AZAAY v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an appeal from an order made by the Federal Magistrates Court on 19 November 2010. On that day the Court made an order that the appellant's application for judicial review filed on 5 March 2010 be refused (AZAAY v Minister for Immigration and Anor [2010] FMCA 903). The appellant had made an application for judicial review in relation to a decision of the Refugee Review Tribunal ('the Tribunal') on 2 February 2010 to affirm the decision of a delegate of the Minister for Immigration and Citizenship not to grant a Protection (Class XA) visa to the appellant. 2 The appellant is a national of Albania. He arrived in Australia on a false Italian passport on 7 April 2009 and he made an application for a protection visa on 12 May 2009. A delegate of the Minister decided to refuse his application on 7 August 2009. The appellant then made an application to the Tribunal for review of the delegate's decision. The appellant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. The appellant accepted that invitation and he appeared before the Tribunal. His sister also appeared before the Tribunal and gave evidence. The appellant forwarded a number of documents to the Tribunal in support of his claim. One such document is significant for the purposes of this appeal. It was forwarded to the Tribunal on the day before the appellant appeared before it. It purports to be a statement of a parson of a village (Beltoje) in Albania in which the appellant lived. I will refer to the statement as 'DSB's statement'. 3 The grounds of the appeal to this Court are as follows: 1. The learned federal magistrate erred in: 1.1 finding that the Refugee Review Tribunal had, first, rejected the appellant's credibility and only then gave the statement by DSB no weight; and 1.2 not holding that, if the Tribunal had given the statement by DSB some weight, it may [sic] affected the Tribunal's conclusions as to the appellant's credibility. 2. The learned federal magistrate erred in holding that inquiries as to the authenticity of the statement of DSB would not have established a fact critical to the determination of the review by the Tribunal. 3. The learned federal magistrate erred in holding that the Tribunal's failure to make inquiries as to the authenticity and reliability of the statement of DSB did not constitute a sufficient link to the outcome of the review so as to constitute a constructive failure to exercise jurisdiction. 4 The grounds of appeal focus on the Tribunal's approach to DSB's statement. In order fully to understand the grounds it is necessary to examine the Tribunal's reasons in some detail.

The Tribunal's reasons 5 The appellant was born in 1989 and he finished form 8 in the village school in Beltoje when he was about 14 years of age. He then helped his mother on a farm owned by his family. In February 2006 he went to live in Italy. He travelled there by foot. After about two and a half to three months he obtained permanent residence in Italy. From time to time, he returned to Albania in order to visit his family. In Italy, the appellant had a job in the building industry. 6 The appellant left Italy in April 2009. He travelled to Australia on a false passport. He worked in Italy until the day before he left. 7 The Tribunal noted the claims made by the appellant in his protection visa application. It noted that the appellant said that his parents and younger brother resided in Albania and that he had a sister residing in Australia. However, he and his sister were estranged. 8 The appellant claimed that he had an altercation shortly before he left Italy in 2009 when he was attacked in a nightclub by an Albanian man and his friends after he had been talking to a girl known to the Albanian man. The appellant provided further details of the attack and its immediate aftermath. The attack resulted in the appellant deciding to leave Italy and travel to Australia. The appellant's sister had an application for protection currently under review, but the appellant did not know anything about his sister's circumstances since she left Albania at the age of 13 years in about 1999. The Tribunal noted the following: It was suggested, by the agent that the applicant's treatment in Italy may be linked to his sister but neither are aware of the link and due to her fragile mental state she is unwilling to disclose her life story to him and does not want to know of his circumstances. 9 The above was the appellant's claim before the delegate and before DSB's statement was forwarded to the Tribunal. DSB's statement introduced a new element or basis for the appellant's claim, namely, that he and his family and, in particular his father, were harassed and persecuted by the police in Albania in 2004. 10 The Tribunal noted the evidence given to it by the appellant and his sister at a hearing on 18 November 2009. It asked the appellant about DSB's statement and noted evidence from the appellant about his father's imprisonment and various threats. The Tribunal put to the appellant that he had not mentioned to the Department in his protection visa application the claims of threats and harm in Albania. The Tribunal then noted the evidence given by the appellant's sister and documentation and submissions forwarded to the Tribunal after the hearing. The Tribunal noted what it called 'Background Independent Information'. 11 In the course of setting out its findings and reasons the Tribunal said that it did not accept the appellant as a witness of truth. It said that it was satisfied that the appellant had created his claims in order to obtain the visa sought. It set out a number of reasons why it did not accept the appellant as a witness of truth. I do not propose to go through those matters which are set out in the Tribunal's reasons at paragraphs 80-85. It is sufficient to say that the appellant does not suggest that there was anything illogical or irrational about the Tribunal's reasoning. 12 The Tribunal then dealt with the documents which had been forwarded to it and the weight which it considered ought to be placed on those documents. It dealt with the weight it would give to DSB's statement in paragraph 93 of its reasons. It said: A letter 'Statement' and signed [DSB] dated 9 November 2009 was submitted to the Tribunal. The author claims to be the parson of Beltoje. The statement supports the claims of the applicant in relation to threats made to his family, arrest and imprisonment of the applicant and his father. There is no address or telephone number on this document which is purportedly from the parson of the church in Beltoje. There is insufficient information to verify the identity of the author of the letter. As I do not accept the applicant is a witness of truth and as I am satisfied that the applicant has created his claims in order to obtain the visa sought, I am satisfied that his credibility is so damaged that I place no weight on this document. 13 In the result, the Tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention (Migration Act 1958 (Cth) ('the Act') s 5) and said that the appellant did not satisfy the criterion set out in s 36(2)(a) of the Act for a protection visa.

Issues on the Appeal 14 Before the Federal Magistrates Court the jurisdictional error alleged by the appellant was a failure by the Tribunal to carry out its review function. The argument was based on s 414(1) of the Act which provides that if a valid application for review is made the Tribunal must review the decision. 15 The particular failure alleged by the appellant was a failure by the Tribunal to inquire about the veracity of DSB's statement. The appellant did not contend that the Tribunal was under a general duty to inquire about all matters which might arise in the course of a review. However, he argued before the Federal Magistrates Court that, in the particular circumstances of this case, the Tribunal was under a duty to inquire about the veracity of DSB's statement. Those particular circumstances were as follows: 1. The Tribunal placed no weight on DSB's statement because of what the Federal Magistrate called 'verification difficulties'; and 2. DSB's statement was an item of evidence which corroborated the appellant's account of his claim for refugee status. 16 In the course of the hearing it held on 18 November 2010, the Tribunal asked the appellant about DSB's statement. It said (at [49] and [54]): I asked him about a document he had submitted to the Tribunal from a priest. He said that the priest knew about his father's imprisonment and the threats. His father was in prison some time after his sister left, it was in 2004 around October. His father was in prison in Shkoder for 2 or 3 months. There was a break-in at the ambulance station and his father was accused. The police searched the house. They forced themselves in and took an heirloom. They made his father sign a letter. The police took him and his father away. At that time he was 14 or 15 years of age. They beat him. They took him and his father to the police station and his father was imprisoned. They held him for 10 hours. They said that they found fingerprints. His father went to prison for 2 or 3 months. … I asked him why he obtained the declaration from the priest and he said that as things were unfolding he started to establish the links. He cannot return as there is a risk to his family. 17 The federal magistrate summarised the appellant's argument in the following passage (at [44]): The appellant's argument, however, is that had the Tribunal, in accordance with s.414(1) of the Act, conducted the review as it ought to have and inquired of the applicant or his agent as to the contact details of the author of the statement, and satisfied itself of the authorship of the statement, that the statement would then have been given weight and that in turn would have caused a revision, favourable to the applicant, of the Tribunal's findings as to his credibility. The federal magistrate rejected the argument because he found that the Tribunal did not proceed in the way the appellant suggested. He said (at [45]): The difficulty for the applicant is that the Tribunal appears to have proceeded in exactly the opposite way than that which is contended. That is, it did not reach a decision as to the applicant's credibility after rejecting the statement (on account of verificational difficulties or otherwise). It gave the statement - about which it had already observed there were verificational difficulties - no weight because, for reasons it had already given in detail, it rejected the applicant - comprehensively it must be said - as a witness of truth. 18 The appellant accepted that if the Tribunal proceeded in the way the federal magistrate found, then he could not establish jurisdictional error. That concession is correct. In Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; 198 ALR 59 ('Applicant S20/2002'), Gleeson CJ said (at [12]): It was contended that this passage shows that the Tribunal member adopted a flawed approach to her evaluation of the evidence, failing to assess the evidence of the applicant/appellant in the light of the corroborating evidence, and giving no weight to the evidence of the corroborating witness for reasons that had nothing to do with the quality of that evidence. The essence of the complaint is that the Tribunal failed to consider the evidence as a whole, but first considered, and disbelieved, the evidence of the applicant/appellant, without taking account of the corroboration, and then considered and rejected the corroboration because of the rejection of the evidence of the applicant/appellant. I do not accept that this is a fair criticism of the Tribunal's reasons. In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant's story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering. The member could have expressed herself more clearly. It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness. 19 In the same case, McHugh and Gummow JJ said (at [49]): In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant. 20 In Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485, North and Lander JJ said (at 491 [33]): Thus, consistently with Applicant S20/2002 77 ALJR 1165; 198 ALR 59 it was open to the RRT to assess the credit of the first respondent and then, in the light of that assessment, consider what weight should be given to the witness statement. This was the process followed by the RRT which it described in the sentence 'Given the adverse credibility finding, the Tribunal does not give weight to the document'. Although expressed in the most cryptic terms, this statement shows that the RRT made an assessment of the value of the witness statement and then considered its effect in the light of the view it had formed to that point about the credibility of the first respondent. 21 The question then is one of the proper meaning to be attributed to the Tribunal's reasons dealing with DSB's statement. 22 I think that the federal magistrate's interpretation of the Tribunal's reasons is correct. No doubt the Tribunal might have expressed itself more clearly. However, I think that the last sentence in paragraph 93 is clear and the Tribunal placed no weight on DSB's statement because it rejected the appellant as a witness of credit and because it was satisfied that he had created his claims in order to obtain the visa he sought. 23 The federal magistrate went on to consider the appellant's argument on an assumption which was contrary to his principal conclusion, that is to say, on the assumption that the Tribunal had rejected DSB's statement because of verification difficulties. In that context he made the following findings and reached the following conclusions: 1. DSB would have adopted the statement if given the opportunity to do so. That finding was based on affidavit evidence put before him. The finding is not challenged by the first respondent. 2. He could make no assumptions 'as to why it was that the statement in the first instance did not include contact details for the author of the statement or why the applicant or his agent did not invite the Tribunal to contact him'. 3. The inquiry which the appellant contended should have been made could perhaps be categorised as an obvious inquiry in the same way that the inclusion of contact details on the statement might be thought to be an obvious inclusion. 4. The contact details would have been easily ascertained. 5. Neither the contact details or the confirmation of the authorship of the statement or the ascertainment of those details which such confirmation would have entailed were critical facts in the sense in which that expression is used (that is, the expression of 'critical fact') in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; 259 ALR 429 ('SZIAI'). 6. In any event, those details did not supply a sufficient link to the outcome of the hearing so as to constitute a failure to review. Having regard to the Tribunal's findings about the appellant's credibility, confirmation or otherwise of the authorship of the statement was not going to make 'any material difference to the way in which the Tribunal discharged its obligation to review'. 24 In SZIAI the High Court considered the extent to which the Tribunal was under a duty to inquire. The plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) addressed the issue of the extent to which the Tribunal's functions may be properly described as inquisitorial. The Court said ([18]): It has been said in this Court on more than one occasion that proceedings before the Tribunal are inquisitorial, rather than adversarial in their general character. There is no joinder of issues as understood between parties to adversarial litigation. The word 'inquisitorial' has been used to indicate that the Tribunal, which can exercise all the powers and discretions of the primary decision-maker, is not itself a contradictor to the cause of the applicant for review. Nor does the primary decision-maker appear before the Tribunal as a contradictor. The relevant ordinary meaning of 'inquisitorial' is 'having or exercising the function of an inquisitor', that is to say 'one whose official duty it is to inquire, examine or investigate'. As applied to the Tribunal 'inquisitorial' does not carry that full ordinary meaning. It merely delimits the nature of the Tribunal's functions. They are to be found in the provisions of the Migration Act. The core function, in the words of s 414 of the Act, is to 'review the decision' which is the subject of a valid application made to the Tribunal under s 412 of the Act. 25 The plurality addressed references made from time to time in decisions of this Court to a 'duty to inquire' on the Tribunal. The Court said the proper question was whether the Tribunal had discharged its obligation to review the relevant decision. The Court said (at [25]): Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a 'duty to inquire', that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that. 26 It seems to me that whether a fact is critical and whether there is a sufficient link to the outcome to constitute a failure to review overlap in the sense that in a particular case the matters relevant to the one requirement are also likely to be relevant to the other. At all events, it seems to me that the decisive matter in this case is the conclusion of the federal magistrate - with which I agree - that on a proper reading of the Tribunal's reasons the confirmation or otherwise of the authorship of the statement was not going to make any material difference to the way in which the Tribunal discharged its obligation to review. That was because the Tribunal had clearly rejected the appellant as a witness of credit and found that he created his claims in order to obtain the visa sought. The federal magistrate's conclusion that the contact details and confirmation of the authorship of the statement were not critical facts and his conclusion that they did not supply a sufficient link to the outcome of the hearing so as to constitute a failure to review were correct. 27 I have considered the two cases to which the appellant referred: Khant v Minister for Immigration and Citizenship (2009) 112 ALD 241 and SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113. Those cases involves the application of the relevant principles to the particular facts before the Court and do not suggest any error on the part of the federal magistrate in this case.

Conclusion 28 For the reasons I have given, the appeal must be dismissed. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.