Ame15 v Minister for Immigration
[2015] FCCA 3082
•19 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AME15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3082 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – status – refugee status – refusal – no jurisdictional error – application dismissed – applicant pay the respondent’s costs. |
| Legislation: Migration Act 1958 (Cth) |
| Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 Hinton v Minister for Immigration and Border Protection [2015] FCA 408 Minister for Immigration and Citizenship v SZNPG and Another [2010] FCAFC 51 Minister for Immigration and Citizenship v SZNVW and Another [2010] FCAFC 41 Zheng v Minister for Immigration and Border Protection [2015] FCA 597 ABT15 v Minister for Immigration & Anor [2015] FCCA 1051 Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145 Minister for Immigration and Border Protection v SZSRZ & Anor (2014) 209 ALR 67 Minister for Immigration and Border Protection v SZRKT (2013) 302 ALR 572 MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133. AZAFM v Minister for Immigration and Border Protection & Another [2015] FCCA 2831 Chava v Minister for Immigration and Border Protection & Anor (2014) 141 ALD 433 |
| Applicant: | AME15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 318 of 2015 |
| Judgment of: | Judge Vasta |
| Hearing date: | 3 November 2015 |
| Date of Last Submission: | 3 November 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 19 November 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Colditz |
| Solicitors for the Applicant: | Holding Redlich |
| Counsel for the Respondents: | Ms Wheatley |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the Second Respondent be amended to “Administrative Appeals Tribunal”.
The Amended Application filed by leave on 3 November 2015 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the proceedings fixed in the sum of $6,825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 318 of 2015
| AME15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By Application dated 16 April 2015 and by Amended Application to be filed by the Applicant, the Applicant seeks judicial review of a decision of the then Refugee Review Tribunal in affirming the decision of the delegate of the Minister to refuse to issue the Applicant a protection Visa.
History
The Applicant is 27 years old and is a single man from Pakistan. He arrived in Australia on 31 March 2013 on a business Visa. That Visa was granted on 25 January 2013 and was valid until 30 June 2013. The applicant had previously travelled to Singapore, Malaysia and Germany in 2009 and 2011 for business. He has given evidence that he is a marketing officer for an export sports good business that he ran with his father and brother in Pakistan.
The Applicant claimed that his father was a Sunni Muslim but when he married his mother who was Shia Muslim, the father then adopted the Shia religion. The Applicant says as a result his paternal side of the family have not been happy with his family.
He has given evidence that on 26 September 2010, there was a religious fight between two groups in the Applicant’s village. A member of the Sunni Muslims was the Applicant’s cousin, Waris. One of the Shia Muslims was killed in that violence. On 20 February 2011, the Applicant and his brother were attacked and insulted by that same cousin and two others for being Shia Muslim. He claims that he and his brother were taken to the hospital and admitted for a week.
On 18 April 2012 at 11:30 PM, Waris (the cousin) and other Sunnis fired at the home of the Applicant and made threats to him. The Applicant says that as a result of this, the business began to suffer as he and the family could not concentrate. The Applicant said that he made complaints about these matters.
As revenge for having made these complaints, the cousin and other persons involved, registered a false case against the Applicant on 10 January 2013. That was a complaint that the Applicant had insulted the religion; that is, that the Applicant had committed blasphemy.
A few days prior to this incident the Applicant had lodged his application for a Visa to come to Australia for business but he claims that he knew at that time that his safety was in danger. He claimed that as a result of the fake blasphemy case, he went to a neighbouring village where his sister lived. On 28 January 2013, due to information from relatives, the cousin found out where the Applicant was, which caused the Applicant to leave that village. He then went to his uncle- in-law’s house.
The Applicant claims that his cousin then took revenge on his family and involved his brother in a fake robbery case in March 2013. His father was able to get the brother’s release on bail.
The Applicant says that whilst there are many other Shia Muslims who have been suffering, he has been personally targeted by his cousin and another person named Ahmed. The Applicant claims these men are dangerous and that they can come after him wherever he is in Pakistan.
The Applicant claims that since his arrival in Australia, his family in Pakistan have suffered physical violence and have been forced to move because of this persecution. His brother arrived in Australia in June 2013 and sought “asylum”. It appears that the brother was granted a protection Visa on 17 September 2014.
The Applicant applied for a protection Visa on 4 June 2013. The delegate of the Minister refused to grant such a Visa on 27 February 2014. The Applicant lodged an application for review before the then Refugee Review Tribunal on 13 March 2014 and the Tribunal heard the Applicant’s matter on 11 March 2015.
The Applicant made submissions to the Tribunal before the hearing and his representative made a post hearing submission as well. On 20 March 2015, the Tribunal affirmed the decision of the delegate.
This Application
Upon the undertaking of Counsel for the Applicant to file the Amended Application, the hearing before me proceeded upon that Amended Application.
There are two grounds of the application, though the second ground has three facets to it. I will deal with these seriatim.
Ground One
Ground One of the application is that:
“1. The tribunal’s (sic) decision not to accede to the applicant’s request to make a post-hearing submission and exercise its discretion to adjourn was, in the circumstances, unreasonable in the law.”
This ground is predicated upon an acceptance that there was an application made by the Applicant to adjourn the proceedings. The Applicant argues that such an application can be inferred by what was said at the Tribunal hearing.
There was no agreement between Counsel for the Applicant and Counsel for the Respondent as to a transcript of the Tribunal hearing. A recording of that hearing was instead tendered in evidence. I have listened to that part of the hearing and can, fairly easily, make out what is happening. Whilst the transcript is not completely accurate, for the purposes of determining this ground, it is adequate.
Towards the end of the hearing the following exchange occurred:-
“Interpreter: He said, if there was no real threat to me, why would I leave my business? I was going out, I was working hard on my business, there was no need for me to leave my business to…stop doing any business.
Tribunal: Mmm hmm. Okay.
Is that it? I don’t think there’s anything else.
Mr Naiker, do you have anything you want to say or need to cover?
Mr Naiker: Nothing, but I think just…there’s a bit of confusion about this you know where do you go to get a copy of the FIR, and apparently it seems to sit within the court structure rather than directly to the police station as we might do it here but obviously I’m not familiar with that and maybe that’s something I can do a bit of research and make a submission on the proper process if that is required.
I don’t know if the DFAT report goes into those things.
Tribunal: No [indistinct]
Mr Naiker: There’s a bit of confusion about that.
Tribunal: There’s quite a bit of information about FIRs.
Mr Naiker: Yeah I mean there’s not like [*] but things like that but what is the actual procedure of getting a copy. I don’t know whether…
Tribunal: Well certainly if you make a complaint you should get a copy.
Mr Naiker: Mmm.
Tribunal: Centre for Peace Development Initiatives, Pakistan. First Information Report, a guide for citizens. What else have I got.
This seems to be the main source.
Mr Naiker: Where is the Peace Development report?
[indecipherable conversation]
Tribunal: Yeah it’s at cpdi-pakistan.org is the main…but if you just google FIR, Pakistan actually comes up.
Okay, alright, well, look, Mr X (name omitted) what happens now is I’ll go away and think about it and write a decision.
…”
Having listened to that passage, I am in no way convinced that the agent was asking for an adjournment. At most the agent was asking whether there would be any assistance to the Tribunal if he were to do his own research and make a submission on the proper process involved in an FIR.
Whilst it is true that the Tribunal said that they had sufficient information already, in no way, shape or form did the Tribunal refuse such a request.
This is blatantly obvious when the Court book shows (on page 24 and following) that the migration agent did send a post hearing submission to the Tribunal on that very topic. At paragraph 47 of its reasons, the tribunal acknowledged the following:-
“In post hearing submissions, the agent provided country information about FIRs. The agents submitted a copy of the FIR may be obtained by proxy with bribery money paid. The tribunal has considered the information and accepts that copies of FIRs may be obtained by bribery.”
Not only has the Tribunal allowed a post hearing submission to be made, it has actually accepted the information submitted to it.
The complaint made now by the Applicant is that such a submission was not the submission that the Applicant wished to make.
In his affidavit, the Applicant annexes a letter from a Pakistani barrister which he claims confirms the authenticity of the FIR documents that the Applicant put before the Tribunal. Such letter is dated 15 April 2015, which is nearly 4 weeks after the Tribunal gave its decision. It is this information that the Applicant says that he wished to place before the Tribunal but could not because the adjournment was not granted.
To accept this submission of the Applicant would require a torturing of the evidence. What is clear is that the agent mentioned nothing about providing further evidence on the actual FIR documents before the Tribunal other than information as to how such documents are created. It was this information that was contained in the post hearing submission. Nowhere in the post-hearing submission was there a request to postpone judgment until further information about the actual FIR documents before the Tribunal could be obtained and presented to the Tribunal.
To my mind, the Applicant is simply seeking to put new evidence before the Tribunal. This is simply not allowed in a judicial review. The Applicant knows this and has deliberately attempted to put a gloss on the relevant passage in the hearing to justify the reception of new evidence. The gloss that the Applicant is attempting to put on that passage simply cannot be made.
I am of the view that there was no adjournment sought by the Applicant or his agent. There was nothing unreasonable in what the Tribunal did. Ground one must necessarily fail.
Ground 2(a)
This ground reads
“2.the tribunal entered into jurisdictional error by:
(a) omitting to take into account a relevant consideration, being the decision record of the applicant’s brother, Mr Nadeem Akhtar.”
This ground arises because of a document given to the Tribunal pre-hearing by the Applicant. The document is reproduced at page 48 of the court book. It reads:
“I, (Name omitted) (Omitted) give my full consent to the Refugee Review Tribunal (RRT) to look into my brother (Name omitted) (DOB Omitted) RRT file 1319438 and verify details and consistency of statements. The RRT made a decision to remit his case on 1 July 2014 and DIBP granted his 866 visa on 17 September 2014.”
Such a matter was not mentioned at all during the hearing before the Tribunal. At first glance, it appears to be a document by the Applicant consenting to the Tribunal looking at the file of his brother. Obviously, the full file of any Applicant before the Tribunal is not open to public scrutiny. All that the public can access is the reasons of the Tribunal where the name of the Applicant has been de-identified and any matters within the judgment that could lead to the identification of the Applicant have been removed.
It is trite to say that the Applicant cannot consent to the Tribunal looking at his brother’s file; it is the brother who must consent to the Tribunal looking at his file. On its face therefore, such a document is useless. As noted before neither the document or its contents were raised at all in the hearing. It is obvious that the Tribunal did have a note of the document because the dates given in paragraph 14 of the Tribunal’s reasons must have come from that document.
What is urged upon me by the Applicant is that the Tribunal should have, of its own volition, sought out the reasons of the Tribunal that had looked at the case of the Applicant’s brother. The Applicant submits that such reasons are easily accessible, and are accessible by the general public.
Of course, such a submission does not explain why the Applicant himself or through his agent did not provide a copy to the Tribunal. It does not explain why there was no mention of what the other Tribunal had found in relation to the brother before this present Tribunal. The only inference that can be drawn is that the Applicant deliberately chose not to put those reasons before the Tribunal.
It is therefore difficult to interpret the document as being a request for the Tribunal to look at the reasons of another Tribunal looking at the case of the Applicant’s brother. On that aspect of the ground, there is no substance or merit.
However, the argument for the Applicant goes further. Even if there were no request by the Applicant (which I think is the proper construction of what has occurred here), the Tribunal was obliged to, of its own volition, seek out information regarding the brother once the Tribunal had been told that the brother had been successful in obtaining a protection Visa.
It is said that such an obligation was found to exist in AZAFM v Minister for Immigration and Border Protection & Another [2015] FCCA 2831. In that case an Applicant for a protection Visa complained that the Tribunal did not make an obvious and critical enquiry about the successful applications made by the mother and sister of that Applicant.
At paragraphs 15, 16, 21 and 22 of that judgment, Her Honour Judge Harland said this:
“15. That applicant argues that the Tribunal was constructively aware of the applicant’s mother’s and sister’s successful refugee claims and should have made the obvious and critical enquiry into this. In the unusual circumstances of this case, this submission has merit. The Tribunal decision itself refers to his family so it is an enquiry that could have and should have made.(sic)
16. The respondent argues that the applicant had the opportunity to bring his mother and sister to the Tribunal hearing to give evidence but chose not to do so. This would be true if he was receiving competent advice from his migration agents. It is apparent form (sic) the evidence filed that this is not what occurred in this case. The Tribunal process is inquisitorial not adversarial. There can be potentially serious consequences for an unsuccessful applicant for a protection visa…
21. In the circumstances of this case it would have not been futile to make the enquiry because of the similarity of circumstances of the applicant’s mother and sister. This could have made a critical difference to the outcome of the Tribunal’s decision. It is also clear that the information would have been easily obtainable by the Tribunal so as not to be an onerous enquiry.
22. I am satisfied that the failure to make the critical enquiry in the circumstances amounts to a jurisdictional error.”
The Applicant contends that the reasons of the other Tribunal in the brother’s case afford corroborative evidence as to the claims of the Applicant. The Applicant contends that it was incumbent upon the Tribunal to have looked at the decision in his brother’s case for that reason.
Such a submission means that a Tribunal will be forced to look for matters, of its own accord, that would, or might, assist an Applicant in the presentation of their case. I do have some problems with the reasoning in AZAFM v MIBP & Anor (Supra) as it does not seem to accord with many of the other authorities to which my attention has been drawn, but that is of little consequence.
I have been referred to the following authorities:
a)Chava v Minister for Immigration and Border Protection & Anor (2014) 141 ALD 433;
b)Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377;
c)Hinton v Minister for Immigration and Border Protection [2015] FCA 408;
d)Minister for Immigration and Citizenship v SZNPG and Another [2010] FCAFC 51;
e)Minister for Immigration and Citizenship v SZNVW and Another [2010] FCAFC 41;
f)Zheng v Minister for Immigration and Border Protection [2015] FCA 597;
g)ABT15 v Minister for Immigration & Anor [2015] FCCA 1051;
h)Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145;
i)Minister for Immigration and Border Protection v SZSRZ & Anor (2014) 209 ALR 67;
j)Minister for Immigration and Border Protection v SZRKT (2013) 302 ALR 572;
k)MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133.
The state of the law is, in my view, encapsulated in paragraphs 26, 27 and 28 of Minister for Immigration and Border Protection v SZRTF (Supra) where Katzmann J said:
“26. As the plurality emphasised in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 (“SZIAI”) at [25], the tribunal’s duty is to review the Minister’s decision. To that end it may seek further information it considers relevant, including by inviting a person to give additional information (s 424). It may require the Secretary to arrange for an investigation or a medical examination (s 427). Generally speaking, however, it has not duty to do either: See, too, Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (“SZGUR”) at [22] (French CJ and Kiefel J).
27. In SZIAI the plurality went on to observe (at[25]):
It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to a jurisdictional error by a constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as a jurisdictional error.
(Footnote omitted.)
28. These somewhat cautious remarks indicate that the circumstances in which a duty will arise and jurisdictional error will result from a failure to discharge it, are likely to be “rare and exceptional” (Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 (“Le”) at [60] per Kenny J).”
I do not see that the present matter is a “rare and exceptional” case. There is no explanation as to why it is that the Applicant himself deliberately did not put those reasons before the present Tribunal.
The decision itself is a matter where another Tribunal came to a conclusion based on material before it. It does not provide any corroborative evidence at all. The reasons of that Tribunal do not have the devastating effect that the Applicant contends they do. They may have some persuasive affect, however, if the present Tribunal had relied heavily upon what a previous Tribunal had found, the present Tribunal would have been derelict in its duty in that it was not undertaking the task that it was supposed to; that is, ascertaining the facts before it.
The Tribunal was certainly cognisant of the fact that the brother had successfully obtained a protection Visa. At paragraph 57 of its reasons, the tribunal said
“The tribunal accepts his brother has been granted protection in Australia, but it does not accept that raises the applicant’s risk of harm upon return. The tribunal is not satisfied that the applicant has any particular profile which may increase his risk of harm upon return…”
When one looks at the nature of the reasons of the other Tribunal and the manner in which this Tribunal has dealt with the aspect of the brother’s successful application (notwithstanding that the Tribunal did not have, or read, the reasons of that other Tribunal) it cannot be said that this is a “rare and exceptional” case such that the failure of the Tribunal to enquire of its own volition as to those reasons has infected its decision with jurisdictional error.
Therefore this ground fails.
Ground 2(b)
This ground reads:
“2.The tribunal entered into jurisdictional error by:
…
(b)omitting to take into account a relevant consideration, being passages of the country information documents before the tribunal about “FIRs” in Pakistan, which omission was material because it caused the tribunal to have an erroneous understanding of country information about FIRs in Pakistan…”
There was much discussion about the nature of the FIR documents before the Tribunal. The Applicant maintains that the documents were genuine. For the reasons given in paragraphs 38 to 52 of the Tribunal’s decision, the Tribunal did not accept that the documents were genuine.
On the face of it, this ground seems to really be asking this Court to engage in an impermissible merits review. The Applicant submits that the aspect of these documents and their genuineness were integral to the finding that the Applicant lacked credibility. However, if the Tribunal was incorrect and the documents were genuine, the Applicant submits that such an error by the Tribunal must be taken to have had a discernible effect on the Tribunal’s jurisdiction warranting judicial review.
The Applicant relies upon an examination of the country information used by the Tribunal to come to the conclusion that the FIR documents must be created in a certain way. The criticism of that approach is that the country information is not clear as to the manner of creation.
The problem in the Applicant’s submission is that it is not just the form of the documents that has caused the Tribunal to reject the authenticity of the documents. It is all the competing circumstances. The best example of this is the FIR document alleged to have been created in the wake of the assault on 20 February 2012. The Applicant contends that he was hospitalised for a week and yet the FIR is dated 2 days after the alleged assault. It purports to have been taken at the police station and makes no mention of the hospitalisation of the Applicant.
Such internal inconsistencies have nothing to do with the form of document. Therefore, even accepting everything that the Applicant has submitted about the country information, it is still of little wonder that the Tribunal came to the finding about these documents that it did.
In those circumstances, this ground descends into nothing more than a merits review. Accordingly, this ground fails.
Ground 2(c)
This ground reads:
“2.The tribunal entered into jurisdictional error by:
…
(c) omitting to take into account a relevant consideration, being the evidence material to the tribunal’s decision that the complainant’s handwritten signatures appear on the “FIR” documents provided by the applicant.”
The submission follows from a comment by the Tribunal that the complainants have not signed the FIR document. The Applicant submits that this particular finding was a contributing factor to the Tribunal not accepting the authenticity of those documents. The Applicant points out that the proper English translation of the documents (which was before the Tribunal) is clear that the complainants had, indeed, signed the documents.
The Applicant contends that such a finding was such an error by the Tribunal that it must be taken to have had a discernible effect on the Tribunal’s jurisdiction and therefore warrants judicial review. The submission also is that the Tribunal has therefore only considered part of the document and should consider the whole document. In only considering part of the document (because it missed the part where the English translation said that the complaint had been signed), there has been a jurisdictional error is the submission of the Applicant.
When one looks at the reasoning of the Tribunal, the purported lack of signature is but one matter that has caused the Tribunal to doubt that the documents are genuine. The finding by the Tribunal was because of many circumstances and not just the form of the documents.
The submission that the Tribunal did not consider the whole document must also fail. It is obvious that in the recitation of the facts that the contents of the document were noted because it is upon those contents, juxtaposed with the other circumstances, which the Tribunal has come to its findings.
For those reasons, this ground must also fail.
What if the Tribunal had made factual errors?
As I have detailed in these reasons, it is my view that many of the grounds raised by the Applicant are merely an impermissible merits review. A jurisdictional error could still occur if the impugned “findings” left the evidence in such a state that no decision maker could be satisfied that the Applicant did not meet the convention criterion or the complementary protection criterion. The question would then have to be asked as to whether there would there be sufficient evidence upon which the finding of the Tribunal would nevertheless have been open? Though this was not an explicit ground of the application, it was hinted at sufficiently during the argument that I felt that it should be addressed.
In my view, it would have been open to the Tribunal to still be satisfied that the Applicant did not fulfil the convention criterion or the complementary protection criterion. This is because, on any view of the facts, the Applicant had valid visas to Australia and Holland as at the end of January 2013. There was no explanation as to why the Applicant delayed his departure from Pakistan if he were living in fear or in hiding. The fact that he was able to work in his business for 2 months after the “fake blasphemy charge” had been made, is sufficient for the Tribunal to find that, not only was the Applicant not in fear or in hiding but, if returned to Pakistan, he would not face serious harm.
So, whilst I do not find that there has been any error on the part of the Tribunal, I am of the view if there had been any factual errors made by the Tribunal in its assessment of the Applicant’s case, they would not amount to a jurisdictional error.
Conclusion
I have carefully considered all the grounds of this application and also considered a corollary of those grounds. I am not persuaded that there is any jurisdictional error in the decision of the Tribunal. I dismiss the application and order that the Applicant pay the costs of the First Respondent fixed in the sum of $6,825.00.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date:19 November 2015
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