WZARE v Minister for Immigration and Citizenship [2013] FCA 122 | Case summary

APPLICATION TO APPEAL ON FRESH GROUNDS 7 The appellant made an application for a Protection (Class XA) Visa under the Act in May 2011 claiming that he was a person to whom Australia owed protection obligations under the Refugees Convention. 8 As his claim was later summarised in the decision record of the Minister's delegate, the appellant claimed that after he arrived in Australia he was informed that his father was shot and killed in Egypt. His father was working in the state security department as a secret agent. His mother called him and advised him not to return to Egypt as it was not safe. The appellant feared that upon return to Egypt he would be targeted by the state security. 9 The Minister's delegate considered the claims made were vague and unsubstantiated. The delegate was left with the claims made in the written application, as the appellant did not take up an invitation to attend an interview with the delegate. 10 In the result, the delegate was not satisfied that the claims that had been made could be substantiated and that the appellant was deserving of protection and so refused the application. 11 The appellant then sought review of the delegate's decision in the Tribunal. 12 In the result, the Tribunal also rejected the appellant's protection visa application. 13 The appellant attended a hearing before the Tribunal and answered questions put to him by the member of the Tribunal. 14 At the hearing, in essence, the appellant explained that his mother told him in mid-May 2011 that his father had been killed in the front of their house in Egypt. She had warned him about returning to Egypt in the circumstances. 15 The appellant indicated to the Tribunal that his protection visa application was based on his father's work in national security as well as problems since 1992 concerning his father having killed two people from another family, which he named, in revenge for the killing of the appellant's grandfather, who had been killed by that family. 16 The Tribunal did not accept the claim that there existed a family feud between the appellant's family and the other, named family. 17 The Tribunal accepted, however, that there was country information indicating that Egypt's state security department, for which the appellant's father had worked, was accused of committing torture and other human rights abuses in the suppression of dissent against President Hosni Mubarak's rule and that it was dissolved in March 2011 following the fall of the President Hosni Mubarak, and was replaced by a new state security department (which re-hired half of the staff of the former state security department). 18 The Tribunal also accepted country information indicating that 140 police officers had been put on trial for killing protestors during the revolution. 19 However, the Tribunal did not accept the appellant's claims that his father had been or may have been put on a revenge list. 20 The Tribunal noted that the appellant was unsure who killed his father or who would target him for revenge if he were to return to Egypt. The Tribunal accepted that the appellant did not know who killed his father and accepted that his mother had engaged a solicitor to assist in investigating who was responsible for his father's death. The Tribunal stated at [95]: On the basis of this evidence the Tribunal is unable to draw any conclusions about who is responsible for his father's death, and the implications of this for the applicant. 21 The Tribunal noted, at [96], that despite his being unsure, the appellant speculated that the government may have killed his father "to shut him up" or that it may have been relatives of the victims of the state security department. The Tribunal accepted that there was a court case underway to ascertain who was responsible for the appellant's father's death, and then stated: The Tribunal finds that the chance that the applicant will be harmed by the same people who murdered his father is, at most, speculative, and therefore not a real chance. 22 The Tribunal also recorded, at [97], that at the hearing the appellant said that in July 2011 his mother began receiving threatening phone calls and that she continued to receive the calls approximately twice a week since then. He told the Tribunal that the threats were along the lines of "we took one, two remaining" and the callers stated they knew that the appellant was in Australia and that his brother was in Saudi Arabia. The Tribunal recorded that when it asked the appellant who he thought the callers were, the appellant indicated they were either from the family that his father had killed two members of, or they were family members of protestors who had been killed. 23 The Tribunal then stated, at [98]: The Tribunal rejects the applicant's evidence that his mother has been receiving threatening phone calls from unknown persons. For the reasons given above, the Tribunal does not accept that there exists a family feud and it therefore rejects the applicant's claim that the calls may have been made by [Family A]. The Tribunal accepts that the country information indicates that relatives of Egypt's revolutionary martyrs have been staging public protests, and complaining about the laxity in trying those suspected of killing protesters, however the country information does not support the applicant's contention that the family members of employees suspected of killing protesters are targeted. On the basis of the evidence before it the Tribunal does not find the applicant's claim that his mother is receiving threatening phone calls, which he claims could be from the family members of the protesters who had been killed, to be credible. 24 At the conclusion of the hearing in the Tribunal, the Tribunal allowed the appellant a further 28 days within which to provide any further evidence in support of his claims, in particular his father's death certificate, the coroner's report and any evidence to indicate that his father worked for state security. The Tribunal noted in its decision record that it was not provided with any further information by the appellant within the time provided or at all and decided to proceed to make a decision based on the material before it. 25 The appellant then sought judicial review of the Tribunal's decision in the Federal Magistrates Court. Two grounds of judicial review were pressed: (1) The appellant was not afforded procedural fairness by the Tribunal in the conduct of the hearing and was denied procedural fairness and natural justice and s 424A was breached in that he was not given sufficient time to present supporting material before the Tribunal, given the upheaval and turmoil in 2011. (2) The Tribunal fell into error in its approach to deciding whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Egypt, that there was a real risk that he would suffer significant harm from members of the named family or arising from his father's employment with the state security department, by excluding the evidence of the threatening phone calls from its consideration of whether or not the appellant was under threat from the named family or under threat from relatives of individuals who had been persecuted or killed by the Mubarak regime's state security department. 26 The primary judge dismissed the application: WZARE v Minister for Immigration and Citizenship [2012] FMCA 963 27 His Honour rejected the first ground of judicial review, finding in effect that the Tribunal provided a 28 day period for the provision of additional materials in circumstances where the appellant had asked for a month and that did not suggest any lack of fairness. 28 In relation to the second ground of judicial review, his Honour, at [50], noted that the first thing to be said was that the evidence in relation to the threatening phone calls was not so much excluded as rejected. The Tribunal had rejected entirely the appellant's evidence about the existence of a family feud between his family and the other, named family. It did so on credibility grounds that were comprehensive. His Honour therefore considered that the rejection of the threatening phone calls was logically not supported once the family feud contention had been dismissed. 29 His Honour then noted, at [51], that if the "second alternative explanation" of the appellant was posited, "the position is not as clear cut". His Honour, however, accepted that the Tribunal essentially rejected the evidence that the phone calls were from members of the families of deceased persons who had been shot by the appellant's father during the course of demonstrations. At [52], his Honour noted that there was no country information available to it to suggest that relatives had been targeting family members of persons suspected of killing protestors. 30 His Honour did accept, at [54], however, that apart from the absence of country information, the Tribunal's reasons for rejecting the evidence the appellant gave as to the information provided by his mother about phone calls, "is not extensive". His Honour said it had to be borne in mind, though, that the evidence was given by the appellant on a hearsay basis and that all that was before the Tribunal was the appellant's own account of his conversations with his mother. His Honour considered, at [55], that the fact that the appellant could not himself be specific as to the identity of the callers, and inferentially that his mother could not be specific as to the identity of the callers, rendered the appellant's own contentions on that topic speculative. 31 At [55], his Honour considered that in assessing the way in which the Tribunal responded, at [98], to evidence concerning the appellant's claim about his mother receiving threatening phone calls, that it was only fair to bear in mind it was essentially being asked "to deal with a contention about which the applicant himself was uncertain". 32 At [57], his Honour noted that, whilst it was not specifically advanced, the way in which ground 2 was articulated, he was prepared to infer that the contention really was that there was a failure to exercise jurisdiction because the reasons for the rejection of the mother's evidence were "irrational or illogical". 33 His Honour then went on, at [58], to rule out any jurisdictional error on that basis, for the reasons previously explained as to how the Tribunal came to the conclusion it did at [98] of its decision record. 34 Before his Honour, the appellant was legally represented and indeed ground 2 of the judicial review application as amended owed itself to the careful consideration of the lawyers as to the appropriate grounds of appeal. 35 Following the dismissal of the judicial review application it appears the appellant prepared and lodged his own notice of appeal to this Court. Both the initial grounds of appeal and the orders sought appear to complain about the lack of fairness and not being given enough time to provide additional information to the Tribunal. 36 The Minister, in relation to the appeal initially lodged, filed a written outline of submissions on Monday 11 February 2013, in advance of the hearing scheduled for Monday 18 February 2013, that addressed the procedural fairness issue, as well as the risk of significant harm, on the basis that each of these issues was argued on a judicial review application before his Honour in the Court below and may be regarded on the appeal. 37 On Friday 15 February 2013, however, the appellant, having instructed counsel to appear in the matter, advised the Court and the solicitors for the Minister of proposed amended grounds of appeal containing three grounds, intended to wholly replace the initial grounds of appeal. 38 When the appeal came on for hearing on Monday 18 February 2013, counsel for the appellant sought leave to amend the grounds of appeal in the manner proposed. The application was opposed by the Minister. After brief argument the Court indicated that it would hear argument on the merits of the proposed grounds and then rule on the leave question. The Court indicated that, if leave were granted, the Minister might be provided the opportunity, if necessary, to lodge more comprehensive written submissions in relation to the merits. 39 The first proposed ground of appeal is that: The learned Magistrate erred in law in failing to conclude that the Refugee Review Tribunal ('the Tribunal') had committed a jurisdictional error when rejecting the Appellant's claim that he has a well-founded fear of persecution for a Convention reason (specifically, for reasons of membership of a particular social group). 40 Particulars of this ground are provided and may be summarised as follows: (a) The key to the rejection of the general claim was the rejection of the specific claim that the appellant's mother had been receiving threatening telephone calls. (b) The Tribunal had accepted that the appellant's father worked for state security and had been shot and killed outside his home; that there were no witnesses to the shooting but that the father's death had been reported to the police and it was being investigated by a court; and that there had been a coronial inquiry but no one knows who killed him. (c) The Tribunal accepted country information that there were ugly examples of mob justice and lynchings following the February 2011 revolution in some areas of Egypt and in a period of political transition and ongoing clashes the availability and nature of state protection was limited. (d) The task of the Tribunal "then was to engage in the necessary speculation to allow it to conclude whether the Appellant had a well-founded fear of persecution for a Convention reason", particularly whether he had a genuine fear founded upon a real chance of being persecuted for such a reason. (e) The Tribunal's rejection of the appellant's evidence that his mother had been receiving threatening telephone calls in its context was to be seen as a rejection of the claim that the mother had been receiving such telephone calls, rather than as a rejection of the proposition that the calls were from unknown persons. (f) The rejection of that claim and the language employed by the Tribunal signified that the Tribunal itself failed and refused to engage in the necessary speculation; and established that the Tribunal in rejecting the mother's evidence had not acted in a way that was fair and just. 41 The second proposed ground of appeal is that: The learned Magistrate erred in law in failing to conclude that the Refugee Review Tribunal ('the Tribunal') had committed jurisdictional error when rejecting the Appellant's claim that there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Egypt, there was a real risk that he will suffer significant harm arising from his late father's employment with National Security. 42 Particulars of this ground were provided and exactly mirror those provided in support of the first proposed ground of appeal. 43 Indeed, counsel for the appellant advances grounds 1 and 2 effectively as one ground. 44 The third proposed ground of appeal is that: The learned Magistrate erred in law in failing to conclude that the Refugee Review Tribunal ('the Tribunal') had committed a jurisdictional error when rejecting the Appellant's claims that he has a well-founded fear of persecution for a Convention reason, and that there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Egypt, there was a real risk that he will suffer significant harm arising from his late father's employment with National Security, by failing to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, namely inquiring of the Appellant's mother whether she had received telephone calls threatening the Appellant. 45 In the course of submissions advanced on behalf of the appellant, counsel made it plain that the third proposed ground of appeal constituted the primary attack on his Honour's judgment and that grounds 1 and 2, considered together, were secondary. 46 In my view, there is little chance of the third proposed ground of appeal succeeding if leave were given to argue it. The appellant should not, at this late stage of the proceeding, be permitted to advance as a fresh ground of appeal, a ground which was not previously agitated in the Court below particularly in circumstances where its lacks merit: see MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [101] (Jessup J). 47 It might be observed as a matter of fact that at no time in the Tribunal did the appellant invite the Tribunal to receive evidence from his mother. His mother was not noted on the response to hearing invitation as a proposed witness. The main issue on the judicial review application raised by ground 1 of that application was whether the appellant had been denied procedural fairness by only being given 28 days to provide additional material. That ground failed before his Honour and is not re-agitated on this appeal. 48 Rather, the argument proposed to be put in support of ground 3 is that the Tribunal, of its own motion, should have taken steps to hear directly from the appellant's mother about the threatening phone calls she had apparently been receiving, on the basis this was an "obvious inquiry about a critical fact, the existence of which is easily ascertained". 49 There is a relatively large and growing body of authority in Australia on the circumstances in which administrative tribunals, including the Tribunal, are obliged to undertake an inquiry of their own motion. Many administrative tribunals are considered to be inquisitorial in nature, but not with the consequence that they are always bound to conduct inquiries of their own. 50 In Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 111 ALD 15 (SZIAI) the High Court had to deal with a contention that the Tribunal, in considering a protection visa application of an applicant who claimed to fear persecution in Bangladesh because he had converted from Sunni Muslim faith to become Ahmadiyya Muslim, had failed to make its own inquiries about the authenticity of certificates which the Minister's delegate had earlier considered to be forgeries. Before the Federal Court, the respondent had successfully argued that by not making its own inquiries into that matter, the Tribunal committed a jurisdictional error. 51 The majority (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), at [25], dealt with the contention that the Tribunal laboured under a "duty to inquiry" at relevant times, and stated: 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 jurisdiction35. 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. 52 Footnote 35 referred to authorities collected in Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 at [189], n 214. 53 The two reasons mentioned at the end of [25] were that as a matter of fact there was nothing on the record to indicate that any further inquiry by the Tribunal would have yielded a useful result and that the response by the solicitors indicated the futility of further inquiry. Also, there was nothing that the respondent or his solicitors were able to add beyond a bare denial of what appeared in the relevant correspondence. 54 The appeal was therefore allowed. 55 This appeal now before this Court does not provide the occasion to explore the observation made by the majority in SZIAI at [25] that there may be a range of factual circumstances which suggest that a failure to make an inquiry should result in a finding of jurisdictional error. Here, the third proposed ground of appeal is fairly and squarely based on the observation at [25], and is that there was a failure to make an obvious inquiry about a critical fact, the existence of which was easily ascertainable, and would have supplied a sufficient link to the outcome to constitute a failure to review - and thus jurisdictional error. 56 In the particular factual setting presented on this appeal, I consider, and indeed the parties at the hearing of this appeal accepted, that the Tribunal, at [98] of its decision record, should not be taken to have rejected the appellant's evidence that his mother had advised him she had received threatening phone calls. Rather, the Tribunal appears to have accepted the calls may have been made but did not accept the appellant's explanations concerning the possible sources of the calls - that they could have been from family members of the protestors. The Tribunal had already rejected the basis for the threatening phone calls as being from members of the named family, because it had rejected the family feud claim. 57 What the Tribunal appears to have done, at [98], is simply conclude that there was nothing of significance in the evidence about the threatening phone calls because it did not accept there was a family feud - and so it cannot have been members of the other, named family who were making the calls - and there could be nothing in the suggestion that family members of protestors who had been killed had made the calls, because the country information did not suggest that such family members had been targeting or were targeting the relatives of members or former members of the state security agency who were considered to have abused human rights. 58 As his Honour in the Court below observed, the substance of the argument pressed in response to [98], was that the reasoning process was illogical or irrational. In that regard, I agree with his Honour that, when one properly construes what the Tribunal said at [98], there is no apparent illogicality or irrationality in the decision-making, even though one may not agree with the conclusion reached. 59 In these circumstances, even if the Tribunal had pursued the appellant's mother and heard from her directly, it would have received no information additional to that which the appellant had provided to the Tribunal about the nature of the threatening telephone calls. 60 In those circumstances, there was no obvious inquiry about a critical fact, that, if ascertained, would have supplied a sufficient link to the outcome of the Tribunal determination such as to constitute a failure to review. 61 Putting that another way, on the face of it, there was nothing that the appellant's mother might have said (based on what the appellant had told the Tribunal she had told him) that was likely to have been critical to the Tribunal's reasoning process and level of satisfaction to be achieved under s 65 of the Act as to whether or not the appellant should be considered a refugee under the Convention. 62 In those circumstances the third proposed ground of appeal has no merit and leave to agitate it should be refused. 63 As to the secondary grounds in proposed grounds 1 and 2, in essence the appellant's argument is that the Tribunal never reached a sufficient level of satisfaction that the appellant would not suffer significant harm if he were to return to Egypt, having regard to the facts before it. 64 In short, the appellant contends that, at the point that the Tribunal considered that the feared harm was "speculative", the Tribunal should have applied what has been called the "What if I am wrong?" test. 65 This so called test is derived from early Federal Court judgments and was discussed by Sackville J in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 (Rajalingam) at [60]-[64]. Sackville J, recognising the imperfect process by which tribunals are often required to consider refugee claims observed, at [62], that it is not always possible for the decision-maker in such cases to be satisfied as to whether alleged past events have occurred with certainty or even confidence. His Honour stated: When the [Tribunal] is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a 'real substantial basis' for the applicant's claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant's case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur. 66 His Honour, at [63], added that although the "What if I am wrong?" terminology had gained currency, he thought it was more accurate to see the requirement as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a well-founded fear of being persecuted for a Convention reason. 67 The approach advanced by Sackville J and the reasons for it have been widely adopted and applied and I accept their logic and force. 68 In this case, it is difficult to see, however, how the "What if I am wrong?" test is helpful. In this case the Tribunal was in no real doubt about key issues. For example, it did not accept that there was a family feud, so that possible cause of harm could be totally discounted by the Tribunal, and was. Secondly, it clearly did not consider that there was any demonstrable basis to a claim that family members of members or former members of the state security department were targets from disaffected family members of the victims of members or former members of the state security department and so discounted that possible cause of harm. To pose the "What if I am wrong?" test in such circumstances does not, therefore, take one very far in helping to decide whether or not there is a well-founded fear of being persecuted for a Convention reason. As Sackville J explained in Rajalingam, the question may be helpful but should not be seen as a complete substitute for a proper determination of that issue. 69 In this instance the Tribunal came to the view that while the father's death was established, as was his membership of the state security department, and his death remained unexplained, having regard to the evidence or insufficiency of evidence regarding family feud as an explanation for it or human rights abuses as an explanation for it and the lack of evidence to show that family members of state security department officers or former officers were targets of reprisals, there remained insufficient evidence on which to base a finding of a well-founded fear of persecution. 70 While one might wish to contest such a finding as a matter of merit, as the appellant no doubt does, it is a decision that was open to the Tribunal. As his Honour in the Court below observed, it was not an illogical or irrational view. The appropriate questions were asked and answered. No jurisdictional error is identified, no error by his Honour in so finding is demonstrated. 71 In these circumstances, proposed grounds 1 and 2 lack merit and leave to agitate them on the appeal should be refused.

WZARE v Minister for Immigration and Citizenship

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