SZVZB v Minister for Immigration
[2016] FCCA 1525
•23 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVZB v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1525 |
| Catchwords: MIGRATION – Review of former Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution as a teacher at a girls’ school in Pakistan – applicant believed in part by the delegate but disbelieved by the Tribunal – Tribunal breached s.425 of the Migration Act 1958 (Cth) by failing to explain to the applicant that his claim to have been a teacher at a girls’ school in Pakistan, which had been accepted by the delegate, would be an issue in the review. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth) ss.414, 424A, 422B, 425 |
| Cases cited: Applicant NAFF v Minister for Immigration (2004) 221 CLR 1 |
| Applicant: | SZVZB |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 50 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 21 June 2016 |
| Delivered at: | Sydney |
| Delivered on: | 23 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr N Poynder |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari shall issue removing the record of the former Refugee Review Tribunal decision made on 5 December 2014 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to reconsider the review application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 50 of 2015
| SZVZB |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGM ENT
Introduction and background
This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 5 December 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant had sought protection on the basis that he had been harmed by the Taliban because he taught girls at a school in the Swat Valley in Pakistan. The delegate rejected the claims of past harm but accepted the teaching claim. The Tribunal rejected the teaching claim as false. The question in this case is whether the Tribunal was required to put the applicant on notice that the credibility of the teaching claim would be an issue in the review.
The applicant had made claims which were characterised by the Minister’s delegate as particular social group claims, although they might have also been characterised as political (imputed political opinion) or religious. The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Pakistan who, on 24 July 2013, lodged an application for a subclass 866 protection visa.[1]
[1] The covering letter from the applicant’s representative and the application documents are in the Court Book (CB) 1-44.
In Part C of his application form the applicant gave his past employment, from June 2007 to May 2009, as a mathematics teacher at the Hira School and College (Hira School) in Kanju, in the administrative district of Swat,[2] which is in the Khyber Pakhtunkhwa Province of Pakistan.
[2] CB 18, question 41.
In a statement provided with the application documents[3] the applicant said that Swat was under the control of the Taliban, and that he lived in the Qambar area of Swat, where the “second powerful leader of Taliban Swat Mullana Shah Doran” also lived. He said that the Hira School was a girls’ school and that it was under threat from the Taliban, which prohibited female education, which it considered was part of Western culture and against the religion of Islam. The applicant said that the Taliban made threats that if the teachers did not stop educating girls they would kill and behead them and harm their families. He said that the Taliban had placed bombs in educational institutions, that teachers had left their jobs, and that some of the institutions had closed.
[3] CB 28-29.
The applicant said that some of his colleagues and he had decided not to leave their jobs, and they had continued teaching. He said that, on 4 March 2008, masked militants approached him and threatened that if he did not leave teaching they would kill him and his family. The applicant said that he ignored this threat, and he ignored ensuing warning letters sent by unknown persons, including one in which the Taliban said that “they had proof and written evidence that I am leading the society against the Islamic sharia law. There thread says that I should immediately stop teaching and working in girls school” [sic].
The applicant said that at around 1.00am on 19 May 2008 the Taliban threw a hand grenade to his house, and at around 2.30am on 20 May 2008 they threw a small kind of bomb into his family’s house.
The applicant said that the Taliban were looking to kill him “on the slightest pretext”, to make an example of him. They set up several “check posts” and checked everyone who entered and left the district.
The applicant said that while he was in hiding he received news that on 15 November 2008 the Taliban had killed one of his colleagues, K,[4] who had been teaching at the same school and also receiving threats. He said that K’s two young sons were first shot in front of him and then he was taken from home and killed elsewhere.
[4] The name has been anonymised.
The applicant said that he was afraid and did not sleep for days, then in December 2008 he escaped from the district with the help of a friend by wearing a burqa, which was not checked by the Taliban. He said that after he had left the district, on 31 December 2008, the Taliban set fire to his house because of their anger in not finding him home. He said that neither the police nor the army could protect him.
The applicant said that he went to Peshawar; however on 11 January 2011 he was approached by an unknown person who said “I know you and we are not leaving you we are going to kill you. You follow the western culture and didn't follow our rules and we will not leave you at any cost”.
The applicant decided to leave Pakistan after “two guys on a bike” opened fire on his car, on 7 March 2011.
Relevantly to the present case, the applicant also provided the following documents:
a)a “character certificate” dated 20 May 2009 and signed by the Principal of the Hira School, confirming that the applicant had been a teacher at the school from 20 June 2007;[5]
b)an undated letter signed by the Principal of the Hira School, also confirming that the applicant had been a mathematics teacher at the school from June 2007;[6]
c)a letter dated 15 June 2007 and signed by the Principal of the Hira School, recording the appointment of the applicant as a mathematics teacher at the school from 20 June 2007.[7]
[5] CB 41.
[6] CB 42.
[7] CB 44.
On 25 September 2013 the applicant’s representative provided further documents to the Department, relevantly including photographs claimed to be of the tombs of the applicant’s cousin, S[8] and K, both killed by the Taliban, and the applicant’s vehicle after having been shot by the Taliban.[9]
[8] The name has been anonymised.
[9] CB 51-58.
On 13 January 2014 the applicant’s representative provided a further statement of the applicant[10] which repeated his earlier claims, and added that since he had arrived in Australia on his student visa, on 18 March 2012, an unknown person from the Taliban called his father's telephone and gave a final warning to his family and said that they knew that the applicant had been sent through the UN to a foreign country for military training against real Muslims, that if his father thought that foreigners could save him and their family from Sharia law that was a mistake, and that his father had 10 days to bring the applicant to Islamic Justice in Swat. The applicant said that on 3 May 2012 the Taliban kidnapped his cousin, S, and two days later the applicant’s father received a call from the Taliban saying that they had kidnapped his nephew because he did not obey their rules, and that they would hang S and find the applicant as well and kill him. The applicant said that after the death of his cousin his father told him never to contact him or anyone else in the family again. The applicant said that on 25 June 2012 he “went to look for my family but I couldn't find them and my friends told me not to contact them again as well because if the Taliban find out your back they will kills us for helping you and they will kill u as well” (sic).
[10] CB 61-63.
The representative also provided the following documents:
a)an “Informative Doc SWAT, KPK”, which contained extracts from media reports about the banning of female education by the Taliban and the murder of teachers in the Khyber Pakhtunkhwa Province by the Taliban;[11]
b)an affidavit of Rizwan Khurshid made on 8 July 2013 confirming that the applicant was a colleague at the Hira School and that the earlier provided appointment letter and character certificate were true and correct;[12]
c)handwritten letters from the applicant’s mother,[13] brother[14] and uncle[15] confirming the applicant’s account of his problems with the Taliban in Swat, his escape to Peshawar, and that the Taliban had continued to come to their home in search of the applicant, together with handwritten letters from a colleague from the Hira School[16] and a friend[17] also confirming his account;
d)a handwritten letter from the applicant’s father[18] in which he said that he had been abducted by the Taliban and taken to an unknown place where they had asked about the applicant, telling him that they knew the applicant “is in a foreign country with secular people, promoting secularism while before and after teaching”. The father said that he told the Taliban he did not know where his son was, and he was eventually released after paying them $200,000. The father said that the Taliban continued to threaten him and the applicant.
[11] CB 64-75.
[12] CB 76.
[13] CB 78.
[14] CB 79.
[15] CB 77.
[16] CB 80.
[17] CB 81.
[18] CB 82-83.
On 4 February 2014 the applicant was interviewed by a delegate of the Minister.
The delegate’s decision
On 13 February 2014 the delegate made a decision to refuse the application for a protection visa.[19]
[19] CB 94-112.
After reciting the law and claims for protection, under the heading, “9. FINDINGS OF FACT (CREDIBILITY)”, the delegate considered the evidence given during the interview, then went on, under the heading, “Finding on Credibility”:[20]
Having interviewed the applicant and considered his responses at interview, I accept that the applicant was a teacher at a co-educational school in the Swat valley in Pakistan from 2007 until 2008. I accept that he worked during a period of insecurity in Swat. (emphasis added)
[20] CB 101.
The Tribunal then found, “for the following reasons, I regard much of his claims to be lacking in credibility”:[21]
a)first, the delegate found that the applicant’s claims to have received a “verbal” warning and warning letters from the Taliban in March-April 2008 and the attacks on his home in May 2008 were not credible because country reports indicate that attacks on workers who promote the education of girls are dealt with ruthlessly and are often executed, as is the case with the applicant's former colleague, rather than issued with multiple warning letters. The delegate considered that the applicant would have been aware of the Taliban's usual tactics if he opposed them openly and that he would flee with his family if he feared for his life. The delegate did not therefore accept that he received verbal or face-to-face threats from the Taliban or that the home where he lived was attacked with explosive devices;
b)the delegate was not satisfied that the applicant's home was destroyed by fire by the Taliban in December 2008 because it was not plausible that they would wait another seven months given that they knew where he lived, only to miss him by a week. The delegate considered it more plausible that the home was destroyed in fighting between the Taliban and the Pakistani military, which was supported by country information. The delegate did not accept that the applicant escaped from Swat in disguise because he was targeted by the Taliban as a teacher but rather that he left Swat due to the general instability in the security situation at the time;
c)the delegate also considered that the applicant's account of the threats he received in Peshawar over the phone and the attack on his vehicle were not credible, since the applicant had stopped working as a teacher in 2008 and had left Swat to live in Peshawar, he did not have a profile in Swat or outside the district, and the delegate did not accept that having ceased working as a teacher two years earlier, he would be of any interest to the Taliban in 2010. In addition the applicant did not report the attack on his vehicle to the police. The delegate did not therefore accept that the applicant was shot at by the Taliban whilst driving his vehicle in Peshawar in August 2010;
d)the delegate did not accept that the Taliban threatened the applicant’s father in March 2012 as he did not accept that they were looking for the applicant. Nor did the delegate accept that his cousin was kidnapped and killed by the Taliban in May 2012 because they could not locate the applicant;
e)finally, the delegate rejected the applicant’s claim that his father was kidnapped and held for six or seven months as “unconvincing”, noting that there had been a paucity of information and detail in the father’s statement and the applicant was unable to explain how he got in contact with his father, despite claiming that his father told him not to contact him in order to protect his and his family's security. The delegate also did not accept the applicant's explanation as to why the letter referred to two hundred thousand dollars rather than local currency, and he rejected the explanation that his father was able to convert the figure from local to Australian currency as not credible.
[21] CB 102-103.
Having rejected the applicant’s major factual claims, the delegate then went on, under “Part B – Assessment of Protection Obligations under the Refugees Convention”, to consider the applicant’s remaining claims as follows:
a)under the heading, “IS THE HARM FEARED FOR A CONVENTION REASON?”, the delegate accepted that “the profession of teacher is also a cognisable group by members of their local communities in Pakistan and furthermore that teachers could be imputed with an anti-Taliban political opinion who are opposed to the teaching of girls in particular”;[22]
[22] CB 104-105.
b)under the heading, “DOES THE HARM FEARED AMOUNT TO PERSECUTION?”, the delegate was satisfied that the claimed threats to the applicant’s life constituted serious harm and systematic and discriminatory conduct and therefore amounted to persecution;[23]
[23] CB 105-106.
c)under the heading, “IS THE FEAR WELL-FOUNDED?”, the delegate said: [24]
[24] CB 106.
The applicant has expressed a fear of harm from the Taliban because of his employment as a teacher in the Swat valley from 2007 to 2008. He claims that the Taliban would target him because he taught girls at a co-educational school there.
d)the delegate repeated the rejection of the applicant’s factual claims; however he did accept that the applicant and his family “had to flee to Islamabad and then to Peshawar to avoid the conflict” in Swat;[25]
e)the delegate then considered the country information relating to the Swat Valley and reports of attacks on teachers in Pakistan[26], and the situation today, suggesting that the applicant could return to the Swat Valley in safety;[27]
f)the delegate then noted that he had “also considered first, whether the applicant can relocate to an area within Pakistan where he does not have a real chance of being persecuted for a Refugees Convention reason”.[28] The remainder of the delegate’s decision consisted of a consideration of the issue of relocation, with the delegate concluding: [29]
While I acknowledge that the applicant's family has been the victim of conflict in the Swat Valley in the past, I must consider his chance of facing harm in respect of Pakistan as a whole in the foreseeable future. National protection takes precedence over international protection. I am satisfied that the applicant could live in another part of Pakistan in safety if the security situation in the Swat Valley deteriorated again. In those circumstances, the applicant would not face a real chance of persecution and is therefore not owed protection obligations by Australia.
g)the delegate also rejected the applicant’s claim to come within the complementary protection provisions.[30]
[25] CB 107.2.
[26] CB 106-107.
[27] CB 107.7.
[28] CB 107.8.
[29] CB 109.
[30] CB 110-111.
Proceedings on review
On review, on 14 December 2014 a hearing was convened before the Tribunal. Relevantly to the present case:
a)the Tribunal put to the applicant that his job was to be a teacher at a school and the applicant agreed;[31]
b)the Tribunal asked several questions which arguably assumed that the applicant had been a teacher; for example:
So, you were 17 when you started working as a teacher?;[32]
And, also, when you joined this school in June 2007, were the Taliban in charge of the area?;[33]
So, you stopped teaching at the school in May 2008?;[34]
…before you left the area did any of your colleagues at the school get killed?[35]
[31] Transcript, page 3, lines 39-41.
[32] Transcript, page 4, line 18.
[33] Transcript, page 5, lines 34-35.
[34] Transcript, page 12, line 14.
[35] Transcript, page 13, lines 1-2.
The Tribunal made one explicit reference during the hearing to the documents that the applicant had provided in relation to his teaching.[36] The Tribunal contrasted the date of May 2008 that the applicant had just given in the hearing for stopping work as a teacher at the school[37] with the date of May 2009 in the teaching documents and the protection visa application. This inconsistency was subsequently referred to by the Tribunal when finding that the date of May 2009 had not been inserted by the applicant in his protection visa application in error.[38]
[36] Transcript, page 26, line 44ff.
[37] Transcript, page 12, line 14.
[38] See decision at [12]-[13]; CB 161.
The Tribunal did make a reference to information that false documents are very easy to get in Pakistan; however this was not in the context of the teaching documents in particular.[39]
[39] The reference by the Tribunal in the decision to the documents indicates that they were not limited to those relating to his claim to be a teacher but also included documents intended to corroborate the various instances of harm he claimed were inflicted on him: see decision at [34] and footnote 9; CB 166.
The applicant contends that nowhere in the hearing did the Tribunal question the assumption that the applicant had worked as a teacher in the Swat Valley from 2007-2009.
The decision of the Tribunal
On 5 December 2014 the Tribunal made its decision to affirm the refusal of a protection visa to the applicant.[40]
[40] CB 158-170.
In its decision the Tribunal commenced by making a finding that the applicant was not a witness of truth.[41] The Tribunals reasons at [10] – [36] are material to an understanding of that finding.[42]
[41] Decision at [3]; CB 159.
[42] CB 143-150.
The Tribunal listed four reasons why it had concerns about the applicant’s credibility:
a)first, the Tribunal from [11] referred to “Inconsistent evidence about when the applicant’s work as a teacher ceased”, noting that the applicant had told the Tribunal that he ceased work as a teacher in May 2008, yet his protection visa application form, his affidavit submitted to the Department from another colleague, and the letter from the school dated 20 May 2009 all conveyed the impression that he worked at the school until May 2009. The Tribunal considered but rejected the applicant’s explanation for this discrepancy; that the information in the application form and other documents was mistaken, concluding on this point: [43]
The Tribunal does not accept that the date of ceasing his employment as a teacher was inserted in the form by an innocent mistake (somehow overlooked by him and those assisting him). The evidence before the Tribunal on that issue is inconsistent.
b)secondly, the Tribunal from [14] referred to the applicant’s “Omission of significant claims from written statements”; namely, the absence of any reference in his written statement of 24 July 2013 to phone calls made to his father from March 2012; the death of a cousin in May 2012; and the news he was given in April 2013 about his father being abducted. The Tribunal considered but rejected the applicant’s explanation for these omissions; essentially that the statement had been an early draft and it had been hurried;[44]
c)thirdly, the Tribunal from [23] referred to “The decision to return to Pakistan in June 2012”, finding it “extraordinary that the applicant would decide to go back to Pakistan in June 2012”, and considering but rejecting his explanation for this, that he was concerned for his family, before concluding that it was not convinced that the applicant was being truthful as to the real reasons he returned to Pakistan and what he did there;[45]
d)finally the Tribunal at [28] referred to the applicant’s “Delay in applying for protection”, noting that the applicant came to Australia in October 2011 to “save his life” but did not make an application for protection until July 2013. The Tribunal summarised the applicant’s explanation for this delay as “initially feeling nervous, being initially glad to be in Australia but hoping he could return to Pakistan after study, preferring to pursue the option of study over seeking protection and then taking time to prepare his 'story' and obtain documents”, but it found none of those explanations convincing.[46] (emphasis added)
[43] Decision at [13]; CB 161.
[44] Decision at [19] and [22]; CB 162-163.
[45] Decision at [27]; CB 164.
[46] Decision at [33]; CB 165.
In its conclusions on credibility, the Tribunal at [34] referred to the documents submitted by the applicant which purported “to corroborate his claims to have been a teacher at his school in his native area and the various instances of harm he claims were inflicted on him and others…”. The Tribunal referred to the country information which indicated that false or fraudulent documents were prevalent and available in Pakistan, and how during the hearing it had put to the applicant that if it was to find his evidence not credible then it may not give weight to these documents. The Tribunal at [35] found that the contents of the documents were false.
The Tribunal went on, at [35]:
Because he is not a witness of truth, the Tribunal finds that the account of events on which the applicant's protection claims are based is false. Accordingly, the Tribunal does not believe that the applicant worked as a teacher in his local area and, therefore, disbelieves his claims about the Taliban inflicting harm on him, his family, a relative and a colleague in November 2008. The Tribunal has narrated above the various instances of harm the applicant claims occurred to him and others because of him and those claims are all false. (emphasis added)
Having found that there was no credible evidence to the applicant’s account, the Tribunal at [36] turned “to country information about the situation in the Swat Valley and the risk of the applicant suffering serious harm there”.
The balance of the decision, from [37]-[45], consisted of the Tribunal assessing the risk of the applicant suffering serious harm upon return to the Swat Valley, both in terms of the Refugees Convention and the complementary protection criteria. The risk of harm was assessed against the country information as it applied to the applicant as “…no more than…a Sunni Moslem from a town in the Swat Valley”.[47] The Tribunal found that the applicant was not at risk of serious harm.
[47] Decision at [44]; CB 169.
The present proceedings
These proceedings began with a judicial review application filed on 8 January 2015. On 1 March 2016 I made a show cause order in the following terms:
Pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), the Minister is to show cause why relief should not be granted in relation to whether the Tribunal breached s.425 of the Migration Act in relation to the dispositive issues on the review, in particular, as appears from [35] of the Tribunal’s reasons (CB 166).
Consistently with that order, counsel for the applicant sought and was granted leave to amend the application by deleting the grounds and substituting the following ground:
The second respondent failed to comply with its obligation under s.425(1) of the Act to invite the applicant to give evidence and present arguments relating to the issues arising in relation to the decision under review
Particulars
(a)The second respondent failed to put the applicant on notice that it was proposing to make a finding that the applicant had not worked as a teacher, which departed from the first respondent’s finding that the applicant had worked as a teacher.
(b)The possibility that the applicant may face persecution or other significant harm in Pakistan merely because of his occupation as a teacher was something which clearly arose from the materials before the second respondent.
In addition to the court book filed on 24 March 2015, I have before me as evidence the applicant’s affidavit made on 20 May 2016, to which is annexed a transcript of the hearing conducted by the Tribunal on 12 December 2014.
The applicant and the Minister, through their counsel, made helpful pre-hearing submissions and oral submissions at the trial of this matter on 21 June 2016.
Consideration
Applicant’s contentions
Both the delegate and the Tribunal rejected the applicant’s account of having been targeted by the Taliban in either Swat or Peshawar. Beyond this, however, the basis of the primary and review decisions were very different:
a)the delegate accepted that the applicant was a teacher from Swat, that teachers from Swat constituted a “particular social group”, and that the applicant and his family had to flee to Islamabad and then to Peshawar to avoid the conflict in Swat. However, while the delegate considered that the applicant could safely return to Swat, he “considered first” the issue of relocation, finding that the applicant and his family could live in another part of Pakistan in safety if the security situation in Swat deteriorated again. As such, the delegate’s decision was “primarily a relocation decision”;
b)the Tribunal, on the other hand, did not accept that the applicant had been a teacher in Swat, so it was not necessary to consider whether teachers in Swat constituted a particular social group or were at any risk because of their occupation as teachers. As such, the applicant was assessed for the purposes of protection as no more than “a Sunni Moslem from a town in the Swat Valley”.
This “radical” departure from the delegate’s reasoning was not communicated to the applicant. While the applicant was clearly on notice that his particular claims to have been targeted by the Taliban were in issue before the Tribunal, the Tribunal did not make it clear that it was proposing to assess him as no more than “a Sunni Moslem from the Swat Valley”, instead of as a teacher from the Swat Valley.
In addition, the wording of [35] in the decision suggests that it was from the primary finding, that the applicant had not worked as a teacher, that the subsequent rejection of the rest of the applicant’s factual claims flowed (“the Tribunal does not believe that the applicant worked as a teacher…and, therefore, disbelieves his claims about the Taliban..[etc]”). Clearly this was a critical finding in the Tribunal’s assessment.
While the applicant may not have expressly articulated a claim that the mere fact that he was a teacher placed him at risk in Swat, this was primarily because his occupation as a teacher merged with his claim to have been targeted by the Taliban because of his refusal to cease teaching his students. However, as the delegate recognised, once the claim to have been targeted by the Taliban was stripped away, a residual issue of whether the applicant was still at risk because of his occupation as a teacher clearly remained on the materials.[48]
[48] cf, NABE v Minister for Immigration (No.2) [2004] FCAFC 263; 144 FCR 1 at [60].
In the absence of any express notification, the applicant was entitled to assume that the Tribunal was not proposing to depart from the delegate’s finding that he had worked as a teacher. Its failure to put the applicant on notice that it was proposing to assess him as no more than “a Sunni Moslem from the Swat Valley” meant that it also failed to comply with its obligation under s.425(1) of the Migration Act 1958 (Cth) (Migration Act), to invite the applicant to give evidence and present arguments relating to the issues arising in relation to the decision under review. This amounted to jurisdictional error.[49]
[49] SZBEL v Minister for Immigration (2006) CLR 152 at [33]-[36], [40]-[43].
Minister’s contentions
The Minister submits that there are three problems with the applicant’s arguments. First, they misstate the Tribunal’s obligation under s.425(1). Secondly, they incorrectly characterise the finding in the first clause in the penultimate sentence at [35] [50] (that is, “the Tribunal does not believe that the applicant worked as a teacher in his local area”) as “critical”. Thirdly, and in any event, they do not grapple with the fact that the asserted issue was sufficiently raised during the hearing.
[50] CB 149.
Principles
Section 425 relevantly provides:
Tribunal must invite applicant to appear
(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.
Section 425 is “[o]ne aspect of the overall duty to review”[51] under s.414(1). It confers on a review applicant “an important and central right in the merits review system established by Pt 7 of the Act”,[52] a breach of which will result in jurisdictional error.[53] Amongst other things, s.425(1) requires the Tribunal to communicate to a review applicant the “live issues”[54] on the review. An applicant will be entitled to assume that the issues arising in relation to the delegate’s decision are those that the delegate considered dispositive in deciding his or her protection visa application, and if the issues are considered by the Tribunal to be different, the Tribunal will be required to take steps to draw them to the applicant’s attention.[55]
[51] Applicant NAFF v Minister for Immigration (2004) 221 CLR 1 at 8 [27] per McHugh, Gummow, Callinan and Heydon JJ.
[52] Liu v Minister for Immigration (2001) 113 FCR 541 at 552 [44] per Black CJ, Hill and Weinberg JJ.
[53] Applicant NAFF v Minister for Immigration (2004) 221 CLR 1 at 13 [43].
[54] SZBEL v Minister for Immigration (2006) 228 CLR 152 at 165 [43] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
[55] SZBEL v Minister for Immigration (2006) 228 CLR 152 at 163 [35].
Section 425 does not, however, confer on a review applicant an absolute or unqualified right to appear before the Tribunal. It does not, for example, impose an obligation on the Tribunal “to ensure that an applicant makes the best of the invitation to attend a hearing”[56] or “actively [to] assist the applicant in putting his or her case”.[57] Nor does it require the Tribunal “to identify the significance of the questions that it puts to a[n] [applicant] or the ultimate matter or issue to which those questions go”, as that would be “an attempt to import the requirements of s.424A(1) into s.425.”[58]
[56] SZTXE v Minister for Immigration [2015] FCA 493 at [18] per Flick J.
[57] Minister for Immigration v SCAR (2003) 128 FCR 553 at 561 [36] per Gray, Cooper and Selway JJ.
[58] Minister for Immigration v Applicant A125 of 2003 (2007) 163 FCR 285 at 302 [88] per Emmett, Weinberg and Lander JJ.
The last-mentioned point is critical. It reinforces the notion that the “matter” (for the purposes of s.422B(1)) with which each of ss.424A(1) and 425(1) deals is different and must be kept separate. The matter with which s.424A deals is, as French J (as his Honour then was) said in WAID v Minister for Immigration[59] at [57], the “right to comment on adverse material which is known to and is to be relied upon by the Tribunal.” The matter with which s.425 deals is “the opportunity to be afforded by the Tribunal to an applicant to address, at a hearing before the Tribunal, the issues arising in relation to the decision under review.”[60]
[59] [2003] FCA 220.
[60] NAQF v Minister for Immigration (2003) 130 FCR 456 at 476 [86] per Lindgren J.
Whether the applicant taught in Qambar from May 2007 to May 2008 was or was not an “issue”
The Minister asserts from the above discussion that, contrary to the applicant’s submissions s.425(1) does not impose an obligation on the Tribunal to advise a review applicant, prior to making a decision, that it is proposing to make a factual finding different from one that was made by the Minister’s delegate, whether critical or not. The obligation is more specific: it is to invite a review applicant to provide evidence and make submissions in relation to dispositive issues.
Whether the applicant worked as a teacher in Qambar from about May 2007 to May 2008 was not an “issue” for the purposes of s.425(1); rather, it amounted to evidence relating to the following dispositive issues:
a)whether the applicant had suffered the various instances of harm at the hands of the Taliban in respect of which the delegate made adverse findings at CB 102-103; and
b)whether he would be of any interest to that group if he were to return to Pakistan.
In this connection, it should be noted that there is, as Besanko J observed in SZHKA v Minister for Immigration[61] at 27 [103], a distinction between evidence relating to an issue (which falls outside of s.425(1)) and the issue itself. The matter the subject of the finding in the first clause in the penultimate sentence at [35][62] falls within the former category.
[61] (2008) 172 FCR 1.
[62] CB 149.
A useful way to test this proposition is to focus on the criteria for establishing a particular social group claim (which was one of the Refugees Convention grounds upon which the applicant relied). Those criteria are as follows: first, to determine whether the group or class to which an applicant claims to belong is capable of constituting a particular social group for the purposes of the Refugees Convention; secondly, whether the applicant is a member of that group; and, thirdly, whether the applicant has a well-founded fear of persecution for reasons relating to membership of that class.[63] Although all three criteria must be satisfied for a claim to be made out, it is well-established that a decision-maker need not begin, or even deal, with the first criterion if the applicant’s fear of harm, whatever the basis for his or her claim, is not well-founded.[64] Thus, a decision-maker need not determine whether a person is a member of a particular group if he or she does not have a well-founded fear of persecution by reason of such membership. In those circumstances, it is difficult to accept that the fact of the applicant having taught in his home region between May 2007 and May 2008 (that is, his membership of the particular social groups comprising “teachers”, “teachers in Qambar” or “teachers of girls”), as he claimed, could be a dispositive issue for the purposes of s.425(1). In so far as the applicant’s submissions[65] suggest otherwise, they ought to be rejected.
[63] Dranichnikov v Minister for Immigration (2003) 77 ALJR 1088 at 1092 [26] per Gummow and Callinan JJ.
[64] See SZQMA v Minister for Immigration [2012] FCA 433 at [24]-[26] per McKerracher J and the cases cited therein.
[65] at [33(b)] and [34].
At various points in his submissions,[66] the applicant appears to be contending that the Tribunal’s decision to “assess [the applicant] as no more than ‘a Sunni Moslem from the Swat Valley’” was an issue for the purposes of s.425(1). Not only is that not an “issue”, properly understood, there is, in fact, nothing in the Tribunal’s reasons to suggest that it proceeded upon the basis asserted. The Tribunal referred to the applicant’s claim to fear persecution by reason of his having taught at a school in Qambar.[67] Then, the Tribunal made findings with respect to that claim.[68] The fact that the Tribunal concluded that the applicant did not have a well-founded fear of persecution does not mean that it assessed him as no more than “a Sunni Moslem from the Swat Valley”—as though that comprised the entirety of his claims for protection. Rather, in the context of addressing the applicant’s complementary protection claims, the Tribunal “accept[ed] as credible no more than that the applicant is a Sunni Moslem man from a town in the Swat valley”.[69] In other words, the Tribunal considered this to be the only credible aspect of the applicant’s case, given its earlier adverse credibility findings. That is a different point from that which the applicant is making at [33(b)], [34] and [37] of his submissions.
[66] at [33(b)], [34] and [37].
[67] Decision at [2]; CB 142.
[68] Decision at [11]-[13]; CB 143-144. Decision at [34]-[35]; CB 149 and Decision at [41]; CB 152.
[69] Decision at [44]; CB 152.
The impugned finding was not critical
At [35] of his submissions, the applicant asserts that the impugned finding at [35][70] was “critical”. The Minister contends that that submission should not be accepted. The Tribunal was not satisfied that the applicant worked as a teacher in his local area on the basis of its comprehensive adverse credibility findings in the first sentence in [34], the first three sentences in [35], and in all six sentences in [36]. It was “[b]ecause” the applicant was not a witness of truth (which finding was made at CB 149 [34]) that the Tribunal found that the account of events on which the applicant’s protection claims were based were false.[71] The latter finding, alone, was broad enough to deal with the applicant’s claim to have worked as a teacher. It has not been challenged in these proceedings. Given the wide scope of that finding, there was no need for the Tribunal to proceed to make a specific finding in the fourth sentence in [35]. Even so, that finding was based upon the findings that preceded it. So much is plain from the fact that the fourth sentence commenced with the word, “[a]ccordingly”—which the Minister notes has been omitted from [35] of the applicant’s submissions.
[70] CB 149.
[71] Decision at [35]; CB 149 (third sentence).
The Tribunal’s findings at [36],[72] particularly those in the first and third sentences, do the same work as those of the Tribunal’s findings in the third and fourth sentences in [35]. They are simply expressed in broader terms.
[72] CB 149-150.
The asserted issue was raised in any event
The Minister submits that, even if it could be said that the applicant’s having worked as a teacher in Qambar in 2007-2008 was a dispositive issue for the purposes of s.425(1), it was raised during the hearing.[73] The Tribunal’s line of questioning in those parts of the transcript to which reference has been made was sufficient to call into question the applicant’s claims in relation to the Taliban having attacked him and his family by reason of his occupation, including whether or not he was, in fact, in that occupation.
[73] Affidavit of SZVZB affirmed on 20 May 2016, Annexure A (Transcript), page 3, line 25 – page 4, line32; page 6, line 37 – page 8, line 39; page 9, lines 6-32; page 9, line 34 – page 10, line 28; page 12, lines 14-16; page 26, line 44 – page 27 line 12.
The Minister accepts that the Tribunal did not say, in terms, that it doubted that the applicant worked as a teacher in his home region in 2007-2008. But, contrary to [37] of the applicant’s submissions, express notification of the Tribunal’s doubts in that regard was not required by s.425(1). To demand this of the Tribunal cuts across the principles that s.425(1) does not require the Tribunal:
a)to identify the significance of the questions that it puts to a review applicant or the ultimate matter or issue to which they go;[74] or
b)to disclose its provisional views or thought processes.[75]
[74] Minister for Immigration v Applicant A125 of 2003 (2007) 163 FCR 285 at 302 [88].
[75] SZBEL v Minister for Immigration (2006) 228 CLR 152 at 166 [48].
The principle in Minister for Immigration v Applicant A125 of 2003 (Applicant A125 of 2003)[76] is engaged with particular force in the present case. The applicant’s ground of review is tantamount to a complaint that he was not told that the questions being asked of him in relation to his occupation were important ones and that he should think about them carefully because the Tribunal may disagree with the delegate’s finding at CB 101, or that those questions focused upon the truthfulness of his claims to have worked as a school teacher in his home region. A useful illustration of the principle is this Court’s judgment in Grier v Minister for Immigration & Anor.[77] There, I applied Applicant A125 of 2003 in circumstances where the relevant issues were dispositive of the review but were not considered to be dispositive by the delegate.
[76] (2007) 163 FCR 285.
[77] [2009] FMCA 198 at [45].
In fact, the circumstances of the present case are a step removed from Applicant A125 of 2003 to the detriment of the applicant, since the Tribunal’s doubt as to whether the applicant did work as a school teacher would not amount to “information” for the purposes of s.424A(1).[78] Consequently, by insisting on disclosure of that doubt under s.425(1), the applicant would seek to import into that provision much more than the requirements of s.424A(1).
[78] Compare SZBYR v Minister for Immigration (2007) 81 ALJR 1190 at 1196 [18] per Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ.
Other matters
The Minister also submits that first, at [22(b)] and [25] of his submissions, the applicant asserts that the Tribunal, when questioning him in relation to his occupation and his claims of the Taliban having attacked him by reason of his occupation, “assumed” that he was a teacher. The Minister submits that rather the Tribunal did not make such an assumption as a matter of fact; rather, some of its questions were premised upon the applicant having been employed as a teacher in order that the Tribunal could test that claim. The following exchange, which is but one example, makes this plain: [79]
[79] Transcript, page 4, lines 18-32.
Member: So, you were 17 when you started working as a teacher?
Applicant: Yes, I was.
Member: And, you had done only ten years of school?
Applicant: Yes.
Member: So, why would the school allow you to work there as a teacher if you’re only 17 and you have not completed high school?
Applicant: As this school was – and, they advertise this job and they were getting other teachers having, like, year 10. And, like, they interviewed me and, as I was from my friend reference, as well as in the interview, I passed the interview. So, they gave me that opportunity.
Secondly, at [33(a)], the applicant submits that the delegate’s decision “was primarily a relocation decision”. The Minister submits that that is not correct. The delegate found,[80] that the applicant did not have a well-founded fear of persecution if he were to return to his home region. In the next paragraph, the Tribunal went on to consider, first, whether there exists an area within Pakistan where he does not have a real chance of persecution; and, secondly, whether he can reasonably relocate to that place. Contrary to the applicant’s submissions, the Tribunal did not consider “first the issue of relocation”. The Tribunal listed, separately, the two limbs of the relocation test, but its relocation findings were independent of its finding that the applicant did not fear persecution in the Swat Valley.[81] So much is apparent from the presence of the word “also” in the first sentence in the penultimate paragraph at CB [107].
[80] CB 107.
[81] VBAP of 2002 v Minister for Immigration [2005] FCA 965 at [25], [33] per North J.
Thirdly, at [35], the applicant appears to be contending that there existed “a residual issue of whether the applicant was still at risk because of his occupation as a teacher clearly remained on the materials”. The Minister submits that this submission needs to be understood in the context of the ground of review now pressed by the applicant, namely, a breach of s.425(1) (and not some other form of jurisdictional error—although, curiously, reference is made to NABE v Minister for Immigration (No 2)[82]).
[82] (2004) 144 FCR 1.
Resolution
In my opinion, the applicant has established jurisdictional error by the Tribunal because of its failure to comply with s.425 of the Migration Act. I do not disagree that the principles enunciated by the Minister at [43]–[46] above but I disagree with the application of them to the facts of this case in particular as asserted by the Minister at [48]-[50], [52]-[53] and [54]-[55]. First, the question of whether the applicant was a teacher at a girls’ school in the Swat Valley in Pakistan was not just a question of evidence. It was the applicant’s claim for protection. It was central to the applicant’s claim, albeit in circumstances where the applicant had claimed to have suffered harm in the past at the hands of the Taliban because of his teaching.
Secondly, while the delegate rejected all of the applicant’s claims of past harm, the delegate accepted the applicant’s claim that he was a teacher in the Swat Valley for a period. The delegate had regard to that claim in making a forward looking assessment as to whether the applicant would be exposed to a real risk of serious or significant harm should he return to the Swat Valley. The delegate concluded that there was no real risk but, independently, found that if circumstances changed the applicant could relocate. The Tribunal, on the other hand, avoided that consideration by the delegate by finding that the applicant had not been a teacher as he claimed. As noted above, this was a rejection of the applicant’s core claim to protection.
Thirdly, it is common ground that the Tribunal did not expressly warn the applicant that it might disagree with or depart from the findings of the delegate in relation to the teaching claim. It is also common ground that the Tribunal did not expressly raise with the applicant the proposition that the credibility of his claim to be a teacher was a dispositive issue in the review. While there was some brief and inconclusive questioning of the applicant’s claim to be a teacher which might be indicative of some doubt on the part of the Tribunal, this was not, in my opinion, sufficient to raise the credibility of the applicant’s claim as a dispositive issue.
In my opinion, the applicant was entitled to proceed before the Tribunal on the basis that, as his claim to be a teacher in the Swat Valley had been accepted by the delegate, the credibility of that claim would not be an issue before the Tribunal unless the Tribunal informed him otherwise. The Tribunal did not inform the applicant otherwise. This, in my opinion, constitutes an error of the type identified by the High Court in SZBEL.
Conclusion
The applicant has established that the decision of the Tribunal is affected by jurisdictional error. The applicant should therefore receive the relief he seeks.
I will hear the parties as to costs.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 23 August 2016
0