AFP20 v Minister for Immigration and Anor - [2020] FCCA 3207

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFP20 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 3207

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – whether the Tribunal failed to comply with s 425 of the Migration Act 1958 (Cth) due to errors of interpretation – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 425, 476

Cases cited:

Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507

Applicant:

AFP20

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 121 of 2020

Judgment of:

Judge Street

Hearing date:

3 November 2020

Date of Last Submission:

3 November 2020

Delivered at:

Sydney

Delivered on:

27 November 2020

REPRESENTATION

Counsel for the Applicant:

Mr D McDonald-Norman via Microsoft Teams

Solicitors for the Applicant:

Craddock Murray Neumann

Counsel for the First Respondent:

Ms R Francois via Microsoft Teams

Solicitors for the First Respondent:

MinterEllison

ORDERS

The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 121 of 2020

AFP20

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 23 December 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection visa.
The applicant was found to be a citizen of Pakistan and his claims were assessed against that country. The applicant was found to be a Muslim citizen from a particular area.
On 11 October 2012, the applicant arrived in Australia on a Tourist (subclass FA 600) visa. On 7 January 2013, the applicant departed Australia. On 8 September 2014, the applicant applied for a further Visitor (subclass FA 600) visa. On 12 September 2014, that application was refused. As a result of a remittal decision made by the Migration Review Tribunal on 9 March 2015, the applicant was granted a Tourist (subclass FA 600) visa on 3 April 2015. On 11 June 2015, the applicant departed Pakistan. On 12 June 2015, the applicant arrived in Australia on the granted Tourist (subclass FA 600) visa.
On 6 August 2015, the applicant lodged an application for a Protection visa. The applicant claimed and was found to be a Sunni Muslim. The applicant claimed that he had a former friend who belonged to a pro-Shia militant group called Tehreek Nafaz Fiqh‑e-Jafariya (“TNFJ”). The applicant claimed that he confronted his former friend about his involvement with TNFJ. The applicant claimed that, on 15 November 2013, he witnessed a brutal attack on a particular mosque by masked gunman and the murder of children within the mosque. The applicant claimed that one of the gunmen was his former friend. The applicant claimed that a week after the attack he was approached by police and disclosed information about the identity of his former friend and what he had witnessed. The applicant claimed that the police investigated his reports. The applicant claimed that, in April 2014, he received many threats by telephone. The applicant claimed that, in June 2014, he was attacked and hospitalised with injuries. The applicant claimed that after his discharge from hospital the police sent him to a safe house at a particular location. The applicant claimed that his former friend told his brother he was going to kill the applicant. The applicant claimed that he fears his life is in danger from his former friend and from the TNFJ if he returns to Pakistan.
On 20 September 2016, the Delegate found that the applicant failed to meet the criteria for the grant of a Protection visa.
On 16 October 2016, the applicant lodged an application for review of the Delegate’s decision and requested an Urdu interpreter. On 12 February 2019, the Tribunal received detailed submissions from the applicant written in English. By letter dated 4 November 2019, the Tribunal invited the applicant to attend a hearing on 17 December 2019. On 8 November 2019, the applicant emailed the Tribunal in English and provided his completed response to the hearing invitation and, again, requested an Urdu interpreter. On 17 December 2019, the applicant attended the hearing to give evidence and present arguments. The transcript of hearing has been tendered before the Court.
The Tribunal in its reasons identified the background to the review application.
The Tribunal set out the relevant law, including an attachment incorporated by pagination in the Tribunal’s reasons.
The Tribunal referred to the applicant’s claims in respect of the incident that he allegedly witnessed on 15 November 2013. The Tribunal identified grounds upon which it had concerns in relation to the applicant’s evidence, including in relation to the allegation of observing youths with their throats having been cut. The Tribunal found that the applicant had embellished his evidence.
The Tribunal also referred to the applicant’s claims in relation to the alleged threats he received after his alleged former friend was arrested and that these people who threatened him were from the TNFJ.
The Tribunal referred to the applicant’s claims that he had reported these threats to a police officer who told him not to worry and that measures were in train to protect him.
The Tribunal referred to the applicant’s claim that his former friend was then released from police custody in June 2014 “because his group [was] very resourceful and [knew a] few senior people in [the] police”.
The Tribunal referred to the applicant giving very different evidence at the Tribunal hearing about the circumstances of his former friend’s release in June 2014.
The Tribunal referred to the applicant’s alleged attack and the purported medical report concerning the same dated 12 June 2014.
The Tribunal referred to the applicant’s evidence in relation to the alleged safe house and the period during which he was the subject of protection.
The Tribunal referred to the information provided by the applicant to the Department at the time of the interview, which included a First Information Report and a list of suspects.
The Tribunal referred to country information in relation to the incident that occurred. The Tribunal referred to the state investigations appearing to have found that the culprits involved in the violence and destruction on that day were Pakistani Taliban (“TTP”) provocateurs.
The Tribunal found that the applicant’s account did not sit with a large number of reports emerging in the second half of November 2013 and that the applicant’s account of what he saw happened did not sit with the contents of the First Police report that the applicant submitted. The Tribunal also found that the applicant’s account to the Department appeared to omit, or at least appeared to reflect the applicant being unaware, that the “Jaffria Alliance”, being the English-language generic for the TNFJ and the Tehrik-e-Jafaria Pakistan, publicly denounced the violence and asked the authorities to prosecute anyone who had fired a shot on that day.
The Tribunal referred to the applicant’s submissions in relation to the Delegate’s finding about the incarceration of his former friend having been wrong and that the former friend was released from custody in early June 2014. The Tribunal referred to the applicant’s submission suggesting that the former friend had been rearrested. The Tribunal referred to the applicant having associated his former friend with the TNFJ and the applicant’s submission that the Delegate erred in focusing on the TNFJ in relation to the threat to him and/or his ability to relocate. The Tribunal referred to the applicant’s submission that his former friend and the TNFJ would be able to kill the applicant.
The Tribunal then turned to the applicant’s oral evidence in relation to his family and the applicant’s return back to Pakistan from January 2013 until June 2015. The Tribunal also referred to the applicant remaining in Pakistan for a year and a half after the particular incident prior to his re-entry to Australia. The Tribunal referred to the applicant’s claim that he was temporarily domiciled for his own security in a village 100 kilometres away and that the applicant indicated at the hearing that that period only lasted a few months until the applicant’s former friend was rearrested in November or December 2014 and held for a couple of weeks. The Tribunal found that this meant that the applicant continued to reside at his family home throughout the first half of 2015 even though his former friend was again living at large in the community.
The Tribunal referred to the applicant’s evidence in relation to his claims concerning the incident which the Tribunal found to be somewhat vague in relation to the events.
The Tribunal referred to the applicant’s claims in relation to reporting to the police allegedly in secret that he had seen his friend at the incident and him being afforded secrecy and anonymity. The Tribunal referred to the applicant’s claims that the police asked him to ascertain and share his former friend’s whereabouts. The Tribunal referred to the difference in the applicant’s claims in relation to being trusted by the former friend’s family and the former friend having stopped treating the applicant as a friend before the incident.
The Tribunal also raised with the applicant the implausibility of the measures the applicant alleges the police had taken involving him in circumstances of the investigation being completely anonymous.
The Tribunal also referred to the version provided by the applicant regarding how the police located him to be different in significant details.
The Tribunal found that there were multiple discrepancies regarding the applicant’s alleged role in implicating his former friend and aiding in his location and arrest that undermined the applicant’s reliability as a witness.
The Tribunal then returned to consider the provenance of the First Information Report and its associated list of suspects. The Tribunal referred to having asked how the documents came into the applicant’s hands and how he had communicated with the police.
It is apparent from the transcript that there was a minor interpretation error in respect of the applicant having referred to a communication to the police officer by telephone which the Tribunal member in the transcript is identified as having misunderstood as being a communication by email. The communication in relation to the police was not, however, the focus of the questions being asked, as is apparent from the reading of the transcript as a whole. It is apparent that the Tribunal was focused on the provenance of the First Information Report and the list of alleged suspects.
The provenance of that First Information Report and list of suspects was the subject of the questions at page 24 of the transcript about the prevalence of fraudulent documents specifically in relation to these reports. It is apparent from the applicant’s response at page 25 of the transcript that the applicant fully appreciated that the Tribunal member was raising that the documents appeared to be fake.
The alleged material interpretation error was identified at page 11 of the transcript. In response to the question from the Tribunal member “How did you ask them? By what means of communication?”, the applicant responded, “I have a friend, whom as I have mentioned is in the police force. I had helped because of him. I asked him over the phone.” This was interpreted as, “I got a friend in police, because of whom I helped them. And I asked him for all this information.” The Tribunal member then asked, “But by what means of communication did you ask him?” which was then translated as, “How did you ask him? By what means did you ask him?” The applicant responded, “Through email.”
It is apparent that it was the applicant’s brother who sent him the email with the First Information Report and suspect list and that the applicant referred to it being on his phone and that the applicant alleged that the police gave that information to his brother.
The Tribunal member then asked, “What I was asking for was evidence of your email to the police officer. Your direct communication to the police officer discussing this event.” The applicant responded, “I talked to him on the phone.” The Tribunal member referred to the applicant saying that he contacted the policeman by email and the applicant corrected him by saying, “I said the phone.”
It is apparent that the applicant corrected the error and made reference to having identified the communication to the police officer being by phone and the applicant acknowledged that he said it was received through the email, but that he did not say that his friend had emailed it to him. The applicant made clear that he had asked his friend by phone.
The reference to the means of communication being by email was referred to by the Tribunal member. The applicant again said that he said by phone and it might have been a mistake in communicating it. The applicant continued that it was such a high profile case that the police officer did not want to talk to the applicant over the phone and that the applicant only got help with a lot of difficulty.
It is apparent that the Tribunal member understood that the applicant was referring to the police officer and asked a question about the police officer not being ready to talk on the phone and that the applicant obtained the document with difficulty. The applicant again identified that he had made two or three phone calls and that the police officer provided the information to his brother and apparently said that the police officer’s name should not be mentioned in this and that he had provided it.
The Tribunal member raised with the applicant why the policeman would want to keep his name secret and the applicant referred to the government not wanting to highlight the case, not wanting to release information as to what had happened and that if they valued the applicant’s help he would be safe in his own country now.
The Tribunal member then sought to explore with the applicant the applicant’s evidence in relation to being placed in a protective location and that it was his policeman friend who placed him in a house and the police did not put him in any safe house.
The Tribunal member directly raised with the applicant the applicant’s account of the provenance of the information involving the applicant and the applicant’s former friend as a witness and a criminal and that the account of the provenance of the documents appears very different from what one ordinarily reads about police information reports in Pakistan.
The Tribunal’s reasons summarise the evidence and referred to raising with the applicant that he had said that he had communicated with a police officer by email and that the applicant had said that he had made a mistake and that the police officer friend had told him that he was not able to talk to him directly, even on the telephone, and that it was only on the third occasion that his police officer friend suggested producing the documents indirectly through the applicant’s brother.
The Tribunal also referred to the applicant’s evidence about the police officer friend telling him never to mention his name in connection with the information being provided. The Tribunal identified raising the question of the plausibility as to why the police officer would take these steps.
The Tribunal referred to the applicant having provided what the Tribunal considered to have been inconsistent and seemingly improvised evidence about how he first obtained the First Information Report (by definition not being an internal police minute but a report for external and informative use) and the purported suspect list. The Tribunal’s reasons are not to be read with a keen eye for error. The reference to the inconsistent and seemingly improvised evidence is clearly a reference to the provenance of the First Information Report and suspect list upon a fair reading of the transcript as a whole and a fair reading of the Tribunal’s reasons.
The Court does not accept the applicant’s submission that the Tribunal made an adverse credibility finding in relation to the applicant’s communication to the police officer by telephone. It is clear that the Tribunal was focused upon the provenance of the documents and the interpretation error in relation to the communication by telephone seeking the documents by the applicant. It cannot be said to be material or significant and could not possibly have given rise to any different determination in the outcome of the application for review.
The Tribunal expressly referred to the problem of forged documents and that the documents did not evidently corroborate the applicant’s claims about having been involved in the search for and the arrest of anyone involved in the Ashura Day incident.
The Tribunal found the applicant not to be a reliable witness. The Tribunal found the applicant’s account at the hearing to have been the product of improvisation.
The Tribunal did not accept that the applicant would have entered into a secret relationship with the police and then put the police case to his former friend’s mother in order to find out where his former friend was. The Tribunal did not accept that the applicant led the police to his former friend.
The Tribunal found that the applicant gave inconsistent and unreliable evidence as to the special and individually sensitive circumstances under which he obtained the First Information Report and referred to giving this deficiency in his evidence some weight in the matter.
The Tribunal found that the applicant’s efforts to explain why his former friend was rearrested in late 2014 were speculative. The Tribunal found that the applicant had concocted his account of being a witness in the Ashura Day incident and his purported former friend’s role in it was concocted by the applicant and did not accept that the applicant was ever there.
The Tribunal found that the applicant invented the information about the TNFJ planning, infiltration and culpability in the violence.
The Tribunal found that the applicant was not at that temple during the violence on 15 November 2013.
The Tribunal referred to the applicant being an unreliable witness and gave no weight to the suspect list naming the applicant’s former friend and, given the prevalence of fraud, gave no purported weight to the communications with or by the police, including the alleged letter requesting police protection.
The Tribunal was not satisfied that the applicant has a well-founded fear of persecution. The Tribunal found that the applicant does not satisfy the criteria under s 36(2)(a) of the Act.
The Tribunal found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Pakistan, there is a real risk the applicant will suffer significant harm. The Tribunal found that the applicant does not satisfy the criteria under s 36(2)(aa) of the Act.
Accordingly, the Tribunal affirmed the decision under review.

Grounds in the amended application

The ground in the amended application is as follows:
1. The Second Respondent (Tribunal) failed to comply with section 425 of the Migration Act due to errors of interpretation.
Particulars
a. During the Applicant’s hearing before the Tribunal on 17 December 2019, there were material errors of interpretation. Evidence given by the Applicant about the circumstances in which he obtained a First Information Report was not correctly interpreted: Transcript, p 11.1-10 and following.
b. These errors of interpretation materially contributed to the Tribunal’s adverse credibility findings regarding the Applicant and to its ultimate exercise of power: CB 233-234 [54]; CB 236 [66]-[68].
c. As a result of these errors of interpretation, the Applicant was not provided with an opportunity to appear in accordance with s 425 of the Migration Act: SZSEI v MIBP [2014] FCA 465; SZTFQ v MIBP [2017] FCA 562.
d. In the premises, the Tribunal’s purported decision of 23 December 2019 was affected by jurisdictional error.

The Court does not accept that there were material interpretation errors in the conduct of the hearing. For the reasons already given, the Court finds that the applicant had a real and meaningful hearing. Whilst the Court accepts that there was an interpretation error on page 11 of the transcript, as referred to above, for the reasons already given, the error was not material. The Court does not accept that the interpretation error contributed to the Tribunal’s adverse credibility findings or to the ultimate exercise of power.
In respect of the review, the Court does not accept that the applicant did not have a real and meaningful hearing in accordance with s 425 of the Act. The Court finds that the applicant had a real and meaningful hearing before the Tribunal and that the interpretation error was immaterial and that the interpretation was of a reasonable standard.
Further, taking into account the applicant’s ability to speak English and the correction by the applicant of the interpreter during the hearing and the actual correction by the applicant in respect of the evidence he gave concerning the first communication with the police officer on the third attempt being by telephone, the alleged interpretation error was of no materiality or significance in the conduct of the review.
The applicant’s submissions in respect of the alleged interpretation error failed to take into account the clear identification by the Tribunal as to the real issue being the provenance of the First Information Report and the list of suspects and it is clear that that provenance issue was fairly raised by the Tribunal member in the conduct of the hearing. Further, it is apparent that the Tribunal was aware of the applicant’s contention of the error in relation to the reference to the phone communication, as is identified in the Tribunal’s reasons.
Applying the test in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507, the Court is satisfied that the mistranslation did not have a significance in respect of the review by the Tribunal given that the issue being focused upon was the provenance of the First Information Report and the list of suspects. The applicant’s words, if they had not been mistranslated, is not one which had or could have had significance in respect of the provenance of the First Information Report and the list of suspects.
The Court is not satisfied that the translation or mistranslation could have affected the outcome so as to give rise to a denial of procedural fairness or a breach of s 425 of the Act. The Court finds that the mistranslation could not possibly have made a difference to the Tribunal’s overall assessment of the applicant’s credibility. There is no breach of s 425 of the Act.
The Court rejects the applicant’s submission that the interpretation error was in respect of a crucial part of the applicant’s answer. The crucial issue clearly identified by the Tribunal was the provenance of the documents in respect of which the communication by phone, the subject of the mistranslation, could not possibly have affected the outcome. There is no realistic possibility that if the error had not occurred the power would have been exercised differently.
No jurisdictional error as alleged in the amended application is made out. Accordingly, the amended application is dismissed.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 27 November 2020