness and evidence was taken from him.

2. Prior to the Tribunal hearing, a Statutory Declaration from the applicant’s husband was provided to the Tribunal, together with other material. After the hearing, a further statement was provided by the applicant to the Tribunal, together with further material.

3. The Tribunal identified, in an attachment to its decision record, the relevant law and summarised the applicant’s claims and evidence. The Tribunal did not accept the applicant or her husband as credible witnesses. The Tribunal found that the applicant had manufactured the entirety of her claims to fear harm in Pakistan. The Tribunal rejected the applicant’s claim that she and her husband were threatened by her family prior to her husband’s departure from Pakistan.

4. At the Tribunal hearing, the applicant raised a new claim that she fears harm from the husband’s family. The Tribunal questioned the applicant as to why that claim was not identified in her Statutory Declaration to the department. The applicant responded that she had miscarried a baby at that time and could not explain it to her lawyer. The applicant also stated that her lawyer had told her that she could include the claims at any time, and that she did not have to include everything in her initial Statutory Declaration.

5. The applicant’s husband, when was asked about the applicant’s claim that his family would kill the applicant if she returns to Pakistan, indicated that his family initially consented to the marriage. However, they were now unhappy as they had become aware that he had been made to attend Sunni mosques. The Tribunal noted that the applicant repeated this claim in her post-hearing Statutory Declaration.

6. The Tribunal was not satisfied that there is a real risk that the applicant will suffer serious harm if she returns to Pakistan for reasons of her membership of a particular social group posited by her representative, her inter-faith engagement and marriage, or for any other Refugee Convention reason.

7. The Tribunal found the applicant was not a credible witness and manufactured her claims to fear harm in Pakistan.  The Tribunal found that the applicant did not have a well-founded fear of persecution because of her religion, membership of a particular social group or for any other Convention reason if she returns to Pakistan now or in the reasonably foreseeable future.

8. The Tribunal was not satisfied that there is a real risk that the applicant will suffer significant harm if she was removed from Australia to Pakistan. The Tribunal found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk she will suffer significant harm. The Tribunal found that the criteria under s.36 of the Act were not satisfied and affirmed the decision of the delegate.

Proceedings Before This Court

1. On 5 March 2015, a Registrar of the Court made orders providing the applicant the opportunity to file an amended application, affidavit and submissions. On 9 March 2016, the applicant filed an affidavit annexing a transcript of the Tribunal hearing. 

2. At the commencement of the hearing today, the Court explained to the applicant that this was a final hearing. The Court explained that the final hearing was to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in substance, the Court was determining whether the Tribunal’s decision was lawful and whether the Tribunal’s decision was fair. The Court explained to the applicant that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent, and then hear submissions from the applicant in reply. The applicant confirmed that she understood the nature of the hearing as explained by the Court.

3. The grounds of the application are as follows:

   1. The Tribunal reached conclusions on the evidence before it that were so unreasonable that no reasonable Tribunal could have reached those conclusions.

   Particulars

   a) The Tribunal's findings of fact that the Applicant and her husband were married or engaged in Pakistan with the full knowledge and agreement of her family was based on no evidence and was so unreasonable that no reasonable Tribunal could have made such findings.

   b) The Tribunal found that the Applicant was not telling the truth about how she came to meet her future husband, without considering whether there was any other plausible explanation of how the marriage could have come about in the circumstances.

   2. The Tribunal's conclusions about the actions and intentions of other people were entirely speculative and it should have asked itself “What if I am wrong?”.

   Particulars

   a) The Tribunal speculated about the presence of the Applicant's family at the wedding and aspects of the behaviour of the Applicant's parents which were not supported by any evidence, without considering the implications for the Applicant's claims if its speculations were not correct.

   3. The Tribunal failed to comply with the exhaustive statement of the natural justice hearing rule in Division 4 of Part 7 of the Act by not complying with the requirements of s 424A or otherwise s 424AA of the Act.

   Particulars

   a) Information given orally by the witness at the hearing, which the Tribunal considered would be part of the reason for affirming the decisions under review, was not given to the other Applicant in writing in accordance with s 424A nor was it given at the hearing in a manner which complied with the requirements of s 424AA.

   4. The Tribunal exceeded its jurisdiction in the conduct of the hearing.

   Particulars

   The Tribunal questioned the Applicant about communications between herself and her lawyer without advising her of her rights under legal professional privilege in respect of such communications.

4. From the bar table, the applicant maintained that she was not satisfied with the decision and asserted that the Tribunal had not understood her situation and her evidence. The applicant also took issue with the credibility findings made by the Tribunal. There is nothing in the Tribunal’s reasons that reveals any misunderstanding of the applicant’s claims and evidence. The adverse credit findings were open on the material before the Tribunal. Nothing said by the applicant from the bar table identified any jurisdictional error.

5. I accept the submission of the first respondent that, in substance, the submissions of the applicant from the bar table were an invitation to this Court to engage in impermissible merits review. This Court does not have power to review the merits of the matter or make fresh findings of fact.

6. The applicant also sought to tender a decision of a differently constituted Tribunal relating to the applicant’s husband, in which the applicant alleged that that tribunal had accepted her credit and granted the applicant’s husband a protection visa. The applicant wished to rely on that decision to bolster her assertion that the adverse credit findings by the Tribunal were not open to it. This Court cannot receive fresh evidence in relation to the merits of the matter, and it was for that reason, the document was rejected. The adverse credit findings made by the Tribunal were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.

7. In relation to ground 1, the applicant took issue with the finding of the Tribunal that the applicant and her husband were married or engaged in Pakistan with the full knowledge and agreement of her family. This was a matter in respect of which the applicant had given evidence at the Tribunal hearing. For reasons already identified, it was open to the Tribunal to reject the applicant’s evidence in its assessment of the applicant’s credit. The proposition that the finding of the Tribunal was based on no evidence is misconceived. Further, it cannot be said that the finding in relation to the knowledge of the applicant’s family was unreasonable. The Tribunal gave rational and logical reasons to support its findings. 

8. In Ground 1, the applicant also took issue with the finding of the Tribunal that the applicant was not telling the truth about how she came to meet her future husband. Again, the adverse credit findings were open to the Tribunal. Ground 1 fails to make out any jurisdictional error. 

9. In relation to Ground 2, this is a case where the Tribunal made adverse credibility findings and rejected the applicant’s claims and evidence. It is not a case where the Tribunal had any doubt in relation to its findings. There is no obligation upon the Tribunal in the present case to consider further an issue in relation to a matter on which there was no doubt. Further, findings made by the Tribunal were not speculative, but were open on the material before the Tribunal. Ground 2 fails to make out any jurisdictional error. 

10. In relation to Ground 3, there is no information identified by the applicant that enlivened any obligation under s.424A. The evidence of the applicant’s husband was not evidence that gave rise to rejection, denial or undermining of the applicant’s evidence. Ground 3 fails to make out any jurisdictional error.

11. In relation to ground 4, the premise that the applicant was asked by the Tribunal about communications between herself and her lawyer is without substance. The transcript of the Tribunal was tendered by the applicant and read by the Court. The transcript records no such proposition. It is apparent that the applicant volunteered an explanation in relation to questions as to why the husband’s family would want to kill her being left out of her statutory declaration and proffered the explanation in relation to communications with her lawyer. 

12. The Tribunal did not ask questions about matters the subject of which are protected by legal professional privilege. Ground 4 fails to make out any jurisdictional error. 

13. The application is dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 2 November 2016