SZNTY v Minister for Immigration & Citizenship

Federal Court of Australia|2011-01-19|Before: Katzmann J

REASONS FOR JUDGMENT 1 The appellants are father and son. They are Pakistani citizens. They arrived in Australia on 7 September 2008. Precisely one month later the father, who is the first appellant and the litigation guardian of the second and who, for convenience, I will call the appellant, applied to the Department of Immigration and Citizenship for Protection (Class XA) visas for him and his young son. 2 In his application the appellant claimed that he was a successful businessman who had been forced to abandon his business and flee his country, taking his son with him. He said he was a member of the Rajput caste and his wife, whom he divorced on 4 March 2008, was a member of the Arain caste and they had married despite the insistence of her family that she marry within her caste. He said that his in-laws never accepted him, poisoned his wife against him and interfered in their relationship. He said she left him "numerous" times and returned to her parents and they separated permanently when she left the matrimonial home in June 2007 taking their two children with her. From that time on, he said, he started to receive anonymous threatening calls and in October 2007 their daughter suddenly died. He claimed his in-laws used their wealth and "immense political reach" (including as members of the then ruling Pakistan People's Party) to bribe top police officials and political leaders to persecute him and teach him a lesson. He alleged he was threatened with death, abused on the phone and followed on the way to work. He said he lived for the last year in fear, filed many reports with the police about these incidents but often they refused to "file" or "register" these First Information Reports (which the delegate of the Minister said are issued by the police following complaints that "offer reasonable proof that a crime was committed" and are the legal basis for all arrests in Pakistan) and had to go to court to require them to do it. 3 He specifically claimed that he sought to "lodge" a First Information Report about his daughter's death but "due to my In-laws [sic] influence at all levels, police refused to register our report". He claimed that "[d]espite [the] doctor's report of unnatural death", he had to take legal action and obtain a court order for the police to "register" the report. 4 He said he will continue to face harassment from his in-laws and "their influential people", that "[p]olice and higher authorities are taking my in-laws side and he is also influential member of PPP [the Pakistan People's Party]" and, as a result, he has "no hope and faith in the judicial or administrative system". 5 To qualify for a protection visa the appellant had to show that he was a refugee within the meaning of Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol (Migration Act 1958 (Cth) ("the Act"), s 36(2)), and could satisfy the further requirements of s 91R of the Act. In short, he had to show that he had a well-founded fear of persecution (that is, that there was "a real substantial basis" for it: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 572) on one of the Convention grounds, that the ground or grounds is or are the essential and significant reason(s) for the persecution and that the persecution involves serious harm to his person and systematic and discriminatory conduct. He said he was being persecuted for being a Rajput and marrying an Arain girl. He said that if her were to return to Pakistan he and his son would be killed or otherwise harmed. The son's claim was parasitic on his father's. As his dependant, his claim would succeed if his father's did. See s 36(2)(b) of the Act. 6 On 30 October 2008 the appellant was invited to attend an interview with a departmental officer (a delegate of the first respondent, "the Minister") on 5 December 2008 to discuss his claims and told that an Urdu interpreter would be provided. Before the interview, on 23 November 2008, a registered migration agent sent a number of documents to the Department on the appellants' behalf. These were documents purporting to be copies and translations of letters said to have been written by the appellant to the police, in which he complained of being followed and threatened by unknown individuals, and other documents purporting to verify his other contentions. They consisted of reports or complaints to the police, records of court proceedings directing the police to record those complaints [a reference to the First Information Report procedure], including a record relating to a court proceeding to compel the police to issue the First Information Report relating to his daughter's death and what appears to be a record of court proceeding in which he is granted custody of his son and some kind of tax record (supporting his claim of employment). The threats mentioned in the letters were said to have been made not only to him, but also to his young son, then aged four years. The documents included a copy of what purported to be a report of an autopsy into his daughter's death. The cause of death was noted to be "pneumonia causing suffocation and leading to asphyxia" but the author said he could not rule out "some kind of death due to smothering". At the interview with the Minister's delegate the appellant said he suspected his daughter was murdered by his in-laws because she was of mixed caste. 7 On 10 December 2008 the Minister's delegate rejected his application. 8 The appellant applied for a review of the decision to the second respondent ("the Tribunal") which, on 2 July 2009, rejected his application and affirmed the delegate's decision. He then applied to the Federal Magistrates Court for an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s 476 of the Act, that remedy being confined to the writs available against an officer of the Commonwealth under s 75(v) of the Constitution. The Federal Magistrate also rejected his application and he now appeals from that decision.

The Tribunal hearing 9 The appellant had been assisted by a migration agent to lodge his original application and his application to the Tribunal, but he appeared without the assistance of the agent at the Tribunal hearing. There the appellant was only assisted by an Urdu interpreter. This time he gave a markedly different account of the reason for his fear of persecution. In short, his case before the Tribunal was that his ex-wife's family belonged to the Mujahedin, were fanatical, extremist and anti-American. His former father-in-law was a recruiter for the Taliban. He claimed his in-laws wanted him to convert and fight the Americans. He said that his ex-wife tried to force him to become her father's "right-hand man" and avenge her brother's murder and she left him after he refused her entreaties. He also said that when he tried to tell the police about this, they refused to listen. Neither in his application nor in his interview with the Minister's delegate had he mentioned the Mujahedin or the Taliban. There were a number of other inconsistencies in his account. 10 The Tribunal raised these inconsistencies with him orally and in a letter addressed to him on 30 March 2009 foreshadowing what impact these might have on its decision and inviting him to respond by 23 April. 11 On 17 April 2009 the appellant faxed a handwritten letter requesting his "Interview CD", meaning the recording of the Tribunal hearing. On 20 April 2009 the recording was sent to him. The same day the appellant faxed a second handwritten letter seeking an extension of time to reply to the 30 March letter. His reason was that his "previous" migration agent's office had only recently forwarded it to him. He also informed the Tribunal that correspondence should no longer be sent to that agent. A file note records that the appellant was telephoned by the Tribunal on 21 April 2009 refusing his request for an extension of time but indicating he would, in any case, have until 30 April 2009 to respond. It also records a dispute about whether he told the Tribunal at the hearing that he was no longer represented by the agent. 12 Nevertheless, on 21 April 2009 the Tribunal wrote again to the appellant reproducing the content of the 30 March letter, presumably out of concerns it had about the questions relating to the role of the agent. 13 The appellant replied on 23 April 2009 seeking to explain the inconsistencies between his original and later claims and making a separate claim about the conduct of the Minister's delegate. In essence he blamed the differences between the accounts on the advice of his migration agent that what he had included in his application was "enough" and on the delegate's conduct of the interview, including her manner of questioning him, which he described as abrupt and forceful and continuously interrupting him and her alleged insistence he speak English. 14 That led the Tribunal to write to him a third time - on 9 June 2009. In that letter the Tribunal indicated it had "decided to carefully re-listen to the audio recording of [his] interview with the delegate" and, having done so, rejected his claims completely. It went on to inform him that his characterisation of the conduct of the delegate when compared to the interview might lead the Tribunal to find that he had provided a misleading account of the interview, that his evidence in that regard was "manifestly unfounded", that it might also find he had shown "a total disregard for the truth" and disregard his claims. It enclosed a copy of the audio recording of the interview with the letter. 15 The appellant replied to the third letter on 1 July 2009 maintaining his claims, although also seeking to explain why the recording appears not to support hem. 16 The Tribunal rejected the appellant's claims because of the significant inconsistencies in his accounts and his "untruthful, unreliable, farfetched and self-serving" explanations for them. The Tribunal's decision provides numerous examples to support its conclusions. It described some of his oral evidence on key matters as "incoherent, vague and unconvincing", pointing, amongst other things, to his inability to provide "a single, convincing explanation" for why his parents-in-law would murder their own granddaughter and his fluctuating accounts of his in-laws wanting to kill his children on the one hand and wanting to take them from him on the other. It concluded that he was not credible, truthful or reliable, that he had a propensity to shift and tailor his evidence for his own purposes, and that he had fabricated his claims and concocted evidence in order to advance his case. Accordingly, it rejected all of his claims and affirmed the decision under review. It referred to the documents he submitted but gave no weight to them having regard to the view it had formed of his credibility, citing Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 ("S20").

The application to the Federal Magistrate 17 The grounds of the application before the Federal Magistrate (without alteration) were: 1. The Tribunal failed to note that the delegate of the Department, without giving consideration to the Applicant's inability to explain his claims in English language, continued to conduct the hearing in English language and made an unreasonable procedural error and thus made a jurisdictional error. 2. The Tribunal knowingly and with bias failed to consider the submissions made by the Applicant in relation to the new claims and the reasons given therein and with an ulterior motive rejected the Applicant's new claims and thus made a jurisdictional error. The Tribunal rejected the Applicant's claims on 2 July 2009 before even considering the submissions made by the Applicant on 1 July 2009 as requested by the Tribunal. 3. The Tribunal made a jurisdictional error by not giving the Applicant an opportunity to explain any doubts the Tribunal had, in relation to his further submissions and explanations in writing as requested by the Tribunal. 18 The Federal Magistrate was satisfied that the Tribunal's finding on the appellant's credit and its consequent rejection of his claims was open to it on rational grounds on the material before it and disclosed no error. He also upheld its treatment of the documents supplied on the appellant's behalf. 19 His Honour dismissed the first ground. He noted that the Tribunal did investigate the appellant's complaints, listened itself to the CD of the delegate's interview (twice in fact) and invited him to comment on its own assessment. He held that its refusal to accept the appellant's submission did not demonstrate a jurisdictional error. 20 In relation to ground 2 his Honour observed that the Tribunal did in fact consider the appellant's submissions and recorded its findings about them. He felt that the appellant's real complaint appeared to be that his submissions were not accepted. He noted that bias was a very serious allegation that must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 ("Jia"). He accepted that actual bias could in a particular case "be inferred from the facts and circumstances but caution should be exercised, in the absence of evidence of partisanship or hostility before inferring actual bias from the Tribunal's reasoning", citing decisions of this Court. He also said that no inference of bias or pre-judgment can be drawn from the mere fact that adverse findings had been made, again citing a number of decisions of this Court. He was satisfied on the material before him that there was no bias on the part of the Tribunal. 21 As for the last ground, his Honour noted that the Tribunal had no obligation to write to the appellant before handing down its decision under s 424A of the Act or give him a further opportunity to comment on the reasons it had decided against his submissions, relying on SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]; [2007] HCA 26 and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48]; [2006] HCA 63. 22 Finally, his Honour observed that the appellant had been provided with the opportunity of participating in the Tribunal's legal advice scheme but elected not to do so and was granted leave to file an amended application but did not avail himself of that leave. He recorded that he failed in his application because of the significant inconsistencies in his evidence and the Tribunal's findings about his credibility. He considered that the grounds of review were based either on a factually incorrect basis or misunderstandings about the operation of the law. He concluded that the application had to be dismissed with costs.

The appeal 23 The appeal is in the nature of a rehearing, but error must still be shown: SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 ("SLMB") at [11]. 24 The grounds of appeal (without alteration) are as follows: (1) The decisions made by the Respondents were made incorrectly and had used their authority wrongly thus making a jurisdictional error. The Respondents also by exceeding their jurisdiction and constructively failed to exercise its jurisdiction by failing to accept the facts the First Appellant orally made at the Tribunal hearing. (2) The Respondents used their absolute uncontrolled and unlimited discretion with respect to the extent of their jurisdiction and made orders which had no relation to the claims made at the Tribunal hearing and dealt with original matters and claims only ignoring the claims at the Tribunal hearing and thus made jurisdictional error on the grounds of procedural fairness. (3) The Respondents formed the opinion which was reached by taking into account irrelevant considerations by misconstruing the claims at the Tribunal hearing, failed to reach the reasonable decision and thus made a jurisdictional error. The decision made by the Respondents was arbitrary, capricious, irrational or not bona fide. (4) The Respondents made an error of law by identifying wrong issues, by asking wrong question, by ignoring relevant materials and facts in the claims orally made by the First Appellant at the Tribunal hearing and by relying on irrelevant material, made an erroneous finding against the Appellants. The Respondents reached a mistaken conclusion on credibility grounds which is the only grounds that they could use against the Appellant. The Respondents' exercise or purported exercise of power is thereby affected and they exceeded their authority or powers making jurisdictional error. (5) The Second Respondent do not have authority to authoritatively decide questions of law or to make decisions otherwise than in accordance with the law. The Second Respondent constructively ignored the claims put forward by the First Appellant orally at the Tribunal hearing giving answers to the questions put to him by the Tribunal and had made a decision arbitrarily and capriciously thus making jurisdictional error. 25 In so far as the grounds refer to the Minister's decision as well as the Tribunal's they make no sense. The appellant, however, was unrepresented before the Federal Magistrate and is unrepresented in this appeal. I take it that the references to "the Respondents" in the first four grounds should be read as references to the Tribunal. It was clear during the hearing that his complaint related to the decision of the Tribunal. On its face none of these issues was raised in the proceeding before his Honour. 26 As the Minister submitted, the appellants require the leave of the Court to raise new grounds of appeal that could have been raised before and considered by the Federal Magistrate. Leave will only be granted if it is expedient to do so in the interests of justice: H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43 at [6]; [2001] FCA 1348. The practice of raising arguments for the first time on appeal has been deprecated many times, including in H at [8] and in VUAX v Minister for Immigration and Multicultural Affairs [2004] FCAFC 158 where the Full Court said at [48]: The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused… 27 The appellant put on no evidence to explain why these points were not taken below. Nevertheless, his oral submissions appeared to show that his grievances were not materially different from the matters he raised in the Federal Magistrate's Court. I therefore take it (as did the Minister) that he is claiming that the Federal Magistrate fell into error in the way in which he disposed of his application. The Minister conceded he was not prejudiced by the new grounds. In the circumstances, and notwithstanding his failure to provide an explanation, I propose to grant leave and consider the appeal on its merits. 28 The appellant filed no written submissions. At the hearing of the appeal, through an Urdu interpreter, he was invited to explain the various grounds.

Ground 1: The decision made by the [Tribunal] was made incorrectly and had used their authority wrongly thus making a jurisdictional error. The [Tribunal] also by exceeding their jurisdiction and constructively failed to exercise its jurisdiction by failing to accept the facts the First Appellant orally made at the Tribunal hearing. 29 The appellant's complaints really fell into two categories. First, he was distressed and frustrated that the Tribunal did not believe him. Secondly, he complained that the Tribunal published its decision only the day after it received his second letter, which, he submitted means that it did not even bother considering the information in it. For this reason, he argued, justice had not been done. 30 The Tribunal's decision was a privative clause decision under the Migration Act. This means that the only basis for reviewing it was for jurisdictional error. The grounds raised before the Federal Magistrate and in this Court seemed to recognise as much, but a failure on the part of the Tribunal to believe the account an applicant gives does not, without more, raise any question of jurisdictional error. As the Minister submitted, whether or not an applicant's evidence should be accepted is entirely a matter for the Tribunal and a decision that it should not is not amenable to review for jurisdictional error. See Re Minister for Immigration and Multicultural Affairs: Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1. 31 The appellant's submission that the Tribunal did not consider the information contained in his second letter must be rejected. The Tribunal referred specifically to its contents in paragraph 102 of its decision but dismissed the claims he made in it. The Tribunal's reasons are detailed and considered. There is nothing in them to support the appellant's submission. 32 I reject the first ground.

Ground 2: The [Tribunal] used their absolute uncontrolled and unlimited discretion with respect to the extent of their jurisdiction and made orders which had no relation to the claims made at the Tribunal hearing and dealt with original matters and claims only ignoring the claims at the Tribunal hearing and thus made jurisdictional error on the grounds of procedural fairness. 33 In support of the second ground the appellant said that when he attended the tribunal hearing the member threw his pen on the table, said, "I can't believe you" and showed a "really hostile" attitude. 34 The submission may raise a question of apprehended bias which, if proved, amounts to jurisdictional error: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 ("Ex parte H"). In Ex parte H at [30]-[31] the High Court said: [30] Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings. [31] Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view. 35 For the reasons given by the Federal Magistrate, however, there is no basis for a finding of actual or apprehended bias. If the appellant wanted to make out a case that the Tribunal was hostile and its behaviour was overbearing or intimidating it was up to him to present the evidence. This he did not do. I might add that the complaint of hostility on the part of the Tribunal does not appear to have been made to the Federal Magistrate. 36 The fact that the Tribunal was prepared to, and did, listen a second time to the audio recording of the interview with the Minister's delegate after receiving the appellant's first letter militates against a conclusion that it was not prepared to apply an impartial mind to his case. 37 There is no substance to the contention that the Tribunal made orders which had no relation to the claims made at the Tribunal hearing and dealt with the original matters ignoring the claims made before the Tribunal. To the contrary, the Tribunal paid close attention to the new claims, drew to the appellant's attention the numerous inconsistencies between them and the former claims, asked for his explanation and then rejected them. 38 Ground 2 must also be rejected.

Ground 3: The [Tribunal] formed the opinion which was reached by taking into account irrelevant considerations by misconstruing the claims at the Tribunal hearing, failed to reach the reasonable decision and thus made a jurisdictional error. The decision made by the [Tribunal] was arbitrary, capricious, irrational or not bona fide. 39 In the third ground the appellant asserts that the Tribunal took into account irrelevant considerations, failed to make a reasonable decision and made a decision that was arbitrary, capricious, irrational or not bona fide. He provided no particulars of any of these claims. In his oral submissions he said that the decision was arbitrary etc because the Tribunal did not believe him. He complained that the Tribunal did not accept that his daughter had been murdered despite the autopsy report containing a conclusion that the doctor performing the post-mortem could not rule out smothering. As the Minister submitted, the decision was properly reasoned. The appellant's descriptions of it are quite inapt. Although it would have been better if the Tribunal had dealt in more detail with the documents, including this one, in its reasons, it was entitled in the circumstances to give no weight to them, having regard to the view it had formed of the appellant's credibility: S20. See also Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50. 40 I reject ground 3.

Ground 4: The [Tribunal] made an error of law by identifying wrong issues, by asking wrong question, by ignoring relevant materials and facts in the claims orally made by the First Appellant at the Tribunal hearing and by relying on irrelevant material, made an erroneous finding against the Appellants. The [Tribunal] reached a mistaken conclusion on credibility grounds which is the only grounds that they could use against the Appellant. The [Tribunal's] exercise or purported exercise of power is thereby affected and they exceeded their authority or powers making jurisdictional error. 41 Once again, no particulars were provided. In his oral submissions in support of this ground the appellant made it clear that his complaint that there had been jurisdictional error was based on the fact that the Tribunal did not believe him. As I observed earlier, a tribunal does not commit jurisdictional error merely by disbelieving an applicant. This ground must also be rejected.

Ground 5: The [Tribunal] do[es] not have authority to authoritatively decide questions of law or to make decisions otherwise than in accordance with the law. The [Tribunal] constructively ignored the claims put forward by the First Appellant orally at the Tribunal hearing giving answers to the questions put to him by the Tribunal and had made a decision arbitrarily and capriciously thus making jurisdictional error. 42 In oral submissions the appellant stated that the Tribunal had already made up its mind. I have already dealt with this submission. This ground is no more than a restatement of the appellant's arguments made in the second and third grounds. They do not improve in the retelling.

Conclusion 43 The appellant has failed to show any error on the part of the Federal Magistrate. The "new" grounds of complaint about the Tribunal's decision do not have any merit. Accordingly, I have no option but to dismiss the appeal with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.

Refugees Protocol (Migration Act 1958(Cth)

Migration Act 1958(Cth)s 36(2)

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