SZFPA v Minister for Immigration and Citizenship

Federal Court of Australia|2008-08-13|Before: Stone J

INTRODUCTION 1 The appellants, who are citizens of Egypt, are a husband (hereafter "the appellant"), wife and their infant daughter who arrived in Australia on 14 August 2003. On 6 February 2004 the appellants lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs, as it was then known. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused the application and on 30 November 2004 the Refugee Review Tribunal affirmed the delegate's decision. On review in the Federal Magistrates Court the Court quashed the Tribunal's decision with the consent of the Minister. It remitted the matter to the Refugee Review Tribunal, differently constituted, for decision according to law. 2 On 24 May 2008, the second Tribunal also affirmed the decision of the delegate and the appellants again applied to the Federal Magistrates Court for judicial review. This proceeding is an appeal from orders made by Federal Magistrate Emmett on 2 May 2008 dismissing that application. 3 The appellants claimed to fear persecution in Egypt due to their Coptic religion. They claimed that the wife's cousin, Susan, converted to Islam and married a Muslim man, Hassan, in 1999. Their cousin Bassem allegedly suspected that the marriage was not voluntary and abducted Susan from her home and placed her in a convent in Upper Egypt. According to the appellants, Hassan attacked Bassem in March 2001, after which Bassem fled. They claimed that their home was later threatened by Hassan and other Islamic fundamentalists who threatened to harm them unless they disclosed the whereabouts of Susan and Bassem. They then left Egypt, and now claim that Hassan and other fundamentalists will harm them if they return.

A little later the Tribunal said to the appellants' adviser: You can tell, you can tell his wife she can come in because I'm not going to ask her any questions. …. tell her she can come in. If you let her in … she can sit at the back and if you have, I will give you from today a couple of weeks to give me something in writing if you want to do so. 7 Although the Tribunal member said she did not want to ask the wife any questions, in fact, a little later in the hearing, she apparently turned to the wife and asked her when a certain event had occurred. The wife said that it was months ago and the Tribunal did not pursue the issue and did not make any reference to this exchange in the reasons for decision. 8 The Tribunal did not accept that the appellant was a credible witness. It described his evidence as "inconsistent, implausible and contradictory", and was not satisfied that he had suffered any persecution in Egypt. In making its adverse credibility finding, the Tribunal averted to numerous perceived inconsistencies in the appellant's evidence. These included the implausibility of Hassan - allegedly a high ranking official - not seeking the assistance of the authorities after the claimed kidnapping of his wife; the appellant's unsatisfactory account of the attack on his flat; the fact that the appellant's claim that the Egyptian authorities would not assist Christians in their situation was at odds with his statement that the police had responded to his complaint that he was threatened by fundamentalists, as well as independent country information about law enforcement in Egypt. 9 In light of these findings, the Tribunal did not accept the appellants' claim to have been persecuted in Egypt. As such, it was not satisfied that they held a well-founded fear of future Convention-related harm if they were to return.

THE FEDERAL MAGISTRATE'S DECSION 10 The appellants were represented by counsel before the Federal Magistrate, and relied on an amended application. The grounds of review were firstly, that the Tribunal had breached the requirements of s 425 of the Migration Act 1958 (Cth) by failing to provide the second appellant with a hearing and by failing to disclose issues which arose in relation to the review. In this regard, the Federal Magistrate found at [25] that: A fair reading of the Second Tribunal's decision and the transcript of the second hearing, makes clear that at no stage of the hearing did either of the applicants or their adviser raise with the Second Tribunal that the second named applicant had further evidence she would like to give in support of the review application. Her Honour accepted that the transcript showed that the second appellant was prepared to answer questions for the second Tribunal, but was unable to remember dates and evidence and "left everything to the first appellant". Moreover, there was no evidence of any attempt by the Tribunal to prevent the second appellant from giving evidence. 11 In relation to the allegation that the Tribunal had failed to disclose issues which arose on review, her Honour accepted SZDFZ v Minister for Immigration & Citizenship [2008] FCA 390 as authority for the proposition that the appellant should be taken to be on notice of the adverse credibility findings made against him by the first Tribunal. As such, the appellant was on notice of the "comprehensive nature of the adverse credibility findings made against him by the First Tribunal", and the second Tribunal was entitled to have regard to its findings. 12 The second ground of review was that the Tribunal breached the requirements of natural justice, and otherwise exceeded its powers, by receiving evidence of privileged communications between the appellant and a solicitor acting for him in the capacity of a migration agent, and failing to caution the appellant that he need not give such evidence. Her Honour's rejection of this ground was not challenged on appeal. 13 Her Honour found, in the absence of demonstrated jurisdictional error, that the Tribunal decision was a privative clause decision under s 474 of the Act.

THIS APPEAL 14 The notice of appeal filed in this Court raised three grounds of appeal. At the hearing I gave leave to the appellants to rely on their amended notice of appeal which was filed on 29 July 2008. The amended notice of appeal contained four grounds of appeal although counsel for the appellants, Dr J Azzi, elected not to press the fourth ground of appeal.

The first ground of appeal 15 In their first ground of appeal the appellants claimed that the Federal Magistrate did not give the appellants the hearing that is required by s 425 of the Act. They, of course, do not dispute that they attended the hearing before the Tribunal, however their complaint is about the quality of the hearing they were given. In support of this ground of appeal they list a number of particulars. The first three particulars relate to an issue that arises from what is apparently a typographical error in the judgment of the Federal Magistrate. At [39] of her Honour's reasons the Federal Magistrate said: Counsel for the First Respondent also referred to the Second Tribunal's questions to the Applicants about his claim of Bassem's conversion to Islam. The Second Tribunal framed its questions in terms of the Applicant's "allegations" of Bassem's conversion to Islam, thereby indicating that the Second Tribunal did not regard the allegation of Susan's conversion as a fact about which it was satisfied. 16 The appellant submitted that neither Susan nor Bassem's conversion to Islam was one of the issues arising in relation to the decision under review, and that at no stage did the appellants make any allegations about Bassem's conversion to Islam. 17 It appears, as the first respondent submitted, that the reference to Bassem in this extract is a typographical error. The passage does not make sense unless each instance of "Bassem" is replaced with "Susan", particularly given the use of "Susan" in the last line, and the fact that the transcript indicates that the Tribunal asked a question about the alleged forcible conversion of Susan to Islam. I accept the first respondent's submission that "the point being made by the learned Federal Magistrate was that the Tribunal had made a reference to a claim being an allegation, which would have indicated to the appellant that the claims being put by the appellant had not been accepted". I also accept that the Federal Magistrate's error does not reveal jurisdictional error on the part of the Tribunal, which appears on my reading of the decision to have understood the claims made to it. 18 As the first respondent's written submissions comment, the argument put on behalf of the appellants is not easy to understand. On elucidation at the hearing, it seems to me that the first respondent was correct in understanding the argument to be "that the learned Federal Magistrate made an error in a fundamental respect and this Court ought not 'fill the gap' in view of the comments made by Flick J in SZKLO v Minister for Immigration and Citizenship [2008] FCA 735 [reported at 102 ALD 115]". 19 The first respondent submitted that the comment in SZKLO regarding the Court's reluctance to "fill the gap" was made in the context of an error such that the appellant "is left to speculate as to what it was that the Federal Magistrate had in mind when he reached the conclusions that formed the final decision"; SZKLO at 121. I am satisfied for the reasons given above that the error made by the Federal Magistrate was formal, not substantive. I am satisfied that the Tribunal sufficiently indicated to the appellants that their claims were in issue, particularly given my view that the findings of the first Tribunal need not be ignored for the purpose of determining whether the appellants were on notice of the issues arising in the review. 20 It is clear from SBRF v Minister for Immigration and Citizenship [2008] FCA 712 that the quashing of a decision of the Tribunal does not render a s 425 invitation ineffectual (at [25]); and that it does not follow from the invalidity of a Tribunal decision that all steps and procedures taken in arriving at that invalid decision are themselves invalid (at 24]). In this context, I accept the first respondent's submission that: At the first hearing, the appellant was informed that his entire story was liable to be disbelieved and, when he came to the second hearing before the Tribunal, he should have been under no illusion that the issues before the Tribunal remained only the matters which were of concern to the delegate. He knew that his credibility was liable to be disbelieved and, accordingly, that he needed to prove all of this claims as best he could. 21 At the hearing of the appeal, the appellants relied heavily on the decision of the Full Federal Court in SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138. Reasons of the Full Court relate to two appeals and in each case the issue was, as Gray J commented [1], whether s 425(1): … required the particular member of the Refugee Review Tribunal … who made the Tribunal's decision, affirming a decision to refuse to grant the relevant appellant a protection visa, to invite that appellant to attend a hearing. In each case, another member of the Tribunal had previously made a decision, affirming the decision to refuse the appellant a protection visa, after giving an invitation to the appellant pursuant to s 425(1) and conducting a hearing. In each case, the Tribunal's first decision had been set aside by court order, and the matter had been remitted to the Tribunal. In each case, the member who made the second decision relied on the record of the earlier Tribunal hearing, without issuing a fresh invitation pursuant to s 425(1) and constituting a fresh hearing. 22 In this case the second Tribunal did issue a further hearing invitation, which the appellant attended and at which he was informed, by the Tribunal's statements and questions, that he was liable to be disbelieved. The relevant statements and questions include the Tribunal's statement that it was asking the appellant questions in order to satisfy itself as to what had happened; and the Tribunal's use of the word "alleged", referred to above at [17]. Indeed, the following extract from the transcript of the second Tribunal hearing indicates that the appellant was aware that the veracity of his claims were in issue: … I was thinking a little bit logically and maybe this is one of my mistakes, but I've been, a lot I've been misunderstood, I've been, been made, here there was a lot of mistakes. They said I am not, I am not, what they're saying is I'm not honest enough to say the truth, OK, and there is a lot of things.

The second ground of appeal 23 The second ground of the amended appeal is that her Honour erred in dismissing the application for review in circumstances where the second Tribunal failed to comply with s 425 by not putting the appellants on notice of the issues arising in relation to the decision under review, particularly regarding the senior position of Hassan and the inconsistency between the appellant's claim that Hassan acted "like a mad man" and other evidence about his actions. According to the appellant, It was necessary for the Tribunal to put directly to the first appellant that one of its concerns was the implausibility that Hassan would not use his position to find the appellant's workplace or rely on the authorities to assist in prosecuting Bassem or that the first appellant's evidence about the behaviour of Hassan was inconsistent with someone acting "like a mad man" given that it made factual findings adverse to the appellant on those issues. 24 The only reference to inconsistencies in the appellant's claim that Hassan acted like a mad man are to be found in the first Tribunal decision. It is true that the second Tribunal made findings in relation to the implausibility of aspects of the appellant's evidence in view of Hassan's failure to avail himself of the assistance of the authorities in relation to his wife's disappearance, and the ease with which he could have located the appellant's workplace. However, in the context of my finding the appellants were put on notice by the Tribunal's statements and questions that their claims were liable to be disbelieved, I am of the view that the Tribunal was not obliged to put these particular issues to the appellant. 25 The appellants sought to raise an additional matter in relation to the second ground of appeal in their written submissions. This matter was not particularised in the amended notice of appeal, and, although there was consideration of this issue at the hearing of the appeal, I agree with the first respondent's contention that the appellants ought not to be permitted to raise a fresh allegation via written submissions. The matter relates to the alleged failure of the Tribunal to allow the appellant wife the opportunity to give evidence, arising from the exchanges recounted above at [4]-[7]. 26 In the circumstances, I am satisfied that the Tribunal's obligations under s 425 to invite the appellants to a hearing and give them a meaningful opportunity to give evidence were met.

The third ground of appeal 27 The third ground of appeal in the amended notice of appeal is that the Federal Magistrate took into account irrelevant considerations in finding that the second Tribunal discharged its statutory obligations under s 425 to give the second appellant a real and meaningful invitation to give evidence and present arguments at the hearing. In particular, the appellants complain that the Federal Magistrate took into account: (a) representations made by the second appellant at the first Tribunal hearing to find that the second Tribunal complied with s 425 in relation to the second appellant; (b) the fact that neither the second appellant nor the appellants' adviser raised the second appellant's desire to give further evidence at the second hearing; and (c) the fact that there was no attempt by the second Tribunal to prevent the second appellant from giving evidence. I accept the first respondent's contention that: it is apparent that each of the three matters identified above go to show that the reason why the appellant did not give evidence or present argument was because she did not wish to, rather than because the invitation extended to her was not meaningful. Accordingly, they tend to show that section 425 was complied with and, therefore, they are relevant. 28 The particulars of this ground of appeal, outlined at (a) to (c) above, were not pressed in the appellants' written submissions. Rather, the written submissions focussed on "whether the Tribunal conducted a review of the delegate's decision in accordance with section 425 by adverting to evidence of conversion to Islam of Bassem that was never given by either of the appellants in writing or orally." It is unsatisfactory to seek to re-particularise a ground of appeal in written submissions, and to that extent, I do not give the appellants leave to rely on these particulars. In any event, my findings in relation to the Federal Magistrate's reference to the alleged conversion of Bassem to Islam are to be found at [15]-[17] above; in particular, that this matter was not actually taken into account, the Federal Magistrate's point being that the Tribunal had used the word "alleged".

Conclusion 29 In my view, none of the grounds of appeal succeed. The decision of the Federal Magistrate was correct for the reasons her Honour gave and the appeal should be dismissed with costs. As the third appellant is an infant the costs order will be made only against the first and second appellants. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate: Dated: 13 August 2008 Counsel for the Appellants: J Azzi

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