AHU17 v Minister for Immigration

[2018] FCCA 1936

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHU17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1936

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection (class XA) visa – jurisdictional error – inter-sect marriage – show cause – arguable case.

Legislation:
Migration Act 1958, s.420
Federal Circuit Court Rules 2001, rr.44.12, 44.13

Cases cited:
MZAJQ v Minister for Immigration and Border Protection [2015] FCCA 593
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Siddique v Minister for Immigration and Border Protection [2014] FCA 1352; 144 ALD 328
Spencer v Commonwealth [2010] HCA 28; 241 CLR 118; 84 ALJR 612; 269 ALR 233
SZUTB v Minister for Immigration and Border Protection and Anor [2015] FCCA 1383

First Applicant: AHU17

Second Applicant: AHV17

Third Applicant: AHW17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 153 of 2017

Judgment of: Judge Mercuri

Hearing date: 21 March 2018

Date of Last Submission: 21 March 2018

Delivered at: Melbourne

Delivered on: 20 July 2018

REPRESENTATION

Advocate for the applicant: In person

Solicitor for the applicant: None

Advocate for the respondents: Ms Koya

Solicitors for the respondents: DLA Piper Australia

ORDERS

1. The applicant’s application filed on 23 January 2017 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 153 of 2017

AHU17

First Applicant

AHV17
Second Applicant

AHW17
Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Administrative Appeals Tribunal (“the tribunal”) dated 10 January 2017. The tribunal affirmed a decision of the delegate (“the delegate”) of the Minister for Immigration and Border Protection (“the Minister”) not to grant the applicants a Protection (Class XA) Visa (“the visa”). 

2. By orders made by consent on 2 August 2017, this matter was referred to a show cause hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001.

The applicants’ claims

1. The applicants in this matter are citizens of Pakistan. The first named applicant is the wife of the second named applicant and the third named applicant is the son of the first and second named applicants. 

2. The first and second named applicants arrived in Australia on

   
   

   3 March 2013 and applied for protection visas on 1 May 2013.[1] The third named applicant was born on 31 October 2013 and was then added to the visa application.[2]

   [1] Court book at page 1.

   [2] Court book at page 199 to 200; and at page 210 to 219.

3. The first and second named applicants each advanced claims in respect of their own applications.[3]

   [3] Court book at page 155 to 164; and at page 165 to 172.

4. The first named applicant claimed to:

   a)fear harm in Pakistan as a result of her religion as a Shia Muslim and her marriage to the second named applicant, who is a Sunni Muslim;

   b)fear that she and her husband would be killed on their return to Pakistan as a result of their inter-sect marriage; and

   c)fear for the safety of their child, the third named applicant.

5. The first named applicant also claimed to have suffered persecution and discrimination in the past as a result of her religion, including being targeted when she attended religious meetings. In particular, the first named applicant claimed that in 2008 while she was attending a religious meeting, six or seven people started firing at the crowd and she ran and hid and they shouted that they would not leave her alone.

6. The second named applicant claimed to be a Sunni Muslim and to fear harm in Pakistan by members of the Sipah-e-Sahaba as a result of his marriage to the first named applicant.

7. Both the first and second named applicants claimed that they had faced pressure to divorce each other as they belonged to different sects of Islam.

The process

1. A delegate of the first respondent refused the applicants’ applications for protection visas on 11 November 2014.[4] In the delegate’s decision, the delegate accepted that the first and second applicants belonged to different sects of Islam and that they entered into an arranged marriage. However, the delegate found that the applicants had otherwise sought to embellish their claims for protection, and did not accept that the applicants’ claims to fear harm on account of their inter-sect marriage were credible, or that they had a genuine fear of harm upon return to Pakistan.

   [4] Court book at page 239 to 261.

2. By application dated 12 December 2014, the applicants sought a review of the delegate’s decision before the tribunal.[5] 

   [5] Court book at page 292 to 294.

3. The applicants were represented by an agent in respect of their application to the tribunal, who filed written submissions on the applicants’ behalf dated 7 September 2015.[6] 

   [6] Court book at page 327 to 340.

4. In addition to these written submissions, the applicants also appeared before the tribunal on 18 October 2016 and were assisted at that hearing by their representative and an interpreter. The hearing record indicates that the hearing commenced at 9.45 am and concluded at 12.54 pm. [7]

   [7] Court book at page 356 to 359.

5. The applicants also provided to the tribunal, country information in support of their claims.[8]

   [8] Court book at page 360 to 451.

6. In its decision dated 10 January 2017, the tribunal affirmed the delegate’s decision not to grant the applicants’ protection visas.[9]

   [9] Court book at page 428 to 451.

The Tribunal’s reasons

1. After setting out in detail:

   a)the claims made by the first named and second named applicants;[10]

   b)the pre hearing submission received from the applicants;[11] and

   c)the evidence given by each of the first and second named applicants at the hearing on 18 October 2016;[12]

   the tribunal set out its findings and reasons.

   [10] Court book at page 430 to 433.

   [11] Court book at page 433 to 434.

   [12] Court book at page 434 to 438.

2. Although the tribunal accepted that the first applicant was a Shia Muslim and the second applicant a Sunni Muslim, that they married on

   
   

   22 September 2012 and that, as neither has converted to the other’s faith, theirs is an inter-sect marriage[13], it otherwise concluded that the first and second named applicants were not credible witnesses. The tribunal did not accept key incidents claimed by the applicants had occurred and considered that the applicants had fabricated key elements of their claim to allow them to remain in Australia after their student visas expired on 30 August 2013. In particular, the tribunal did not accept that the first and second named applicants’ respective families were unaware of their different religious backgrounds at the time they married. Nor did the tribunal accept that they were threatened or fired on by members of Sipah-e-Sahaba in February and March 2013 as claimed.[14]

   [13] Court book at page 439 at paragraph [46].

   [14] Court book at page 439 at paragraph [45].

3. The tribunal also accepted that the first and second applicant have two children of the marriage, their son, who is the third applicant in these proceedings although he does not have any independent claims of his own and their daughter who was born after these proceedings were commenced.[15]

   [15] Court book at page 439 at paragraph [46] and page 342.

4. The tribunal considered the first applicant’s claim about the religious persecution and discrimination she suffered growing up as a Shia Muslim in Pakistan. The tribunal accepted that she may have suffered some discrimination and ill-treatment because of her religious background,[16] but found overall that her claims that ‘hundreds of Shias are killed every day in Pakistan’[17] to be at odds with the relevant country information and other elements of her own evidence.[18] The tribunal concluded that while the first applicant may have suffered some low level educational discrimination and bullying from her fellow students as a result of being a Shia Muslim, ‘she had greatly exaggerated the issues that she faced during her education and did not suffer ongoing and systematic discrimination, abuse and ill-treatment amounting to persecution.’[19]

   [16] Including her claims that she had been physically hit with a steel rod during an argument at school and pushed in the back resulting in a broken nose.

   [17] Court book at page 441.

   [18] Court book at page 440 at paragraphs [47] to [49].

   [19] Court book at page 442 at paragraph [49].

5. The tribunal also accepted that attacks against Shia religious gatherings have occurred and continue to do so in Pakistan, but it did not accept that the first named applicant was present at religious gatherings on

   
   

   5 October 2008 and 12 December 2009 that were the subject of armed attack by militant groups.[20] 

   [20] Court book at page 442 at paragraph [50].

6. In coming to this view, the tribunal:

   a)had regard to the inconsistency in the first named applicant’s evidence;

   b)considered the absence of any media or other independent reporting of the alleged incidents; and

   c)gave no weight to the First Information Reports (“FIRs”), provided by the applicants about this and other incidents, on the basis of the prevalence of document fraud in Pakistan.[21]

   [21] Court book at page 442 to 443 at paragraph [50] to [54].

7. The tribunal concluded that the first named applicant had fabricated significant aspects of her evidence regarding her experiences prior to meeting and marrying the second named applicant and that she was not a credible witness. The tribunal considered that the first applicant’s profile prior to her marriage did not place her at greater risk of harm than most Shia’s in Pakistan. Moreover, it formed the view on the basis of county information that there is a low risk of harm from sectarian violence for most Shia’s in Pakistan.[22]

   [22] Court book at page 443 at paragraph [55].

8. The tribunal accepted that the first and second named applicants are in a genuine Sunni-Shia inter-sect marriage and having regard to country information, including that provided by the applicants, concluded that: ‘while in some circumstances such marriages may be discouraged by families or their communities, the country advice does not indicate that such unions will automatically result in broader societal disapproval.’[23] 

   [23] Court book at page 445 at paragraph [63].

9. The tribunal also accepted that the applicants’ marriage was an arranged marriage but did not accept that their families were lied to about their respective religious faiths by the match-maker involved in arranging the applicants’ marriage. Therefore, the tribunal did not accept that there was a scene at the applicants’ wedding reception or that the second named applicant was subsequently contacted by a Sunni Mullah and told to divorce the first named applicant. The tribunal did not accept any of the other claims made regarding the wedding, including:

   a)that the first named applicant was abused by the second named applicant’s family,

   b)that the first named applicant was told to divorce the second named applicant;

   c)that the first named applicant was slapped by the second named applicant’s mother; or

   d)that that the second named applicant’s father told him to divorce the first named applicant.[24]

   [24] Court book at page 446 at paragraph [64] to [66].

10. In coming to this view, the tribunal also had regard to the fact that the first applicant had been granted a student visa on 4 December 2012 and both the first and second applicants could then have both come to Australia from that point onwards but they chose to remain in Pakistan for some months.[25]

    [25] Court book at page 447 at paragraph [67].

11. The tribunal did not accept the first and second named applicants were attacked by Sipa-e-Sahaba militants whilst eating ice-creams on

    
    

    1 March 2013 and concluded that this claim was fabricated.[26]

    [26] Court book at page 447 at paragraph [68].

12. The tribunal did not accept that the first and second named applicants were estranged from their families or that they had been threatened, attacked by or had come to the attention of Sunni militant groups such as Sipah-e-Sehaba.[27]

    [27] Court book at page 447 at paragraph [69].

13. The tribunal considered current country information in relation to the security situation in Pakistan in the context of considering whether the applicants faced a real chance of suffering persecution amounting to serious harm as a result of the first named applicant’s Shia faith or as a result of the first and second named applicants being in a Shia-Sunni inter-sect marriage. The tribunal concluded that there was no more than a remote chance of such harm for these reasons now or in the foreseeable future.[28]

    [28] Court book at page 448 to 449 at paragraph [69] to [73].

14. The tribunal then concluded that having regard to the applicants’ claims, individually and cumulatively, they do not have a well-founded fear of persecution as a result of the first named applicant’s Shia religion, their inter-sect marriage or for any other Convention reason or in the case of the third applicant being the Muslim child of a Sunni-Shia inter-sect marriage should they return to Pakistan now or in the reasonably foreseeable future.[29]

    [29] Court book at page 450 at paragraph [75].

15. The tribunal also considered the applicants’ complementary protection claims and concluded that it did not accept that there was a real chance that the applicants will face serious harm from Sunni extremist groups including Sipah-e-Sahaba, ASWJ and/or their sympathisers (such as those Sunni Muslims who follow Wahabi doctrine) due to the first named applicant’s Shia religion, the first and second named applicant’s inter-sect marriage or having children of that marriage.[30]

    [30] Court book at page 450 to 451 at paragraph [76] to [79].

16. The tribunal therefore concluded that the applicants did not meet the requirements for the granting of protection visas.[31]

    [31] Court book at page 451 at paragraph [80] to [82].

Proceedings before this Court

1. The application filed in this Court on 23 January 2017 raises the following three grounds of review:

   1.the tribunal denied me procedural fairness because they didn’t give me a fair hearing;

   2.the tribunal failed to consider all my claims; and

   3.the tribunal didn’t give me an opportunity to comment on an issue that was in dispute.

2. As stated above, consent orders were made on 2 August 2017 which, as well as providing for the application to be listed for a show cause hearing pursuant to rule 44.12 Federal Circuit Court Rules 2001 on

   
   

   21 March 2018, permitted the applicants to file and serve any amended application with proper particulars of the grounds and written submissions 28 days prior to the hearing. 

3. Notwithstanding these orders, the applicants did not file any amended application, nor did they better particularise their application or file any written submissions.

4. Rule 44.12 of the Federal Circuit Court Rules 2001 relevantly provides:

   (1)At a hearing of an application for an order to show cause, the Court may:

   (a)If it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application; or

   (b)If it is satisfied that the application has raised an arguable case for the relief claimed – adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c)Without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

5. At the commencement of the proceedings, I explained to the applicants that this was a ‘show cause’ hearing and that if the applicants did not satisfy the Court that their application had raised an arguable case, that the Court had the power to dismiss the application.

6. Rule 44.13 of the Federal Circuit Court Rules 2001 also relevantly provides:

   (1)At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.

7. As stated above, the applicants represented themselves in the proceedings before this court. The second named applicant made submissions on behalf of all of the applicants. The second named applicant was assisted at the hearing by an interpreter.

8. At the hearing, the first and second named applicants were invited to make any further submissions that they wished to make, in support of their grounds of review. 

9. In summary, the second named applicant’s oral submissions addressed the following points:

   a)the tribunal relied too heavily on country information;

   b)the tribunal did not recognise that there are a lot of things which happen in Pakistan which are not reported in the media or which do not form part of country information;

   c)the tribunal member did not ‘listen’ to the applicants’ version;

   d)some of the inconsistencies between what was in the applicants’ initial application and the further material provided before the tribunal were the result of the fact that the applicants initially did not have representation;

   e)the tribunal did not accept the FIRs provided by the applicants’ as corroboration of one of the incidents they complain of but accepted the applicants had travelled to Australia on passports issued by the Pakistan authorities - the tribunal’s acceptance of one official document by not another showed an inconsistency of approach;

   f)the second applicant indicated that at the tribunal hearing he had not been given an opportunity to talk as he was asked to leave the room for about an hour and a half while the tribunal member spoke to his wife and when he came back in the tribunal member just kept asking about country information; and

   g)not everything that happens in Pakistan is in country information.

Ground One

1. The first ground of review is:

   The Tribunal denied me procedural fairness because they didn’t give me a fair hearing.[32]

   [32] Applicant’s application filed 23 January 2017 at page 4.

2. The applicants have not particularised this ground. As noted by the Minister, absent particulars, there is no arguable case disclosed by this ground. 

3. In any event, when asked about this ground at the hearing before this court, the second applicant on his own behalf and on behalf of the first applicant stated that the tribunal relied too heavily on country information and effectively did not believe the evidence put by the applicants. 

4. As noted in, NAHI v Minister for Immigration & Multicultural & Indigenous Affairs:

   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 may be used to assess the credibility of a claim of a well-founded fear of persecution. 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.[33]

   [33] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at paragraph [11].

1. The further comments at paragraph 12 in NAHI are equally apt in this case. There the Court said:

   The appellant’s submissions asserted that the Tribunal rejected all of the appellants’ claims on the basis of ‘country information’. The Tribunal’s reasons for decision do not substantiate this assertion. It is plain that the Tribunal relied to a substantial extent on the inherent improbability of some aspects of the first appellant’s story, inconsistencies between different parts of his story, and (other factors) … to form its views about his credibility. …[34]

   [34] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at paragraph [12].

2. Similarly, here, the applicants who were represented in the proceedings before the tribunal, submitted a range of information, including lengthy written submissions and attended a hearing, during which time they had an opportunity to address the concerns raised by the tribunal member. 

3. To the extent that, the second applicant complained that the tribunal excluded him from a significant part of the hearing, I note that even accepting his statement that the tribunal had spent an hour and a half speaking to the first applicant alone, it is apparent from the hearing record that the hearing lasted for over three hours. This means the second applicant still had an hour and half to put his views to the tribunal.

4. In addition, as noted in the first respondent’s written submissions, in the proceedings before the delegate, the delegate accepted the first applicant’s description of an incident which allegedly occurred in 2008. The tribunal took a different view about this incident and formed the view that the first applicant had fabricated this claim. This was the subject of discussions with the first applicant at the hearing as is evident from paragraphs 19 and 51 of the tribunal’s decision record.[35]

   [35] Paragraphs [19] to [51] of the tribunal’s decision record in the court book at page 470 to 478.

5. In his oral submissions before the court, the second applicant also raised concerns about the fact that the tribunal did not accept the authenticity of certain documents that had been provided by the applicants in support of their version of an incident (FIRs) on the basis of concerns about wide scale fraudulent documentation in Pakistan, whereas, the tribunal accepted his passport as valid and did not consider this to be fraudulent.[36] It is evident from the tribunal’s decision record that this was a matter which the applicants raised before the tribunal itself during the course of the hearing.

   [36] Transcript at page 22 at lines 43 to 47.

6. Ground one does not disclose an arguable case of jurisdictional error. It does little more than invite the court to undertake impermissible merits review.

Ground Two

1. The second ground of review is:

   The Tribunal failed to consider all my claims.[37]

   [37] Applicant’s application filed 23 January 2017 at page 4.

2. As with ground one, the applicants have not provided any particulars of this ground. There is some force to the primary submission on behalf of the first respondent that absent any particulars, this ground must fail to disclose an arguable case.

3. Moreover, it is evident from the tribunal’s decision record which is summarised above, that the tribunal considered all of the claims made by each of the applicants. Ultimately, as is evident from the tribunal’s comprehensive reasons, it simply did not accept much of the evidence advanced by the applicants and concluded that a number of the incidents put forward were either fabricated or embellished. These are findings of fact which were open to the tribunal on the basis of the material before it.

4. For these reasons, ground two does not raise an arguable case of jurisdictional error.

Ground Three

1. The third ground of review is:

   The Tribunal didn’t give me an opportunity to comment on an issue that was in dispute.[38]

   [38] Applicant’s application filed 23 January 2017 at page 4.

2. Again this ground fails to identify the issue in respect of which the applicants say they should have been given an opportunity to comment. Moreover, for the reasons discussed above, it is evident and I find that the tribunal did provide the applicants with an opportunity to comment on all relevant matters and the tribunal’s conclusions were reasonably open to it on the basis of the material before it.

3. Ground three does not raise an arguable case of jurisdictional error.

Considerations and Conclusion

1. As noted by Judge Whelan in, MZAJQ v Minister for Immigration and Border Protection [2015] FCCA 593 at paragraph 13 and Judge Smith in, SZUTB v Minister for Immigration and Border Protection and Anor [2015] FCCA 1383 at paragraph 10, the Court’s power under rule 44.12(1)(a) Federal Circuit Court Rules 2001 is in the form of summary dismissal. Moreover, such a power ought to be exercised with caution.

2. As noted by French CJ and Gummow J in, Spencer v Commonwealth at paragraph 24:

   The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. …

   More recently in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow , Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following …:

   [57] … Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way (emphasis added). [39]

   [39] Spencer v Commonwealth [2010] HCA 28; 241 CLR 118; 84 ALJR 612; 269 ALR 233 at paragraph [24].

3. Even where the court is satisfied that there is no arguable case, it still must consider whether to exercise its residual discretion as to whether or not to dismiss the application.[40]

   [40] Siddique v Minister for Immigration and Border Protection [2014] FCA 1352; 144 ALD 328 at paragraph [19].

4. I have had regard to the fact that:

   a)although the applicants represented themselves before this court, they did have the opportunity to amend their application and file written submissions, but chose not to do so; and

   b)as noted in SZUTB:

   …the objects of the (Federal Circuit Court Rules)  include that they are to help the Court to use streamlined processes and that the parties must, in order to assist the Court, avoid undue delay, expense and technicality  (and)… this Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.[41]

   [41] SZUTB v Minister for Immigration and Border Protection and Anor [2015] FCCA 1383 at paragraph [18].

5. These factors, together with the findings I have made regarding the absence of an arguable case, arising from the applicant’s grounds of review, lead me to conclude that it is appropriate in this case to exercise the Court’s discretion and dismiss the applicants’ application.

6. I therefore find that this application ought to be dismissed under r.44.12(1)(a) Federal Circuit Court Rules 2001 and that the applicants pay the first respondents costs in a sum to be fixed.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate: 

Date:  20 July 2018