AOC16 v Minister for Immigration
[2016] FCCA 2485
•27 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AOC16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2485 |
| Catchwords: MIGRATION – Judicial review of AAT decision – citizen of Pakistan – claim of well-founded fear of persecution based on criticism of government party and Taliban – adverse credibility findings. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 424AA |
| Applicant: | AOC16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 76 of 2016 |
| Judgment of: | Judge Young |
| Hearing date: | 13 September 2016 |
| Date of Last Submission: | 13 September 2016 |
| Delivered at: | Darwin |
| Delivered on: | 27 September 2016 |
REPRESENTATION
| The Applicant appearing in person by videolink |
| Counsel for the Respondents appearing by videolink: | Ms Stokes |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed 15 March 2016 be dismissed.
The applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
ADG 76 of 2016
| AOC16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for a review of a decision of the Administrative Appeals Tribunal (AAT).
The applicant is a citizen of Pakistan and a Sunni Muslim. He is 43 years old. He was a resident of Karachi. The applicant was a business man and had made four visits to Australia in 2011, 2012, from 17 April 2013 to 10 July of 2013, and, finally, from 30 August 2013 to the present. On this fourth visit he lodged an application for a protection visa.
The grounds of review are as follows:
1)The Tribunal constructively failed to exercise its jurisdiction. Particulars: the applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active, intellectual process of these documents (sic). The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging the contents of these documents. It was an error for the Tribunal to assess the applicant’s credit without its first assessing whether the substance of the documents corroborated his claims.
2)(sic) The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of it being relied upon, and to invite the applicant to comment upon or respond to that information. Particular: the Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not comply with the requirements set out in section 424AA of the Act.
3)The Tribunal had no jurisdiction to make the said decision because its reasonable satisfaction was not arrived (sic) in accordance with the provisions of the Migration Act.
4)The Tribunal denied me procedural fairness by reaching adverse conclusions that certain aspects of my claims were implausible, but in conclusions that were not obviously open on the known material, without giving me the opportunity to be heard in respect of those matters. I could not understand the interpretation of the interpreter.
I take the final sentence to be a separate ground of review. This is the only ground of review that was the subject of submissions by the applicant. So, I will consider it as:
5)I could not understand the interpretation of the interpreter.
The applicant’s claims before the Tribunal were recorded by it as set out below.
The applicant said he was an active member of the Pakistan Muslim League-Nawaz (PML-N) party for about 10 years. He said he was an active member until after the 2013 general election when he disagreed with a speech of the party leader.
He said he had been an active supporter of the PML-N in the May 2013 election, but, following that election, he spoke out against the party on a local radio station. He said that he was then threatened by a local PML-N leader and by Taliban members associated with the PML-N. He said the radio station was bombed shortly afterwards and three people were injured.
He said that on 21 July 2013 he was travelling home on a motorcycle when three people wearing helmets riding on two motorcycles opened fire on him but missed.
He claimed that he had previously been the subject of extortion threats by the Taliban. He provided a handwritten note, undated and unsigned, demanding money and including a threat to kill.
The applicant says he fears he will be killed by the Taliban for speaking out against it and the PML-N if he returns to Pakistan.
The Tribunal did not accept the applicant was credible. It found many of the applicant’s claims were inconsistent and implausible.
Political Opinion
The applicant said he was active in support of the PML-N in the May 2013 general election. The applicant was asked to name the candidate he supported but was unable to recall the name. He was asked how he was active in the election as he was present in Australia from 17 April 2013 to 10 July 2013. He said he rang his friend from Australia and took part over the telephone.
The applicant was also unable to provide particulars of the speech by Nawaz Sharif, the leader of the PML-N and Prime Minister of Pakistan, with which he disagreed.
The applicant was vague about the time and circumstances of the radio interview. He was asked the name of the radio station, and said it was “FM 101”. He had been unable to recall the name of the station when asked by the delegate. The Tribunal observed, apparently following a Google search, that FM 101 was an Islamabad-based radio station, some 1500 kilometres from Karachi. The applicant was asked about the attack on the radio station. He told the Tribunal that it was another station that was attacked.
The applicant was asked whether he had a PML-N membership card. He said he had a card but had cancelled his membership because it was unsafe to carry a card. He said he cancelled his membership on 27 September 2013 by Skype from Australia.
The Tribunal considered the applicant’s evidence and did not accept he was a PML-N member since 1992, did not accept he was actively involved in the May 2013 general election, did not accept that he had spoken out against the party or was threatened by a local leader. The Tribunal found these claims were fabricated.
21 July 2013 Attack
The applicant claimed to have been a target of an assassination attempt on 21 July 2013. The Tribunal found the applicant gave inconsistent versions of this attack. He told the Tribunal he was walking home at about 7 pm after alighting from a bus when he was shot at by two people on a motorcycle, one wearing a helmet, one wearing a turban. His written claim attached to his application for a protection visa said he was shot at by three men on two motorcycles, all wearing helmets, as he was “going from home in the morning by motorcycle”.
The applicant gave the Tribunal an English translation of a First Information Report (FIR) that he had not previously provided to the Australian authorities. The FIR curiously stated that the attack took place on the applicant, riding his motorcycle, “proceeded from home to my factory … at 1830 hours.” The alleged FIR said he reported “three attackers on two motorcycles opened fire on him.”
Leaving to one side that the FIR appears to contain a third version of the attack, the Tribunal noted that the FIR had not been provided at the time of the protection visa application in 2013 and that country information stated that such documents were routinely forged.
The Tribunal found that, given the applicant’s inconsistent evidence, the FIR was not genuine. The Tribunal noted that the FIR was very general in its terms and did not identify the attackers as Taliban. It did not accept his claim that he was attacked.
Returnee From Western Country – Moderate Muslim
The applicant did not raise this or a related ground but the Tribunal considered if there was a real risk of serious harm to the applicant on this basis. It was satisfied there was not.
The applicant had not provided written submissions. When the matter came before me I asked the applicant, who was not represented, if he wished to make submissions in support of the grounds set out in his application. He repeated in part his submissions to the Tribunal relevant to the merits of his application. I explained to him that it would be necessary to show some error by the Tribunal. He did not make any submission in relation to the first four grounds in his application for review but he did make a submission on what I have called ground 5 relating to the interpreter in the Tribunal.
The applicant was critical of the interpreter’s work. I asked him to explain in more detail what was wrong with the interpretation. He was unhappy that the interpreter did not convey the proper sense of the FIR. The applicant told me the FIR was interpreted into English in Pakistan. When I asked how this could be a basis for criticism of the interpreter he said that the interpreter had not managed to convey that the FIR was genuine.
The applicant did not provide any evidence that the interpreter had not provided a competent interpretation. His claim appeared to be that the Tribunal made an adverse credibility finding about the FIR. It does not appear to me that the applicant’s complaints about the interpreter have substance.
Conclusion
In relation to ground 1, to the extent that the Tribunal concluded that the FIR was a forgery, this was based on the vagueness of the information contained in it, the applicant’s own inconsistent claims and the country information that such documents were routinely forged. The Tribunal found that the applicant’s claim was fabricated based on inconsistencies and implausibility. In my view, this conclusion was open to the Tribunal on the evidence.
In relation to ground 2, the applicant claimed that the Tribunal failed to comply with sections 424AA and 424A but without providing useful particulars. I am unable to find that this ground has any substance. In any event, section 424A does not apply to information that is not specifically about the applicant or to information provided by the applicant. Further, an adverse credibility finding is not “information”. As noted, the applicant could not name the radio station to the delegate. He told the Tribunal that it was “FM 101.” The Tribunal noted that “FM 101” was not in Karachi. The Tribunal decision record does not specifically say this information was put to the applicant. As noted, it appears to be the result of a Google search. The Tribunal’s footnote giving the URL address does not say, in accordance with usual citation standards, when that information was accessed, whether before, during or after the hearing. I am unable to conclude that it was not specifically put to the applicant. Neither party made any submission on the point.
In relation to ground 3, the Tribunal referred to the relevant evidentiary requirements and the law at paragraphs [5]-[8]. The applicant provided no particulars of any substance to support this ground.
In relation to ground 4, the applicant claimed that the Tribunal’s adverse credibility findings were not open to it and were made without giving him an opportunity to be heard on those findings. The credibility findings were, in my view, clearly open given the vagueness and inconsistency of many of the applicant’s claims. The Tribunal put its concerns to the applicant, as appears from the decision record. At paragraphs 38-39 the Tribunal asked the applicant about his knowledge of the PML-N and his involvement in the May 2013 general election. At paragraph 41 the Tribunal expressed surprise or scepticism that the applicant would take issue with the PML-N’s views after having been actively involved in supporting it in the election campaign. At paragraph 42-43 the Tribunal questioned the applicant about the circumstances of the radio interview and expressed scepticism that he would pre-record a message on tape. At paragraphs 56-59 the Tribunal asked the applicant why he had not previously provided the FIR to the delegate and questioned him about the details of the 21 July 2013 attack, putting the inconsistencies in his different accounts to him. The Tribunal noted the applicant did not answer some questions. At paragraph 61 the Tribunal put to the applicant the details of the Department of Foreign Affairs and Trade country information about FIRs. At paragraph 72 the Tribunal questioned the applicant about the threats made by the Taliban and why the applicant had previously travelled to Australia and returned to Pakistan without seeking asylum on those previous visits.
In relation to what I have called ground 5, I am not satisfied that there is any substance in the applicant’s complaints about the interpretation during the Tribunal hearing. Any criticism by the applicant of the interpreter in relation to the Tribunal’s refusal to accept that the FIR was genuine appears misplaced.
For these reasons I find that none of the grounds of the review have merit and dismiss the application with costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Young
Date: 27 September 2016
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