Case: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389
Outcome: followed
have reached this conclusion for the following reasons. Nowhere in the Tribunal's reasons for finding that the proposed visit to Australia by the visa applicant was not genuine does the Tribunal directly address and consider the stated reason given by the visa applicant (and the appellant) for the visit, namely that the visa applicant wished to travel to visit Australia to visit his mother . The evidence before the Tribunal was that the visa applicant is approximately 20 years old, and has not seen his parents since he was 16 years old. It does not require a leap of imagination to infer that, in view of the visa applicant's relative youth and the time which has passed since the relevant parties last met, it is natural that the visa applicant would wish to travel to Australia to visit his parents. To the extent relevant, given that his mother successfully applied for asylum in Australia, an inference could be drawn that it is not practical for the visa applicant's parents to travel to Pakistan to see the visa applicant. However the Tribunal does not deal specifically with this claimed motive of the visa applicant and explain why, in respect of this visa applicant, the Tribunal disbelieved that the reason given was not genuine. While reasons for a decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error ( Collector of Customs v Pozzolanic [1993] FCA 456 ; (1993) 43 FCR 280 at 287, Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272; SZCOQ v Minister for Immigration and Multicultural Affairs [2007] FCAFC 9 at [14] , [27]) nonetheless the claimed reason of the visa applicant to visit Australia is clearly a relevant consideration, acceptance or rejection of which goes to the core of his application and the "genuineness" of the proposed visit. During the hearing I asked Counsel for the Minister to identify in the decision of the Tribunal where the Tribunal specifically considered the claimed reason of the visa applicant to visit Australia but rejected that claim. Counsel referred me to the following statements by the Tribunal: "The stated purpose of the visa applicant's travel to Australia is to visit his mother and father for two to three months." (p 26 para 81) (TS p 13 ll 6-7); "The tribunal acknowledges that there are significant family business and religious reasons for the visa applicant to return. However these reasons can be overcome by the visa applicant if he is successful in obtaining a protection visa. ... If the tribunal is thus not satisfied that the above reasons are strong enough to outweigh the likelihood because of the risk he faces daily..." (p 27 paras 92-93) (TS p 13 ll 33-41). In my view these statements do not demonstrate any consideration of the visa applicant's claimed reason for wishing to visit Australia. Indeed, the statement at p 27 paras 92-93 of the Tribunal's reasons for decision actually relates to a different issue, namely reasons why the visa applicant may wish to return to Pakistan . Counsel for the Minister also directed my attention to the statement by the Tribunal that the visa applicant is required to satisfy subcl 679.211 of the Regulations (TS p 12 ll 6-45, p 13 ll 1-7). Subclause 679.211 provides that one of the criteria that a visa applicant must satisfy is as follows: 679.211 The applicant seeks to visit Australia: (a) for the purpose of visiting an Australian citizen, or Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the applicant; or (b) for a purpose other than a purpose related to business or medical treatment. The Minister conceded in submissions (TS p 17 ll 1-2) that the visa applicant had satisfied this criterion. Counsel submitted that this meant that the Tribunal had considered the personal circumstances of the visa applicant, and his wish to visit his mother, for the purposes of subcl 679.224. However because the Tribunal did not specifically discuss subcl 679.211 and the manner of the visa applicant's apparent satisfaction of that criterion, it is difficult to draw any conclusions in relation to this issue from the reasons of the Tribunal. Did the apparent satisfaction of subcl 679.211 simply require an unsupported statement by the visa applicant (which may or may not be genuine) that his or her purpose in visiting Australia falls within subcl 679.211(a) or (b)? (This is consistent with the language of subcl 679.211, namely that the visa applicant "seeks to visit Australia" for nominated purposes.) Or, because the Tribunal specifically did not discuss subcl 679.211 in its application to the visa applicant, does it follow that: the Tribunal impliedly accepted that the visa applicant's purpose in visiting Australia was as contemplated by subcl 679.211(a) or (b); but that because the Tribunal subsequently found against the visa applicant pursuant to subcl 679.224 without making further reference to the visa applicant's stated purpose, the Tribunal had impliedly found that a more compelling reason for the visa applicant's visit was to seek asylum? In my view not only is such a process of reasoning tortured, it is not supported by the language of subcl 679.211 (which does not appear to require anything more than a statement of a purpose by the visa applicant), and it potentially gives rise to a denial of procedural fairness. Indeed the Minister conceded that, in determining whether the visa applicant had satisfied the criterion in subcl 679.224, the genuineness of the wishes of the visa applicant required separate consideration of the stated purpose of the visa applicant in visiting Australia. In the circumstances, in light of the absence of discussion or reasoning by the Tribunal, I cannot draw any inferences with respect to the decision of the Tribunal in relation to subcl 679.224 from the apparent satisfaction of subcl 679.211 by the visa applicant. The submission by the Minister during the appeal before me that the decision of the Tribunal was essentially a credibility finding with respect to the evidence of the visa applicant (TS p 8 ll 32-33) appears inconsistent with the positive view specifically taken by the Tribunal in relation to the credibility of the visa applicant in terms of his character and conduct, namely that the Tribunal was not aware of any false or misleading information or documentation presented in relation to the visa application or any other visa application. If the Tribunal subsequently found that the visa applicant lacked credibility in relation to his stated reason for wishing to visit Australia again, an issue which is at the core of this case the Tribunal should have explained why. Counsel for the Minister also submitted that the findings of the Tribunal as to the genuineness of the visa applicant's visit to Australia involved matters of weight of evidence, which are matters for the Tribunal and not subject to review by this Court. It is clear that findings in respect of the credibility of an applicant are matters for the Tribunal ( Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at 423) and that the weight given by the Tribunal to material before it, both oral evidence and documentary, is a matter for the Tribunal as an incident of its role as the arbiter of fact ( Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259). However it is also clear that, in accordance with requirements of procedural fairness, in considering whether a claimed visit to Australia is genuine for the purposes of a claim for a visa the Tribunal is obliged to give genuine consideration to a claimed reason to visit. Counsel for the Minister submitted that that, because the Tribunal had stated the claimed purpose of the visa applicant's travel to Australia at p 26 para 81 of the reasons for decision, it followed that the Tribunal had weighed that claim in reaching its decision. However in my view simple statement of an issue is not automatically tantamount to consideration of that issue, and to the extent that Counsel for the Minister relied on that submission I reject it. At the very least, in order to weigh the merit of an issue or of evidence, the issue or evidence must be actually addressed. Generally, the fact that the Tribunal has addressed an issue may be inferred from its reasons, however in this case I am not satisfied that the Tribunal has addressed the visa applicant's claimed reason for visiting Australia based on the statements to which my attention has been directed by Counsel. Procedural fairness requires the tribunal to give real consideration to the claim of the visa applicant and the merits of his case, including his claimed reason for visiting Australia. That failure to do so constitutes a denial of natural justice and a jurisdictional defect infecting the decision of the Tribunal is clear from such cases as Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at 394, 406-407, 408 , Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 367 per Kirby J, Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118 at [38] , SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCA 724 at [38] - [39] . That the Tribunal did not consider the claimed reason of the visa applicant for visiting Australia, but considered the application before it exclusively in light of the circumstances of the group into which the Tribunal categorised the visa applicant namely Ahmadi Muslims from Pakistan is evident from the conduct of the hearing and the Tribunal's findings. In particular I note the following: the consideration by the Tribunal of the fact that the appellant had claimed to be at risk of persecution because she was an Ahmadi Muslim (at [23]) and that the visa applicant was also an Ahmadi Muslim (at [22]); the fact that, during the proceedings before the Tribunal, the Tribunal asked the appellant "why her son, as an Ahmadi, would not seek asylum should he come to Australia" (at [32]); the fact that, during questioning of the visa applicant by telephone, it appears that the Tribunal focussed almost exclusively on the fact that the visa applicant was an Ahmadi Muslim, which suggested that the visa applicant faced persecution in Pakistan. I note in particular paras [50]-[56] of the Tribunal's reasons for decision; the fact that, during questioning of the appellant, the Tribunal focussed extensively on the fact that the visa applicant was an Ahmadi Muslim, which suggested that the visa applicant faced persecution in Pakistan and would seek asylum in Australia. I note in particular paras [32], [59]-[60]; the detailing of independent country information with respect to Ahmadi Muslims in Pakistan over several pages; the finding of the Tribunal that, notwithstanding the claims of the visa applicant that he is not persecuted, because the visa applicant was an Ahmadi Muslim he was at risk of serious harm in Pakistan (at [74], [76], [78]) if not constantly at risk of serious harm (at [86]); the finding of the Tribunal that, notwithstanding the visa applicant's reasons to return to Pakistan, "because of the risk he faces daily as an Ahmadi in Rabwah or elsewhere in Pakistan should he return" he would seek to remain permanently in Australia (at [93]). These findings of fact by the Tribunal were clearly relevant to the determination of the visa application by the Tribunal, because, as contemplated by the Ministerial Direction, they relate to conditions in Pakistan which may encourage the visa applicant to remain in Australia. However in the context of the apparent failure by the Tribunal to address any of the personal circumstances of the visa applicant other than his religion including the natural desire of a young person to visit his mother in my view these findings suggest that the Tribunal member considered the application exclusively from the perspective of the visa applicant's religious affiliations and the likelihood that the visa applicant was being persecuted in Pakistan. In my view the Tribunal's reasons do not support a submission that the Tribunal failed to weigh properly issues raised and evidence of the visa applicant (which in itself would not give rise to jurisdictional defect: cf SZLSA v Minister for Immigration and Citizenship [2009] FCA 23 at [11] ) rather the decision indicates that the Tribunal did not weigh the claims or evidence of the visa applicant at all . Finally I note that the Tribunal addressed the visa applicant's immigration history as contemplated by para 8(c) of the Ministerial Direction, and found: ...the visa applicant has told the Tribunal of his travel to India each year, and hence, of his return to Pakistan each year. The Tribunal puts little weight on this return travel as it is to nearby India for religious purposes only; it is not to a free developed country where his parents reside. There has been no previous travel to Australia. (at [79]) In relation to this finding I make the following observations: While findings as to weight of evidence are findings for the Tribunal, the Tribunal's articulation of this issue suggests that the Tribunal's approach to the issue of the visa applicant's immigration history was premised on a wrong question namely "What is the visa applicant's immigration history with respect to Australia or other free developed countries?" Clearly para 8(c) of the Ministerial Direction is not so limited. The Tribunal appeared to discount travel to India because it was "for religious purposes only". Without further explanation, it is unclear why religious travel should not be relevant to the visa applicant's immigration history in the context of his visa application. Finally, the Tribunal considered return travel to India of little weight because India is not a "free developed country" where his parents reside. I note in passing that the Australian Department of Foreign Affairs and Trade country information for India dated April 2009 describes the republic of India as "a constitutional democracy made up of 28 states and seven unions and national territories" (Department of Foreign Affairs and Trade, India Country brief April 2009, www.dfat.gov.au/geo/india/india_brief.html) and that further: India is the major power in South Asia and its relations with its neighbours govern the tenor of foreign relations in the region. ... The Indian economy comprises a wide spectrum of activity, ranging from high technology to subsistence agriculture. After decades of failing to realise its full economic potential, India has been one of the world's fastest growing large economies since 1994. Indian economic engagement with the rest of the world has increased, particularly in the services sector... Despite recent progress, significant challenges remain... In light of the fact that it is public knowledge that India is a constitutional democracy and a growing and significant economic power it is somewhat curious that the Tribunal should have dismissed a visit to India by the visa applicant because India is not "free" and "developed", without elaboration other than the fact that the visa applicant's parents do not reside there. Potentially this approach raises issues beyond weight in this case it is questionable whether the Tribunal gave genuine consideration to the fact that the visa applicant had travelled to another country, which is a relevant consideration for the purposes of this application. In the circumstances however it is unnecessary for me to decide whether the Tribunal's approach to the visa applicant's immigration history is also infected with jurisdictional error. Conclusion