Aqt15 v Minister for Immigration and Border Protection
[2017] FCA 1529
•15 December 2017
FEDERAL COURT OF AUSTRALIA
AQT15 v Minister for Immigration and Border Protection [2017] FCA 1529
Appeal from: AQT15 v Minister for Immigration & Anor [2017] FCCA 1079 File number: VID 642 of 2017 Judge: DOWSETT J Date of judgment: 15 December 2017 Catchwords: MIGRATION – appeal from the Federal Circuit Court – decision to refuse a protection visa – whether the Administrative Appeals Tribunal failed to comply with s 425 of the Migration Act 1958 (Cth) by failing to notify the appellant that it might rely on his failure to provide medical evidence in deciding his application – appeal dismissed Legislation: Evidence Act 1995 (Cth) ss 76, 78
Migration Act 1958 (Cth) s 425, s 430
Cases cited: Muin v Refugee Review Tribunal (2002) 190 ALR 601
Re Minister for Immigration and Multicultural Affairs: Ex parte Hieu Trung Lam (2003) 214 CLR 1
Re Refugee Review Tribunal: Ex parte Aala (2000) 204 CLR 82
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Date of hearing: 6 November 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 67 Counsel for the Appellant: Mr A Aleksov Solicitor for the Appellant: Carina Ford Immigration Lawyers Counsel for the First Respondent: Ms J Lucas Solicitor for the First Respondent: DLA Piper Australia Counsel for the Second Respondent: The Second Respondent submits to any order of the Court, save as to costs ORDERS
VID 642 of 2017 BETWEEN: AQT15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
DOWSETT J
DATE OF ORDER:
15 DECEMBER 2017
THE COURT ORDERS THAT:
1.the appeal be dismissed; and
2.the appellant pay the first respondent’s costs of the appeal, including the costs of the notice of contention.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DOWSETT J:
INTRODUCTION
This is an appeal from a decision of the Federal Circuit Court, refusing an application for judicial review of a decision of the second respondent (the “Tribunal”). By that decision, the Tribunal affirmed a decision of a delegate (the “delegate”) of the first respondent (the “Minister”), refusing to grant the appellant a protection (class XA) visa. The Tribunal has filed a submitting appearance, save for any order as to costs.
THE APPELLANT AND HIS CLAIMS
The appellant is a citizen of Pakistan. He was born in Karachi on 15 November 1990. He is Sunni Muslim by religion and of Pashtun ethnicity. He grew up with his extended family in Karachi East. His father was an engineer in government service. The appellant attended the University of Karachi where he completed a bachelor’s degree in commerce. His siblings (a brother and two sisters) live in Australia, Canada and Abu Dhabi. His parents remain in the family home in Karachi.
In March 2012 the appellant commenced employment as an administrative assistant at Malik & Company. He completed his degree in June 2012 and departed for Australia on 10 July 2013, travelling on a student visa. He said that his mother was being treated for a mental health condition and that he, too, was mentally unwell. He said that this problem had caused him to discontinue his studies in Australia at the end of 2013. He has not sought or received any medical treatment. He believes that it would not help. On 5 September 2013 he applied for a protection visa.
In about 2008 or 2009, the appellant became interested in motor car racing, which interest led to his buying and selling cars for himself, family and friends. He operated mainly online. Over the three years before he came to Australia, he bought and/or sold 100‑150 cars for family members and friends.
The appellant claims to have travelled to Australia in July 2013 because he feared for his life in Pakistan, following conflict with members of the Pakistani Taliban in Karachi and Quetta. He claims that members of the Taliban sought to recruit him to their organization so that they could utilize his skills in purchasing and selling racing cars. At another point he said that they wished to deprive other people of the benefit of his expertize. He claims to have been physically assaulted and/or threatened by members of the Taliban in November 2010, January‑February 2012, September 2012 and May 2013.
THE TRIBUNAL’S DECISION
At para 14 of the Tribunal’s reasons it observed:
However for the following reasons the Tribunal does not accept the [appellant’s] account of his interactions with the Pakistani Taliban, nor does it accept that members of that organisation at any time sought to recruit him to their organisation or to punish him for his refusal to join them. In making that assessment the Tribunal notes that it considers the [appellant’s] evidence as to these events to be both implausible and internally inconsistent.
The Tribunal then examined his evidence in some detail, initially noting inconsistencies concerning the circumstances in which his siblings left Pakistan.
As to the specific events upon which the appellant relies, the first and most significant is said to have occurred in November 2010. The alleged facts are set out in the Tribunal’s reasons at para 16 as follows:
The [appellant] claims that he was first attacked by a man in November 2010 after he won a car race against his attacker, whom he had previously identified as a member of the Taliban from his manner of dress as his father had told him to beware of such people. The [appellant] told the Tribunal that his attacker did not speak during the attack or give any reason for stabbing him in the arm with a knife after the race, showing the Tribunal a scar on his right shoulder. He said his friends witnessed the attack but did not intervene for fear his attacker had a gun. The Tribunal accepts that the [appellant] has a large circular scar on his right shoulder, noting that there is no medical evidence before it as to the timing or cause of that injury. Given the apparent seriousness of the claimed attack by a member of a terrorist group and the [appellant’s] evidence that his father had repeatedly warned him against such people, the Tribunal considers it implausible that the [appellant] would not tell his family the truth about his injury or report the incident to the police, rather his evidence is that he told his family that he sustained the injury in another manner and returned to the race track and continued racing about 3-4 weeks after the attack, experiencing no further difficulties over the next year.
The appellant claims that he was next approached in January 2012, by seven or eight people. He judged them to be members of the Taliban by virtue of their appearance. They asked him to come and join them, saying that they would pay him more for his work in buying and selling cars than he was currently earning. The appellant refused, saying that he did not have time. These people told him that he was valuable to them because his knowledge of cars meant that he could identify cars that had been illegally bought or modified, and warn people against buying them. The Taliban was involved in the illegal buying and selling of vehicles and did not want him to disclose such information to potential buyers.
Concerning this matter the Tribunal observed:
The Tribunal notes the [appellant’s] evidence that he bought and sold approximately 100-150 cars for family and friends over a three year period in which he was also studying and working and does not accept that his advice to those family and friends would be of any interest or concern to the Taliban, even if that organisation was illegally importing and selling cars in Karachi as he claims.
The appellant then claimed that four weeks later, he was at the racetrack when two or three people approached him and beat him. They said that it was a warning for lying to them and refusing to work with them. The appellant said that the attack was witnessed by his friends who did not intervene but took him home after the attack. At that time, he explained the event to his parents. The Tribunal said, concerning this allegation:
This is inconsistent with his written claims in which he states that he was bleeding heavily and worried about his father’s reaction if he went home, so he stayed the night with friends and told his father he would be home the following day. When this apparent inconsistency was put to the [appellant] at the hearing, he stated it was three years ago and he couldn’t remember exactly what happened. The [appellant] told the Tribunal that he didn’t report the incident to the police because the police are all working with the Taliban.
The appellant claims that he was next approached by members of the Taliban in September 2012, when he travelled to Quetta by bus to do some purchasing. He said that seven or eight people, who looked the same as the people who had attacked him in Karachi, approached him and appeared to know about him, telling him that they had already told him that he had to work with them. He told them that he would think about it, and they allowed him to leave.
Concerning this matter, the Tribunal said:
The Tribunal notes his evidence that he travelled to Quetta by bus which took about 12 hours, considering it implausible that 7‑8 members of the Taliban in Karachi would pursue the [appellant] to another province in Pakistan, merely to have a conversation that could have taken place in Karachi.
The appellant claims that he next experienced problems in May 2013, when the police came to his home and asked him to come to the police station for questioning. Although his family was at home, nobody accompanied him to the police station. At the station, he was mistreated and accused of being involved in the Taliban’s drug and arms smuggling operations. He was beaten but denied any involvement and refused to confess to the matters of which he was accused. He was later transferred to another police station where he was visited by people whom he recognized as the Taliban members who had confronted him in Quetta. They told him that if he did not agree to work with them, they would make other problems for him by using his identity details to implicate him in smuggling or drug deals, using the cars which he had sold. They claimed to have documentation concerning his car dealings. He said that he pretended to agree that he would work with them, considering that he had no other choice at the time. As a result they allowed him to leave the police station and return home by bus. This assertion was inconsistent with an earlier statement to the effect that the Taliban had taken him home. When this inconsistency was drawn to his attention, he said that the Taliban had offered to drive him home from the police station, but that he had refused because he was angry. They had let him leave and take the bus.
Concerning this evidence the Tribunal said:
The Tribunal does not accept the [appellant’s] explanation for the inconsistency, noting that the delegate records in the decision record (a copy of which was provided to the Tribunal by the [appellant] with his review application) that the [appellant] stated at interview that the Taliban militants drove him home from the police station. The Tribunal considers that the [appellant] changed his evidence at hearing to counter the delegate's expressed concern about the plausibility of the [appellant’s] claim to have been driven home from the police station by the same Taliban militants who had on his own evidence assaulted him and threatened to kill him on several prior occasions. The Tribunal considers the [appellant’s] account of these events to be both implausible and internally inconsistent.
At paras 22 and 23 of the reasons the Tribunal set out certain other inconsistencies or anomalies in the appellant’s evidence concerning the obtaining of an Australian visa and the booking of his tickets by his father. The Tribunal also noted that he had stayed in Pakistan for more than three years after the first claimed attack by the Taliban in 2010. He said that he had waited to finish his studies, and that it took a long time to obtain necessary documentation. At para 24 the Tribunal said:
The Tribunal does not accept that it was impractical for the [appellant] to lodge an application for a student visa earlier as claimed. The Tribunal notes that during the time he claims to have been targeted for harm by the Taliban in Karachi he held a valid passport, granted to him on 17 October 2009. The [appellant’s] evidence is that he completed his IELTS test in February 2012 and his university studies in mid‑2012 but did not make an application for his student visa until June 2013. Taken together with the Tribunal’s other serious concerns about the credibility of the [appellant’s] claims, this causes the Tribunal not to accept that the [appellant] was being pursued by the Taliban between 2010 and 2013 as claimed, nor that such events led the [appellant] to depart Pakistan in July 2013.
At para 25 the Tribunal continued:
For all of the reasons set out above, the Tribunal does not accept that the [appellant] was physically assaulted and/or threatened by members of the Taliban in November 2010, January 2012, September 2012 or May 2013. The Tribunal does not accept any part of the [appellant’s] account of his interactions with the Pakistani Taliban, nor does it accept that members of that organisation at any time sought to recruit him to their organisation or to punish him for his refusal to join them. Rather the Tribunal considers that the [appellant’s] claims have been manufactured in their entirety.
The Tribunal then assessed country information which indicated that the Pakistani Taliban was active in Karachi and elsewhere in that country, as were other militant extremist groups. It accepted that terrorist and sectarian attacks occurred throughout Pakistan. It then observed at para 27:
However nothing in that material indicates that a person of the [appellant’s] profile, being a young Sunni Pashtun male with a university education and an interest in car racing and the sale and modification of race cars, faces a real chance of serious harm in Karachi from religious extremists or other militant groups for any Convention reason. As such the Tribunal does not accept there to be a real chance that the [appellant] will be targeted for harm by members of the Pakistani Taliban, other militant extremists or any other Pashtun person or group in Karachi for any Convention reason, if he returns to Pakistan now or in the foreseeable future.
On that basis the Tribunal rejected his claim to refugee status and also his complementary protection claim.
THE CIRCUIT COURT DECISION
In his review application the appellant identified four grounds. However, before the Circuit Judge he pursued only ground 4 which was:
The [Tribunal] committed jurisdictional error by misleading the [appellant] into assuming that he need not obtain medical records in respect of a claimed stabbing by a Taliban attacker and/or that the timing and cause of the injury were not issues which arose in relation to the review.
On appeal, the appellant does not press his assertion that he was misled. Hence I need not address those parts of the reasons which concern that aspect.
Section 430(1) of the Migration Act 1958 (Cth) (the “Migration Act”) provides relevantly as follows:
(1)Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:
(a)sets out the decision of the Tribunal on the review; and
(b)sets out the reasons for the decision; and
(c)sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based; and
...
The appellant submitted to the Circuit Judge that the truth of his account of events in November 2010 was a material question for the purposes of s 430(1), as appears from para 16 of the Tribunal’s decision, which paragraph is set out above. The appellant then submitted that his evidence, the fact that he had the scar and the absence of medical records concerning it comprised evidence or other material on which the Tribunal’s findings of fact were made. The appellant then submitted that the absence of hospital records was material to the Tribunal’s ultimate finding that the November 2010 attack did not occur.
The suggested “absence” of medical records may be potentially misleading. The Tribunal said, at para 16, that there was no medical evidence before it. The Tribunal was not suggesting that there were no medical records in existence, from which proposition it may have been inferred that there had been no medical treatment. Rather the Tribunal was observing that it had not had access to any such records.
These submissions were apparently designed to enable the appellant to submit that the Tribunal had failed to comply with the requirements of s 425 of the Migration Act which provides:
(1)The Tribunal must invite the [appellant] to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2)Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the [appellant’s] favour on the basis of the material before it; or
(b)the [appellant] consents to the Tribunal deciding the review without the [appellant] appearing before it; or
(c)subsection 424C(1) or (2) applies to the [appellant].
(3)If any of the paragraphs in subsection (2) of this section apply, the [appellant] is not entitled to appear before the Tribunal.
The appellant referred to three High Court decisions concerning the extent of the obligation under s 425. The three cases were:
·Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82;
·Muin v Refugee Review Tribunal (2002) 190 ALR 601; and
·Re Minister for Immigration and Multicultural Affairs; Ex parte Hieu Trung Lam (2003) 214 CLR 1.
Those cases all relate to misleading effect, a case which the appellant no longer presses. The appellant also relied (and relies on appeal) upon the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. At a later stage I shall refer to that decision in some detail.
The effect of the appellant’s argument in the Circuit Court, shorn of the misleading aspect, was that:
·pursuant to s 425(1) he was entitled to give evidence and present arguments in the Tribunal, concerning issues arising in relation to the delegate’s decision;
·he was entitled to notice of the Tribunal’s intention to dispose of the matter upon a basis other than those relied upon by the delegate; and
·such other bases might arise in the course of the interview or hearing.
At [25] the primary Judge said:
The [appellant’s] ground of review is, in reality, an argument that the [appellant] was denied the opportunity to give evidence about an issue which was dispositive to the Tribunal's ultimate decision. This issue is identified by him as his failure to provide medical evidence regarding a scar on his shoulder, which he claims was the result of a stabbing injury from an attack by the Taliban in 2010.
At [28] her Honour said:
I accept the [appellant’s] argument that an issue under review may develop during the course of the hearing. Further, there seems to be no dispute, and it is undoubtedly correct, that what was dispositive on review can only be discerned from the Tribunal’s statement of reasons or its decision record.
At [32]-[35] her Honour said:
32.I note that the [appellant] relies on copies of medical records he says he has obtained subsequent to the Tribunal hearing, in relation to the claimed 2010 attack ... . He deposes that he would have provided copies of these records to the Tribunal, had the Tribunal allowed him the opportunity to obtain the medical records. Counsel for the [appellant] made it clear that the Court did not need to determine the corroborative value of the medical evidence that has been put on affidavit evidence by the [appellant]. It is evident that this material cannot assist the Court to determine whether the [appellant] was denied procedural fairness by the Tribunal.
33.I also note that Counsel for the [appellant] argues that it is not part of the [appellant’s] case that the Tribunal ought to have asked the [appellant] whether he wanted to provide the medical evidence, or to adjourn the hearing to obtain the medical evidence. As developed by Counsel, the [appellant’s] argument was that the absence of the medical evidence relating to the scar was not drawn to the [appellant’s] attention as an issue which may be dispositive to the Tribunal’s decision on review. Consequently, the [appellant] was not given an opportunity, as required by sub‑s 425(1) of the [Migration Act], in a real and meaningful way, to give medical evidence with respect to the scar.
34.Turning first to the extract from the Transcript of the Tribunal hearing relied on by the [appellant] ... , it is evident that:
a.the Tribunal member raised the question with the [appellant] about the scar on his arm;
b.the Tribunal member, having viewed the scar, indicated to the [appellant] that it did not look like it was a from a “cut wound”;
c.the [appellant] asserted the scar was from a cut wound;
d.the Tribunal member asked the [appellant] about any medical treatment he received;
e.the [appellant] responded to this question;
f.the Tribunal member asked the [appellant] if he had any medical records relating to the medical treatment;
g.the [appellant] responded;
h.the Tribunal member clarified with the [appellant] whether he was saying he had not asked for the medical records but that he could do so; and
i.the [appellant] responded “Yes”.
35.I am satisfied, from this transcript, that the Tribunal raised the topic of the [appellant’s] scar, which the [appellant] had claimed arose from being stabbed by the Taliban in 2010. I am also satisfied that the Tribunal made it perfectly clear to the [appellant] that it doubted the scar was the consequence of a cut or stab wound. I must say that, it seems to me, that at this point the [appellant], having been put on notice that the Tribunal member doubted the scar was caused by being stabbed, was then allowed an opportunity to give evidence about the cause of the injury. The Tribunal then, in my opinion, made it clear to the [appellant] that it was interested in any medical treatment and corroborative evidence in relation to this wound. The Tribunal correctly summarised the [appellant’s] evidence that he had not obtained the medical evidence but he could do.
The Circuit Judge then dealt with the alleged misleading conduct and continued:
36.I am prepared, however, to accept that a particular issue raised by the Tribunal member during the hearing was the existence, or otherwise, of medical evidence in relation to the alleged injury which the [appellant] said caused the scar.
37.I am further prepared to accept, for the purpose of this decision, that this issue was not expressly or adequately drawn to the [appellant’s] attention.
At [39]‑[40] the primary Judge referred to the Minister’s submission that in effect, the delegate had found that she was unable to determine how or why the appellant sustained his injury. Implicit in this submission was the assertion that the finding was dispositive of the appellant’s case, and therefore not a matter about which the Tribunal was required to give the appellant notice pursuant to s 425. The primary Judge appears to have concluded (at [42]) that the delegate’s statement was merely part of the delegate’s discussion of the evidence, and not a basis for rejecting the appellant’s claim. Hence the Tribunal was, in the primary Judge’s view, required to give notice pursuant to s 425.
This conclusion was based upon the proposition that the decision in SZBEL required the Tribunal to notify the appellant of any basis upon which it might dispose of his application, unless that basis was part of the basis for the delegate’s rejection of his claim. The logic of this proposition is that the appellant should be taken to have known of the bases upon which the delegate disposed of the matter, so that, in the absence of any suggestion to the contrary the Tribunal would dispose of the review application on the same bases as those upon which the delegate had disposed of the original application.
The primary Judge went on to find that the “real question” for determination was whether or not the absence of the medical evidence was “dispositive of” the review by the Tribunal. At [43] the primary Judge recorded that the appellant had submitted that such absence was material to the Tribunal’s adverse finding as to his credibility regarding past harm. This outcome was said to flow from the fact that the absence of medical evidence was referred to in the Tribunal’s reasons. The proposition seems to assume that if a matter is mentioned in a document prepared for the purposes of s 430(1), it must be material to the Tribunal’s decision.
At [45] her Honour referred to para 16 of the Tribunal’s decision which is cited above. Her Honour observed that:
In my opinion, fairly read, the Tribunal merely notes the absence of medical evidence. This cannot be said to be a finding that causes the Tribunal to doubt the [appellant’s] claim regarding the alleged attack in 2010 ... .
The primary Judge then referred to the second half of para 16 of the Tribunal’s decision. At [46]‑[49] her Honour concluded:
46.It is the implausibility of the [appellant’s] evidence that, notwithstanding a claimed serious attack by a terrorist group and his father’s repeated warnings, he did not tell his family about the injury or report it to the police but rather returned to the racetrack after a short period of time, again putting himself in harm’s way, which can be said, in my opinion, to be dispositive to the Tribunal’s rejection of the [appellant’s] claim to have been attacked in 2010.
47.There were other reasons the Tribunal gave for not accepting the [appellant’s] claims not related to the existence of any medical evidence ... .
48.I find, therefore, that the issue of the absence of any medical evidence regarding the [appellant’s] scar was not dispositive to the Tribunal’s decision.
49.For the reasons set out above, I am satisfied that the [appellant] was given an opportunity to provide evidence and accorded procedural fairness by the Tribunal during the Tribunal hearing. Accordingly, I find that the [appellant’s] ground of judicial review does not give rise to jurisdictional error.
Clearly, the primary Judge did not accept that mere mention of the absence of medical records led to the conclusion that it was dispositive of the review proceedings in the Tribunal. In the course of argument, there was some dispute concerning the use by the Tribunal of the term “dispositive”. The appellant submitted that the term was only appropriate for use in connection with issues arising in relation to the delegate’s decision for the purposes of s 425(1). The word is used in SZBEL. However such use does not justify the proposition that it cannot also accurately be used to describe the matters referred to in s 430(1) as being “material questions of fact” or “the evidence or any other material on which the findings of fact were based”. I see no error in the primary Judge’s use of the word “dispositive”.
THE APPEAL
The appellant advances two grounds of appeal as follows:
1.The Federal Circuit Court erred in finding that the question whether there was medical evidence to corroborate the appellant's claim to sustaining his shoulder injury by being stabbed in a politically motivated attack was not an “issue” in the review conducted by the second respondent, within the meaning of s 425(1) of the Migration Act 1958 (Cth) [the “Migration Act”].
2.The Federal Circuit Court erred in ignoring the appellant's evidence in his affidavit dated 25 January 2017.
The Minister has filed a notice of contention which states:
1.In response to ground 4 of the application for judicial review filed by the appellant in the Court below (ground 1 of the appeal), the [Minister] advanced three arguments at first instance: See, AB 358-359. However, in ultimately rejecting this ground, the primary judge accepted the appellant’s characterisation of the issue as being “the failure to provide medical evidence regarding a scar on his shoulder” (AB 377 [25], 383 [36]-[37]). The primary judge also accepted the appellant’s contention that the appellant was not on notice of the issue because it was [not] an issue before the delegate (AB 383 [39]‑384 [42]).
2.The Court should have accepted the [Minister’s] arguments that (See, [Minister’s] submissions at AB 358):
a.The issue to be identified for the purposes of s 425(1) of the Migration Act 1958 (Cth) concerned the appellant’s credibility in respect of the scar sustained in November 2010 when he was allegedly attacked by a member of the Taliban.
b.The appellant was on notice of the issue by reason of the decision of the delegate as she was unable to determine how and why the appellant had sustained the injury.
3.Even if the primary judge was correct to conclude that the “issue” was as identified by the appellant, her Honour was wrong to conclude that the issue was not “expressly or adequately drawn to the [appellant’s] attention” (AB 383 [37]) having regard to the exchange at the Tribunal hearing as set out at AB 372-373 [13] of the primary judge’s reasons.
In ground 1 of the notice of contention I have inserted the word “not” where it appears to have been inadvertently omitted.
It is somewhat difficult to identify with precision the appellant’s primary argument on appeal. Put at its highest, it seems to be that the Tribunal did not comply with s 425 of the Migration Act. This proposition depends upon the assertion that the failure to provide medical evidence was not an issue which was dispositive of the application before the delegate and that therefore, it was the Tribunal’s duty to notify the appellant that it might rely upon it in deciding his application.
In SZBEL at [33]‑[40], the High Court said:
33.The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. The reference to “the issues arising in relation to the decision under review” is important.
34Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language “arising in relation to the decision under review” is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision‑maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.
35The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
36It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
37That this is the consequence of the statutory scheme can be illustrated by taking a simple example. Suppose (as was the case here) the delegate concludes that the applicant for a protection visa is a national of a particular country (here, Iran). Absent any warning to the contrary from the Tribunal, there would be no issue in the Tribunal about nationality that could be described as an issue arising in relation to the decision under review. If the Tribunal invited the applicant to appear, said nothing about any possible doubt about the applicant's nationality, and then decided the review on the basis that the applicant was not a national of the country claimed, there would not have been compliance with s 425(1); the applicant would not have been accorded procedural fairness.
38When it is said, in the present matter, that the appellant was not put on notice by the Tribunal that his account of certain events would be rejected as “implausible”, and that this conclusion was “not obviously … open on the known material”, the focus of the contention must fall upon what was “obviously … open” in the Tribunal's review. That can be identified only by having regard to “the issues arising in relation to the decision under review”. It is those issues which will determine whether rejection of critical aspects of an applicant's account of events was “obviously … open on the known material”.
39If the issues on the review of the delegate's decision by the Tribunal are identified no more particularly than by the question “is the applicant entitled to a protection visa?”, rejection of some, or all, aspects of his account of the past events said to found his fears of persecution would self‑evidently be a conclusion open to the Tribunal. The conclusion would be open because every aspect of the applicant's claim would be in issue in the Tribunal's review of the delegate's decision. But if the issues are to be identified more particularly, other questions arise.
40More than once it has been said that the proceedings in the Tribunal are not adversarial but inquisitorial in their general character. There is no joinder of issues between parties, and it is for the applicant for a protection visa to establish the claims that are made. As the Tribunal recorded in its reasons in this matter, however, that does not mean that it is useful to speak in terms of onus of proof. And although there is no joinder of issues, the Act assumes that issues can be identified as arising in relation to the decision under review. While those issues may extend to any and every aspect of an applicant's claim to a protection visa, they need not. If it had been intended that the Tribunal should consider afresh, in every case, all possible issues presented by an applicant's claim, it would not be apt for the Act to describe the Tribunal's task as conducting a “review”, and it would not be apt to speak, as the Act does, of the issues that arise in relation to the decision under review.
(Footnotes omitted.)
At [47]‑[48] the High Court observed that:
47.First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
48.Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry …,
“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
(Footnotes omitted.)
The parties agree that if the Tribunal proposed to dispose of a review application on a basis which was not dispositive of the matter by the delegate, then it was obliged to advise him to that effect so that he could respond accordingly. The High Court accepted that any necessary notice might be given in the course of the hearing, including by questioning which focussed on the particular issue, and that the need to give such notice might arise in the course of hearing. Finally, the High Court considered that the Tribunal was not obliged or entitled to adopt the position of contradictor, or to give any indication of its state of mind at any particular stage in the hearing.
This appeal concerns the way in which the Tribunal dealt with the appellant’s claims concerning the November 2010 assault. However the proceedings in the Tribunal must be seen in context, including that of the appellant’s original application, and the way in which the delegate dealt with it. In the appellant’s original statement, made in support of his visa application, at page 6, this paragraph appears:
My father suspected that I was returning home very late during midnights and asked me to come early. I couldn't come back home early as the car race took place usually during late hours. The first problem that I faced was in 2010, when I had a race with Pathans and students. I could win the race due to the performance of the car. At the end of the race, one of the contestants looked like a Taleban militant who lost the race with me, slashed my right arm with his sharp knife and I started to bleed. Luckily most of the spectators had left the area and only friends quickly took me to a doctor known to him and the doctor stitched my wound. As I did not have my legal licence to drive I feared to let the authorities know about it. I feared that my father would stop me from car racing if he found that some one hurt me. When I came home I told him that I got scratched by a nail while playing around with my friends. He ordered me to stay at home till I was fully cured. For nearly three weeks I did not visit the race course. When I went back, the other contestants asked me why I did not turn up and they had heard the news from my friends that either a Pathan or a Taleban militant stabbed me with his knife. The students and the men were very furious and they told every one to be sportive and not to hurt anyone. If they did would be banished and ordered to stay away from the car tracks in the future. When I got my licence in 2011, I had the confidence to drive smoothly and safely.
At para 8 the delegate summarized this claim as follows:
[T]he [appellant] encountered his first problem in 2010. He won a car race and realised one of the contestants he had beaten looked like a Taliban militant. The suspected militant slashed the [appellant’s] right arm with a sharp knife. The [appellant] did not return to the racecourse for a period of three weeks.
In her findings the delegate said:
In or around November 2010, the [appellant] said he started a race and he could tell the other contestant was not a good person because he had a beard and was dressed like a member of the Taliban. He said the contestant he beat was with a group of seven to eight people and that after the race he was attacked with a knife but nothing was said to him. At interview, the [appellant] showed me a scar on his arm however I am unable to determine how and why the [appellant] sustained this injury. I put to the [appellant] that given he thought the contestant he raced was a member of the Taliban, why did he decide to race him. The [appellant] said he was "very much excited" and that if he won the race he would become more popular. When asked if he saw these militants again, the applicant said "I don't remember. I haven't seen them". I then asked the [appellant] the name of the Taliban group in Karachi and he said they were from the Tehrik-e Taliban Pakistan ('TTP').
The [appellant] said he returned to the racecourse after he had recovered, a period approximately three weeks. I said to the [appellant] that given he had suffered such a violent injury, why did he continue to partake in car racing. In response, he said "So my racing was at the peak and I thought these sorts of incidents take place". I asked the [appellant] about his time in Pakistan from November 2010 to January 2012, and he said he was involved in car racing, modifying cars and trading cars online during this time. He said "Nothing happened, nobody attacked me".
It seems that the delegate did not accept the appellant’s evidence concerning the 2010 incident. The delegate said:
I do not accept the [appellant] knowingly raced and beat a member of the Taliban and it follows I do not accept the [appellant] was physically harmed by a member of the Taliban. The [appellant] provided an unconvincing account of why he thought the group of men were from the Taliban and I find it implausible that he would suffer such a violent attack and then return to the racecourse a few weeks later to potentially risk further assault and injury. I note also that the [appellant] did not claim he suffered from any harm during November 2010 and January 2012, and thus even if I were to accept such an incident occurred, it would have been an isolated incident rather than systematic and discriminatory persecution.
I infer that the word “during” should be “between”.
In my view the relevant issue arising in relation to the decision was whether or not the appellant’s evidence concerning the alleged incident in November 2010 was true or, perhaps more particularly, whether the incident occurred. The appellant failed on that point. The Tribunal was obliged to consider that matter, but it was not a matter about which notice had to be given pursuant to s 425 because it was clearly an issue arising in relation to the delegate’s decision. There can be no doubt that the appellant knew that the credibility of his evidence concerning the incident was very much in issue in the Tribunal.
The appellant’s submission is that absence of the hospital records only arose in the course of the interview or hearing in the Tribunal. He apparently submits that at that stage, he ought to have been notified that the Tribunal might have regard to that matter in determining his review application. The following extract from the record at paras 9‑13 demonstrates how the matter arose:
[Appellant]: In 2010 when I started this racing so that was my choice to do that and there was Pashtun Taliban. The other party like they were Pashtun Taliban but because of my interest I didn't wanted to do this race with them but because of my interest I was compelled to do it, and they had the same car, and then I started racing with them.
Member: What do you mean you were compelled to do it?
[Appellant]: Because at that time, well, some of my friends they were there and they were watching everything so they forced me to do it because at that time I didn't want to race with them, but because everyone was there to watch and then I did that.
Member:I want to make sure I understand what you're telling me here. Why were you forced to race; why would your friends force you to race against the Taliban?
[Appellant]: The first time when I looked at them, so because of their appearance I just realised that they're not good people. But after that when my friends forced me to do racing with them, so I just thought that there may not be any problem or any issue after that, so it was because of their force and when they were giving me like encouragement and so I just realised that I should do it.
Member:So, what was it about these people's appearance that made you think they were Taliban?
[Appellant]: It was the way they dressed up and they were wearing shalwal kameez so because of that I realised that they are not good people. And also my father, he indicated to me that you have to keep yourself away from different people or bad people, so that's why I got this.
Member:So, how many Taliban were there?
[Appellant]: As far as I remember there were seven to eight people.
Member:And were they also racing?
[Appellant]: Yes, they did racing and they were having interest also in racing, so when I looked at them so I just thought that maybe they are doing this racing stuff so they might not be that much bad people as I am thinking about them and from their appearance.
Member:How did your friends force you to race against them?
[Appellant]: Everyone was there to do racing and moving their cars, so my friends were there and they said that – and they were – the Taliban were also there so my friends said that you can race and I just started racing with them. Yes, the reason was that only to check your cars; it was not that that we could get any amount but we were just there to check our cars so that we can do racing with these cars or not. So, that was the reason.
Member:And so, what happened?
[Appellant]: Then I did racing with them and unfortunately I won that racing, and after that when I moved my car so they attacked on me.
Member:So, the same day they attacked you?
[Appellant]Yes, it was like that.
Member:So, how many people attacked you?
[Appellant]: Only one.
Member:And what did he do?
[Appellant]: I did nothing and he was having a knife and he did attack on me with the knife, and I still have the cut on my arm. And my friends, they didn't do anything with me.
Member:What do you mean your friends didn't do anything?
[Appellant]: My friends they realised that maybe they are not good people and they were afraid that maybe if he has any gun with him so he - they would start shooting us, so that's why they just didn't come up and they were not there to help me in that way to just fight with that person.
Member:Do you still have the scar on your arm?
[Appellant]: Yes.
Member:Do you want to show me? So, are you saying that's a knife wound?
[Appellant]: Yeah.
Member:I mean it doesn't look like a cut wound.
[Appellant]: It was a knife wound and if you want to examine that that it proves [Unintelligible 0:36:12.6] you can tell it is.
Member:Did you go to hospital?
[Appellant]: I didn't go to the hospital but there was one of my friends, he took me to the doctor. I didn’t go to the hospital because I just thought that my parents they will come to know about this incident.
Member:What sort of medical treatment did you get from the doctor?
[Appellant]: He just did some stitches, temporary, I remember that I had one injection also.
Member:And so, did you tell your parents about that wound?
[Appellant]: I just told them that during the day I hurt myself.
Member:Did your parents know you were racing cars then?
[Appellant]: No.
Member:So, you said the doctor put temporary stitches on; did you get further medical treatment?
[Appellant]: I did not at the time. I went to Liaquat National Hospital after that.
Member:And what treatment did you get in the hospital?
[Appellant]: The did proper like treatment and proper stitches and clean it up and then provide me with some medication, and I don't know if it was antibiotic or any other medicine but they provided me medication also.
Member:And do you have any medical records relating to that treatment?
[Appellant]: I call there and ask them to give me any kind of like history, so I can do that, just to ask them for any medical record. I don't have anything right now with me but if I want to ask them that I need some records or any medical history so they can - I can find but it's very hard to. Hospital is - it's near to a hospital, a very famous hospital, Liaquat National Hospital, just side to side.
Member:So, I understand you're saying you haven't asked for the medical records but you can do?
[Appellant]: Yes.
[Emphasis added.]
Member:So, why did this person attack you?
[Appellant]: Because of me he didn't win the race, so maybe he was so angry, so that could be the only reason.
Member:Did he talk to you?
[Appellant]: No.
Member:And did you report it to the police?
[Appellant]: I didn’t report it to the police because I know if I do that, so my parents they will come to know and after that it will be very difficult for me for my whole life.
Member:So, a man stabs you at a racecourse and you don't report it to the police. What did you do?
[Appellant]: Because I knew that if I go to the police they are not going to do anything but it could like increase any kind of issues in my family, then maybe my parents they would not allow me to do racing again for my whole life.
Member:So, what happened next?
[Appellant]: As far as I remember I didn't go to [Unintelligible 0:42:05.5] since I was having this injury so I didn't go to the racetrack. And after that when I was feeling better then after that I went there.
Member:So, how long did you stay away from the racetrack?
[Appellant]: Almost three to four weeks I didn't go there.
Member:And so, then you returned to the racetrack after three or four weeks?
[Appellant]: Yes, I did.
Member:And why would you do that when somebody had stabbed you there a few weeks earlier?
[Appellant]: I went there because of my trust and then I thought that it's very common in Karachi that these kind of incidents happen with anyone, so that's why I just thought that nothing would happen again, so I went there.
Member:And what happened when you returned?
[Appellant]: And after that when I went there so everyone told me that you should keep yourself away from this kind of like incidents because it can affect the [Unintelligible 0:43:51.3], so I went there and nothing happened after that.
Member:Did you see the person who stabbed you again?
[Appellant]: No.
Member:And so what happened next?
[Appellant]: I went there and nothing happened when I went there and I started my racing again and I started my own work selling and purchasing the cars. But nothing happened for some time.
The only reference to the medical records in the Tribunal’s reasons is at para 16 where the Tribunal said:
The Tribunal accepts that the [appellant] has a large circular scar on his right shoulder, noting that there is no medical evidence before it as to the timing or cause of that injury
The Tribunal did not purport to draw any adverse inference from that fact. Rather, para 16, demonstrates that the rejection of the appellant’s evidence was based upon its general implausibility. See also para 25. There is no apparent reason for assuming that the Tribunal inferred anything more from the absence of medical records than it stated, namely that there was no medical evidence which might demonstrate the time and circumstances of the injury.
That might well have been an end of the matter, save for the fact that the appellant tendered to the Circuit Judge medical records which he had obtained, apparently relating to the scar. The records disclose that on 21 November 2010 the appellant was treated for a knife cut to the right shoulder, and that 16 stitches were inserted. Those records provide a basis for inferring that his injury was suffered in November 2010 and was a knife wound, but they say little more of any relevance for present purposes. The relevance of an injury on that date depended very much upon the Tribunal’s acceptance of the appellant’s evidence as to how the injury was incurred. The medical records, by themselves, establish only the factual matters to which they refer.
I have already set out paras 14 and 16 of the Tribunal’s decision where it makes observations concerning this aspect of the appellant’s case. At para 25 the Tribunal concluded:
25.For all of the reasons set out above, the Tribunal does not accept that the applicant was physically assaulted and/or threatened by members of the Taliban in November 2010, January 2012, September 2012 or May 2013. The Tribunal does not accept any part of the applicant’s account of his interactions with the Pakistani Taliban, nor does it accept that members of that organisation at any time sought to recruit him to their organisation or to punish him for his refusal to join them. Rather the Tribunal considers that the applicant’s claims have been manufactured in their entirety.
The Tribunal then dealt with other aspects of the appellant’s claim to fear persecution for a Convention reason and continued at para 30:
For the reasons set out above, the Tribunal has not accepted that the [appellant] has been physically assaulted and/or threatened in Karachi or Quetta by members of the Taliban or any other group of militant extremists. Nor has it accepted that members of the Taliban or any other militant group sought to recruit the [appellant] to their organisation or to punish him for his refusal to join them. The Tribunal has not accepted there to be a real chance that the [appellant] will be targeted for serious harm if he returns to Pakistan now or in the foreseeable future for any reason.
GROUND 2
In considering the grounds of appeal, it is best that I deal firstly with the second ground, given that it concerns the admissibility and relevance of evidence. The appellant complains that the Circuit Judge erred in that she ignored his affidavit dated 25 January 2017 in which the appellant stated:
1.I am the Applicant in these proceedings. I am Pakistani, and my native language is Urdu.
2.At the Tribunal hearing on 26 March 2015 I tried to explain to the Member many times that if she wanted evidence then I could get it for her. For example, when the Member asked me about the time that I was stabbed by the Taliban in 2010, I told her that I could get medical records from the hospital which treated me if she needed it. I did not provide her with these records as the Member’s body language suggested that she didn’t care about what evidence I could provide, and that she was not interested in me getting anything for her. Many times at the hearing I would say something like “if you want evidence I can get this for you”, but the Member’s face indicated to me that she did not care. She would just move to her next question without indicating whether I should get the evidence or not.
It seems that at first instance, this evidence was proffered in support of the claim that the Tribunal had misled the appellant into believing that the absence of the medical records and/or the timing and cause of his injury were not live issues in the review. As I have said, the appellant no longer persists in that assertion. The contents of the affidavit are not really consistent with that abandoned submission. The affidavit rather indicates that the appellant formed the view that the Tribunal was not interested in anything that he said or might say. The appellant did not say that the Tribunal’s indifference was only as to absence of the hospital records.
The appellant now submits that the contents of the affidavit are relevant to any suggestion that the Tribunal had put the appellant on notice that the absence of hospital records might be an issue, the submission being that whatever the Tribunal may have said in that regard, its conduct negatived any such effect. In other words, even if the Tribunal gave appropriate notice, it was negated by its alleged lack of interest in the appellant’s case. The appellant seems to submit that by application of ss 76(2) and 78 of the Evidence Act 1995 (Cth), the appellant’s opinion concerning the Tribunal’s behaviour may be admissible for that purpose.
In effect the appellant submits that the alleged conduct by the Tribunal in some way entitled him to ignore any notice that he was given to the effect that the absence of medical records might be a material issue in the Tribunal’s consideration of his application for review. There is no rational basis for any such proposition. Appropriate notice was either given, or it was not. In any event, the evidence was really of inferences drawn by him, without any details of the observations upon which such inferences were drawn. This evidence, for that reason is, in any event, of negligible weight. For these reasons ground 2 must fail.
GROUND 1
The ultimate question before the Tribunal was whether the appellant feared persecution for a Convention reason, or whether his circumstances engaged the complementary protection provisions. A major issue was whether or not the alleged incident in November 2010 occurred. The Tribunal concluded that it was not satisfied by the appellant’s evidence that the event had occurred. The reasons for this conclusion are to be found in paras 16‑26 of the Tribunal’s reasons, particularly in paras 16, 24 and 25. At no point does the Tribunal suggest that its decision was influenced by the absence of hospital records. Clearly the Tribunal considered that his evidence concerning the November 2010 incident was implausible. It may well have thought that if the records were available, they might corroborate the appellant’s claim. However it cannot be that every fruitless line of inquiry canvassed by the Tribunal will, if mentioned in its decision, lead to the conclusion that the Tribunal has treated its fruitlessness as undermining the relevant claim. Such an approach might well lead the Tribunal to refrain from asking such questions, a result which might be unfavourable to the applicant in question.
It may be that the appellant’s submission is based upon a perception that the Tribunal focussed on an apparent weakness in his case. However the transcript does not bear out any such view. The question of the hospital records took up only a small part of the time consumed in the interview. The reference to it in the Tribunal’s reasons is quite neutral. The primary Judge correctly concluded that the absence of hospital records was not dispositive of the appellant’s case before the Tribunal. To the extent that there is any argument about the use of the word “dispositive”, I use it only to describe a matter which is part of the basis upon which the Tribunal’s decision was made.
In the end, I consider that the relevant issue arising in relation to the delegate’s decision was whether or not the November 2010 incident occurred. Consideration of that issue necessarily involved examination of the appellant’s claims concerning that matter, including a claim to have received medical attention. The Tribunal did no more than canvass that issue and, in doing so, explored the availability of medical records. As it happened, that inquiry produced no results. I do not see that there was any obligation on the Tribunal to advise the appellant that its fruitless enquiry concerning such records might lead to it to reject his evidence concerning the incident. In any event, the Tribunal did not reject his evidence on that basis.
Further, the Tribunal’s questioning was sufficient to make him aware that the absence of records might have some effect upon the outcome. The transcript suggests that he realized as much and spoke about obtaining records. On appeal he does not assert that, he should have been offered an opportunity to do so. In any event, as I have said, the absence of such records was not a matter taken into account by the Tribunal in refusing his application for review.
It follows that if necessary I would have upheld grounds 2(a) and 2(b) of the notice of contention.
The appeal must be dismissed with costs, including the costs of the notice of contention.
I certify that the preceding sixty‑seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 15 December 2017
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