AHM16 v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHM16 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1817

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection (class XA) visa – translation error – opportunity to comment and lack of natural justice – misunderstanding of the facts – bias – mental health – illogicality – impermissible merits review – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss. 36(2), 424A, 424AA, 425, 476(1).

Cases cited:

ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Minister for Immigration v Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
NAHIv Minister for Immigration & Multicultural Affairs [2004] FCAFC 10
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28

SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; 219 FCR 212

Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297

Applicant:

AHM16

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 259 of 2016

Judgment of:

Judge Mercuri

Hearing date:

15 February 2018

Date of last submission:

15 February 2018

Delivered at:

Melbourne

Delivered on:

6 July 2018

REPRESENTATION

Advocate for the applicant:

In person

Solicitors for the applicant:

None

Counsel for the respondents:

Mr O Young

Solicitors for the respondents:

Sparke Helmore

ORDERS

The applicant’s application for judicial review filed on 11 February 2016 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 259 OF 2016

AHM16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for judicial review of a decision made by the second respondent, the Administrative Appeals Tribunal

(“the tribunal”) on 23 April 2014. In its decision, the tribunal affirmed the decision of a delegate of the first respondent, the

Minister for Immigration and Border Protection (“the Minister”) made on 13 January 2016 not to grant the applicant a protection (class XA) visa (“the visa”).
The tribunal’s decision can be found in the Court Book at pages 416 to 436.
This proceeding is brought pursuant to section 476(1) of the
Migration Act 1958 (Cth) (“the Act”). To obtain relief from this Court, the applicant must show jurisdictional error in the tribunal’s decision.

Procedural history

On 11 February 2016, the applicant filed an application for judicial review of the tribunal’s decision. In that application, the applicant sought:
a)an order that the decision of the tribunal be quashed; and
b)a writ of mandamus directing the tribunal to determine the applicant’s application according to law.
In his application to this court, the applicant did not set out specific grounds of review, but rather attached a three page statement in which he expressed concerns about the tribunal’s reasoning and decisions.[1]
[1] See applicant’s application filed 11 February 2016.
In his written submissions, the Minister sought to identify grounds of review which are then addressed in turn under the following headings:
a)translation error;
b)opportunity to comment and lack of natural justice;
c)bias;
d)misunderstanding of the facts;
e)mental health; and
f)illogicality.
Despite orders made by Registrar Buljan on 6 July 2016 permitting the applicant to file an amended application and written outline of submissions, to date, nothing further has been filed by the applicant.
I am satisfied that the distillation of the issues raised by the applicant’s application are appropriately captured by the headings identified by the Minister and will deal with each of those in turn below.
At the hearing before me, the applicant was self-represented with the aid of an interpreter. The applicant had a good level of understanding of the English language and used the interpreter as required during the hearing. In response to an invitation to make submissions in support of his application, the applicant made the following further points:
a)the tribunal’s decision was unfair as it gave more importance to the country information available than to the evidence before it (“country information claims”);
b)the tribunal did not accept the documents that the applicant provided in relation to the prominence of his father’s political career and refused his request for the tribunal to reconvene to talk directly to his father. In particular, the tribunal failed to give proper regard to the letters that he supplied from senior officials within the Awami National Party (“ANP”) about his father’s role in the ANP (“father’s role in ANP”);
c)the tribunal did not accept that the applicant was the subject of an attack and found that there were inconsistencies arising from the applicant’s description of the hospital (“attack claim”); and
d)the tribunal did not accept the medical evidence provided by the applicant noting that that the tribunal member was not medically qualified (“mental health issues claim”).

The applicant’s claims

The following is taken from the Minister’s submissions which are, in my view, a fair summary of the applicant’s claims.
The applicant, a citizen of Pakistan, applied for the visa on
[2] Court book at pages 1 to 156.
2 January 2013:[2]
The applicant claimed to fear harm on the basis of his father’s prominent political career with the ANP. His claims are summarised as follows:
a)in 1996, a case was filed against the applicant’s family, in which they were accused of drug smuggling;
b)during a raid in 1998 by the authorities of his family home, the applicant’s maternal uncle was shot dead and his brother and paternal uncle were arrested and jailed for six years;
c)the applicant’s family suffered death threats from corrupt government officials, the Taliban and the Mutahida Quaaumi Movement (“MQM”), and his brother was shot in the abdomen in 2009 by the MQM;
d)in 2012, there was an attempt to murder the applicant due to his family’s political involvement; and
e)the applicant’s family has already been targeted by the Taliban in Khyber Pakhtunkhwa (“KPK”) so if he returns to Pakistan, he will be at risk of harm from the Taliban and other political authorities.
On 23 April 2014, the delegate refused to grant the applicant the visa.[3]
[3] Court book at pages 222 to 235.
On 2 May 2014, the applicant applied, with the assistance of his migration agent, to the Refugee Review Tribunal (as it then was)[4] for a review of the delegate’s decision, attaching a copy of the delegate’s decision record.[5]
[4] Now the Administrative Appeals Tribunal.
[5] Court book at pages 236 to 241.
On 10 March 2015, the applicant attended a hearing before the tribunal, with the assistance of a Pashto interpreter and his appointed migration agent.[6] The tribunal also received oral evidence from the applicant’s brother via telephone.
[6] Court book at pages 254 to 256.
The applicant’s representative provided post-hearing written submissions to the tribunal, which are detailed further below.[7]
[7] Court book at pages 270 to 277.

The tribunal’s reasons

I have also taken the following summary of the tribunal’s decision which is uncontroversial, from the Minister’s written submissions. I am satisfied that it is an accurate summary.
On 13 January 2016, the tribunal affirmed the delegate’s decision not to grant the applicant the visa.[8]
[8] Court book at page 436 at paragraph [80].
In relation to the applicant’s mental health, the tribunal accepted that the applicant was suffering manifestations of depression and anxiety, but noted that these manifestations had not impacted the applicant’s capacity to give evidence and did not explain the tribunal’s credibility concerns.[9]
[9] Court book at page 423 at paragraphs [18], [19] and [68].
The tribunal found that it had considerable credibility concerns with the applicant’s evidence noting it contained “significant inconsistencies and implausibilities”.[10]
[10] Court book at page 424 at paragraph [23].
With respect to the alleged suicide attempt in January 2012, the tribunal found that the applicant struggled to describe the event in a “compelling and plausible” manner and noted inconsistencies in his description of the event provided to the delegate and the tribunal.[11] The tribunal did not accept the applicant’s or his representative’s explanations regarding these inconsistencies.[12]
[11] Court book at page 424 at paragraph [25].
[12] Court book at page 424 at paragraphs [27] and [28].
The tribunal considered post-hearing submissions provided by the applicant’s representative in relation to the inconsistencies in the applicant’s evidence; however, they did not accept the explanation proffered and found that the inconsistencies indicated that the events did not occur.[13]
[13] Court book at page 425 at paragraphs [30] and [31].
With respect to the applicant’s claims in relation to his father being a prominent political figure in Pakistan, the tribunal noted that it was unable to locate any independent information supporting these claims.[14]
[14] Court book at page 426 at paragraph [33].
The tribunal accepted that online and archival material in respect of the applicant’s father’s political activity would be limited; however, did not accept the “paucity of the information” provided when compared with the father’s alleged prominence.[15]
[15] Court book at page 428 at paragraph [41].
The tribunal noted that given that the applicant claimed that his father was a respected elder, for there to be no evidence found in the country information service was indicative of the fact that the applicant’s father was not and may not have been particularly prominent or influential in the ANP.[16]
[16] Court book at page 428 at paragraph [41].
In relation to the letters the applicant provided from Mr Ali and Mr Bilour, the tribunal found that the applicant made several claims at the hearing that were inconsistent with the letters and other information provided.[17] Noting country information that indicated the prevalence of document fraud in Pakistan,[18] and given its previous findings in relation to the applicant’s father and its concerns about the applicant’s credibility, the tribunal placed no weight on the documents relating to the applicant’s father’s nomination as an ANP candidate and the ANP card provided to the department.[19]
[17] Court book at page 429 at paragraphs [43] and [45].
[18] Court book at page 430 at paragraph [46].
[19] Court book at page 430 at paragraph [47].
The tribunal gave greater weight to the country information over the letters provided, book extract, photographs, reports, newspaper articles and other materials provided by the applicant.[20]
[20] Court book at page 430 at paragraph [48].
The tribunal did not accept that the applicant’s father is or was prominent in the ANP or that the applicant or his family remain active or significant members in the ANP.[21] Given its concerns in relation to the applicant’s credibility and the documents provided, the tribunal declined to take evidence from the applicant’s father or any other ANP members, noting that the applicant had opportunities to call these people as witnesses at the hearing and had not done so.[22]
[21] Court book at page 430 at paragraph [48].
[22] Court book at page 430 at paragraph [49].
In relation to the applicant’s delay in applying for protection and return trips to Pakistan, the tribunal found that the applicant’s response at the hearing indicated that he was not in fear of returning during the period he was residing in Australia and initially sought to remain in Australia through skilled pathways. The tribunal found that the applicant applied for protection because he had no other option to remain in Australia.[23]
[23] Court book at page 431 at paragraph [54].
The tribunal further found the delay in applying for protection led it to further doubt the veracity of the applicant’s claim to have been attacked in January 2012.[24]
[24] Court book at page 431 at paragraph [54].
The tribunal found that the applicant had fabricated his claim that he was the victim of an attack in January 2012 and, when considered in light of his claims regarding his father’s political profile and role in the ANP which it found to be untruthful, and the delay in applying for protection after the claimed attack, the tribunal found that the applicant had lied about key aspects of his claim.[25]
[25] Court book at page 432 at paragraph [58].
The tribunal stated that the applicant was not credible or a witness of truth in relation to key aspects of his claims.[26] Further, the applicant had sought protection to gain permanent residence in Australia rather than due to any subjective fear of returning to Pakistan.[27]
[26] Court book at page 432 at paragraph [58].
[27] Court book at page 432 at paragraph [59].
With reference to its previous findings that the applicant was not credible or a witness of truth, the tribunal did not accept that the applicant was from an influential family, or that his father was a prominent ANP member or any other claims relating to this issue.
Whilst the tribunal accepted that the police raids occurred at the applicant’s family home, it did not accept that they were politically motivated. The tribunal accepted that the applicant’s uncle was shot dead and that his brother and another uncle were arrested and jailed. However, it did not accept that false evidence was used to convict them.[28]
[28] Court book at page 433 at paragraph [63].
The tribunal accepted that a case was filed against the applicant’s family and that the applicant’s brother may have been shot in the abdomen, but did not accept these were politically motivated.[29]
[29] Court book at page 433 at paragraph [65].
The tribunal did not consider the applicant would need to travel to KPK if he returned to Pakistan, nor did it accept that his family had been threatened by the Taliban. The tribunal did not accept that his family had to bribe officials to have their property returned, that his family had been subject to unlawful court or authority action or that he was a victim of a murder attempt.[30]
[30] Court book at page 434 at paragraph [66].
In relation to the applicant’s claims that he would be targeted as a returnee from a western country or as a person who has been westernised, with reference to country information the tribunal found that there was no real chance that the applicant would be harmed on this basis.[31]
[31] Court book at page 435 at paragraph [72].
The tribunal noted that although the applicant claimed he did not fear harm for this reason, with reference to country information it did not accept that the applicant would face harm on the basis of his mental health issues.[32]
[32] Court book at page 435 at paragraph [73].
The tribunal concluded that there was no real chance that the applicant would be harmed for reason of his actual or imputed political opinion, ethnicity or particular social groups and found that he did not have a well-founded fear of persecution.[33]
[33] Court book at page 435 at paragraph [74].
Relying on its anterior findings, the tribunal found that the applicant would not face a real risk of significant harm upon return to Pakistan for any reason and found that the applicant did not meet the complementary protection criterion.[34]
[34] Court book at page 435 at paragraphs [75] to [76].
The tribunal found that the applicant did not satisfy section 36(2)(a) or (aa) of the Act .[35]
[35] Court book at page 436 at paragraphs [77] to [78].

Grounds of review

I turn now to deal with the grounds of review which arise from the applicant’s application and as those raised at the hearing of this application before me, as identified in paragraphs 6 and 9 above.

Ground one – translation error

The applicant argued that there was a translation error in paragraph 31 of the tribunal’s decision where the tribunal member refers to the applicant walking down a ‘corridor’ whereas he described a ‘pathway’.
As recently stated by the Honourable Justice Robertson in
SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; 219 FCR 212 (“SZRMQ”):
The question is whether the mistranslation or non-translation, singular or plural as the case may be, individually or in the aggregate, led to a material unfairness, that is, relating to a matter of significance or potential significance for the applicant’s case and what the applicant was putting about the claim or for the decision-maker’s decision.[36]
[36] SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; 219 FCR 212 at [66]. See generally at [64]-[69].
In SZRMQ, the Honourable Chief Justice Allsop also relevantly commented:
To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all of the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.[37]
[37] SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; 219 FCR 212 at [9].
To the extent that the applicant has complained about translation issues at the hearing before the tribunal, I accept the Minister’s submissions that there is no suggestion on the basis of the decision record that the applicant raised any concerns with the interpreter at that hearing nor that the tribunal had difficulty in understanding the applicant’s evidence.
Further, the applicant has not provided a transcript of the tribunal proceedings on which to base any such complaint.
Moreover, I note that the tribunal engaged with the applicant about the discrepancy between his evidence before the delegate about the physical layout of the hospital which related to the alleged attack on the applicant in 2012.[38] Relevantly, the decision record contains the following:
At hearing I discussed this with the applicant. He was unable to adequately explain these inconsistencies. He said that there was confusion with his interview with the department, he mentioned a corridor, but it was a walkway…[39]
…
I do not accept the applicant’s or representative’s explanations, as reported by the delegate or as given at the hearing in relation to these inconsistencies. I do not accept that stress, translation error or any other misunderstanding has produced what I find to be significant discrepancies between the applicant’s recollections of the hospital and the publicly available information set out by the delegate (emphasis added).[40]
[38] Court book at page 425 at paragraph [27].
[39] Court book at page 425 at paragraph [27].
[40] Court book at page 425 at paragraph [28].
I am satisfied that the applicant was provided with a real and meaningful opportunity to be heard consistent with the requirements of section 425 of the Act which includes a right to a fair hearing. I find that this complaint does not disclose a jurisdictional error.

Ground two – opportunity to comment and lack of natural justice

[42] Court book at page 428 at paragraphs [39] and [42].
The applicant alleged that the tribunal failed to request further information in relation to whether a book which was submitted on behalf of the applicant as evidence was published.[41] The applicant also complained that the tribunal did not allow him to comment on

“certain matters”[42]
and placed greater weight on country information rather than the applicant’s evidence.[43]
[43] Court book at page 428 at paragraph [41] and page 430 at paragraph [47].
[41] See paragraphs [35] and [37] of the tribunal’s decision at page 427 of the court book.

In relation to the first limb of the applicant’s second ground of review, the applicant stated that the tribunal did not request a copy of the cover of the ‘book’ or the information referred to in paragraph 35 of the tribunal decision. The tribunal refers to further information provided on behalf of the applicant after the hearing.[44]
[44] Court book at page 427 at paragraph [37].
It is noted that the hearing in this matter took place on 10 March 2015. This followed an invitation sent to his representative on

4 February 2015.[45] In response, the applicant proposed that his brother give evidence in support of his claims. The applicant was represented throughout the proceedings both before the delegate and before the tribunal. The hearing commenced at 2:10pm and concluded at 5:32pm.[46]
[45] Court book at pages 246 to 247.
[46] Court book at page 254.
Following the hearing, the applicant’s representative provided:
a)significant further information on 8 April 2015 including a seven page written submission in which the applicant sought another 14 days to provide further documents and also sought the tribunal to reconvene the hearing to allow the applicant’s father to give evidence;[47]
[47] Court book at pages 258 to 277.
b)the applicant’s representative was advised that the requested additional time was approved by the member;
c)the applicant’s representative provided additional information on 1 May 2015[48] and in this correspondence also indicated that he was still awaiting a further letter from Senator Bilour and expected to have that within two or three days;[49]
[48] Court book at pages 283 to 305.
[49] Court book at page 300.
d)the applicant’s representative provided a letter from Mr Bilour by email dated 7 May 2015;[50]
[50] Court book at pages 306 to 307.
e)by email dated 12 May 2015, the applicant’s representative indicated that he was unable to obtain a translation of the Urdu text (which had previously been provided) regarding the applicant’s father and required additional time;
f)a further email and information on 11 June 2015,[51] including what appears to be a translation of the ‘book’;[52]
g)the applicant’s representative sent further emails requesting additional time to provide a medical report on:
i)3 July 2015;[53]
ii)4 August 2015;[54]
iii)24 August 2015;[55]
iv)27 October 2015;[56]
v)16 November 2015 (also attaching further information from the Asian Human Rights Commission);[57]
vi)20 November 2015;[58] and
vii)23 November 2015.[59]
[51] Court book at pages 310 to 377.
[52] Court book at pages 369 to 372.
[53] Court book at page 379.
[54] Court book at page 380.
[55] Court book at page 381.
[56] Court book at pages 383 to 387.
[57] Court book at pages 338 to 339.
[58] Court book at pages 393 to 394.
[59] Court book at pages 397 to 406.
On 18 November 2015, some eight months after the hearing, the tribunal wrote to the applicant’s representative indicating that it would be making its decision within the next two weeks and required the applicant to file any further material by the close of business on 20 November 2015 noting, quite reasonably in my view, that the applicant had had more than adequate time to provide any further relevant information.[60] This deadline was later extended to the close of business on 23 November 2015.[61]
[60] Court book at page 392.
[61] Court book at page 395.
The applicant’s representative again wrote to the tribunal with further information on 11 January 2016.[62]
[62] Court book at pages 407 to 413.
The tribunal’s decision was made on 13 January 2016.
It is against this background that the applicant’s complaints were made about the failure of the tribunal member to request a copy of the cover of the book or other information referred to in paragraph 35.
In response to the applicant’s complaint, the Minister submitted that:
a)the onus was on the applicant to put forward his evidence and arguments to establish the facts upon he relied;
b)in any event whether the ‘book’ was published was not central to the tribunal’s findings; and
c)the tribunal was not obliged to request further information in relation to these issues.
To the extent that the applicant argues that he should have been given an opportunity to comment on the matters contained in paragraphs 39, 41 and 42 of the tribunal’s decision, the Minister submitted that the requirement to put matters or ‘information’ to the applicant must be viewed within the context of section 424A of the Act. That section relevantly provides:
(1)Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
…
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars, of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3)This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review …
Relevantly section 424AA of the Act deals with how the tribunal member can put information to an applicant, and provide the applicant with an opportunity to respond to that information, in the course of a hearing to which the applicant is invited under section 425.
Section 425 of the Act requires the tribunal to invite an applicant to appear before the tribunal and give evidence and present arguments relating to the issues arising in relation to the decision under review.
As noted above, the applicant was invited to appear before the tribunal on 10 March 2015 by letter dated 4 February 2015. It is apparent from the decision record that the tribunal put to the applicant a range of matters which were reasons or part of the reason for possibly affirming the delegate’s decision and gave him an opportunity to respond.[63]
[63] See for example court book at pages 424 to 430 at paragraphs [25], [27], [33], [42], [43], [46] and [52].
It is also apparent from the tribunal’s decision that the applicant sought the opportunity to respond to some of the matters raised with him at the hearing in writing, that he in fact did so and that the tribunal considered the extensive material provided on the applicant’s behalf between the hearing date in March 2015 and its decision provided in January 2016.
It was submitted on behalf of the Minister that the remaining matters about which the applicant raised fall within the exceptions in section 424A(3) of the Act as being either ‘country information’ or information which the applicant himself provided (or which was provided on his behalf) in support of his claims. I agree with the Minister’s submissions in this regard.
Finally, the applicant complained about the weight which the tribunal gave to the ‘country information’ as compared to the information provided by him.[64]
[64] Page 1 of the statement in the applicant’s application filed 11 February 2016.
The Minister correctly pointed out that it is for the tribunal to identify the material that it considers relevant to its reasoning and to give that material such weight as it deems appropriate.[65] Similarly, the choice and assessment of country information is a matter for the tribunal.[66]
[65] Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]-[7]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46].
[66] NAHI v Minister for Immigration & Multicultural Affairs [2004] FCAFC 10 at [11].
As noted by Gray, Tamberlin and Lander JJ in

NAHI v Minister for Immigration & Multicultural Affairs
[2004] FCAFC 10:
By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. … It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.[67]
[67] NAHI v Minister for Immigration & Multicultural Affairs [2004] FCAFC 10 at [11]-[13].
The applicant’s complaints raised under this ground of review do not disclose jurisdictional error.

Ground three – bias

The applicant alleged that the tribunal failed to understand the administrative and political system operating in Pakistan and that there appeared “to be an overlay of western expectations on how things ought to operate” and that this led him to “believe that there is a level of bias exhibited”.[68]
[68] Paragraph 38 of the first respondent’s written submissions filed 1 February 2018.
The applicant also alleged that the tribunal exhibited bias in the following ways:
a)failing to access information available to the Australian authorities located in Islamabad;
b)failing to obtain information for verification purposes from the Australian authorities; and
c)failing to contact the ANP directly to verify the applicant’s claims about his father’s involvement in the ANP.[69]
[69] Paragraph 38 of the first respondent’s written submissions filed 1 February 2018.
To the extent that this gives rise to any complaint about the manner in which the tribunal determined what information it would obtain and what weight to give to that information, I refer to my comments at paragraphs 66 and 67 above and repeat that this is a matter for the tribunal and discloses no jurisdictional error.
Insofar as the allegation is one of bias against the tribunal, I accept the Minister’s submissions that a fair reading of the tribunal’s decision does not suggest that the tribunal did anything other than bring an open mind to the task before it. I am not satisfied that there is anything in the tribunal’s decision which would lead a fair minded lay observer, properly informed as to the nature of the proceedings and the matters in issue to reasonably consider that the tribunal did not bring an impartial mind to the determination of the application for review.[70]
[70] See Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115].
As noted by the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28:
Perhaps it would be better in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to have given rise to an apprehension of bias.[71]
[71] Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 at [28].
Applying this test to the facts in this case, I am not satisfied that apprehended bias has been established. It is apparent from the decision record that the tribunal considered the claims raised by the applicant, provided him with an opportunity to respond to concerns he had about those claims and the evidence he had led, and reached conclusions which were reasonably open to it.
This aspect of the applicant’s application does not disclose any jurisdictional error.

Ground four – misunderstanding of the facts

The applicant alleged that the tribunal committed jurisdictional error on the basis of its failure to distinguish between issues relating to the more recent action brought about by the Anti-Narcotics force and the applicant’s father’s previous political activism which took place some 19 years earlier.[72]
[72] Paragraph 40 of the first respondent’s written submissions filed 1 February 2018.
The applicant made a further general complaint that the tribunal:
…failed to understand that the authorities in Pakistan failed to provide me with an internationally accepted standard of protection [and] that the authorities in Pakistan are unable and unwilling to provide protection of an internationally acceptable standard to the Pathan ethnic minority in Pakistan.[73]
[73] Page 2 of the statement in the applicant’s application filed 11 February 2016.
I accept the Minister’s submission that these complaints are essentially about the facts as found by the tribunal and seek impermissible merits review. These complains do not disclose any jurisdictional error.

Ground five – mental health

The applicant alleged that the tribunal failed to understand the trauma he had suffered and properly assess the reports he had submitted. Moreover, he claimed that the tribunal did not allow him an opportunity to provide information despite his representative requesting additional time to provide a report from his psychiatrist.[74]
[74] Page 2 of the statement in the applicant’s application filed 11 February 2016.
The Minister submitted that it was clear from the decision record that the tribunal did in fact give consideration to the applicant’s mental health.[75] I accept this submission.
[75] Court book at page 423 at paragraphs [18] and [19].
I am also satisfied that the tribunal provided the applicant with more than ample time to provide whatever medical evidence he wished to provide, noting that the applicant’s representative made reference to the provision of a report from his psychologist in an email dated

11 June 2015.[76] The applicant’s representative asked for additional time to provide this information on 3 July 2015 indicating that a report would be provided by the end of July 2015. As noted above, the applicant, through his representative, continued to correspond with the tribunal seeking further time to provide this information right up until the decision was issued in January 2016.
[76] Court book at page 329.
I find that the tribunal provided the applicant with more than ample opportunity to provide additional information he considered relevant to his application.
Moreover, as correctly pointed out by the Minister, even though no claims were made by the applicant to fear harm on return on account of his mental health issues, the tribunal quite properly considered this and concluded that he would not.[77]
[77] Transcript page 9 at lines 35 to 42; paragraph 42 of the first respondent’s written submissions filed 1 February 2018.
The tribunal considered the applicant’s claims in relation to his mental health issues, both in relation to his capacity to participate in the process and also as a possible basis on which he might fear harm on return to Pakistan.[78]
[78] Paragraph 42 of the first respondent’s written submissions filed 1 February 2018.
In my view, this complaint does not disclose a jurisdictional error.

Ground six – illogicality

The applicant claimed that the tribunal was unreasonable and used illogical reasoning in its decision, particularly in reference to paragraphs 45, 53 and 54 of the tribunal’s decision.[79]
[79] Page 2 of the statement in the applicant’s application filed 11 February 2016.
I accept the Minister’s submissions that:
a)the complaint contains insufficient particulars to be meaningful;
b)in any event, the claim does not meet the high threshold required to ground a finding of illogicality or irrationality, namely that the decision is one which no rational or logical decision maker could arrive at on the same evidence;[80] and
c)the complaint constitutes no more than impermissible merits review.
[80] Minister for Immigration v Citizenship v SZMDS (2010) 240 CLR 611 at [124], [129]-[130]; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, see especially [40] and [101].
As noted by Crennan and Bell JJ in SZMDS:
In the context of the tribunal’s decision here, ‘illogicality’ or ‘irrationality’ sufficient to give rise to jurisdictional error must mean the decision to which the tribunal came, in relation to the state of satisfaction required under section 65, is one which no rational or logical decision maker could arrive on the same evidence.[81]
[81] Minister for Immigration v Citizenship v SZMDS (2010) 240 CLR 611 at [130].
It is apparent from the decision record that the tribunal considered the claims made by the applicant and the evidence which he put forward in support of those claims. Ultimately, the tribunal did not accept many of his claims. This of itself does not justify a finding of illogicality or irrationality. I accept that the conclusions reached by the tribunal were open to it on the evidence before it.[82]
[82] Paragraph 44 of the first respondent’s written submissions filed 1 February 2018.
This ground does not disclose any jurisdictional error.

Other matters

I will now turn to deal with the matters raised by the applicant at the hearing.

Country information claim

The applicant claimed that the tribunal gave more weight to the country information than to the evidence he put before it. I refer to and repeat the comments made in paragraphs 66 and 67 above.
As stated above, the weight to be afforded to country information is a matter for the tribunal.[83] This does not disclose a jurisdictional error.
[83] Paragraph 37 of the first respondent’s written submissions filed 1 February 2018.

Father’s role in ANP

The applicant argued that the tribunal did not accept the documents that the applicant provided in relation to the prominence of his father’s political career and further, it refused his request for the tribunal to speak directly with his father.[84] In particular, it was alleged that the tribunal failed to give proper regard to the letters that he supplied from ANP senior officials about his father’s role in the ANP.[85]
[84] Transcript page 6 at lines 19 to 23.
[85] Page 1 of the statement in the applicant’s application filed 11 February 2016.
The Minister submitted that the material which the applicant provided in relation to this issue was considered by the tribunal.[86]
[86] See paragraphs [32] to [49] of the tribunal’s decision at pages 426 to 430 of the court book.
The tribunal also invited the applicant to respond to its concerns about this issue and the applicant took this opportunity. In the circumstances, there was no obligation on the tribunal to reconvene the hearing and speak to the applicant’s father directly. It is also noted that in the eight month period between the hearing and being notified that the tribunal would be issuing its decision, it was open to the applicant to put before the tribunal affidavit material or a statutory declaration from his father if that was what he wished.
It is also noted that the applicant was legally represented throughout these proceedings and was invited to nominate witnesses who could attend and give evidence at the hearing conducted in March 2015. Indeed, he nominated his brother and the tribunal obtained additional information from his brother. The applicant conceded this point in his reply, but went on to say that he had thought that the letters he provided would be sufficient and it was only after the hearing that he realised the decision might go against him that he asked the tribunal to speak directly to his father.[87]
[87] Transcript page 6 at lines 12 to 23.

I find that this complaint is no more than impermissible merits review.
Again, this complaint does not disclose any jurisdictional error.

Attack claim

The applicant alleged that the tribunal did not accept that he was the subject of an attack and found that there were inconsistencies arising from the applicant’s description of the hospital.
I accept the Minister’s submissions in relation to this matter and am satisfied that the tribunal did consider this issue.[88] It simply concluded that the attack did not happen. This conclusion was reasonably open on the evidence.
[88] See court book at pages 424 to 426 at paragraphs [24] to [31].
This complaint does not disclose any jurisdictional error. The claim by the applicant in this regard is impermissible merits review.

Mental health issues

The applicant further alleged that the tribunal did not properly accept the medical evidence provided and this was inappropriate given that the tribunal member was not medically qualified.[89]
[89] Transcript page 4 at line 12 to page 5 at line 6.
The Minister submitted, correctly in my view, that the tribunal did give consideration to the medical reports provided by the applicant, through his representative.[90] Moreover, as discussed above, even though the applicant did not raise any claims arising from a fear of harm on his return to Pakistan because of his mental health issues, the tribunal properly gave consideration to this as a claim arising from the material before it.
[90] Court book at page 423 at paragraphs [18] and [19].
The conclusions reached by the tribunal were open to it and this complaint does not disclose any jurisdictional error.

Conclusion

For the reasons set out above, I find that no jurisdictional error has been identified. As such, I make orders that the application be dismissed and for the applicant to pay the first respondent’s costs.

I certify that the preceding one-hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date: 6 July 2018

[2018] FCCA 1817

6 July 2018

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Standing

Costs