AFD17 v Minister for Immigration

[2018] FCCA 1376

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFD17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1376

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm from the Taliban in Pakistan – applicant not believed – applicant’s claims corroborated by a letter from a Member of Parliament of Pakistan – letter given little weight – applicant nominating the MP as a witness at the Tribunal hearing – witness not called – whether the Tribunal should have made further enquiries of the MP considered – jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), s.36

Cases cited:

Abebe v Commonwealth (1999) 197 CLR 510

AWA15 v Minister for Immigration [2018] FCAFC 604

CQG15 v Minister for Immigration [2016] FCAFC 146
Kaur v Minister for Immigration [2017] FCAFC 184
Minister for Immigration v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429
Minister for Immigration v SZNPG [2010] FCAFC 51, (2010) 115 ALD 303
Minister for Immigration v SZNSP (2010) 184 FCR 485

Re Refugee Review Tribunal; Ex parte H [2001] HCA 28

Wei v Minister for Immigration [2015] HCA 51; (2015) 257 CLR 22

Applicant: AFD17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 118 of 2017

Judgment of: Judge Driver

Hearing date: 28 May 2018

Date of Last Submission: 12 June 2018

Delivered at: Sydney

Delivered on: 28 June 2018

REPRESENTATION

Solicitors for the Applicant: Mr M Jones of Parish Patience Immigration Lawyers

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Mills Oakley

ORDERS

1. A writ of certiorari shall issue removing the record of the Administrative Appeals Tribunal decision made on 21 December 2016 into this Court for the purpose of quashing it.

2. A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to redetermine the review application before it according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 118 of 2017

AFD17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 21 December 2016.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. The following statement of background facts is derived from the submissions of the parties.

3. The applicant is a citizen of Pakistan who first arrived in Australia on 18 November 2008 on a student visa.  He applied for the protection visa on 21 August 2013.[1] The applicant claimed that his grandfather was a prominent tribal leader and Malik,[2] and had been shot dead on his doorstep on 30 June 2010 by the Taliban. On 11 November 2012, after nearly four years in Australia, the applicant visited his family back in Pakistan. The applicant claimed that during this trip he was recorded “making anti-Taliban statements”. As a result, the applicant claimed he was attacked by “three unidentified men” while at his uncle’s house. The applicant claimed he screamed because of the pain and when the men saw him fall to the ground, they ran away. The applicant left for Peshawar the following day. He claimed his family received “a threatening letter” from the Taliban commander of Kurram Agency after the applicant returned to Australia. The applicant also claimed that his elder brother was kidnapped for nearly a month “in [the] hope” that the applicant would surrender himself. When “they” found that the applicant had already left Pakistan, they released his brother as “my brother and family disowned me.” The applicant also claimed he would be targeted by the Taliban because he had spent time in Australia and they would think he had abandoned his Islamic faith and become an apostate.

   [1] Court Book (CB) 1-57

   [2] a local tribal official

4. The delegate refused the visa on 19 December 2014.[3]  The applicant applied to the Tribunal for review on 16 January 2015.[4] 

   [3] CB 122-143

   [4] CB 144-145

5. The Tribunal held a hearing on 4 March 2016.[5]

   [5] CB 188-190

6. The Tribunal found the inconsistencies and the implausibility of the applicant’s claims were “so significant” as to lead it to conclude that the applicant had fabricated his most significant claims and that he was not a truthful or credible witness.[6]  It accepted the applicant was of Pashtun ethnicity and a Sunni Muslim, and it accepted his migration history to and from Australia.[7]  However, it did not accept that the applicant’s grandfather was a Malik or that his grandfather was killed for being a Malik.  The Tribunal found the inconsistencies in the applicant’s evidence, “as were pointed out to him during the course of the Tribunal hearing”, were such as to “undermine the credibility” of his claims that his grandfather was a Malik, or that the applicant himself was regarded as a Malik and would have to take up Malik responsibilities if he were to return to Pakistan.  The Tribunal found the applicant’s claims and evidence about his grandfather being killed for being a tribal leader or Malik “not convincing”, and his claim that he inherited the Malik role or would be required to take it up “not to be credible”.  Whilst acknowledging country information that indicated Maliks were at some risk of being targeted for serious harm in Pakistan, it did not accept on the evidence before it that the applicant was a Malik as claimed.[8]

   [6] [62]

   [7] [63]

   [8] [64]

7. The Tribunal did not accept that the applicant publicly expressed views in which he rejected “Taliban-made Islam” and Sharia, or that he was recorded or reported as doing so.[9]

   [9] [65]

8. Having rejected the factual basis of the applicant’s claims, the Tribunal also did not accept the claim that his family received a threatening phone letter from the Taliban, or “from anyone else”. Having regard to “all the evidence” and to country information in relation to document fraud in Pakistan, the Tribunal placed “little evidentiary weight on the relevant documents submitted by the applicant in support of the claimed threats by the Taliban”, including the MP’s letter referred to at [23] below.[10]

   [10] [66]

9. As the Tribunal did not accept the applicant’s claim that he “spoke out” against the Taliban, it also did not accept that he was on a Taliban hit list or any other such list.Nor did it accept that the applicant was of any adverse interest to the Taliban or that his family received a threatening letter that contained the applicant’s name.[11]

   [11] [70]

10. The Tribunal found the applicant’s evidence in relation to the claimed attack lacked credibility.  For instance, the Tribunal considered that if the applicant had in fact been attacked as claimed (by men armed with an iron bar and a knife) then it was unlikely they would have fled upon his screaming.  It accepted the applicant had a scar on his shoulder, but was not satisfied the scar was the result of an attack as claimed.[12]  Further, the Tribunal was not satisfied that the applicant would have been able to travel to Peshawar if he had been beaten by three men on the previous day as he had claimed, or that he would have remained there for a week, travelled on to Islamabad and stayed there for a further week before returning to Australia.  The Tribunal considered that if the applicant had a genuine fear for his safety, he would have made arrangements to depart Pakistan without delay.  The applicant submitted that he did not know who the attackers were, and did not know whether they were criminals or the Taliban.  The Tribunal did not find this explanation convincing and found the applicant’s claimed actions in remaining in Pakistan in the claimed circumstances “seriously” undermined the credibility of his claims.[13]

    [12] [67]

    [13] [68]

11. The Tribunal considered the applicant’s claim that his brother was kidnapped but did not accept that the applicant had been truthful in this respect, and found his evidence was inconsistent.[14]

    [14] [69]

12. The Tribunal accepted as plausible the applicant’s claim that his family had to leave their home village and moved to Peshawar as internally displaced people (IDP) because the Tribal areas of Pakistan were infiltrated by the Taliban. However, it did not accept the applicant faced a real chance of serious harm now or in the reasonably foreseeable future because of his or his family’s status as IDPs in Pakistan.[15]

    [15] [71]

13. Having regard to country information, the Tribunal did not accept that the applicant faced a real chance of serious harm for having spent time in Australia, or that he would be perceived to have abandoned his religion.  It referred to the applicant’s oral evidence that he had not, in fact, abandoned his Islamic faith and continued to be a Muslim.[16]  The Tribunal also considered the applicant’s claim that he had posted comments on Facebook and Twitter but found the applicant’s claims in this regard were “vague, general and lacking specificity”.  It found, on the evidence before it, that the applicant did not have a profile of any significance online, or otherwise, such that he faced a real chance of serious harm.[17]

    [16] [72]

    [17] [73]

14. The Tribunal also considered the possibility that the applicant would face discrimination in Pakistan.  However, after considering the applicant’s past education qualifications, overall work experience and country information concerning the Pakistan economy, it found that the applicant’s circumstances were such that he would be able to find employment within a reasonable time of returning to Pakistan.  The Tribunal concluded the applicant did not face a real chance of serious harm for reasons of not being able to find employment or to earn a living to subsist in Pakistan.[18]

    [18] [74]

15. The Tribunal considered the applicant’s claims cumulatively and individually but found the chance of him suffering serious harm now, or in the reasonably foreseeable future for any of the grounds of reasons claimed was “no more than remote”.[19]  The Tribunal held it was not necessary for it to consider the question of whether the applicant could avail himself of state protection, or the question of internal relocation.[20]

    [19] [75]

    [20] [76]

16. Having regard to its earlier findings[21] and assessing the applicant’s accepted claims against the complementary protection criterion, the Tribunal was also not satisfied that the applicant met the criterion in s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act).[22]  Having considered all the available evidence and country information provided by the applicant, the Tribunal found he would not be in a position substantially different from the general population of Pakistan.[23]

    [21] [78]

    [22] [80]

    [23] Section 36(2B)(c) of the Migration Act ([78])

The present proceedings

1. These proceedings began with a show cause application lodged on 13 January 2017.  The applicant now relies upon an amended application tendered in court at the trial of this matter on 28 May 2018.  I granted the applicant leave to file and rely upon that application.

2. There are three grounds in the application:

   1. The Tribunal constructively failed to exercise its jurisdiction by failing to make an obvious inquiry about a critical fact, the existence of which could be easily ascertained.

   Particulars

   A critical fact in the case before the Tribunal was whether the Applicant had inherited the position and title of “Malik” from his grandfather.  The applicant provided a letter from the member of the Pakistani National Assembly who represented the Applicant’s home area which stated that he had personally conferred the status of Malik on the Applicant.  The Tribunal could easily have checked the genuineness of the letter through official channels but failed to do so.

   2. The Tribunal’s conclusion that the statements made in the MP’s letter were deliberate lies was unreasonable in that it lacked a logical, rational or probative basis.

   3.The Tribunal’s treatment of the MP’s letter might give rise to an apprehension of bias.

3. In addition to the court book filed on 14 February 2017, I have before me as evidence the affidavit of Winnie David made on 1 February 2017, to which is annexed a transcript of the hearing conducted by the Tribunal on 4 March 2016.

4. Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their representatives at the trial of the matter.

5. I invited post hearing submissions from the parties on the observations of Charlesworth J in AWA15 v Minister for Immigration[24] at [55] – [63].  Both the applicant and the Minister took up that opportunity.  The upshot of those submissions is that, whilst her Honour’s observations in that case should make the Court cautious before accepting the Tribunal’s reasons for not calling a witness by telephone, the larger question is whether that evidence may have impacted on the outcome.

   [24] [2018] FCA 604

Consideration

Ground 1 – did the Tribunal constructively fail to exercise its jurisdiction by failing to take evidence from the member of the Pakistani National Assembly who provided a letter of support for the applicant?

1. The Tribunal's rejection of the applicant's claims was based entirely on a finding that he had “fabricated his most significant claims” and was “not a truthful or credible witness”.[25]  Although the Tribunal refers to “significant inconsistencies” which it says were put to him at the hearing and had been summarised in the Tribunal's reasons, it is not clear from the Tribunal’s reasons exactly what these inconsistencies were.

   [25] CB 233 at [62]

2. A crucial element of the applicant's claims, however, was that he came from a prominent family who held the title of “Malik”, which imposed certain obligations of them and which also made them a particular target of the Taliban. He claimed that his grandfather had been murdered because of his position and that the title had been transferred to him, placing him in danger of the same fate.  A central piece of evidence relied on by the applicant was a letter from the Member of Parliament representing his constituency, which confirmed that the applicant had been designated as his grandfather's replacement as Malik and that when he had returned to Pakistan to offer prayers at his grandfather's grave he had been attacked by the Taliban and threatened with the same fate.[26]

   [26] CB 121 and 192

3. The Tribunal rejected this claim outright at [64].[27] In regards to the letter from the MP, the Tribunal said at [66][28] that it placed “little evidentiary weight” on it. It is not clear whether the Tribunal did not believe the document was authentic (it did refer to “the prevalence of document fraud in Pakistan”), or whether it accepted that it was a genuine letter but believed that the MP was lying.

   [27] CB 233

   [28] CB 234

4. The applicant had requested the Tribunal to contact the MP.[29]  The Tribunal decided not to do so, with the explanation: “because I think his statement spells it out pretty clearly”.[30]  Although the explanation is somewhat opaque, the applicant contends that the most likely interpretation is that the Tribunal considered the MP was lying and would merely repeat those lies if questioned.

   [29] Transcript (T) 31.7

   [30] T 40.50

5. The applicant contends that the only available inference is that the Tribunal “did not care” whether the letter was genuinely written by the named MP or not.  The applicant contends that the Tribunal took the view that if the letter was authentic, then its contents were lies.

6. In Wei v Minister for Immigration,[31] Nettle J at [49] set out the line of authority leading to conclusion of the majority in Minister for Immigration v SZIAI[32] that there may be circumstances in which the failure of an administrative decision maker to make "an obvious inquiry about a critical fact, the existence of which is easily ascertained" could amount to a constructive failure to exercise jurisdiction.

   [31] [2015] HCA 51; (2015) 257 CLR 22

   [32] [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429

7. Whether or not the applicant's grandfather had been a Malik, and whether or not that title had been passed to the applicant, were critical facts in the Tribunal's reasoning about whether he might be at risk on return to Pakistan, as acknowledged by the Tribunal in the final sentence of [64].[33]

   [33] CB 233

8. The letter is on official letterhead and contains contact details, including telephone numbers. Any concerns about the authenticity of the letter could easily have been addressed by checking publicly available information in order to contact the MP.

9. Assuming that the Tribunal did consider the letter to be authentic, then the veracity of the contents could have been tested by the Tribunal questioning the author. For example, an important piece of information which the Tribunal could have put to the MP for comment was the claim by the applicant that the MP had made his own inquiries with local authorities to confirm that the attack on the applicant had actually occurred.[34]

   [34] T 35.29-42

10. The Minister resists this ground on the following basis. 

11. The applicant’s submissions suggest that the Tribunal could have sought to question the author of the letter about whether he had made his own enquiries about the claimed attack on the applicant.[35]  However such inquiries cannot be said to be an “obvious” inquiry about a critical fact, the existence of which is “easily ascertained” within SZIAI.[36]  All they would do is add to the evidence of the letter writer without any independent basis to suggest that he was truthful.  The fact that it may have been reasonable for the Tribunal to make the inquiries sought does not mean that it was obliged to do so.[37]

    [35] CB 231 at [44]

    [36] At [25]

    [37] Kaur v Minister for Immigration [2017] FCAFC 184 at [33]

12. It may be noted that the letter at CB 121 was submitted to the delegate, who was not prepared to accept its contents given contrary country information including on document fraud in Pakistan.[38]  Despite this, the applicant submitted the same letter again to the Tribunal.[39]  The Minister submits that if the applicant wished to elicit further evidence from the author of the letter then it was for him to do so, and the Tribunal was not obliged to do so in his stead.  It was for the applicant to put whatever evidence he wished before the Tribunal.[40] 

    [38] CB 139.7

    [39] CB 192

    [40] Abebe v Commonwealth (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ

13. I prefer the applicant’s submissions on this ground.  The letter from the MP is reproduced at CB 121 and 192.  There is nothing on the face of the letter to suggest that it is a fabrication.  The author states that he knows the applicant personally.  The author is apparently aware that the applicant is seeking protection in Australia and states that the applicant accepted the office or status of a Malik in Australia.  The letter is generally corroborative of the applicant’s claims.  The author invites further queries to be made to him about the information given in the letter. 

14. While the Tribunal acknowledged at [64][41] that a person who is a Malik in Pakistan would be at “some risk” of targeting for serious harm, the Tribunal did not accept that the applicant is a Malik as claimed.  The Tribunal dealt with the letter from the MP in the following terms:[42]

    Having found, based on all the evidence, that it does not accept the applicant’s claim that he spoke out as claimed during his return visit to Pakistan, and therefore was not spied on or reported on to the Taliban or to anyone else, the Tribunal does not accept that claim that his family received a threatening letter from the Taliban commander of Kurram Agency, or from anyone else.  Having regard to all the evidence, and to the country information in relation to the prevalence of document fraud in Pakistan, the Tribunal places little evidentiary weight on the relevant documents submitted by the applicant in support of the claimed threats by the Taliban, including the letter from …, Member of the National Assembly.

    [41] CB 233

    [42] At [66], CB 233-234

1. It might be thought from that paragraph that the Tribunal regarded the letter as a fabrication.  The letter had been presented to the delegate who found it to be misleading.  Relevantly, the delegate stated:[43]

   The above country information indicates that the status of Malik is granted by the PA and not a member of the Pakistan National Assembly.  The above cited country information is not consistent with the details contained in the letter in which [the MP] states that “I recommend [the applicant] to be the next Malik & informed him via phone ……[the applicant] confirmed & accepted the Malik status while in Australia.”  The letter provided by the applicant is misleading and is not consistent with country information cited above.  I note that the applicant stated that [the MP] is a “family friend”.  As stated earlier, document fraud is prevalent in Pakistan and no assessment, as far as the decision maker is aware, has been made in relation to the genuineness or otherwise of the letter.  For the reasons provided above, I do not accept that the applicant was offered the position of Malik.

   [43] CB 139

2. However, it does not appear that the Tribunal adopted the delegate’s reasoning.  First, at the Tribunal hearing, the Tribunal appeared to accept that the letter was authentic.[44]  Further, at [93][45] the Tribunal appeared to adopt country information which supported the role of Members of Parliament in the nomination of Maliks.

   [44] See T 40.50

   [45] CB 241

3. The only reason given by the Tribunal for not contacting the MP was that the contents of his letter “spells it out pretty clearly”.[46] 

   [46] T 40.48-50

4. It is tolerably clear that the applicant asked the Tribunal to contact the MP in order to address the adverse finding made by the delegate about the letter.[47]  Further, the applicant had nominated the MP as a witness in his response to the hearing invitation.[48]  In that response, the applicant provided two telephone numbers for the MP and explained why he wanted the Tribunal to take evidence from him. 

   [47] T 31.13-15

   [48] CB 163 

5. While the Tribunal was not bound by the Migration Act to call the witness, in the circumstances of this case, it should have done so. The MP was an apparently credible witness in a position to provide information that was potentially determinative of the question of whether the applicant was a Malik as he claimed. Further, the MP could have explained the circumstances in which the applicant became a Malik. The enquiry was an obvious one and could have been readily made (or attempted) by using the telephone numbers provided by the applicant.

6. In my opinion, the circumstances of this matter place the case into the confined category of cases in which the Tribunal came under an obligation to enquire.  I find that the first ground has been established.

Ground 2 – were the Tribunal’s conclusions concerning the MP’s letter unreasonable?

1. I accept the Minister’s submissions in relation to this ground. 

2. The second ground claims that the Tribunal’s conclusion that the author of the letter told “deliberate lies” was unreasonable or irrational, but the Tribunal did not make such a finding, simply giving his letter “little evidentiary weight”.[49]  It did so based on its findings concerning the applicant’s claims and country information in relation to document fraud in Pakistan.  Such reasoning was in accordance with the principles in Minister for Immigration v SZNSP.[50]  Even if it is implicit in the Tribunal’s reasoning that the author of the letter may have deliberately lied, such a conclusion cannot be said to be legally illogical when his assertion that the applicant was a Malik had been found by the Tribunal not to be credible.[51]  No “extreme” illogicality in the Tribunal’s conclusions concerning the letter within the principles in CQG15 v Minister for Immigration[52] has been shown.

Ground 3 – did the Tribunal’s treatment of the letter from the MP give rise to an apprehension of bias?

[49] CB 234 [66]

[50] (2010) 184 FCR 485 at [23]-[40] per North and Lander JJ, [50] per Katzmann J

[51] CB 233 [64]

[52] [2016] FCAFC 146 at [59]-[61]

1. I also agree with the Minister’s submissions on the third ground.

2. In Re Refugee Review Tribunal; Ex parte H[53] the High Court at [27]-[29] formulated the test of apprehended bias in administrative proceedings as whether a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings might reasonably apprehend that the decision maker might not bring an impartial mind to the question to be resolved, and that the test is one of objective possibility.

   [53] [2001] HCA 28

3. The third ground claims that the Tribunal’s treatment of the letter might give rise to an apprehension of bias.  It will be a rare case where apprehended bias can be demonstrated from the Tribunal’s reasons alone.[54]  The attribution of little or no weight to supporting evidence because of concerns about an applicant’s credit is no evidence of bias.[55]   This ground must fail.

   [54] Minister for Immigration v SZNPG [2010] FCAFC 51, (2010) 115 ALD 303 at [18] per North and Lander JJ

   [55] SZNPG at [25], [37]

Conclusion

1. The applicant has succeeded in establishing that the decision of the Tribunal is affected by jurisdictional error.  He should receive the relief he seeks in the form of the constitutional writs of certiorari and mandamus.

2. I will hear the parties as to costs.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 28 June 2018