AMG16 v Minister for Immigration

[2019] FCCA 1283

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMG16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1283

Catchwords:
MIGRATION – Application for judicial review of decision by the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether Tribunal considered applicant’s claims – whether there were any translation errors – whether failure to disclose s.438 certificate deprived applicant of chance of different outcome – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.438

Cases cited:
BEG15 v Minister for Immigration and Border Protection and Anor [2017] FCAFC 198
Minister for Immigration and Border Protection v BJN16 and Anor [2017] FCAFC 197
Minister for Immigration and Border Protection v CQZ15 and Anor [2017] FCAFC 194
Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3

Applicant: AMG16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 495 of 2016

Judgment of: Judge Manousaridis

Hearing date: 11 May 2018

Date of Last Submission: 11 May 2018

Delivered at: Sydney

Delivered on: 17 May 2019

REPRESENTATION

Applicant, in person, assisted by an interpreter.

Solicitors for the Respondents: Mr A Day of DLA Piper

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 495 of 2016

AMG16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Pakistan, seeks judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (protection visa).

2. The applicant arrived in Australia on 17 March 2013 on a visitor visa, and he applied for a protection visa on 11 June 2013.

Claims for protection

1. In a written statement accompanying his application for protection, the applicant claimed as follows:[1]

   a)The applicant was employed as a salesperson with an international travel agency in Islamabad. The applicant had worked with this company from 2000 to just before he left Pakistan.

   b)The applicant dealt with “all sorts” of clients, including those who wanted to go to Saudi Arabia to complete their pilgrimage. Among them were also some fundamentalists.

   c)The applicant was threatened by these fundamentalists once the company was “in trouble”. Some people did not get tickets and started threatening “us”. They said they could do anything if they did not get a refund.

   d)The travel agency was declared bankrupt in 2013 and IATA (which I assume is a reference to the International Air Transport Association) terminated the agency’s “Passenger Sales Agency Agreement”. This made the applicant realise his life was under threat in Pakistan and that he could be killed if he continued living there.

   e)The Pakistani authorities were also against the company as a result of the outcry of the public.

   f)The applicant could not report these threats to the police because the police were “with the public” and could not guarantee the safety of the employees. The “fundamentalists were conveying the messages that they were very powerful & could have us killed if any one of the employees were found anywhere”. Further, “[t]hey were threatening to have our children killed if the money was not refunded”.

   [1] CB51-52

2. The applicant supported his claims by providing what purport to be four emails from customers who had lost their money (purported emails).[2]

   [2] CB87-92

3. Before the delegate, the applicant said about 30 customers sought refunds, but three or four of them had threatened his life and were looking for him. The applicant said he suspected these were fundamentalists because of their appearance. The applicant said that threats started with phone calls demanding the return of money; threats were made against the applicant and his family; in mid-December 2012 one of the customers, Mr K, came to the office with ten armed men demanding refunds and threatening to kill unless they were refunded the money; and in January 2013 the customers visited the applicant’s home when he was not there. At that point the applicant feared for his life.[3]

   [3] CB193, [7]

Tribunal’s reasons

1. The Tribunal accepted the applicant is a Sunni Muslim, is married with three children, and he worked as an office assistant in Islamabad from about 1993 to 2000, and, from 2000 to 2012, as a sales assistant in a travel agency in Islamabad.[4] The Tribunal also was prepared to accept with varying degrees of satisfaction that, as an employee of the travel agency, the applicant  was involved in selling Haj packages to two men in 2012 who were arranging the travel of 35 people; that at the relevant period the travel agency was in financial distress, as a consequence of which the customers for whom the applicant had booked Haj tickets lost their money and did not travel to Saudi Arabia; that the customers’ travel arrangements had collapsed by 5 October 2012; that the applicant was the person to whom the customers vented their concerns about having lost their money; and the aggrieved customers threatened the applicant  in an attempt to make sure the applicant did everything he could to ensure their money was returned.

   [4] CB201, [53]

2. The Tribunal, however, did not accept that at the time the applicant left Pakistan in March 2013 the customers who had lost their Haj tickets had an active adverse interest in him; or that those persons blamed the applicant for their losses; or that those customers threatened to cause the applicant or his family serious harm; or that they took steps to carry out any threats against or to inflict harm on the applicant or his family.[5] The Tribunal relied on the following matters:

   a)The two men whom the applicant claimed had become hostile to him had become so in December 2012, two months after they realised they were not travelling to Saudi Arabia. That, on one view, indicated to the Tribunal that the men did not hold the applicant responsible.[6]

   b)It might be considered reasonable to assume that the customers would have contacted the authorities and lodged a formal complaint after they became aware they had lost their money, and that there would have been some investigation. The applicant, however, did not refer to any such incidents occurring, or to the applicant being questioned by the police or by an investigator.[7]

   c)The applicant’s evidence about the threats he claimed to have received, his response to those threats, and the events that occurred between December 2012 and mid-March 2013 was “vague, confused and inconsistent, and his claims about what took place were difficult to understand and, on one view, implausible”.[8] Here the Tribunal referred to the applicant having given inconsistent evidence about his last address in Pakistan;[9] about when he realised he was in danger;[10] and about the threats that were made against him.[11]

   d)The Tribunal found it difficult to understand why if, as he claimed, the applicant was threatened by people he believed were fundamentalists and connected with the Taliban, the applicant remained in the country for about three months, despite having a valid passport and visa to enter the European Union and Australia.[12]

   e)The applicant did not claim he was in fact harmed. If, as the applicant claimed, the persons who had threatened him were fundamentalists or extremists or connected with the Taliban, they had ample opportunity to carry out their threats.[13]

   f)The Tribunal was not prepared to accept the purported emails were genuine. The Tribunal relied on their being in English when all the communications in Pakistan were in Urdu; and one of the emails is dated 3 July 2013 and contains assertions that contradict the applicant’s evidence.[14]

   [5] CB206, [73]

   [6] CB203, [60]

   [7] CB203, [61]

   [8] CB203, [62]

   [9] CB203-204, [63]

   [10] CB204, [64]

   [11] CB204, [65]

   [12] CB204-205, [66], [67]

   [13] CB205, [68]

   [14] CB206, [71], [72]

3. The Tribunal found that the travel agency recommenced business which, in turn, suggests that any person with any past grievances with the travel agency would have been able to agitate those matters with the travel agency, and confirmed, in the Tribunal’s mind, that the chance of adverse action being taken against the applicant is remote and not real.[15]

   [15] CB207, [75]

4. For these reasons, the Tribunal was not satisfied that, if returned to Pakistan, the applicant would face a real chance of suffering serious harm for a Convention reason, and found there are no substantial grounds for believing that, as a necessary and foreseeable consequence of his returning to Pakistan the applicant will suffer significant harm from aggrieved customers of the travel agency.

Grounds of application and course of judicial review hearing

1. The application contains the following grounds of application (errors in original):

   1.The Tribunal made a jurisdictional error in assessing the credibility of the applicant. In finding fact on the credibility of the applicant, the Tribunal erred by taking into consideration irrelevant facts and not taking into account relevant facts.

   2.The Tribunal’s conclusion that the applicant did not have a well-founded fear of persecution in Pakistan was illogical or irrational, manifested a misunderstanding or misconstruction of the Convention test or arose out of a failure to take relevant information into account.

   3.The applicant was not afforded natural justice. The applicant believes that he was not afforded a fair hearing. The Honourable Member’s judgment was clouded by his own pre-conceived beliefs whether the applicant was a credible witness or not and whether the applicant’s evidence was genuine or mere fabrication, notions as to what constituted ‘fear’. In doing so, the Honourable Member allowed his view to prevail over the applicant, taking the power vested in him to come to conclusions which are detrimental to the rights of the applicant not guaranteeing procedural fairness. The applicant feels unheard, and justice not available.

2. At the hearing before me the applicant, who is not legally represented, claimed he had difficulty with the interpreter at the hearing before the Tribunal. The applicant initially said to me that he “wasn’t understanding” the interpreter “properly”. Later the applicant said he was understanding the interpreter “but when I was replying, I was applying with mixed language with Punjabi and Urdu so he wasn’t understanding what I’m saying”.[16] I drew the applicant’s attention to the “Response to hearing invitation” that had been completed before the applicant gave evidence to the Tribunal, where it was stated that an interpreter speaking the Urdu language was required.[17] The applicant said that his representative completed that document and “maybe he make a mistake”.[18] At the hearing before me the applicant was assisted by an interpreted who spoke Urdu, and the applicant confirmed he could understand the Urdu interpreter, and the Urdu interpreter was understanding the applicant.[19] The applicant also confirmed to me that at the hearing before the Tribunal his representative was present, and that his representative also spoke Urdu, and his representative advised the applicant to speak Urdu so that the interpreter could understand the applicant.[20]

   [16] T9.35

   [17] CB169

   [18] T9.45

   [19] T10.15

   [20] T11.5

3. A transcript of the hearing before the Tribunal was not in evidence at the hearing before me. At the end of the hearing I made directions requiring the Minister to provide to the applicant an audio recording of the hearing before the Tribunal, and I then directed the applicant to file and serve an affidavit annexing a transcript of the hearing before the Tribunal by 15 June 2018. On 15 June 2018 I extended to 28 June 2018 the time by which the applicant could file an affidavit attaching the transcript; and on 28 June 2018 I extended the time to 18 July 2018. The applicant, however, has not filed an affidavit annexing any transcript.

4. After the applicant made submissions in relation to the interpreter, I arranged to have the three grounds of application interpreted to the applicant, and invited the applicant to make submissions in relation to each of the grounds. In addition, the Minister brought to my attention the existence of a certificate that had been issued purportedly under s.438 of the Migration Act 1958 (Cth) but which the Tribunal had not disclosed to the applicant (438 certificate). I explained to the applicant the reason why the Minister had brought up the existence of the certificate. Finally, in his submissions in reply, the applicant submitted that it would have been very hard for the travel agency to have recommenced business.

5. In the remainder of these reasons, I will consider each of the grounds stated in the application, the applicant’s claims in relation to the interpreter, and the Minister’s submissions in relation to the 438 certificate.

Ground 1

1. This ground does not identify the irrelevant facts it is claimed the Tribunal took into account or the relevant facts the Tribunal failed to take into account. As stated, therefore, ground 1 discloses no jurisdictional error.

2. In relation to this ground, the applicant submitted to me that the Tribunal did not believe him; the Tribunal said it was the applicant’s personal problem regarding money, the Tribunal did not listen to the applicant, and the Tribunal did not trust him. To the extent the applicant intended to submit the Tribunal did not consider his case with an open mind, such submission cannot be made out. The Tribunal set out the applicant’s claims, asked the applicant questions about his claims, considered the claims and evidence, and, for reasons that were reasonably open to it, concluded it could not accept central aspects of the applicant’s claims. The applicant’s submissions before me otherwise go no further than expressing disagreement with the Tribunal’s not believing critical aspects of the applicant’s claims and, therefore, disclose no jurisdictional error.

Ground 2

1. Ground 2 does not identify the reason or reason it is claimed the Tribunal’s findings were illogical or irrational. As stated, therefore, ground 2 discloses no jurisdictional error.

2. Before me the applicant stated that when the travel agency went into default the people who were unable to perform the Hajj and Umrah held the applicant responsible because he was the person doing the air ticketing, and he was receiving calls from unknown numbers. This submission relates only to merits of the applicant’s claims for protection and, for that reason, does not disclose any jurisdictional error.

Ground 3

1. The ground, in effect, states the Tribunal did not approach the applicant’s case with an open mind. That claim cannot be established. As I have already concluded, the Tribunal set out the applicant’s claims, asked the applicant questions about his claims, considered the claims and evidence, and, for reasons that were reasonably open to it, concluded it could not accept central aspects of the applicant’s claims.

Interpretation issues

1. At the hearing before me, I asked the applicant whether he could recall any evidence he gave to the Tribunal which he believed was misinterpreted. The applicant said the Tribunal asked him a question about the travel agency, and the Tribunal said it was active on Google. The applicant said he told the Tribunal that it could get a phone number from Google and “you can check whether . . . it’s active or not and I have asked one of my friend [sic] and they told me the owner of the agency have left the country so it’s not active”.[21] When I asked the applicant whether that had anything to do with the poor interpretation before the Tribunal the applicant said:

   So when I read the paper and the judge have, I mean, give a reason there that she – she is not satisfied with my argument that the agency is not active.

   [21] T15.5

2. This, as I read it, does not constitute a claim of mistranslation, but a complaint that the Tribunal did not accept the applicant’s assertions. In any event, I do not accept what the applicant said to me as an accurate recollection of what was said at the Tribunal hearing about the reactivation of the business of the travel agency. The Tribunal set out what was said about that topic in its reasons for decision.[22]

   [22] CB195, [18], [20]

3. There is nothing in the Tribunal’s reasons for decision that refers to any issue relating to the interpreter. The applicant’s representative provided a written submission to the Tribunal after the hearing, but the representative said nothing about the interpretation at the hearing before the Tribunal. And there is no other material before me that could suggest there was any issue relating to the interpreter or the interpretation at the Tribunal hearing. There is therefore nothing before me that could reasonably support a finding that evidence the applicant gave to the Tribunal was misinterpreted or not interpreted at all and that, for that reason, the Tribunal’s exercise of its jurisdiction miscarried.

Recommencement of business of agency

1. The applicant submitted to me that it would have been very difficult for the travel agency to recommence its business after IATA terminated the agency’s passenger sale agency agreement.[23] That submission goes to the merits of the applicant’s claims for protection, and, for that reason, discloses no jurisdictional error.

   [23] CB74

438 certificate

1. The Minister read an affidavit before me made by Mr Day made on 2 May 2018 that deposes to the issue of the 438 certificate which the Minister accepts is invalid, and which the Minister accepts had not been disclosed to the applicant before the Tribunal made its decision. Mr Day exhibited to his affidavit a copy of the document covered by the 438 certificate. The document is titled “Fingerprint Match report”. The Minister submits that the document, being relevant only to the identity of the applicant, could not reasonably have been regarded relevant to the tasks the Tribunal was required to carry out when conducting the application for review because the identity of the applicant was not an issue before the Tribunal. The Minister submitted that in those circumstances the non-disclosure of the 438 certificate did not result in any practical injustice to the applicant because the disclosure of the 438 certificate could not have made any difference to the outcome of the review. The Minster relied on three judgments of the Full Federal Court, namely, Minister for Immigration and Border Protection v CQZ15 and Anor,[24] Minister for Immigration and Border Protection v BJN16 and Anor[25] and BEG15 v Minister for Immigration and Border Protection and Anor.[26]

   [24] [2017] FCAFC 194

   [25] [2017] FCAFC 197

   [26] [2017] FCAFC 198

2. At the time the Minister made this submission, there was on foot appeals from the orders the Full Federal Court made in these cases. On 13 February 2019 the High Court handed down its judgment on the appeals.[27] In short, the High Court held that although the failure by the Tribunal to disclose a certificate issued or purportedly issued under s.438 of the Act may constitute a breach of a duty to accord an applicant procedural fairness, such failure will not lead to the setting aside of the Tribunal’s decision unless the disclosure of the certificate could have made any difference to the outcome of the review,[28] or unless the failure operates to deprive an applicant of the possibility of a successful outcome.

   [27] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3

   [28] [2019] HCA 3, at [3],[123]

1. As matters stood before the High Court handed down its judgments I would have accepted the Minister’s submission that the Tribunal’s failure to disclose the 438 certificate would not have denied the applicant procedural fairness, and the Tribunal’s decision, therefore, would not have been liable to be set aside for jurisdictional error. I also accept the Minister’s submission in the light of the High Court’s judgments. The disclosure to the applicant of the 438 certificate could have made no difference to the outcome of the Tribunal’s review, and the Tribunal’s failure to disclose the 438 certificate did not operate to deprive the applicant the possibility of a successful outcome.

Conclusion and disposition

1. The applicant has not succeeded on any of the grounds and submissions on which he relies. I propose, therefore, to order that the application be dismissed. I will deal with the question of costs when I pronounce my order.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 17 May 2019