ANS17 v Minister for Immigration
[2020] FCCA 625
•19 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANS17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 625 |
| Catchwords: PRACTICE & PROCEDURE – Leave sought to amend application – proposed ground alleges the IAA’s rejection of one of the applicant’s claims was illogical and irrational – proposed ground the IAA’s rejection of one of the applicant’s claims gave rise to an apprehension of bias – proposed ground lacks requisite merit – leave refused. |
| Legislation: Migration Act 1958 (Cth), ss.36, 473FB, 476 |
| Cases cited: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 |
| Applicant: | ANS17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 389 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 6 March 2020 |
| Date of Last Submission: | 6 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 19 March 2020 |
REPRESENTATION
| Representative for the Applicant: | Mr M Jones |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Representative for the Respondents: | Mr K Jeyakkumar |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
ORDERS
The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Leave to amend the application of 9 February 2017 is refused.
The application made on 9 February 2017 is otherwise, dismissed.
The applicant pay the first respondent’s costs set in the amount of $7467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 389 of 2017
| ANS17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 9 February 2017, seeking review of the decision of the Immigration Assessment Authority (“IAA”) made on 13 January 2017 which affirmed the decision of the Minister’s delegate (“the delegate”) not to grant the applicant a protection visa (“the visa”).
The evidence before the Court is contained in a bundle of relevant documents, filed and tendered by the Minister (“CB1”–“RE1”).
Background
The applicant is a citizen of Pakistan (CB 23). He arrived in Australia on 23 March 2013, as an unauthorised maritime arrival (CB 162 and CB 204). On 5 May 2013, the applicant participated in an entry interview with an officer of the Minister’s Department, with the assistance of an interpreter in the Urdu language (CB 111–CB 128). At the interview, the applicant was informed that the officer required “information about [the applicant and his] arrival in Australia” (at CB 111). Further, that the
“interview [was his] opportunity to provide any reasons why [he] should not be removed from Australia” and “that if the information [he gave] at any future interview [was] different from what [he told them] now, this could raise doubts about the reliability of what [he] said”.
The applicant confirmed that he understood what the officer and interpreter had said to him (CB 112).
The applicant was asked why he left Pakistan, he replied (at CB 122):
“Probably you are aware of the security situation in Kurram Agency. It is not safe. We can not work outside. If we travel out of Parachinar, because of being Shia, we get targeted and slaughtered. There is no safety. In Peshawar I had a good job but even in Peshawar, people who were coming from my background were targeted and many lost their loves. That is why I took this risky journey to either make it safely or just finish it.”
The applicant was further asked “[a]re there any other reasons, that we have not already spoken about, why you left Pakistan?” The applicant replied “[n]o” (at CB 122).
He subsequently applied for a Temporary Protection Visa (“the visa”). This was received by the Minister’s Department on 17 May 2016 (CB 10–CB 54).
The applicant claimed to fear harm on the basis of being a Shia Muslim, a driver for the Family Planning Branch of the Population Welfare Department, and having received a threatening “phone call” (CB 41–CB 43 see in particular at CB 42, item 91).
The Delegate
The applicant was invited to, and attended, an interview (“the delegate’s interview”) with the delegate on 29 September 2016 (CB 73–CB 75 and CB 87).
The delegate summarised the applicant’s claims as follows (at CB 100):
“· The applicant left Pakistan because he felt harm there.
· If the applicant returns to Pakistan he will be killed because he is a Shia Muslim, who are targeted throughout Pakistan and are top of the Taliban’s and fundamentalist group’s list.
· The applicant was doing a driving job for Welfare population department in Peshawar. He received a phone call from an unknown number in which they stated they know the applicant is from Parachincar and he is Shia, they threatened him and said they will kill him.
· The applicant did not seek help because the government is not secure and it cannot protect people.
· If the applicant returns home he will be harmed or mistreated because he is Shia Muslim.
· The Pakistani authorities cannot protect the applicant.
· The applicant cannot internally relocate because Shia Muslim’s are targeted everywhere in Pakistan.”
[Emphasis Added.]
The delegate further set out the following (at CB 100):
“During the TPV interview when the applicant was asked why he left Pakistan he articulated the following:
· The applicant stated that he received three phone calls from an unknown number in which the callers said they knew he was from Parachinar, he must leave his government job or he will be killed. The first call was received in possibly March or April 2012, the second about 20 days later and the third about one month later. The applicant stated he did not take the first call seriously, but after the second one he told the police seeking help. They advised him to change his phone number, which he did, but after one month he received more threat calls. It was after the third phone call that the applicant handed in his resignation.”
[Emphasis Added.]
The delegate therefore, categorised the above claim as the “key reason” the applicant “was forced to resign from his job and depart from Pakistan” (at CB 101). The delegate noted that there were “[a] number of inconsistences…regarding the applicant’s receipt of threatening phone calls” (at CB 101).
The delegate also took into consideration the fact that the applicant had not mentioned the “key reason” for his departure from Pakistan in his entry interview, noting that the interview occurred over a month after he arrived in Australia. The delegate did not accept that the applicant received such calls (CB 101). Ultimately, the delegate concluded that the applicant was not owed protection under s.36(2)(a) or s.36(2)(aa) of the Act, and therefore refused to grant the applicant the visa (CB 105).
The IAA
On 14 October 2016, the matter was referred to the IAA (CB 213–CB 225). The applicant, was informed of the referral on 17 October 2016 via email. Attached to the relevant correspondence, was a copy of the “Practice Direction for Applicants, Representatives and Authorised Recipients” (CB 222–CB225). The Practice Direction was given under s.473FB of the Act.
On 7 November 2016, the IAA received notification from the applicant, appointing a representative (CB 234–CB 235). On 9 November 2016, the IAA advised the applicant’s representative that submissions could be received by 16 November 2016 (CB 242). On 16 November 2016, the applicant’s migration agent provided the IAA with submissions (CB 243–CB 249).
The IAA affirmed the delegate’s decision not to grant the applicant the visa (CB 251–CB 275). The IAA summarised the applicant’s claims as follows ([12] at CB 258–CB 259):
“• He was born in…Upper Kurram Agency, in the Federally Administered Tribal Areas (FATA) of Pakistan.
• He is of Pashtun ethnicity and is a member of the Turi tribe. He is a Shia Muslim.
• He completed seven or eight years of school. After he stopped attending school, he helped on the family’s farm and with a range of household tasks, until around 2001. He was supported by his father and uncles, as well as by the income earned from agricultural activities, during this time.
• He moved to Peshawar to secure a position working for the government in 2001. From approximately 2001 until late 2012, he was employed by the Family Planning Branch of the Population Welfare Department in Peshawar as a driver. His wife and children continued to live in Parachinar while he worked in Peshawar and continue to live there.
• From 2007, the security situation deteriorated. His work involved a lot of driving and people were taken out of their cars and killed. Even in Parachinar there were bomb blasts. In Peshawar, he witnessed people being injured and saw dead bodies.
• Shias were targeted in attacks in Peshawar. He thinks the Taliban were responsible for these attacks but he is not sure. Attacks on Shias are intended to hurt them physically and/or financially. Shias in Pakistan are targeted for their Shia faith generally, but Shias from Parachinar are also targeted in attacks perpetrated by Sunnis who were displaced from Kurram Agency in the sectarian violence in the province. These Sunnis lost their homes and family members in the violence and seek revenge on Shias from Parachinar. Sometimes these Sunnis join Sunni militant groups like Sipah-e-Sahaba. There are different groups who target Shias and their names change.
• In 2009, when he was travelling from his village near Parachinar to return to his work in Peshawar, the car he was travelling in was stopped by the security forces because the car ahead, which was heading into Sunni territory, had been attacked. He decided not to continue his trip and returned to his home area.
· He received three anonymous phone calls in 2012 in which the caller said he knew the applicant was a Shia from Parachinar and that he had a government job. He thinks the calls were from the same person. The caller threatened to kill the applicant if he did not resign from his government job. He took these calls seriously because other people were killed after receiving calls like this. He knows of a Shia man in Peshawar whose son was killed after the man received similar calls. He decided to resign from his job in late 2012 and leave Pakistan.
• After he resigned from his position as a driver with the Family Planning Branch of the Population Welfare Department in Peshawar, he returned to live with his family in his village near Parachinar for around three to four months before his departure from Pakistan in early 2013.
• He left Pakistan because of the security situation in Kurram Agency. It is not safe there, and even in Peshawar, where he lived before coming to Australia, people with his background were targeted and many were killed.
· He fears he might be killed by the Taliban or another Sunni militant group because of his Shia faith if he returns to Pakistan. As a Pashtun Turi Shia from Parachinar, he will be particularly targeted by these groups. He will not be safe anywhere in Pakistan because Shias are targeted in attacks everywhere in Pakistan.
• His past employment as a driver for the Family Planning branch of the Population Welfare Department increases the risk that he will be targeted because some conservative Muslims in Pakistan are opposed to family planning.
• The Pakistani Government cannot protect him because they can’t protect themselves.
• His family have not been affected by any security incidents in their area but he worries about his children. They are small now, but he his is worried he won’t be able to send his son to a good school in Islamabad or Peshawar in future.
· A large number of school children in Parachinar were poisoned in August 2016. He thinks this was a sectarian attack targeting Shia children. If those targeting Shias from Parachinar can do this, they are capable of harming him anywhere.”
[Emphasis Added.]
The IAA considered, the applicant’s claims in relation to the “2009 Road incident” ([26] at CB 262). Given corroborative country information, the IAA accepted this claim.
The IAA also considered, at length, the applicant’s claims concerning the threatening telephone calls, under the heading “Threatening telephone calls(s)” ([27]-[46] at CB 262–CB 266). The IAA ultimately, concluded that the applicant did not receive any threatening telephone calls, and therefore did not leave his job for this reason ([45] at CB 265).
In coming to this conclusion, the IAA took into consideration the applicant’s entry interview, his visa application, his interview with the delegate, and submissions made on his behalf by his migration agent.
The IAA found that there were variations in the evidence the applicant gave concerning the telephone calls ([27]–[31] at CB 262–CB 263 see “varied” at [27]). The applicant did not mention the telephone calls during his entry interview. However, in his protection visa application he indicated that he received such a call, and in his interview with the delegate he gave extensive information about what he then said were the threatening telephone calls.
The IAA found that it was difficult to “reconcile” the fact that the applicant had failed to mention the telephone calls in his entry interview, while in his visa interview with the delegate he categorised such calls as the “central” reason for his leaving Pakistan ([32]–[45] at CB 263–CB 265).
The IAA noted that the delegate had put to the applicant that he had failed to mention this claim during his entry interview. The IAA accepted that the applicant had a long and dangerous journey to Australia. However, the IAA noted that the entry interview occurred over 40 days after the applicant’s arrival. Further, there was no evidence before the IAA to indicate at the time of the delegate interview the applicant had suffered any illness or mental illness ([34]–[36] at CB 263–CB 264).
The IAA did not accept that the applicant’s journey to Australia or “understandable distress in relation to his family” was an “adequate explanation” for failing to mention the telephone calls ([36] at CB 264).
Further, the IAA did not accept the applicant’s representative’s submissions concerning the applicant’s education and the “Pashtun tribal code” ([37]–[40] at CB 264–CB 265). The IAA did not accept that the applicant’s limited education prevented the applicant from “effectively participating” in the entry interview, or that it was an explanation for the applicant failing to mention the telephone calls.
The IAA accepted that the applicant “was distressed by his separation from his wife and family” when the entry interview occurred. However, it did not accept that any breach of the “Pashtun tribal code”, by the applicant had also caused him distress which affected his ability to effectively participate in the entry interview, or that any illness or mental illness prevented him from effectively participating in the interview ([39]–[41] at CB 264–CB 265).
The IAA also did not accept that the “passage of time” adequately explained why the applicant failed to mention the telephone calls during his entry interview ([42] at CB 265).
The IAA considered the applicant’s failure to mention the telephone calls as a “significant omission”, in circumstances in which the applicant later claimed that such calls were the central reason he departed Pakistan. The IAA noted, also, that the applicant was advised to provide “any reasons as to why he shouldn’t be removed from Australia” at his entry interview ([44] at CB 265).
The IAA also considered the applicant’s previous work as a driver for the Family Planning Branch of the Population Welfare Department ([49]–[52] at CB 266–CB 267). The IAA accepted that the applicant was employed as he claimed ([49] at CB 266). Given the lack of evidence to the contrary, the IAA did not accept that the applicant would be of adverse interest on account of his past employment as a low level government employee, or due to his association with family planning ([50]–[51] at CB 266–CB 267).
The IAA also considered the applicant’s claims as being a Shia Turi from Parahinar and the relevant security situation ([53]–[81] at CB 267–CB 273). The IAA placed “particular weight” on DFAT reports that indicated that the applicant would not be at risk of harm due to his religion, or on account of the “security situation in or near Parachinar or Upper Kurram Agency” ([78] at CB 272).
The IAA also considered the applicant’s claims concerning his returning to Pakistan as an unsuccessful asylum seeker ([82]–[86] at CB 273–CB 274). After taking into account country information, the IAA concluded that there was not a real chance that the applicant would be harmed due to his status as a failed asylum seeker ([85] at CB 274).
The IAA concluded that the applicant was not owed protection as it could not be satisfied as to the criteria in either s.36(2)(a) or s.36(2)(aa) of the Act ([87] and [91] at CB 274 and CB 275).
Application to the Court
The applicant’s application to the Court contains one ground:
“1. The Authority denied procedural fairness to the Applicant.
Particulars
The Applicant's representative was limited to making submissions of no more than five pages because of a Practice Direction 1 dated May 2016 made by the President of the Administrative Appeals Tribunal under s473FB. The making of the Direction in so far as it purports to limit submissions to no more than five pages and to return longer submissions to an applicant is beyond the power given in s473FB to make Directions.”
Consideration: The Ground of the Application
The applicant concedes that his ground must fail in light of the Full Court judgment in DGZ16v Minister for Immigration and Border Protection [2018] FCAFC 12 (“DGZ16”). However, he also submits that that case was “wrongly decided”.
The judgment of the Full Court in DGZ16 is binding on this Court. It is, plainly, not open to this Court to consider whether or not it was “wrongly decided”. There was no dispute from the Minister that the applicant’s sole ground of the application did not, in light of DGZ16 reveal jurisdictional error in the IAA’s decision.
The applicant’s ground asserts jurisdictional error on the basis that the Practice Direction sent to the applicant in this case in connection with the assessment exceeded the power in s.473FB of the Act to make such directions, and thereby sought to unlawfully restrict the length of submissions that could be made to the IAA.
This issue was considered by the Full Court in DGZ16. In similar circumstances to the current case, the Full Court found that that part of the Practice Direction that limited submissions to the IAA was not inconsistent with the Act, or an unreasonable exercise of the power conferred by s.473FB of the Act (see at [106]–[107] of DGZ16).
The sole ground of the application is not made out.
Consideration: Proposed Ground Two
Before the Court, the applicant sought leave to rely on an additional ground, as set out in his written submissions of 21 February 2020. Proposed ground two is in the following terms:
“2. The Authority's rejection of the Applicant's claims about threatening phone calls based on his failure to mention them at the entry interview was illogical and irrational, or alternatively the rejection of those claims gives rise to an apprehension of bias.
Particulars
(a) In his application for a protection visa and at his interview in relation to that application the Applicant claimed to have received threatening phone calls before he left Pakistan. He had not mentioned this claim when he was interviewed shortly after arriving in Australia (the entry interview).
(b) The Applicant's representative provided detailed submissions to the Authority by way of explanation for the Applicant's failure to mention the phone calls at the entry interview.
(c) The Authority noted that the purpose of the entry interview was to gather information about the Applicant's identity and arrival in Australia, not to assess protection visa claims, and that its structure and brevity did not allow the Applicant to fully present his claims. Despite this, it insisted that the calls could not have occurred because the Applicant did not mention them.
(d) The Authority rejected the representative's explanations and disregarded the nature of the entry interview solely because they failed to support that view.”
[Underlining Removed.]
The applicant seeks leave to add a second ground to his application. In the circumstances he needs leave to do so. The Minister opposed the grant of leave. The basis for the opposition was said, first, to be because there is no explanation from the applicant as to the delay in bringing forward the proposed additional ground in circumstances where a Registrar of the Court made orders on 9 May 2017 that any such amended application should be filed by 28 September 2017.
Second, the Minister submitted that the proposed ground lacked requisite merit so as to warrant the grant of leave sought.
It is the case that the applicant did not proffer any evidence to explain the delay although, I note, in this regard the Minister did not claim to be prejudiced. In any event, I agree with the Minister that in the circumstances before the Court, the proposed ground does lack merit. That is, that the ground does not raise a reasonably arguable case with reasonable prospects of success, such as to warrant the grant of leave that the applicant seeks, in the interests of justice.
Before the Court, the applicant submitted that he would argue his case to its fullest extent. Nonetheless, the Court’s immediate focus remained on the question of sufficient, or reasonably arguable, merit to warrant the leave sought.
The Proposed Ground: The Applicant’s Submissions
The proposed ground asserts that the IAA’s rejection (as a fabrication) of the applicant’s claim to have received threatening telephone calls before he left Pakistan was illogical or irrational, or gave rise to an apprehension of bias, in circumstances where the IAA made that finding because the applicant did not mention this claim in his entry interview.
The key element of the applicant’s submissions before the Court was that the IAA “relied principally” on the applicant’s failure to mention the telephone calls at the entry interview. Before the Court, this omission was described as the only reason given by the IAA to reject this claim.
The applicant’s argument before the Court relied on the following.
One, the entry interview was not part of any assessment of the applicant’s claims to protection. But rather it was a “highly structured” interview with the stated purpose being to obtain information about the applicant’s arrival in Australia as an unauthorised boat arrival. It was not until some years later that the applicant was told that he could make an application for the visa where he could set out his claims for protection.
Two, the applicant’s claim concerning the telephone calls was “additional” to his account of his reasons for leaving Pakistan.
Three, the applicant drew on his representative’s submissions to the IAA to assert that in assessing the applicant’s credibility the IAA was required to consider that the entry interview took place after a long and arduous journey to Australia, through a number of countries, and a boat trip, and the torment and fear that the applicant had, variously, endured.
The applicant relied on CBN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2190 (“CBN18”) to submit as follows. In that case, the Court considered circumstances similar to the current case. That is, it involved a person who arrived by boat and who was interviewed soon after he arrived.
At the initial interview the applicant stated that he had not been harmed in any way in his home country. This occurred in circumstances where the applicant had not been put on notice that what he said, or did not say, at the entry interview may subsequently be used in any assessment of his protection claims.
Subsequently, the applicant in that case, made detailed claims of persecution over a lengthy period before arriving in Australia. He gave an explanation as to why he had originally denied that he had any fears.
The applicant in the current case sought to draw on what he said was the similarity of the circumstances in CBN18 to the current case. In particular that as set out in CBN18 at [27]:
“27. The principal reason why the Authority rejected the appellants’ claims of needing protection is because at the initial screening interviews shortly after their arrival at Christmas Island, the first appellant gave answers that were inconsistent with the claim for protection. The Authority recorded in its reasons that the first appellant had stated that he had not been harmed in any way in Sri Lanka. The Authority was satisfied that he would not have said that if it was not true. The Authority did not accept the explanations that the first appellant later provided for not disclosing the significant claims of detention, harassment, threats and mistreatment at his screening interview.”
The applicant in the current case also drew attention to CBN18 at [59]:
“59. The short point is that where an asylum seeker has given different accounts and offers an explanation for why that is so, the explanation must be seriously and properly considered. It may be that it is unpersuasive, but in another case it might count decisively against an adverse credibility finding or the rejection of a particular account in favour of another.”
Further, the applicant in the current case referred to various parts of CBN18 where the Court set out the reasoning of the IAA in that case to draw parallels with the circumstances in this case (CBN18 at [70] and see [60], [65] and [72]).
In all, the argument was that the circumstances in the current case were “the same” as in CBN18. The Court found that the IAA’s reasoning in that case was illogical and irrational in relying on the entry interview, and the Court should similarly find in the current case (see further below).
The applicant also relied on MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80 (“MZZJO”) as to how omissions in claims at entry interviews are to be approached by decision-makers:
“56. On the latter issue, some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.”
In applying this to the current case the applicant submitted that the IAA formed an adverse view of the applicant’s credibility solely by giving primacy to what the applicant said, and did not say, at the entry interview. He also submitted that it then rejected the explanations proffered by the applicant’s representative because these were not consistent with its conclusion. It did not give proper, genuine or realistic consideration to those explanations by engaging with the arguments at an intellectual level.
Consideration: The Merits of the Proposed Ground
The applicant’s submissions before the Court did not proceed from a plain, let alone a fair, and contextual, reading of the IAA’s reasoning, and, it must be said also, a misunderstanding of what the Court found in CBN18. In short, the applicant relies on two authorities and has sought to mischaracterise the IAA’s reasoning so as to fit within what the two Courts are said to have found in CBN18, and opined in MZZJO, as to how to approach the current consideration.
To be clear, with respect, the legal propositions which are part of the reasoning expressed in both authorities are binding on this Court. The Minister submits that the statements in MZZJO relied on now by the applicant are “obiter”. Even in that circumstance this still provides guidance, if not direction, to this Court.
However, each case must be considered in light of the circumstances presented. It is within that matrix that this Court’s consideration of those principles is to take place. The disposition of the applicant’s proposed ground is dependent on the facts put before the Court and requires attention to the evidence (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (“SZVFW”) at [84], Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [42] and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 (“Stretton”) at [7], [11]).
I do not respectfully understand the authorities to stand for the proposition, which is at least implicit in the applicant’s argument before this Court, that it will always be illogical or irrational, or lead to an apprehension of bias, for the IAA to rely on an omission in the presentation of an applicant’s claims at the entry interview.
I respectfully understand the Court in MZZJO to require “some caution” from the IAA in relation to omissions by applicants at the entry interview due to the circumstances that were said to immediately precede such interviews, and the difficulties in articulating personal matters, without assistance, and without understanding as to the use to which the applicant’s responses may be put in the future.
That is, some caution is required where an applicant is interviewed soon after arrival following a difficult journey to Australia and faced with unfamiliar surroundings with government officials whom he or she may distrust.
In MZZJO, the entry interview was conducted 8 days after the applicant arrived in Australia (see MZZJO at [3]). In CBN18 the entry interview occurred 4 days after the applicant arrived (see CBN18 at [62]). In the current case, the entry interview occurred 43 days after arrival (CB 111 and CB 30 – item 46).
Plainly such matters are not to be reduced to some mathematical formula that then determines the degree of caution to be applied. However, what this does illustrate is that the necessary caution and the depth of caution in each case (“some caution”) must be determined with reference to the actual circumstances of each case.
Nor is the question as to illogicality or irrationality, or for that matter unreasonableness, to be assessed by the application of some fixed formula as the applicant now seeks to argue (Stretton at [2], [10], [62] and Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [65]).
As was, with respect, said in SZVFW at [59] there are no: “… talismanic words that can avoid the process of judgment”.
To make out his ground the applicant must show “extreme” illogicality (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [47]), not simply to seek merits review of the IAA’s decision in circumstances where it fully considered the applicant’s explanation as to the omission at the entry interview. The relevant test is “stringent” (Minister for Immigration and Citizenship v Li [2013] HCA 18 at [108], SZVFW at [11]). The applicant’s emphatic disagreement with the IAA’s reasoning is not sufficient to reveal illogicality. (BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [51](c)).
Such “extreme” illogicality and irrationality was found in CBN18. In that case the IAA placed little weight on two letters the applicant had provided to explain what had happened at the entry interview. The IAA placed little weight on the letters because it had found that the applicant had not told the truth at the entry interview.
The Court in CBN18 found that the IAA’s rejection of the explanation proffered by the two letters to be “illogical and irrational”. This was explained as follows:
1. “79. The conclusion stated by the Authority with regard to the letters is illogical and irrational. The purpose of considering the evidence of the accredited mental health social worker was in order to evaluate the reliability of the first appellant’s different accounts of the harm and persecution that he suffered, or did not suffer, in Sri Lanka; it was to give proper context to those accounts so that they might be better understood and evaluated. It is therefore illogical and irrational to reject the evidence because it is inconsistent with a conclusion already reached with regard to the very matter that the evidence was relevant to casting light on.”
2. “80. In this respect, the Authority went about its task in the wrong way. It reached its conclusion to reject the first appellant’s later accounts in favour of what he said in the initial screening interview, and then rejected the letters because they were not consistent with the earlier conclusion when, properly considered, the letters may have had a bearing on the earlier conclusion.”
3. “83. Put differently, the Authority simply failed to consider whether, or to what extent, the letters cast any light on the first appellant’s screening interview and his failure at that time to raise substantive claims of harm in Sri Lanka. Given the primacy of the screening interview in the Authority’s reasons for rejecting the first appellant’s protection claims, that failure amounts to a failure to undertake the statutory review mandated by Pt 7AA; it amounts to a failure to give the matter “proper, genuine and realistic consideration” or to “engage in an active intellectual process” in relation to the veracity of the first appellant’s account and the role of the medical evidence: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [45]; Singh v Minister for Home Affairs [2019] FCAFC 3 at [30].”
Contrary to the applicant’s submissions, I do not respectfully understand the Court in CBN18 to have found that the illogical or irrational finding by the IAA in that case was its reliance on any omission at the entry interview.
Rather, as in my respectful view is made clear, the problem was the “wrong way” the IAA went about the task of considering whether the applicant in that case had provided a satisfactory explanation for not raising at the entry interview the claims he subsequently relied upon.
In short, in CBN18 the applicant gave an explanation for this omission by way of two letters from health professionals. The IAA did not properly consider the explanation in these letters as to why that omission occurred. What was found to be illogical and irrational was the rejection of the two letters because what was stated in the letters was inconsistent with the conclusion that the IAA had already made about the very matter to which the letters were directed.
That is not this case. In the current case, the IAA considered, at length, the explanation for the omission provided by the applicant and his representative.
In the current case, the applicant’s representative before the IAA had urged the caution now argued for by the applicant. Contrary to the applicant’s submissions now the IAA did not ignore the applicant’s explanation for the omission arising from the circumstances of his arrival.
At [34] the IAA stated (CB 263):
“34. When asked, during the TPV interview, about his omission of any reference to the threatening phone calls in the entry interview, the applicant explained that he thought he had mentioned the calls in the entry interview but he was experiencing stress and tension at the time of the entry interview as a result of his long and dangerous journey to Australia and his worry about his wife and children, and this may have affected his thinking at the time. I accept that the applicant was distressed by his separation from his family in Pakistan at the time of the entry interview. I also accept that the applicant’s journey to Australia was long (around three month’s duration) and involved considerable danger to the applicant. However, the interview took place over forty days after the applicant’s arrival in Australia, and I think it is highly probable that the applicant would have largely recovered from the effects of his journey by the time of the interview.”
It is important to note, contextually, the actual conclusion reached by the IAA in relation to the threatening telephone calls claim ([45] at (CB 265):
“45. Having regard to the evidence before me, in particular the omission of any reference to the phone calls in the entry interview, the several opportunities afforded to the applicant during the entry interview to raise any matters related to his departure from Iraq [in context Pakistan], and the delegate’s clear advice concerning the importance of providing accurate and consistent information, I do not accept that the applicant received any threatening phone calls. It follows that I do not accept that the applicant resigned from his position as a government driver because of these threats.”
It was a part of the IAA’s reasoning that the applicant’s evidence in relation to the threatening telephone calls “varied” over the time of the entry interview, the visa application, the delegate’s interview, and submissions made by, and on behalf of, the applicant ([27] at CB 262).
It is the case that the entry interview, as the applicant now submits, was not part of any refugee status determination process.
But in its reasoning the IAA did not rely on any such assertion. Rather, the IAA reasoned that what had ultimately been referred to the IAA for assessment was that the “central reason” ([32]) for the applicant’s departure from Pakistan, the reason he himself gave, in the delegate’s interview, was the receipt of the threatening telephone calls in 2012.
The IAA’s reasoning, in essence, was that if the telephone calls were the “main reason” ([30] at CB 263) he gave for leaving Pakistan, then it was reasonable to expect that he would have made some reference to them at the entry interview.
The IAA reasoned ([32] at CB 263):
“32. However, I share the delegate’s more significant concerns regarding the applicant’s failure to refer to the phone calls in any way during his entry interview. The applicant’s omission of any reference to the threatening calls is difficult to reconcile with the claim made in the TPV interview that these calls were the central reason for his departure from Pakistan. I note that in his entry interview the applicant said that he left Pakistan because of the security situation in Pakistan. When, in the entry interview, he was asked whether he had experienced any specific incidents that made him want to leave Pakistan, the applicant referred to the 2009 incident in which the vehicle ahead of the vehicle in which the applicant was travelling was attacked. The interviewing officer asked the applicant whether he had experienced any other incidents, to which the applicant replied that the 2009 incident was the one ‘he had survived’ but he had also seen bodies and people being injured in Peshawar. The interviewing officer asked if there were any other reasons for the applicant’s departure from Pakistan. The applicant replied there were not.”
While the entry interview was plainly not focused on refugee determination, the applicant was asked simple questions relevant to his fears in Pakistan to which he responded (at CB 122 see also above at [5]):
1. “Q. Tell me why you left Pakistan…
Probably you are aware of the security situation in Kurram Agency. It is not safe. We can not work outside. If we travel out of Parachinar, because of being Shia, we get targeted and slaughtered. There is no safety. In Peshawar I had a good job but even in Peshawar, people who were coming from my background were targeted and many lost their loves. That is why I took this risky journey to either make it safely or just finish it.”
2. “Q. How long has it been dangerous for you in Pakistan?
In 2007 it started. The security has got worse. And especially, my job was to drive around. We were taken out of our cars and butchered on the roadside. Even in Parachinar, there are bomb blasts around."
3. “Q. So if this has been happening since 2007, why have you decided to leave in 2013?
Even then I wanted to get out of there but travelling towards here required heaps of money. I did not have that money at that time. Now that I have arranged the money I have made the travel.”
4. “Q. Were there any specific incidents that happened to you that made you decide to leave?
One time I was travelling from my village to go back to my duty in Peshawar. There is a place called Alizai. After where the danger starts, our car was stopped by the security because another car was already ahead of us, to go to the Sunni territory. We were told to hold there until they find out what happens to the first one. Then later on we heard the news that the first car was shot with the rocket and then we decided to return back to our area.”
5. “Q. Any other incidents that have happened to you?
Well that was the incident where I survived. The other incidents happening in Peshawar. I was witnessing the people getting injured and dead bodies.”
6. “Q. Are there any other reasons, that we have not already spoken about, why you left Pakistan?
No.”
Both the applicant (at the delegate’s interview), and his representative (in written submissions to the IAA) sought to explain why he omitted to make any reference to what subsequently was said to be the “main reason” he left Pakistan. That is, the threatening telephone calls.
Contrary to the applicant’s assertions now the IAA did engage meaningfully with those explanations (see [34] at CB 263–CB 264, and [37]–[44] at CB 264–CB265). The IAA’s reasoning reveals a balanced approach. For example it accepted that “…the context of the entry interview…was not conducted for the purposes of assessing his claims for protection” ([44] at CB 264).
Further, the IAA agreed: “…it may be appropriate to place limited weight on minor omissions in evidence provided in entry interviews, or minor inconsistencies with later evidence” ([44]).
What the applicant’s submissions now have failed to satisfactorily address in the current case is the key reasoning of the IAA in relation to the threatening telephone calls claims.
This was, that if the threatening telephone calls were the main reason the applicant left Pakistan, his failure to mention this significant claim at the entry interview, even with all the difficulties that this entailed for him, was a “significant omission”. That is, on the IAA’s reasoning it was of such character that the explanation for the omission, in all the circumstances presented (and even where the IAA accepted some elements of the explanation) could not satisfactorily explain the omission.
This is not a case where, with reference to CBN18, the IAA rejected the applicant’s explanations for the omission at the entry interview after it had rejected the threatening telephone claim. As the Minister correctly submits, and on any plain reading of the IAA’s decision record, that explanation (some elements of which were accepted by the IAA), and each of the factors raised by the applicant and his representative, were part of the IAA’s reasoning process.
The IAA’s conclusion on the threatening telephone calls claim was reasonably open to it, and was probative of all the relevant circumstances before it, and involved an intellectual and meaningful engagement with the applicant’s explanations and submissions.
There was a logical and rational basis for the IAA’s conclusion (see DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30]).
There was a dispute between the parties before the Court as to whether the IAA had exercised the caution as explained in MZZJO. For the reasons set out above, the IAA did exercise that caution in considering each of the elements of the explanation for the omission at the entry interview as part of, its consideration of, the threatening telephone calls claim.
In his submissions the Minister also argued that the IAA did exhibit a cautious approach in that it did not reject the threatening telephone calls claim solely on the omission of this claim at the entry interview.
The Minister submitted that the IAA also rejected this claim because of the country information before it that indicated that the applicant did not have a profile that would be of adverse interest to the authorities (see [52] at CB 267).
I do not accept this submission. At [50] CB 266–CB 267 the IAA stated:
“While there is information before me suggesting that government office holders, government buildings and government security personnel have been targeted in attacks by militants8, there is no evidence before me to suggest that low level employees of the Pakistani Government such as the applicant, whether Shia or Sunni, have been targeted in attacks by any group in Pakistan. I have not accepted that the applicant received threatening phone calls referring to his government employment and I do not accept the applicant was or is of any adverse interest to any group or person in Pakistan in the basis of his past employment as a Pakistani Government employee who worked as a driver.”
[Footnote Removed.]
The reference at [50] of the IAA’s decision record to country information was plainly directed to the issue of whether the applicant had an adverse profile that would be of interest to the authorities. The reference to country information was not directed to the assessment of the threatening telephone calls claim. Rather, the IAA’s finding on that claim was an additional factor (to the conclusion arising from the country information) as to why the applicant did not have an adverse profile.
It was not clear why the Minister made this submission which only served to confuse his argument. As set out above, the IAA relied on: “… in particular the omission of any reference to the phone calls in the entry interview, [and] the several opportunities [a reference in context to the questions set out above at [82] of this judgment] afforded to the applicant during the entry interview to raise any matters related…” to his departure, in context, from Pakistan ([45] at CB 265).
Further, there was some difference between the parties as to the meaning, or application, of the word “varied” as it appears in [27] (at CB 262) of the IAA’s decision record.
The applicant submitted that what the IAA meant was that his account “varied” as between the omission at the entry interview and the subsequent articulation of the threatening telephone calls claim. That is, the IAA relied solely on the omission.
The Minister submitted that what the IAA meant was that the claim “varied” in terms of its escalation from no articulation of the claim at the entry interview to a “call” in his visa application to “three threatening calls” at the delegate’s interview.
Given what is set out at [27]–[29] (at CB 262) of its decision record, and the relevant evidence before it, it was reasonably open to the IAA to find that the claim “varied”.
The applicant’s argument now that the reference in the applicant’s visa application to a “call” was made in circumstances where the applicant was not proficient in English, and was not legally assisted. It should therefore not be seen as a variation of his claim when compared with the subsequent reference to three calls.
The applicant did receive assistance in the completion of his visa application (CB 150 at item 6). Although that person was not a registered migration agent (item 7 – CB 150).
However, whether the applicant was legally represented, or was not proficient in English at the time of the various expressions of his claims to fear harm is not to the point.
First, on the evidence before it, it was reasonably open for the IAA to find that the account as to the calls “varied”. That is a factual finding probative of that evidence. To the extent that the applicant lacked assistance and proficiency, his representative made submissions on the question of the omission and as set out elsewhere in this judgment the IAA considered those elements of the explanation.
Second, and far more importantly, any such variation was not the primary reason the IAA found that the calls had not taken place. That reason was the “particular….omission of any reference to the phone calls in the entry interview” ([45] at CB 265).
For the reasons set out above, the IAA’s finding in this regard was not illogical or irrational.
The proposed ground also asserts that the IAA’s findings in relation to the threatening telephone claim gave rise to an apprehension of bias.
This was not satisfactorily explained in submissions, beyond stating that in the circumstances considered by the Court in CBN18, it would have been open to find (but was not considered in that case) that such circumstances give rise to an apprehension of bias.
Again the difficulty with the applicant’s submission in the absence of a satisfactory explanation relevant to the circumstances of this case, is to seek to import the findings made in another case, and to simply assert that the apprehension exists in the current circumstances. This, in circumstances where the Court in CBN18 made no such consideration.
The test for the apprehension of bias is well-settled, as set out in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 75 ALJR 982; 179 ALR 425 at [27]–[28] (per Gleeson CJ, Gaudron and Gummow JJ):
“27. The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.7 That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of “a fair-minded lay observer” when, as is the case with the Tribunal, proceedings are held in private.
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 give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.”
[Footnotes Omitted.]
There is nothing in the evidence before the Court to indicate that the IAA was not open to persuasion when it considered and rejected the threatening telephone calls claim. As set out above, the IAA meaningfully engaged with the explanation and submissions as to the omission at the entry interview. It accepted some aspects of that explanation. It did not accept others. The relevant test is not made out simply because the applicant now disagrees with the evaluation made by the IAA, and the weight it gave to different argument and the evidence before it.
In all, the proposed ground lacks requisite merit in the sense of a reasonably arguable case with prospects of success so as to warrant the grant of leave to rely on it as sought by the applicant now.
Conclusion
It is appropriate to refuse the leave sought to amend the application. The application should be otherwise dismissed. I will make the appropriate orders.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 19 March 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Procedural Fairness
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Judicial Review
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Jurisdiction
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Natural Justice
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Standing
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