AVF16 v Minister for Immigration

[2017] FCCA 1347

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVF16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1347

Catchwords:
MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Protection (Class XA) visa – citizen of Pakistan – claimed conversion from Sunni to Shia Muslim – claimed homosexual – whether claims disregarded – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.474, 476

Cases cited:

Craig v The State of South Australia (1995) 184 CLR 163; (1995) 82 A Crim R 359; (1995) ALJR 873; (1995) 131 ALR 595; (1995) 39 ALD 193
Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244

Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1

Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225

Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1

Applicant: AVF16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 162 of 2016

Judgment of: Judge Antoni Lucev

Hearing date: 20 June 2017

Date of Last Submission: 20 June 2017

Delivered at: Perth

Delivered on: 20 June 2017

REPRESENTATION

For the Applicant: No appearance

Counsel for the First Respondent: Mr DG Ireland

For the Second Respondent:	Submitting appearance, save as to costs
Solicitors for the Respondents:	Australian Government Solicitor

ORDERS

1. That the application be dismissed.

2. That the applicant pay the first respondent’s costs in the sum of $7,206 by 20 July 2017.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 162 of 2016

AVF16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

Introduction

1. The applicant seeks judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the second respondent, the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 18 March 2016. The Tribunal affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”), on 17 December 2014 not to grant the applicant a Protection (Class XA) visa (“Protection Visa”).

2. The Tribunal Decision appears in the Court Book (“CB”) at CB 264-292.

3. The Court notes that notwithstanding orders made by a Registrar of this Court on 25 May 2016, the applicant did not file any amended application giving particulars of the grounds of application, any further affidavits or any submissions, as the applicant was entitled to do. The Court further notes that on the hearing of the application today the applicant has not appeared. That is explained by an affidavit filed by a lawyer for the Minister, David George Ireland on 14 June 2017 (“Mr Ireland’s Affidavit”), which indicates that the applicant departed the Commonwealth of Australia on 8 June 2017, and further that the applicant has, as a consequence of his departure, no valid visa to re-enter Australia.

4. In the circumstances, the Court has taken the view that it is inevitable that the application must be dismissed, and that in circumstances where the Judicial Review Application is otherwise ready to be heard, and there is an explicable reason for the applicant’s non-attendance, it is appropriate to deal with the merits of the Judicial Review Application, rather than simply dismiss it by reason of the applicant’s non-attendance. The Court’s reasons for doing so, which largely reflect the Minister’s written submissions filed in this matter, follow.

Factual and procedural background

1. The factual and procedural background to the matter is as follows:

   a)the applicant is a citizen of Pakistan who first arrived in Australia on a student visa on 10 June 2009: CB 103;

   b)the applicant returned to Pakistan between 21 October 2011 and 13 December 2011 (to attend his brother's and sister's weddings) and between 9 August 2013 and 17 September 2013: CB 103-104;

   c)on 25 October 2013 (2 days before the expiry of his most recent student visa) the applicant lodged an application for a protection visa with the Department of Immigration and Border Protection (“Department”): CB 1-46 and 104;

   d)on 13 June 2014 the applicant attended an interview with the Delegate: CB 106;

   e)on 17 December 2014 the Delegate decided to not grant the applicant a Protection Visa, primarily because the Delegate did not consider that the applicant was a credible witness and therefore did not believe his claims: CB 102-119;

   f)on 23 December 2014 the applicant sought review of the Delegate’s Decision by the Tribunal: CB 122−123;

   g)on 28 January 2016 the applicant (with his representative) appeared before the Tribunal to present arguments and give evidence;

   h)on 11 February 2016 the applicant (without his representative) appeared before the Tribunal a second time: CB 236-237 and CB 245-248;

   i)on 18 March 2016 the Tribunal Decision affirmed the Delegate’s Decision: CB 264-292

   j)on 8 April 2016 the applicant made the Judicial Review Application;

   k)on 25 May 2016 a Registrar of this Court made orders requiring the applicant to file and serve any amended application and affidavits containing additional evidence upon which he intended to rely on at the hearing by 17 August 2016, and any written submissions 42 days before the hearing which was listed for 9 May 2017 (subsequently re-listed to today);

   l)no amended application, affidavits, or written submissions have been filed by the applicant; and

   m)the applicant departed Australia on 8 June 2017 and does not hold a valid visa to re-enter Australia: Mr Ireland’s Affidavit at [2] ad [3].

Tribunal Decision

1. In the Tribunal Decision the Tribunal:

   a)recorded the applicant's claims, as set out in his written statement given to the Department, that:

   i)he converted from Sunni Muslim to Shia Muslim after he moved to Australia in 2009;

   ii)he was always attracted to boys and now considers himself homosexual;

   iii)he was attacked twice and threatened during his time in Pakistan in 2013 after he told family and close friends of his conversion to Shia Islam;

   iv)after the second attack he informed local police and took his case to court, but no one took any action; and

   v)his family were angry at him after he told them about his sexual orientation: CB 265 at [3]-[7];

   b)the Tribunal outlined the Delegate's concerns and findings regarding the applicant's credibility and claims, and referred to the applicant's procedural history before, and material filed with, the Tribunal, including his written submission that he feared harm if he returned to Pakistan because of his religion and his homosexuality: CB 265-266 at [8]-[14];

   c)set out in detail the applicant's evidence at the hearings on 28 January 2016 and 11 February 2016, and questions and information put to the applicant by the Tribunal in respect of his claims: CB 266-272 at [15]-[56];

   d)after referring to authorities regarding credibility findings, stated its view that “critical elements of the applicant's claims and evidence are not credible”, and its central finding that the applicant's claims to have converted to Shia Islam and to be homosexual were fabricated for the purpose of his Protection Visa application: CB 274 at [67];

   e)regarding the applicant's claim to fear persecution due to his religion, the Tribunal:

   i)rejected the applicant's claim to be a genuine convert to Shia Islam, or that he would follow Shia sect observances and requirements if he returns to Pakistan, on the basis of his 'unconvincing and vague' evidence and the Tribunal's credibility concerns: CB 274-275 at [72];

   ii)did not accept, in light of its credibility concerns and its view that the applicant's account was 'most unlikely', that the applicant told his family or friends that he had converted to Shia Islam: CB 275 at [73];

   iii)was not satisfied that the applicant was attacked as he claimed, both in light of its credibility concerns and based on the implausibility of the claims: CB 275 at [74];

   iv)placed little weight on the documentary evidence 'in the circumstances of this case, and based on its finding that it [did] not accept the applicant was attacked as claimed': CB 275-276 at [75];

   v)rejected the applicant's claim to have been threatened by telephone on the basis of its finding that he did not convert to Shia Islam or tell anyone that he converted, and also because it found the applicant's account to not be credible: CB 276 at [76];

   vi)did not accept, in light of country information, that the applicant could have arranged to appear in court the day after his attack as claimed: CB 276 at [76]; and

   vii)found that the applicant was not at a real risk of harm now or in the future due to his claimed conversion: CB 276 at [78]);

   f)regarding the applicant's claim to be homosexual, the Tribunal:

   i)found the applicant's evidence regarding who he told in Pakistan about his sexuality to be confused and inconsistent, and his evidence that he never considered homosexuality in Pakistan due to fear of rape and blackmail as lacking credibility and appearing rehearsed: CB 277 [81]-[82];

   ii)found his explanation as to why he was attracted to males to lack credibility or conviction: CB 277 at [83];

   iii)rejected the applicant's claim to have told a friend of his homosexuality due to the applicant's lack of recall: CB 277 at [84];

   iv)found his claim to have told his mother and brother of his homosexuality after having announced his Shia conversion, and being attacked, to not be credible: CB 277 at [85]; and

   v)after accepting that a person could be homosexual without necessarily having had a physical homosexual relationship, and after considering the applicant's explanations as to why he had never had a physical homosexual relationship, rejected the applicant's claim to be homosexual at all, or that he would disclose or announce himself as homosexual other than in pursuit of a Protection Visa: CB 278 at [88];

   g)although not claimed, the Tribunal considered whether the applicant might face harm on the basis of having claimed in his Protection Visa application to be Shia or homosexual, but found that he would not, as identifying information about his claims is not shared with the government or anyone else in Pakistan, and ultimately rejected the applicant's claim to be homosexual and did not accept that he would face serious harm on this basis: CB 278 at [90];

   h)having considered the applicant's claims cumulatively, the Tribunal found that the applicant did not face a real risk of serious harm if returned to Pakistan; and

   i)in light of its findings, the Tribunal also found that the applicant was not a person to whom Australia owes complementary protection obligations: CB 278-279 at [91] and [93]-[96].

Grounds of the Judicial Review Application

1. The grounds of the Judicial Review Application are as follows:

   1. The LGBT community in Pakistan does not have any legal recognition and homosexuality is a criminal offence. Homosexuality is illegal under Pakistan's penal code and this in tandem with Sharia law is used to make their lives unbearable. A large majority of the Pakistani people believe that homosexuality should not be accepted in society. Pakistan has been polled to be one of least tolerant countries in the world towards the LGBT community. This thinking provides impunity for anyone willing to inflict violence on the LGBT community in Pakistan.

   2. The reasons why I am gay is not something I can constructively put in words but it is something I have always felt ever since I was pubescent. As for my past decision results from AAT which mention that they are not satisfied that I have proved that I am gay I can only say that that is how I identify myself now. This country has shown me that I can be who I was born to be without fear of prejudice or violence. I have a few close friends who accept me for who I am and they are my support system through this tough period.

   3. My parents still do now accept me to be gay and will force me to get married to a woman when I go back home. This is something I know for a certainty is going to happen when I go back. This will ruin my life and the life of another person irrevocably. If by some stroke of luck we will have children it will cause untold suffering to our family through no fault of ours.

   4. My conversion to Shia is a complicated one. My country has a majority Sunni population and my family and their descendants are all Sunni. However I was inquisitive and had done some research on the Shia sect. I had a few friends from school and though I wasn't very close to them I did notice a stark difference in their general behaviour.

   5. I realized that they are more accepting of modern thinking. I found a kind of peace talking to them. Though I told my parents that I want to convert to become a Shia Muslim recently I have always considered telling them at some point. It is a very scary decision for me because I am well aware of the seriousness of this admission. Although they are my family this sort of admittance of change in faith is like an admittance of guilt of a heinous crime. They will begin to treat me like an outsider and never accept me. They might in the future disown me completely. I will become an outsider, a social outcast and this is something I have to live with all my life. My faith is strong in the Shia way of life and I will not renounce it if I have to go back to Pakistan.

   6. All the proof of my prosecution has already been provided in my previous review process. It was in that short period that I have been targeted on so many occasions. This is clear proof that my life is in danger and if I go back to Pakistan it will have very dire consequences.

   7. I feel that I have been unjustly judged on both counts just because my case sounds farfetched to an outsider but the consequences of my return to Pakistan are very stark to say the lease. I have provided all evidence in my possession to substantiate my claims but it has been disregarded. Please do assess my case in a positive manner on humanitarian grounds.

2. The Judicial Review Application was supported by an affidavit of the applicant sworn on 11 April 2016 which does no more than annex a copy of the Tribunal Decision.

Consideration

Jurisdictional error required

1. The Tribunal Decision is only liable to be set aside on judicial review by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ. The Tribunal only makes a jurisdictional error if it:

   a)identifies a wrong issue;

   b)asks the wrong question;

   c)ignores relevant material; or

   d)relies on irrelevant material,

   in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ; Craig v The State of South Australia (1995) 184 CLR 163; (1995) 82 A Crim R 359; (1995) ALJR 873; (1995) 131 ALR 595; (1995) 39 ALD 193; CLR at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ.

Grounds 1-6

1. Grounds 1-6 of the Judicial Review Application set out material consisting of evidence from the applicant regarding his claims and submissions challenging aspects of the merits of the Tribunal Decision, which amount to no more than a request for impermissible merits review contrary to a longstanding chain of authority emanating from Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”), a case followed many times in this Court.

2. It follows that grounds 1-6 are not made out.

Ground 7

1. Ground 7 of the Judicial Review Application contains the only allegation of error in the Tribunal Decision insofar as it alleges that all of the evidence in the applicant’s possession to substantiate his claims has been provided to the Tribunal “but it has been disregarded”. There is no doubt that jurisdictional error may be established if an administrative decision-maker disregards the substance of a claim made by an applicant: Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321; Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244.

2. The applicant’s assertion that the Tribunal failed to have regard to his evidence is without substance. The Tribunal:

   a)referred to the applicant’s statement accompanying his Protection Visa application: CB 265 at [3]-[7];

   b)referred to the applicant’s submissions and supporting documents provided by his migration agent: CB 266 at [10]-[14];

   c)referred to the applicant’s additional material provided to the Tribunal: CB 267 at [16];

   d)discussed the translated documents provided by the applicant, and raised its concerns regarding those documents with the applicant: CB 268 at [26];

   e)recorded the applicant’s evidence regarding the translated documents: CB 270-271 at [41] and [43]; and

   f)considered the further translations provided by the applicant: CB 272 at [56], CB 275-276 at [75] and [76].

3. In the circumstances it cannot be said that the Tribunal disregarded the claims made by the applicant. The case for the applicant rises no higher therefore than a request for impermissible merits review, contrary to Wu Shan Liang. It follows that ground 7 is not made out.

Conclusion and orders

1. For the reasons set out above, no jurisdictional error has been established in the Tribunal Decision. It follows that the applicant’s Judicial Review Application must be dismissed. There will be an order accordingly. It also follows that the Minister is entitled to costs, and there will be an order that the applicant pay the Minister’s costs in the sum of $7,206 by 20 July 2017.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Date: 20 June 2017