AVO15 v Minister for Immigration
[2016] FCCA 2101
•15 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AVO15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2101 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – real chance test – whether the Tribunal erred in making adverse credibility findings – whether the Tribunal failed to constructively exercise its jurisdiction – whether the Tribunal failed to give the applicant clear particulars of relevant information – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 424A, 476 Federal Circuit Court Rules 2001, r.44.12 |
| Cases cited: Spencer v Commonwealth of Australia (2010) 241 CLR 118 |
| Applicant: | AVO15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 457 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 15 August 2016 |
| Date of Last Submission: | 15 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 15 August 2016 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the First Respondent: | Ms L Buchanan Australian Government Solicitor |
ORDERS
The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.
The Applicant pay the costs of the First Respondent fixed in the amount of $3,606.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 457 of 2016
| AVO15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
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 Tribunal on 5 February 2016 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.
The applicant was found to be a citizen of Pakistan and his claims were assessed against that country. The applicant claimed to fear harm from the government because of his support for the Jeay Sindh Quami Mahaz, a Sindhi nationalist party. The applicant also claimed to fear harm from the applicant’s brothers and the Pakistani law enforcement agents due to a dispute that the applicant had with his brothers over properties owned by their father.
On 23 October 2012, the applicant was granted a subclass 676 Tourist visa, valid until 28 February 2013. On 10 January 2013, the applicant lodged an application for protection. On 21 July 2014, the delegate refused to grant the applicant a protection visa.
The delegate was not satisfied that the applicant had a real chance of being persecuted for a Refugees Convention reason and was not satisfied the applicant’s fears were well-founded. The delegate was also not satisfied that Australia owed protection obligations to the applicant because there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk the applicant will suffer significant harm.
An earlier Tribunal’s decision, differently constituted, dated 24 April 2015, was set aside by orders of this Court made on 29 June 2015 by consent. By letter dated 16 December 2015, the newly-constituted Tribunal invited the applicant to attend a hearing before the Tribunal on 29 January 2016. The applicant attended the Tribunal hearing on that date to give evidence and present arguments. At the hearing, the applicant also provided to the Tribunal a psychologist’s report.
The Tribunal identified the relevant law and the applicant’s claims and evidence. The Tribunal also noted the credibility concerns it had in relation to the applicant’s claims and provided detailed reasons in relation to those credibility concerns. The Tribunal identified inconsistencies in the applicant’s evidence which it found to reflect poorly on the applicant’s credit.
The Tribunal found that, overall, the applicant had given inconsistent evidence about what should have been a very straightforward account for him to relate. The Tribunal found that the applicant was not a witness of truth and that the account of the events on which his protection claims were based was false. The Tribunal took into account the psychologist’s report and the symptoms that the applicant allegedly had. The Tribunal noted the abilities of the applicant to comprehend and respond to the questions put by the Tribunal. The Tribunal found that the applicant had a meaningful opportunity to participate in the Tribunal hearing and did not regard the psychologist’s report as an explanation for the poor credibility of the applicant.
The Tribunal found that there was no credible evidence about the applicant’s true political views. The Tribunal also expressly referred to the documents produced by the applicant in relation to his claims. The Tribunal noted that, at the hearing, it raised with the applicant that according to country information, false documents were widely available in Pakistan. Accordingly, the Tribunal found that the contents of the documents were false and did not give them any weight.
The Tribunal did not accept that the applicant’s anxiety and depression explained his lack of credibility. The Tribunal found that the risk of the applicant suffering serious harm in Pakistan was remote and found that the applicant did not have a well-founded fear of persecution based on any Refugees Convention ground. The Tribunal also found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that the applicant would suffer significant harm. The Tribunal found that the applicant did not meet the criteria under s.36(2) of the Migration Act 1958 (Cth).
On 14 April 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No documents were filed by the applicant pursuant to the orders made by the Registrar.
At the commencement of the hearing, the Court explained to the applicant that this was a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 for the Court to determine whether there was an arguable case. The Court explained that there had to be an arguable case that the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that, if satisfied that there was an arguable case, the Court would fix the matter for hearing on another occasion. The Court explained that, if not satisfied there was an arguable case, the Court would dismiss the applicant’s application.
The Court explained that it would identify the evidence and then hear submissions from the applicant and then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.
The grounds of the application are as follows:
1. The Tribunal constructively failed to exercise its jurisdiction;
Particular:
The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant's credit without first assessing whether the substance of the documents corroborated his claims.
2. The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.
Particulars
The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.
3. The Tribunal had no jurisdiction to make the said decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act.
4. The Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claims were implausible being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.
5. The Tribunal has failed to investigate the claim, specially the grounds of persecution in Pakistan. Therefore the Tribunal decision dated on 5 February 2016 was a judicial error.
6. Tribunal failed to appropriately deal with the applicant's mental health condition.
(Errors in original).
From the bar table, the applicant identified that he had given an incorrect answer in para.15 of the Tribunal’s reasons. The applicant submitted that he had given that incorrect answer because of his psychological condition. The applicant sought to tender more recent medical information that was not before the Tribunal. The applicant explained that the medical information was an update on the medical information that was before the Tribunal. The Court refused to receive the further medical material and marked it as an MFI on the basis that it was not relevant and could not establish any jurisdictional error insofar as it went to the applicant’s claims.
It is apparent that the Tribunal took into account the medical evidence adduced by the applicant in relation to his anxiety and depression. Notwithstanding that evidence, the Tribunal was satisfied that the applicant had a meaningful hearing and a real opportunity to present his case. It is also apparent that the Tribunal did not regard the applicant’s medical condition as a satisfactory explanation for the Tribunal’s adverse credit findings. The adverse findings in relation to credibility were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. Nothing said by the applicant in relation to para.15 of the Tribunal’s decision record identified any arguable jurisdictional error.
The applicant drew attention to para.37 of the Tribunal’s decision record and suggested that the location referred to by the Tribunal as being in Karachi was incorrect. The Court is not satisfied that the identification of the location by the Tribunal is wrong. Further, even if the location identified by the Tribunal were wrong, the applicant did not explain how that could, in any way, impact on the claims that he was advancing. The applicant sought to suggest that the purported error in the identification of the location by the Tribunal reflected a failure by the Tribunal to properly consider his claims. The Tribunal’s reasons demonstrate an orthodox assessment of the applicant’s claims and evidence. Even if there were an error in relation to the particular location, it is an error of fact that was not material in relation to the assessment of the applicant’s claims and evidence.
The applicant also made reference to the first information report (“the FIR”) that he provided in relation to the police and alleged that it had not been properly taken into account by the Tribunal. It is apparent that the Tribunal referred to the FIR in para.28 as well as paras.38 and 39 of its decision record. There is no basis to suggest that the Tribunal did not take into account the documents that were put forward by the applicant.
Further, the applicant took issue with the Tribunal’s rejection of the documents. It is open to the Tribunal to determine the weight it gives to the applicant’s evidence and, in relation to the applicant’s credibility, to determine what weight to give to the documents produced by the applicant. It is apparent that the issue of whether the documents were false was a live issue before the Tribunal and that the applicant had a genuine opportunity to address that concern. Nothing said by the applicant in relation to the documents that he produced to the Tribunal identified any arguable jurisdictional error.
The applicant took issue with the adverse findings in relation to his credit. For the reasons already given, it was open to the Tribunal to make the adverse findings in relation to the applicant’s credit and those adverse findings cannot be said to lack an evident and intelligible justification.
In relation to ground 1, there is no substance in the proposition that the Tribunal failed to constructively exercise its jurisdiction. It is apparent that the Tribunal identified the relevant law and properly considered the whole of the applicant’s claims and evidence.
It was open to the Tribunal to find that the documents the applicant had produced should be given no weight in light of the adverse credibility findings. Nothing said by the applicant identified any basis upon which it could be said that the Tribunal’s findings in relation to the documents were irrational or illogical. Ground 1 fails to make out any arguable jurisdictional error.
In relation to ground 2, no information was identified by the applicant enlivening any obligation under s.424A. Ground 2 fails to make out any arguable jurisdictional error.
Ground 3 is, in substance, an impermissible challenge to the adverse findings of the Tribunal. This Court has no power to make fresh findings of fact in relation to the applicant’s claims. Ground 3 fails to identify any arguable jurisdictional error.
Ground 4 is also an impermissible challenge to the adverse findings made by the Tribunal. It is apparent that the applicant had a genuine hearing. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of its review. There is no material before the Court that establishes any denial of procedural fairness to the applicant. Ground 4 fails to identify any arguable jurisdictional error.
In relation to ground 5, there was no obvious inquiry that the Tribunal was required to pursue in respect of easily ascertainable information. Ground 5 fails to identify any arguable jurisdictional error.
Ground 6 is an impermissible challenge to the adverse findings by the Tribunal in relation to the applicant’s mental health condition. Ground 6 fails to identify any arguable jurisdictional error.
I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60]. The application fails to identify any arguable jurisdictional error and I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 30 August 2016
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