AOQ16 v Minister for Immigration

[2017] FCCA 1548

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOQ16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1548

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – protection visa – whether the Tribunal unreasonably refused an extension of time – whether the Tribunal erred in dealing with certificates – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 424B, 438, 440, 476.

Cases cited:
MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1
Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305
VEAL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88

First Applicant: AOQ16

Second Applicant: AOR16

Third Applicant: AOS16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 594 of 2016

Judgment of: Judge Street

Hearing date: 4 July 2017

Date of Last Submission: 4 July 2017

Delivered at: Sydney

Delivered on: 4 July 2017

REPRESENTATION

Solicitors for the Applicant: Mr M Jones
Parish Patience Bitel Pty Ltd

Solicitors for the Respondents: Mr A Day
DLA Piper Australia

ORDERS

1. Leave is granted to the applicants to file and rely upon the further amended application signed 4 July 2017 and the Court dispenses with the need for the electronic filing of the same.

2. The further amended application is dismissed.

3. The second and third applicants pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 594 of 2016

AOQ16

First Applicant

AOR16

Second Applicant

AOS16

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 15 February 2016 affirming a decision of the delegate not to grant the applicants protection visas. The applicants were found to be citizens of Pakistan. The first applicant is the son of the second and third applicants. The first and second applicants made applications for protection and included the third applicant, the father of the first applicant, as a member of the family unit.

2. On 1 October 2014, a delegate refused to grant the applicants protection visas. The second applicant entered Australia on 6 October 2011 as a dependent holder of a vocational education sector subclass 572 visa valid until 7 August 2013. The second applicant left Australia on 5 September 2012 and returned on 27 September 2012 and during that period returned to Pakistan.

3. The first applicant was born on 4 April 2014 and has not departed Australia. The third applicant, who has been appointed a litigation guardian for the first applicant, arrived in Australia on 5 February 2009 on a TU572 student visa and twice departed Australia from 9 April to 5 May 2010, and then on 5 September 2012 to 27 September 2012 and on both occasions returned to Pakistan. The application for a protection visa by the first and second applicants was made on 16 May 2014.

4. The delegate made adverse credibility findings in relation to the applicants’ claims and found the applicants failed to meet the criteria for the grant of protection visas. The application for review was filed on 13 October 2014.

The Tribunal’s decision

1. By letter dated 2 November 2015, the applicants were invited to attend a hearing on 16 December 2015. The applicants attended on that date to give evidence and present arguments. A transcript of the hearing has been tendered before the Court.

2. In the course of that hearing, the Tribunal raised credibility issues with the second and third applicants. At page 19 of the transcript, during the evidence of the second applicant, the Tribunal member noted that since the delegate last spoke to the applicant somebody had telephoned in and made a report to the Department that the second applicant’s husband was actually faking his psychological problems. The member continued:

   “Okay. So I just want to tell you that I don’t have any more information about that and I’m not going to place any weight on that, so it won’t – so I won’t – it won’t affect my findings in relation to your case.

3. During the evidence of the third applicant, the Tribunal referred to the fact that:

   “somebody wrote to the Department or telephoned the Department, I’m not sure – and said that you had – you were faking, basically. As the last member told you, there’s no – it’s completely anonymous, we do not know who…”

4. The applicant responded, “Yeah” - and the member continued:

   “…who said it and I’m not giving it any weight at all, okay?”

5. The witness, being the third applicant said, “Yeah”. The member then continued:

   “So I’m just disregarding that, but I just need to tell you that, okay?”

6. To which the third applicant responded:

   “I can add this thing, I know who’s this, that’s my previous agent, he asked me for money once I applied for it and…”

7. On the face of the transcript, the applicants had a genuine and meaningful hearing. The Tribunal identified the applicants’ background and the application of protection visas by the husband and the wife on 14 November 2012, which were the subject of a decision by a Tribunal affirming a decision of the delegate not granting them protection visas.

8. The Tribunal identified the current application for protection and the refusal by the delegate. The Tribunal identified what occurred in support of the first application, as well as the information provided in support of the second application and the claimed fear that they would be targeted or harmed at the hands of the Taliban.

9. The Tribunal referred to the fact that on 15 January 2016 the Tribunal wrote to the applicants and invited them to comment, pursuant to s.424A, on information in relation to several aspects of their claims. The Tribunal noted that it also provided in that letter copies of the DFAT reports of 2016 to the applicants.

10. The Tribunal noted that on 1 February 2016, the Tribunal received a request for more time to provide documents and to obtain legal advice. The Tribunal noted that it had refused that extension request. The Tribunal noted that it received a response to the letter on 10 February 2016. That response engaged with both the subject matter of s.424A in respect to the invitation for response or comment, as well as responding to the DFAT report. No request for further time was made in the response dated 10 February 2016. The Tribunal’s letter dated 1 February 2016 identified that it had given careful consideration to the request for an extension of time, but had decided not to grant the same.

Consideration of claims and evidence

Decision to return to Pakistan

1. The Tribunal then turned to the issue of the applicant’s claims and addressed, in particular, the applicants’ decision to return to Pakistan. The Tribunal identified reasons for concerns in respect of the truthfulness of the second and third applicants’ claims. The Tribunal did not accept the explanation for the inconsistencies and, in the Tribunal’s view, the second and third applicants’ willingness to return to Pakistan to their home region at the time when the second applicant was pregnant with the first applicant raises considerable doubts in relation to the truthfulness of their claims.

Incidents upon return to Pakistan

1. The Tribunal turned to the alleged incidents that occurred when they returned to Pakistan and identified inconsistencies in that regard. The Tribunal did not accept the applicants’ explanation for the inconsistency of the evidence. The Tribunal considered that the applicants at different times had attempted to explain their reasons for going out on a motorcycle despite purportedly being monitored but had forgotten their explanation. In the Tribunal’s view, the evidence in relation to that issue was indicative of the fact that the applicants had manufactured their claims to have been monitored and attacked.

The death of the third applicant’s father

1. In relation to the death of the third applicant’s father, the Tribunal did not accept that there was any evidence that the applicant’s father was a Shia leader, and as previously stated, the Tribunal considered that had he been a Shia leader of some prominence who was killed by Islamic extremists, there would have been reporting of his death at the hands of the Islamic extremists.

Family’s disappearance

1. The Tribunal turned to the issue of family members’ disappearance. The Tribunal did not accept that family members were in hiding and moving from place to place and considered that the evidence on that issue is indicative of the fact they have fabricated their claims.

Conclusions on past harm

1. The Tribunal did not accept that the applicants were targeted by extremist groups when they were in Pakistan. The Tribunal took into account the psychologist’s and other medical evidence. The Tribunal was not satisfied the applicants’ claims are truthful and was not satisfied that the psychologist reports and medical reports overcame the Tribunal’s findings that the applicants had fabricated their claims in an attempt to provide a basis for Australia’s protection.

2. The Tribunal referred to an anonymous letter received by the Department and said that the Tribunal makes no adverse findings in relation to that anonymous letter. The Tribunal observed that when the issue was discussed during the hearing, the third applicant indicated he knows who sent it and that it was someone with whom he had a dispute. The Tribunal noted that it had no knowledge of the identity of the author and gives the document no weight.

3. The Tribunal also referred to its decision to refuse to give the applicants an extension of time to provide documentation and obtain legal advice. The Tribunal was satisfied the applicants were aware of the issues, which were discussed with them at length during the most recent hearing and at a previous hearing and two previous interviews with the Department and that their claims had been raised since 2012, when they first lodged an application. The Tribunal was satisfied that it was both reasonable and appropriate that it proceed with a decision.

4. It was in these circumstances the Tribunal found that the applicants did not have a well-founded fear of persecution for any Convention reason.

Complementary protection

1. The Tribunal was not satisfied of that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan there was a real risk the first and second applicants would suffer significant harm. Accordingly, the Tribunal found that the first and second applicants failed to meet the criterion under s.36(2)(aa). As the first and second applicants did not meet the criteria under s.36(2)(a) or s.36(2)(aa), it follows that they are unable to satisfy the criteria under s.36(2)(b) or s.36(2)(c) and the Tribunal found that the third applicant was not the member of a family unit who satisfies the criteria under s.36(2)(a) or s.36(2)(aa) and affirmed the decision under review.

Proceedings before this Court

Grounds of the application

1. The grounds in the further amended application are as follows:

   1. The Tribunal acted unreasonably in refusing to extend time for the Applicants to reply to an invitation to comment on or respond to information.

   Particulars

   On 15 January 2016 the Tribunal sent the Applicants an invitation to comment on or respond to information, including two newly released reports from the Department of Foreign Affairs and Trade amounting to around 40 pages. The Tribunal gave the Applicants until 10 February to respond . On 1 February the Applicants requested an extension of time, on the basis that they were waiting for documents from overseas and needed legal advice. The Tribunal refused to allow the extension. The Applicants were forced to respond as best they could by the date specified without the documents or legal advice they felt they needed. The Tribunal gave no reasons for its refusal.

   2. The Tribunal erred in dealing with the certificates purportedly issued under s.438 of the Migration Act 1958.

   Particulars

   A delegate of the Minister gave the Tribunal two certificates purportedly under s438. If either certificate was valid under that section, the Tribunal denied the Applicant procedural fairness by not revealing its existence to the Applicant at any time before the Tribunal made its decision.

   If either certificate was invalid:

   (a) the Tribunal erred by acting upon it as if it were valid; or

   (b) the Court may infer that the Tribunal did not properly turn its mind to whether:

   (i) it ought to have made disclosure under s 424AA or s 424A; or

   (ii) the documents supported the application; or

   (iii) disclosure should have been made under ss 425 or 427(1 )(c).

Consideration of grounds

Ground 1

1. In support of Ground 1, Mr Jones, solicitor for the applicants, relied upon an affidavit filed and read by the third applicant, in which the third applicant made an observation as to his understanding that he was being asked to comment on all of the information in the letter, including the DFAT 2016 reports that were attached.

2. The applicant asserted that he thought he would need some legal advice to help. It was in those circumstances that the applicant indicated that he telephoned and put in writing his request for more time. The applicant confirmed that he received a response on the same day declining that request. The applicant identified spending time trying to deal with the DFAT material and responding to the same. The applicant’s response on 10 February 2016 reflects the response to the DFAT material as well as to the alleged material in s.424A as earlier referred to. The applicant expressly refers to getting help from someone who was not a registered agent in order to respond.

3. The applicant said he did his best to comment on all of the material in the time that was given. The applicant asserted that he did not think he really had time enough to get advice about all of it and did not feel that his response was as good as it could have been.

4. Nothing in the submissions provided on 10 February 2016 identified any further request for an extension of time or any difficulty of the applicant in responding to the letter dated 15 January 2016. Further, the request that the applicant sent in referring to waiting for some documents from overseas was not, of itself, part of the request for an extension of time.

5. The taking into account of the applicant’s migration history is one in respect of which the response by the Tribunal cannot be said to be unreasonable. Mr Jones relied upon the time period in the present case, being precisely within the time period required under s.424B. Mr Jones contended that the material that was not the subject of 424A, being the DFAT reports, had imposed a burden on the applicant and that the applicants had misunderstood what it was they had to respond to. Mr Jones accepted that the DFAT reports were not information that the Tribunal had to provide to the applicants. That was seized upon by Mr Jones as one of the reasons why further time should have been provided by the Tribunal.

6. On the face of the material before the Court, the Tribunal complied with its obligations under s.424A and s.424B. The Tribunal clearly considered the request for an extension and responded promptly. As the Tribunal identified in its reasons, in addition to the response sent on 1 February 2016, this was a case where the issues the subject of the claim for protection had been on foot for some time. It was open in the circumstances of the present case for the Tribunal, acting reasonably, to refuse the request for an extension of time. No jurisdictional error is made out by Ground 1.

Ground 2

1. In relation to Ground 2, Mr Jones relied upon both certificates as giving rise to an obligation by the Tribunal to disclose the existence of the certificates consistent with the decision in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 and Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 and submitted that the first certificate dated 1 March 2013 was valid, but that the applicant was denied the opportunity to address in relation to its validity. Mr Jones submitted in relation to the second certificate, dated 22 September 2014, that that part of the certificate provided under s.438(1)(a) was invalid and that the applicant lost the opportunity both to address the validity of the certificate and to comment on the material the subject of the certificate.

2. The earlier certificate, dated 1 March 2013, was given to a differently constituted Tribunal. Mr Jones maintained that as both certificates were before the current Tribunal, the obligation attached in relation to the disclosure of those certificates as a matter of procedural fairness. Mr Jones took the Court to the documents the subject of the certificates and, in particular, the identification of there being a source who provided information, asserting that the third applicant was providing false documents and had organised fake documents and that the third applicant was going to advance a false claim regarding his mental conditions. Mr Jones argued that the information was of a kind which, on its face, was credible and relevant and falls clearly within the reasoning of the High Court in Applicant VEAL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 relevantly at paragraphs 14 through to paragraph 19.

3. In the present case, the Tribunal, in the course of the hearing, expressly disclosed the existence of information that had been provided, alleging the provision of fake information by the third applicant. It is material in the present case that in the course of the hearing the Tribunal identified that it would place no weight on that material and, further, the Tribunal expressly said that it was not going to place weight on that material and it would not affect the findings in relation to the case.

4. The Tribunal’s reasons also refer to that material and expressly identified making no adverse findings in relation to that information. As the Tribunal has not taken the information into account in its reasoning process, and made clear to the applicant it would not do so, and made clear the existence of the information it was not taking into account, I am satisfied that there was no practical injustice to the applicant in the present case.

5. Mr Jones argued that the full nature of the information was not disclosed and argued that the Tribunal had not exercised its powers under s.440, and, accordingly, had not made any disclosure of the kind identified under s.438(4). I accept that the Tribunal did not disclose the information in whole to the applicants during the hearing and did not purport to exercise any power under s.440 but that does not give rise, in the circumstances of the present case, to there being any practical injustice. Where the Tribunal sufficiently identified the existence of information in the course of the hearing in respect of which it was not going to give any weight, the reasoning in VEAL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 is distinguishable. In the course of conducting the review there was sufficient disclosure of the existence of adverse information to comply with the requirements of procedural fairness.

6. There was no denial to the applicant of procedural fairness in the present case. I am satisfied that there was no practical injustice to the applicants by reason of the failure to disclose the certificates or the subject matter of the certificates in the present case. The decision in MZAFZ and the decision in Singh are also distinguishable. I find that there was no practical injustice to the applicants from the non-disclosure of the certificate or from the non-disclosure of the whole of the documents the subject of the certificates. I find that there was no jurisdictional error.

1. Further, I find that even if there was a denial of procedural fairness of a kind that constitutes a relevant error enlivening this Court’s discretionary jurisdiction, I am satisfied that no practical injustice was occasioned to the applicants and as a matter of discretion, for that reason relief should be refused.

Conclusion

1. For these reasons, the further amended application is dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 18 July 2017