SZRRD v Minister for Immigration and Border Protection

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 4 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

JUDGE: FLICK J DATE OF ORDER: 12 JUNE 2015 WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.
2. The Appellant is to pay the costs of the First Respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 4 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

JUDGE: FLICK J DATE: 12 JUNE 2015 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The Appellant is a citizen of Pakistan. He first arrived in Australia as the holder of a Maritime Crew (Subclass 988) visa. 2 On 23 March 2011 he applied to the then Department of Immigration and Citizenship for a protection (Class XA) visa. That application was refused on 27 June 2011. 3 On 16 November 2011 the Refugee Review Tribunal affirmed the decision refusing to grant a protection visa: [2011] RRTA 966. But that decision was ultimately set aside and the matter was remitted to the Tribunal. 4 On 14 November 2013 a differently constituted Refugee Review Tribunal again affirmed the decision refusing to grant the protection visa. Before the Tribunal the now-Appellant claimed that he had spoken up against the Taliban and that he had been threatened and told to "shut my mouth". Thereafter, he maintained that he was "a prisoner in his own home" during that period of time when he had returned to Pakistan after working as a ship's crew member. 5 On 17 December 2014 the Federal Circuit Court dismissed an application seeking review of the second Tribunal decision: SZRRD v Minister for Immigration [2014] FCCA 2796. A Notice of Appeal from that decision was filed on 6 January 2015.

The Ground of Appeal 6 The Notice of Appeal raises a single Ground of Appeal, namely: The learned Judge erred by finding that the Refugee Review Tribunal ("the Tribunal") did not have to consider a claim made by the Appellant, and or erred by finding that the Tribunal did not misinterpret the applicable law and that it did not misapply the law to the facts. A number of Particulars are provided in respect to that Ground. In summary form, the Appellant contends that the Tribunal did not resolve the claim to harm that he advanced for resolution and that the Federal Circuit Court Judge erred in not setting aside the Tribunal's decision. The claim to harm which the Appellant contends was not resolved by the Tribunal was: a claim that "he had to stop expressing his political views, being that he had to stop speaking against the Taliban". That, so the Appellant contends: was not a claim that "the Taliban sought to harm him after he stayed inside…"; and was not a claim resolved by the finding of the Tribunal that the Taliban had the opportunity to harm him and that "he was able to avoid harm as he stayed inside". Whilst recognising that the Tribunal's reasons may "begin with a misconstruction of the applicant's claim", the Federal Circuit Court Judge concluded that no jurisdictional error was made out because: "[t]he Tribunal clearly rejected the factual foundations for the applicant's claim of being threatened by the Taliban." 7 Although it is concluded that the Federal Circuit Court Judge has erred in his conclusion, the appeal is nevertheless to be dismissed with costs.

The reasons of the Tribunal & the Federal Circuit Court 8 The now-Appellant appeared before the Tribunal on the second occasion with the benefit of an interpreter. The hearing occupied some two hours. Included within those materials that the Tribunal said that it had read and considered was a Statutory Declaration prepared by the now-Appellant in July 2013. It was a document slightly in excess of five pages in length comprising some 24 paragraphs which advanced a number of factual allegations. Part of that Statutory Declaration set forth the circumstances in which the now-Appellant claimed to have learnt of the death of his mother at the hands of the Taliban, and relevantly provided (without alteration) as follows: 11. I started to compagna against the Taliban view of Islam. The love for my mother and the way she was killed prompted me to talk against Taliban and encourage my fellow villagers to stand against Taliban. I was open about my opposition to them and all their activities. I received a warning call in October 2009 from a member of the Taliban. I was told I should shut my mouth or suffer the consequences. I hadn't realised the Taliban still had a presence in the valley; I had now endangered my life. My family asked me not to leave the house too much as I was now in danger. For about two months I remained a prisoner inside my home in order to stay safe and avoid attacks from the Taliban. The reasons for decision of the Tribunal record the Tribunal's assessment of the now-Appellant's evidence as lacking in credibility. Presently relevant are the following reasons: 43. Additionally, if the Taliban sought to harm the applicant as he claims, they had the opportunity to do so while he was in his home village from October to December 2009. I do not accept as reasonable his claim that he was able to avoid harm as he stayed inside. I find that he was not targeted by them and left his village as he normally would after a few months at home and to take up yet another contract on a ship. 44. The applicant has also claimed that he would be of interest to the Taliban as he is head of the family. I do not accept this as true. He is not head of the family, his father and then older brother would be. Again, I find that this claim is being made so as to enhance his claims for a protection visa. 45. Overall, I find that the applicant is not a credible witness. I do not accept his claims of being a member of, or associated with any political party as being true. I do not accept his claims of being targeted by the Taliban as being true. I do not accept he has spoken out against them or any letters or threats have been made against him. I find that he has fabricated significant aspects of his claims so as to enhance his claims for a protection visa. 9 At least two things emerge from these reasons of the Tribunal, namely: that it did not resolve that part of the claim as made by the now-Appellant and detailed in paragraph [11] of his Statutory Declaration - the finding at paragraph [43] of the reasons is a finding directed to the different question of whether he could avoid harm by staying inside; and that it rejected the claims made by the now-Appellant because he was not a "credible witness". So much, it is respectfully concluded, flows from the terms in which the claim was expressed by the now-Appellant and the reasons for decision of the Tribunal. 10 Claims for protection, it must necessarily be recalled, are frequently drafted by persons not fluent in English and drafted in a manner seeking to convey fears genuinely being experienced rather than with an attempt at legal precision. They are not to be construed in a technical manner but in a manner more attuned to understanding that which is sought to be conveyed. Nor are the reasons for decision of the Tribunal to be read in a manner set on discerning error where none truly exists: cf. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 to 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Nor should a conclusion be too readily drawn that an issue has not been considered where the reasons for decision of the Tribunal are otherwise comprehensive: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [47], (2003) 75 ALD 630 at 641 per French, Sackville and Hely JJ. 11 Given the manner in which claims for protection may be loosely and inexactly expressed when transcribed into written form, it may also frequently be the case that those claims are better expressed or clarified during the course of a hearing before the Tribunal. A factual basis upon which a claim for protection legitimately may be founded may (for example) be missing in its entirety in any written claim and may only emerge during the hearing process. Similarly, ambiguity in the written form of a claim for protection may be resolved or clarified during a hearing. Sophistry in the construction of a claim and the manner in which a claim has been resolved should be shunned. It is the substance that matters. 12 Notwithstanding such difficulties, it is nevertheless concluded that the claim as expressed in paragraph [11] of the Statutory Declaration (or at least a part of that claim) was not resolved by the Tribunal. Although the claim as initially expressed may have been recast in part during the Tribunal hearing, an important part of the claim expressed in that paragraph remained unresolved. A different conclusion may have been reached, for example, had the Tribunal expressly addressed in its reasons for decision differences between the claim as expressed in the Statutory Declaration and any clarification provided during the hearing process. 13 The reasons for the decision of the Federal Circuit Court Judge relevantly provide as follows: Resolution [38] The applicant feared being killed or otherwise seriously physically harmed by the Taliban in the Swat Valley. The applicant could not know whether the Taliban actually wanted to kill him and did not make that claim. His claim was that he had been threatened with death if he did not cease his opposition to the Taliban. He claims that he kept to his house and thereby avoided the threatened harm. Viewed in this light, the Tribunal's finding at [43] appears to begin with a misconstruction of the applicant's claim. It may not have been plausible (or reasonable) that the applicant could avoid being killed by the Taliban simply by staying inside his home but it would seem to have been plausible that he could avoid being killed by doing what the Taliban required of him. [39] Nevertheless, I do not accept that the assertion of error by the Tribunal is established when reference is made to the clear and comprehensive adverse credibility findings made by the Tribunal at [44]-[46]. The Tribunal clearly rejected the factual foundations for the applicant's claim of being threatened by the Taliban. It rejected his claim that his mother had been killed by the Taliban and rejected his claim that he had spoken out against the Taliban. Having rejected that factual foundation for the applicant's claims, there was nothing else requiring consideration by the Tribunal. Conclusion [40] The applicant has failed to establish any jurisdictional error in the decision of the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed. The conclusion of the Federal Circuit Court Judge was that, in the absence of jurisdictional error, the application for review was to be dismissed.

The failure to understand part of the claim made - jurisdictional error 14 A failure to consider an element of an applicant's claim may constitute jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, (2004) 144 FCR 1 at 20. Black CJ, French and Selway JJ there summarised the general principles to be applied as follows: [63] It is plain enough … that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant's claim, may be of no consequence to the outcome … See also: Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [27], (2010) 115 ALD 303 at 309 per North and Lander JJ; SZRPT v Minister for Immigration and Border Protection [2014] FCA 24 at [32] per Katzmann J. A failure to consider an element of a claim, or even the claim itself, is nevertheless to be distinguished from "an error of fact based on a misunderstanding of evidence or even overlooking an item in evidence in considering an applicant's claim": Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [28], (2010) 115 ALD at 309. See also: SZQPZ v Minister for Immigration and Citizenship [2012] FCA 853 at [29] per Kenny J. 15 In the present appeal it is respectfully concluded that the Tribunal did commit jurisdictional error - it mis-characterised the claim being made (or at least a relevant part of that claim) and thereby failed to resolve in its entirety the claim to harm which the now-Appellant advanced for resolution. 16 The claim that the now-Appellant sought to have reviewed by the Tribunal has never been resolved in its entirety. The Tribunal has failed "to deal with a claim raised by the evidence and the contentions before it": NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [63], (2004) 144 FCR at 20. "To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on": Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [42], (2001) 194 ALR 244 at 259 per Allsop J (as his Honour then was, with whom Spender J agreed). See also: SZTEX v Minister for Immigration and Border Protection [2014] FCA 1269 at [26] per Flick J. All that has been resolved by the Tribunal is either a different claim or part of the claim, differently expressed. 17 Although the unresolved part of the claim may have formed but a small part of the now-Appellant's claim to fear harm at the hands of the Taliban, it nevertheless remained a claim that was "expressly made" and one which arose "clearly on the materials" before the Tribunal: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [61] to [62], (2004) 144 FCR at 19 to 20. It matters not why the now-Appellant's claim remains unresolved; it may not have been resolved by reason of error, misunderstanding, or inadvertence on the part of the Tribunal. However it occurred, the jurisdictional error remains. 18 It matters not that the now-Appellant may also have expressed his claim in terms of remaining inside his home to "stay safe". An element of his claim which was clearly articulated remained unresolved. 19 The Federal Circuit Court Judge, with respect, was wrong to conclude otherwise. But what remains for resolution is whether it was otherwise erroneous for the Judge to dismiss the application for review which was before that Court and thereby to refuse relief.

The discretionary refusal of relief 20 Even where jurisdictional error is made out, the Court retains a discretion to refuse relief: Lee v Minister for Immigration and Citizenship [2007] FCAFC 62 at [46], (2007) 94 ALD 559 at 570 per Besanko J (Moore and Buchanan JJ agreeing). 21 The refusal of relief in circumstances where there has been jurisdictional error must nevertheless remain the very rare exception rather than a general rule. This must be the case even more so when it is recalled that the Court's underlying task is to conduct judicial review rather than merits review. Where a Tribunal has not properly or completely discharged the task entrusted to it, it is not open to the Court conducting judicial review to proceed to make findings of fact not made by the Tribunal and to proceed thereafter to refuse relief by reason of those further factual findings. 22 Relief would normally be granted where reviewable error is exposed: Enfield City Corporation v Development Assessment Commission [2000] HCA 5, (2000) 199 CLR 135 at 157. Gaudron J there emphasised the importance of providing an appropriate remedy as follows: [56] Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less. See also: Lee v Minister for Immigration and Citizenship [2007] FCAFC 62 at [47], (2007) 94 ALD at 570 to 571 per Besanko J. 23 But relief may be refused where, for example, it would be "futile". Thus, for example, in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, (2007) 81 ALJR 1190 at 1207, Kirby J observed: [87] … Discretionary refusal of judicial review must be exercised with care, particularly where the hypothesis of jurisdictional error is a possibility. However, in some such cases (of which this was one) invocation of the discretion is proper, prudent, economical and just. [88] In effect, the discretion allows the reviewing court to say: The case is clear. A sound basis for the challenged decision has been established. Even if a postulated error has occurred … any such error is immaterial because it could not undermine the essential legal basis that sustains the decision. In that event, to divert the court's time and resources into examining a supposed technical breach is not a proper use of its energies. Nor is it required by the justice of the case. [89] When such conclusions are reached, the reviewing court is entitled to, and should, reject the application in the exercise of its discretion. It should leave analysis of suggested technical infractions to a case where the result of such analysis might influence the outcome. This was not such a case. In issue in that proceeding (inter alia) was a claim for refugee protection and the operation of s 424A of the Migration Act 1958 (Cth). Kirby J refused relief in the exercise of the Court's discretion. Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ also addressed the refusal of relief in the exercise of discretion as follows: [29] The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the tribunal's finding that their claims lacked the requisite Convention nexus. The appellants' case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board ([1994] 1 SCR 202 at 228), cited in Aala ([2000] HCA 57, (2000) 62 ALD 285), was one in which "irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse". In this regard, the references that were made in the course of argument to the "unbundling" of a tribunal's reasons into "impeachable" and "unimpeachable" parts were more likely to mislead than to assist. While there may well be cases in which a tribunal's breach of s 424A affects its findings about the absence of a Convention nexus, this was not such a case. See also: Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157 at [21] per Allsop CJ, Murphy and Pagone JJ. 24 Relief, it is respectfully concluded, may be refused where there is no other conclusion open on the facts as found by the Tribunal other than that the claim - properly understood - would have been rejected had it been properly considered. To grant relief in such circumstances would be futile. Relief may also be refused where, for example, it can be concluded that an application must necessarily be refused even had no jurisdictional error been committed: Kabir v Minister for Immigration and Citizenship [2010] FCA 1164 at [52], (2010) 118 ALD 513 at 521 per Siopis J; Kaur v Minister for Immigration and Border Protection [2015] FCA 168 at [49] per Perry J. 25 The moment that a prospect emerges, however, that a proper understanding and consideration of the unresolved claim may have involved the making of further or additional findings of fact, or may have had an effect on those findings of fact that have been made, the possibility of refusing relief in the exercise of discretion quickly recedes. 26 But there is no such prospect in the present case. The findings of fact made by the Tribunal necessarily dictate the rejection of the otherwise unresolved claim. To so conclude, it is further considered, is not to involve this Court in any task of conducting merits review. The Court is not involved in any task of fact-finding; it is simply expressing the conclusion that inevitably follows from those facts which the Tribunal found. 27 The findings of fact made by the Tribunal in the present case, being adverse findings as to credit which are not sought to be challenged (Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [78], (2013) 212 FCR 99 at 121 per Robertson J), doom the unresolved claim of the now-Appellant to failure. In addition to its finding that the now-Appellant was not a "credible witness", the Tribunal specifically rejected the claim that he had been "targeted by the Taliban" and that he had "spoken out" against the Taliban. 28 Rejected is a submission advanced on behalf of the Appellant that the jurisdictional error committed by the Tribunal in some manner tainted or vitiated its findings as to credit. Those findings stand separate and apart from its failure to resolve in their entirety the claims made in paragraph [11] of the Statutory Declaration.

The aftermath 29 The consequence of the conclusion that the Tribunal has committed jurisdictional error but that relief should be refused in the exercise of the Court's discretion is that, in the circumstances of the present case, the decision of the Tribunal remains on foot. 30 As a general proposition it may be accepted that a decision affected by jurisdictional error is to be regarded "as no decision at all": Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, (2002) 209 CLR 597. Gaudron and Gummow JJ observed at 616: [53] In our view, logic and legal principle both direct the conclusion that the approach of the Supreme Court of Canada is correct. As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. And that is so, regardless of s 33(1) of the Acts Interpretation Act. Similarly, in Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2 at [76], (2003) 211 CLR 476 at 506 Gaudron, McHugh, Gummow, Kirby and Hayne JJ observed that "an administrative decision which involves jurisdictional error is 'regarded in law, as no decision at all'". 31 But there is no "universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever": Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288 at [42], (2003) 145 FCR 1 at 16 per Gray and Downes JJ. The existence of jurisdictional error does not mean that the Tribunal decision and reasons do not exist: SZTQL v Minister for Immigration and Border Protection (No 2) [2015] FCA 548 at [20] per Allsop CJ. The legal effect of a decision affected by jurisdictional error remains a matter to be resolved by reference to the particular statute which empowers the making of the decision: Ma v Minister for Immigration and Citizenship [2007] FCAFC 69 at [27] per Lander J (Mansfield and Siopis JJ agreeing). In the present statutory context, the protection visa application has been "finally determined": Migration Act 1958 (Cth), s 198(6)(c)(i). A conclusion that a matter has been "finally determined" does not require a decision of the Tribunal to be valid or otherwise: SZKUO v Minister for Immigration and Citizenship [2009] FCAFC 167 at [24], (2009) 180 FCR 438 at 445 per Moore, Jagot and Foster JJ. 32 The now-Appellant's application for a protection visa has been finally determined.

CONCLUSIONS 33 Jurisdictional error has been exposed by the failure of the Tribunal to resolve part of the claim as made by the now-Appellant. The conclusion of the Federal Circuit Court Judge that no jurisdictional error had been established is, with respect, erroneous. 34 In so concluding, no course should be encouraged whereby future claimants may seek to parse and analyse the manner in which their own claims have been expressed with a view to identifying a part of that claim that remains unresolved. Both the claim and the manner in which it has been resolved by the Tribunal are to be approached in a common-sense manner. It is, not surprisingly, the facts of the case in the present proceeding which necessarily dictate the conclusions reached. 35 But relief should nevertheless be refused because it would be futile. The findings of fact made by the Tribunal doom the claim to failure. 36 The appeal should be dismissed, albeit for different reasons from those advanced by the Federal Circuit Court. There is no reason why the Appellant should not pay the costs of the Respondent Minister.

THE ORDERS OF THE COURT ARE:

1. The appeal is dismissed.
2. The Appellant is to pay the costs of the First Respondent. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.