AZAAD & AZAAE v Minister for Immigration & Anor [2010] FMCA 62 (11 March 2010)

Last Updated: 15 March 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AZAAD & AZAAE v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 62

MIGRATION – Application for review of Refugee Review Tribunal – was Tribunal properly constituted – finding not irrational and illogical – s.425 notice.

Migration Act 1958 (Cth), ss.421, 422, 422A, 424A & 425

NBMB v Minister for Immigration & Citizenship [2008] FCA 149 AZAAA v Minister for Immigration & Citizenship [2009] FCA 554 Northern New South Wales FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 Industry Research Development Board v IMT Limited [2001] FCA 85 WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 SAAK v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 185 N16 of 2004 v Minister for Immigration and Multicultural Affairs [2005] FCA 1641; (2005) 148 FCR 46 MZXFJ v Minister for Immigration [2006] FMCA 1465 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152

Applicants:

AZAAD & AZAAE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

ADG 306 of 2008

Judgment of:

Simpson FM

Hearing date:

11 May 2009

Date of Last Submission:

11 May 2009

Delivered at:

Adelaide

Delivered on:

11 March 2010

REPRESENTATION

Counsel for the Applicant:

Mr Ower

Solicitors for the Applicant:

McDonald Steed McGrath

Counsel for the Respondents:

Mr d’Assumpcao

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The Applications be dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE

ADG 306 of 2008

AZAAD & AZAAE

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. I have before me two Applications for Review of decisions of the Refugee Review Tribunal (“the Tribunal”) constituted by Ms Genevieve Hamilton and dated 21 November 2008, which affirmed decisions of a person identified in the papers merely as C. Muskat (“Muskat”), a delegate of the Minister, not to grant protection visas to the applicants.
2. There had been earlier applications to this Court by the applicants. In those earlier applications the applicants sought reviews of decisions of the Tribunal, then constituted by Mr George Haddad and dated 8 January 2008, in which the Tribunal affirmed the decisions of Muskat not to grant protection visas to the applicants as earlier referred to. Orders by consent were made by Federal Magistrate Lindsay on 31 July 2008 quashing the decisions of the Tribunal of 8 January 2008.
3. By letter to solicitors for the applicant dated 8 August 2008 the Tribunal advised that the case would be allocated to “a member of the Tribunal who has not previously made a decision in relation to your case”. The person allocated was Ms Hamilton.

Background

4. The applicants state that:
   1. they are Albanian nationals;
   2. in 2003 the female applicant was sold into a prostitution ring in Italy;
   100. the female applicant initially refused to work as a prostitute but was then beaten and forced to work;
   4. the female applicant was held captive for approximately three months;
   5. in October 2003 the male applicant rescued the female applicant;
   6. both applicants returned to Albania, where the female applicant remained in hiding with the male applicant’s parents;
   7. the applicants married, first in a Registry Office and later in a church;
   8. in 2005 the male applicant returned to work in Italy;
   9. in October 2005 the female applicant joined the male applicant in Italy;
   10. the couple applied for visas in the United States of America (“USA”) and Australia; and
   11. after a short stay in the USA the applicants decided to come to Australia.
5. The applicants arrived in Australia on 14 May 2007 and applied to the Department of the Immigration and Citizenship for Protection (Class XA) visas on 25 July 2007.
6. On 20 September 2007 Muskat, as the delegate of the Minister, decided to refuse to grant the visas.

The proceedings before the Tribunal

7. It was put to both the delegate and the Tribunal that the female applicant was a member of a social group comprised of “Albanian women”, “Albanian women who have run away from the home of their parents”, “Albanian women who have worked as a prostitute” and “Albanian women who have fallen foul of the Albanian/Mafia prostitution ring”.
8. The male applicant’s claims were grounded on his wife’s claims. He claimed to be part of a particular social group comprised of an “Albanian male who has married a former prostitute” and an “Albanian national who has fallen foul of the Albanian/Mafia prostitution ring”.
9. The applicants applied to the Federal Magistrates Court for review of the Tribunal’s decision. The Tribunal’s decision was quashed by consent of the parties by the Court on 31 July 2008 and the matter was remitted to the Tribunal.
10. On 8 August 2008 the remitted Tribunal wrote to the applicants noting that the matter had been remitted and that the case would be allocated to a member of the Tribunal who had not previously made a decision in relation to their case.
11. On 3 September 2008 the Tribunal sent a letter to the applicants’ adviser inviting the applicants to appear before it on 15 October 2008 to give oral evidence and present arguments. The applicants’ adviser provided the Tribunal with a letter dated 16 September 2008 (enclosing documents, including statutory declarations of the female applicant sworn on 10 July 2007 and 11 September 2008 and five letters from Dr Michael Lee - a medical practitioner and trauma counsellor with an organisation called “Supporting Survivors of Torture and Trauma”). In his letter of 7 December 2007 Dr Lee diagnosed (although he does not appear to have qualifications as a psychiatrist):
    • ... acute or chronic grief resulting in a moderate depressive illness with suicidal ideation, high levels of anxiety with some phobic and panic features, moderately severe post-traumatic stress disorder with cognitive impairment likely and possible and adjustment disorder.
12. A number of other documents were sent to the Tribunal by the applicant’s adviser under cover of letters dated 19 September and 14 October 2008.
13. A hearing was conducted on 15 October 2008. The hearing was attended by the applicants, who were both legally represented, and who both separately responded to questions put to them by the Tribunal.
14. On 28 October 2008 the Tribunal issued a s.424A letter to the applicants’ representative inviting the applicants to comment or respond to certain information. The information related to issues of credibility and the authenticity of the applicants’ claims.
15. On 11 November 2008 the applicants’ representative faxed a response to the Tribunal, which included statutory declarations and country information.
16. On 14 November 2008 the applicants’ representative furnished the Tribunal with documents. On 18 November 2008 the applicants’ representative referred the Tribunal to a YouTube documentary on sex slaves in Italy and an informal transcript of that on-line video.
17. On 21 November 2008 the Tribunal handed down its decision determining that the applicant’s were not to be granted protection visas.
18. The Tribunal accepted that the applicants were citizens of Albania. However, the Tribunal found that there were problems with the female applicant’s credibility. The Tribunal cited inadequacies in the female applicant’s evidence as to the circumstances in which she was brought into the prostitution ring in Italy and her recollection of her time there. The Tribunal also expressed concern that the female applicant responded defensively to the Tribunal’s questioning regarding her recollection of the details of her time in the claimed captivity. The Tribunal considered that this response signified that the female applicant did not truly experience the events as she claimed.
19. The Tribunal considered that other aspects of the female applicant’s evidence were implausible and contradicted by the evidence. It gave detailed reasons as to those matters.
20. The Tribunal also cited problems with both applicants’ explanations for not seeking protection in the USA. The Tribunal found the applicants’ explanation in relation to why they had not pursued a protection visa in the USA was not compelling.
21. The Tribunal noted the corroborative evidence of Dr Lee but found that he “has no special expertise in fact finding and therefore his belief in the [female applicant’s] credibility is not compelling”.
22. The Tribunal did not accept the female applicant’s claims and therefore did not accept that the female applicant, and consequently the male applicant, had a real chance of persecution if they were to return to Albania.

The grounds of the application

23. The grounds of the application and, in brief, the supporting contentions were as follows:
    1. The Tribunal as constituted by Ms Hamilton did not have jurisdiction to make the decisions the subject of the challenges and were therefore not decisions at all. As the matters had been remitted back to the Tribunal by order of this Court on 31 July 2008 they should have been heard by the Tribunal as constituted by Mr Haddad.
    2. The Tribunal committed jurisdictional error in that the decisions were irrational, illogical and not based on findings or inferences of fact supported by logical grounds. The Tribunal’s findings, including on the issue of credibility, were based on a number of subjective findings which, when closely examined, did not support the conclusion reached or were irrational.
    100. The Tribunal as constituted by Ms Hamilton made adverse findings in relation to the female applicant’s credibility notwithstanding that the delegate and the first Tribunal as constituted by Mr Haddad made no such finding. The Tribunal was required to notify the applicants that this would be an issue arising on the review under s.425 of the Migration Act 1958 (Cth) (“the Act”). Wound up with this contention is the ground that the Tribunal failed to give the female applicant notice during the hearing that the question of whether she had been “abducted, held captive, raped, beaten and forced to work as a prostitute, or that she has worked as a prostitute” were issues arising in relation to the decisions under review.
24. I propose to address each of these grounds in turn.

Ground 1

25. The applicants’ first ground of appeal argues that Ms Hamilton was not validly appointed to constitute the Tribunal and to perform the review.
26. Whilst it was conceded by Mr Ower, Counsel for the applicants, that the decision of Flick J in NBMB v Minister for Immigration & Citizenship[1] was binding on this Court and was against the applicants’ case on this point, he nevertheless sought to put the argument so that the matter might be agitated on any appeal.
27. In addition, during argument, Counsel advised that the same issue was to be ventilated in a case before Mansfield J to be dealt with in the near future. His Honour has since heard the argument and delivered his reasons in that case.[2]
28. The applicants submitted that Ms Hamilton was not validly appointed to conduct the review as s.421 of the Act can not be used to reconstitute the Tribunal. It was submitted that the section can only be used for the appointment for the initial constitution. Thereafter the applicants contend s.422 and s.422A of the Act (neither of which is applicable here) identify the only situations were a different member can reconstitute the Tribunal. It was further submitted that “Ms Hamilton had no more authority or jurisdiction to make any decision of the Tribunal in respect of the applicants’ application for review than a person who walked in off the street”.
29. Mansfield J in the AZAAA case identified the issue to be decided as:
    • ... whether, upon remittal of a review to the Tribunal after a decision of the Tribunal has been quashed, the Principal Member may reconstitute the Tribunal by a different member from the member whose decision has been quashed, and who first constituted the Tribunal.[3]
30. His Honour concluded that s.421 should be read so that remittal of a review to the Tribunal entitled the Principal Member to re-exercise the power given to appoint someone other than the member who constituted the Tribunal for the initial hearing, provided that the exercise is not done for, firstly, reasons that are specified in s.422 and s.422A and, secondly, an improper purpose.
31. Clearly s.422 and s.422A are not applicable in the present case. Further, no improper purpose has been alleged in the present case. The appointment of Ms Hamilton is an entirely neutral exercise of the power. I find that Ms Hamilton’s appointment to be a proper and lawful exercise of the power of appointment. This ground fails.
32. Before moving to ground 2 I note what was said by Davies and Foster JJ in their joint judgment in Northern New South Wales FM Pty Ltd v Australian Broadcasting Tribunal[4] that:
    • ... when decisions in judicial and administrative proceedings are set aside in toto and the matter remitted to be heard and decided again, justice is in general better seen to be done if the court or the tribunal is reconstituted for the purpose of the rehearing.
33. This position was confirmed by Nicholson J in Industry Research Development Board v IMT Limited[5] when he stated that the “... usual position (is) that remission to a differently constituted tribunal is the ordinary way to proceed”.

Ground 2

34. The applicants submit that the Tribunal committed jurisdictional error in that the decisions were irrational, illogical and not based on findings or inferences of fact supported by logical grounds. The applicants in particular point to the following subjective findings:
    1. that the female applicant was unable to remember the surname of “Gjin”[6] (at para.[91]);
    2. that the female applicant did not know the name of the street where she was held prisoner (at para.[92]);
    100. that the female applicant reacted in the manner described as a “comprehensive rejection of the question” during the hearing (at paras.[93] to [95]);
    4. that it was not believable that the female applicant had lived in Beltoj for two years without her parents finding out she was there (at para.[96]);
    5. that it was not believable that the female applicant’s father-in-law (as distinct from her father) had sent documents to the Embassy (at para.[97]);
    6. that the female applicant’s brother lived with her in Italy (at para.[98]); and
    7. that the applicants did not seek asylum in the USA (at para.[100]).
35. It was submitted on behalf of the applicants that in relation to each of these findings the Tribunal had no reasonable basis for making the determination and that in relation to its determinations at paras.[93] to [95] of its reasons amounted to no more than a “gut feeling” and an unreasoned rejection of the female applicant’s evidence. The Court was referred to the cases of WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 at paras.[19] to [25] and SAAK v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 185.
36. It was further submitted on behalf of the applicants that there were a number of other issues supporting a finding that the Tribunal’s determinations were irrational. These were that the Tribunal:
    1. failed to exercise caution in respect of rejecting the female applicant’s evidence;
    2. failed to take into account the evidence that the applicant had been diagnosed as suffering from a post-traumatic stress disorder;
    100. failed to comply with the Tribunal’s policy concerning credibility published in August 2008; and
    4. failed to comply with the Department’s policy concerning assessment of gender claims published in 1996 (in relation to which the Court was referred to the cases of N16 of 2004 v Minister for Immigration and Multicultural Affairs [2005] FCA 1641; (2005) 148 FCR 46 and MZXFJ v Minister for Immigration [2006] FMCA 1465).
37. In my opinion the findings complained of were not irrational and were open to be made on the material before the Tribunal. The findings were open to be made and this Court should not interfere with them. There was no jurisdictional error.
38. The Tribunal acted properly in reaching its adverse credibility finding concerning the female applicant. Its reasons disclose that it did not act on a whim or dismiss the female applicant’s evidence out of hand. Rather it weighed a number of apparent inadequacies in the female applicant’s evidence given at the hearing and found her to be not credible. In my opinion the cumulative weight of all of the matters referred to justified the Tribunal making the finding that it did in relation to the female applicant’s credibility.
39. I accept the submission put on behalf of the first respondent that the Tribunal demonstrated that it was sensitive to the claims being advanced by the female applicant as was demonstrated by the fact that:
    1. a female member was appointed to conduct the review on remittal;
    2. the member attempted to develop a rapport with the female applicant during the hearing;
    100. the member stated that the proceedings were confidential; and
    4. the member ensured that the male applicant was not present while the female applicant gave evidence about her claims regarding forced prostitution.
40. These matters suggest that the Tribunal had regard to the Departmental policy regarding gender issues.
41. I also accept the submission on behalf of the first respondent that the Tribunal failed to take into account the evidence that the female applicant had been diagnosed as suffering from a post-traumatic stress disorder. The Tribunal clearly had regard to the evidence of Dr Lee[7] but decided ultimately to reject his evidence.
42. In relation to the submission on behalf of the applicants that the Tribunal failed to comply with its policy concerning credibility published in August 2008, I note that the applicants failed to identify which part of the guidelines were not followed by the Tribunal. In any event, the guidelines were not binding on Tribunal members. Failure to have regard to them does not amount to jurisdictional error.
43. For the above reasons, Ground 2 fails.

Ground 3

44. The applicants allege that the Tribunal failed to put the female applicant on notice that her evidence on certain important issues would not be accepted. It was submitted on the behalf of the applicants that if the Tribunal decided to revisit an issue that had been determined favourably to the female applicant by the delegate and the first Tribunal that s.425 of the Act required that the applicants be notified that this would be an issue arising on the review. Neither applicant were provided with such a notice. It was submitted further on behalf of the applicants that the Tribunal failed to give notice during the hearing that whether the female applicant had been “abducted, held captive, raped, beaten and forced to work as a prostitute, or that she has worked as a prostitute” were issues arising in relation to the decisions under review. It was submitted that the Tribunal’s failure to comply with s.425 of the Act amounted to jurisdictional error.
45. Counsel for the first respondent (correctly, in my opinion) put that for the applicants to succeed on this ground the Court would have to accept that the Tribunal did not notify the female applicant that specific aspects of her account were “issues” for the purpose of s.425. The case of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152 at 166 and 167 provides as follows:

... there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

46. It was further submitted on behalf of the first respondent that the transcript of the hearing illustrates that the female applicant was given an opportunity of ascertaining the relevant issues. In the alternative it was submitted that the Tribunal sufficiently indicated to the female applicant that her general credibility was in issue.
47. It was further submitted on behalf of the first respondent that the Tribunal’s questions and statements to the female applicant and her responses (including those of the adviser) put it beyond doubt that the female applicant was on notice that her credibility was at issue as a result of the following issues identified by the Tribunal:
    1. that the female applicant was unable to remember the surname of “Gjin”;
    2. that the female applicant did not know the name of the street where she was held prisoner;
    100. that it was not believable that the female applicant had lived in Beltoj for two years without her parents finding out that she was there;
    4. that it was not believable that the female applicant’s father-in-law had sent documents to the Embassy;
    5. that the female applicant’s brother lived with her in Italy; and
    6. that the applicants’ did not seek asylum in the USA.
48. On more than one occasion the Tribunal expressed its concern with the implausibility of the female applicant’s claimed experiences. At one point the following exchange occurred:
    • Ms McGrath: Just to interrupt, and I’m sorry to do this, but I think that what my client is saying - that if your problem with her plausibility relate to her inability to provide detail, as in the name of the street and the name of the person who owned the building, she’s saying, “I can provide you with the detail of what happened to me”. So if you wanted to explore that in greater depth ---
    • Ms Hamilton: I have that detail in her statutory declaration. I want to explore the aspects of her case that concern me.

Later the adviser said:

Ms McGrath: So I would submit that [the female applicant] does present as exactly who she says she is; that her evidence was compelling. You did raise and test her evidence in a number of important respects and in my submissions there isn’t material there that could possibly warrant a finding that she has made up her claims or that she is not telling the truth about the very difficult circumstances that she [indistinct] when she was very young.

49. In my opinion the transcript demonstrates that the female applicant’s general credibility was a known matter in issue or dispute. In addition, the mere fact that the Tribunal had not been able to decide the matter in the applicant’s favour on the papers and had invited the applicants to a hearing demonstrated that it had concerns about the applicants’ accounts presently before it. The applicants were, in my opinion, alive to the Tribunal’s concerns and the Tribunal is not in breach of s.425.
50. Finally, in relation to the applicants’ complaint that the female applicant was not put on notice regarding the Tribunal’s assessment of her response to certain questions, the case of SZBEL (supra) makes it clear that the Tribunal is not required to provide a “running commentary” about those issues.
51. Ground 3 fails.
52. I make the order to be found at the beginning of these Reasons.

I certify that the preceding 52Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !fifty-twofifty-two (52) paragraphs are a true copy of the reasons for judgment of Simpson FM

Associate: Ms N. Julius

Date: 11 March 2010

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[1] [2008] FCA 149
[2] AZAAA v Minister for Immigration & Citizenship [2009] FCA 554 (“AZAAA case”).
[3] [2009] FCA 554 at para.[31]
[4] (1990) 26 FCR 39 at 43
[5] [2001] FCA 85 at para.[40]
[6] Gjin is a person the female applicant says she fell in love and eloped with but who led her into prostitution.
[7] See paras.79, 85, 101 and 105 of the decision.