AVP17 v Minister for Immigration
[2017] FCCA 2093
•15 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AVP17 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2093 |
| Catchwords: MIGRATION – Review of a decision of the Administrative Appeals Tribunal – whether the Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal erred in failing to find that the applicants had a genuine fear of harm – whether the Administrative Appeals Tribunal erred in failing to afford the applicants procedural fairness – whether the Administrative Appeals Tribunal’s findings were open to it – whether the Administrative Appeals Tribunal’s decision is affected by bias – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.422B, 476 Federal Circuit Court Rules 2001 (Cth), r.44.12 |
| Cases cited: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 |
| First Applicant: | AVP17 |
| Second Applicant: | AVQ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 586 of 2017 |
| Judgment of: | Judge Emmett |
| Hearing date: | 31 August 2017 |
| Date of Last Submission: | 31 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 15 November 2017 |
REPRESENTATION
| Applicant appeared in person with an Urdu interpreter |
| Solicitor for the Respondents: | Ms Chloe Hillary DLA Piper Australia |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 586 of 2017
| AVP17 |
First Applicant
| AVQ17 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 25 January 2017 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) refusing the applicants a Protection (Class XA) visa.
Background
On 16 January 2009, the first applicant (“the Applicant”) arrived in Australia on a student visa.
In January 2012, the Applicant returned to Pakistan for a period of two months. The Applicant is a male citizen of Pakistan.
On 13 February 2014, the second applicant arrived in Australia, married the Applicant and subsequently travelled to the United Kingdom and Pakistan in early to mid-2014. She returned to Australia on 3 August 2014.
On 14 August 2014, the applicants lodged protection visa applications. Their claims are accurately summarised in the written submissions of the first respondent, as follows:
“4 The applicants applied for Protection (Class XA) visas on 14 August 2014. The applicants' claims for protection were set out in the application. In summary:
4.1 The first applicant claimed to fear harm in Pakistan from the police and the Tehrik-i-Taliban Pakistan (TTP). He claimed that his wife's family disapproved of his marriage to the second applicant, and had falsely accused the first applicant of being a member of the TTP to the Pakistani police.
4.2 The first applicant claimed that he had been detained and assaulted by Pakistani police in 2008 as a result of these accusations.
4.3 The applicants claimed that the second applicant's mother had in 2013 threatened to harm the first applicant's family in Pakistan.
4.4 The second applicant claimed that her parents had threatened to commit suicide in order to convince her to return to the UK in March 2014, and that she had been forced to marry her cousin whilst in the UK.
4.5 The applicants claimed that the second applicant's family had threatened the applicants in Australia, including by threatening to 'cancel' the first applicant's visa in order to have him sent to Pakistan.
4.6 The applicants claimed that the Pakistani authorities and TTP planned to abduct the second applicant in Pakistan.
4.7 The second applicant also claimed to fear harm from the Pakistani police and TPP.
4.8 The applicants also claimed to fear harm from radical Muslim family members in the United Kingdom.”
On 25 June 2015, the Department of Immigration and Border Protection (“the Department”) notified the applicants by email that their protection visa applications had been refused.
On 28 September 2016, the applicants attended a hearing before the Tribunal raising two additional claims.
On 30 September 2016, the Tribunal wrote to the applicants identifying inconsistencies in the claims made by the applicants and inviting their comment.
On 25 January 2017, the Tribunal affirmed the decision to refuse the applicants protection visas.
The decision of the Tribunal is accurately summarised in the written submissions of the first respondent, as follows:
“13 The AAT found that the applicants were not credible or truthful witnesses (at [21]). The AAT noted various inconsistencies in the applicants' evidence, including:
13.1 In relation to the applicants' evidence concerning the first applicants' alleged detention in Pakistan in 2008, and their knowledge of the second applicant's mother's alleged role in that detention (at [22] - [32]).
13.2 In relation to the second applicant's return to the UK in March 2014, and the alleged threats made by the second applicant's parents in that regard (at [33] - [37]).
13.3 In relation to the second applicant's travel to Pakistan in June 2014 and her contact with her family after returning to Australia in April 2014 (at [41] - [49].
13.4 In relation to the applicants' evidence concerning their communications prior to October 2013 (at [50] - [55]).
14 The AAT therefore found that the applicants were not credible or truthful witnesses, finding that the 'totality of their evidence shows a propensity to fabricate claims and tailor evidence in a manner which achieves their own purpose' (at [56]).
15 Based on the AAT's findings as to the applicants' credibility, the AAT rejected the majority of the applicants' claims (at [59]). The AAT did not accept:
15.1 That the first applicant was arrested, detained, threatened, mistreated or harmed by Pakistani authorities, whether in 2008 or at any other time.
15.2 That the first applicant had been reported to the authorities or accused of being a member of the TTP by the second applicant's mother.
15.3 That the first applicant had ever encountered any difficulties by the police of the second applicant's family in Pakistan.
15.4 That the second applicant's parents or family had threatened to harm the first applicant or his family.
15.5 That the second applicant had travelled to the UK due to threats by her parents.
15.6 That the second applicant was forced to marry her cousin in the UK.
15.7 That the second applicant's parents had threatened to cancel the first applicant's visa in Australia.
15.8 That the second applicant's parents had threatened to abduct the second applicant.
15.9 That the Pakistani police or TTP were planning to abduct the second applicant when she returned to Pakistan.
15.10 That the police searched for the first applicant in Pakistan in 2014.
15.11 That the first applicant is at risk of being abducted and killed by the police or TTP, that he would be forced to fight for the TTP, or that the police and TTP would hurt him for marrying his wife.
15.12 That the second applicant's parents have threatened to kill the applicants.
16 The AAT also considered the applicants' claims as to an altercation between the first applicant's brother and the second applicant's uncle in Karachi. The AAT held that it accepted that an altercation may have occurred, but found that this was not in any way related to the applicants' circumstances (at [60]).
17 The AAT also found that the applicants were married against the wishes of the second applicant's parents. The AAT was prepared to accept that the second applicant had fought with her parents in the UK for this reason. However, the AAT noted that the second applicant had never claimed that she was seriously harmed by her mother, and had expressly stated that she had never been harmed by her father (at [61]).
18 The AAT held that the first applicant does not face a real chance or real risk of serious or significant harm in Pakistan by his wife's family, the police or the TTP for reasons related to his marriage. Similarly, the AAT held that the second applicant does not face a real chance or a real risk of serious or significant harm in Pakistan at the hands of her family members or anyone else (at [62]).
19 Finally, the AAT considered the second applicant's claims concerning her uncle in Germany. The AAT did not accept that her family would harm her in Germany, and found that the second applicant does not face a real chance or risk of harm in Germany at the hands of her relatives (at [63]).
20 The AAT therefore held that neither applicant was owed protection obligations, and did not satisfy the section 36(2) criteria for a Protection (Class XA) visa (at [64]).”
On 15 June 2017, the Applicant attended a directions hearing on behalf of both applicants. On that occasion, the applicants were given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon any further evidence and written submissions in support. On that occasion, the matter was set down for a show cause hearing on 31 August 2017 pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) on the basis that the grounds of the application did not disclose an arguable case for the relief sought.
On 31 August 2017, by consent, the matter was dealt with as a final hearing and the show cause hearing pursuant to r.44.12 of the Rules was dispensed with.
Proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of an Urdu interpreter. The Applicant confirmed that the applicants continued to rely on the following grounds:
“1. The Administrative Appeals Tribunal has disregarded that the Applicants have suffered and will suffer serious mental and physical harm by the Pakistani authorities if they return back to Pakistan and has thus made a jurisdictional error.
2. The Administrative Appeals Tribunal has denied that the Applicant's wife has a genuine fear of being kidnapped and harmed by the police and Tehrik-i-Taliban Pakistan (TTP) and has thus made a jurisdictional error.
3. The Administrative Appeals Tribunal has refused to take into consideration that the Applicants have a genuine fear of physical harm from radical Muslim family members if they return to the United Kingdom.
4. The Administrative Appeals Tribunal has used excessive authority in disregarding the Applicant's main claim that he was arrested, detained and physically harmed by Pakistani authorities and has thus made a jurisdictional error.
5. The Administrative Appeals Tribunal has denied the Applicant was accused of being a member of the TTP and was detained and suffered serious physical harm by the Pakistani authorities. The Tribunal has thus made a jurisdictional error.”
The Applicant confirmed that the applicants had no further documents to provide to the Court. I explained to the Applicant that the role of this Court was very different to the Tribunal, and that it is not for this Court to reconsider their claims and reach different findings or conclusions. I also explained to the Applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law.
I explained to the Applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the Applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.
Each of the grounds was interpreted for the Applicant who was invited to say whatever he wished in support of the grounds and in support of his application generally.
On 6 July 2017, the applicants filed written submissions which essentially repeated the claims but made the following further complaints about the Tribunal decision:
i)The Tribunal’s findings that the applicants were not credible and truthful witnesses and had fabricated their claims were conclusions which were unreasonable, unconscionable and unfair.
ii)The Tribunal rejected the applicants’ overall claims without giving any valid reason or grounds for its rejection.
iii)The Tribunal did not give any consideration for the explanations that were given by the applicants at any stage.
iv)The Tribunal ignored the Applicant’s claim to fear returning to Pakistan after the police and the Tehrik-i-Taliban Pakistan (“TTP”) threatened to arrest and abduct him.
v)The Tribunal failed to give consideration to the applicants’ race, religion and social group when assessing the applicants’ claims.
vi)The Tribunal failed to note the problems faced by the applicants that are based on the cultural norms and practices followed by Muslims and under Islamic beliefs.
I shall deal first with the applicants’ written grounds of review.
Ground 1
Ground 1 asserts that the Tribunal disregarded that the applicants have suffered and will suffer serious mental and physical harm by Pakistani authorities if they return to Pakistan.
In relation to the Applicant’s claim to fear harm from Pakistani authorities, the Tribunal’s decision record reveals that the Tribunal noted the Applicant’s claims that in 2008 the police arrested and tortured the Applicant as a suspected member of the TTP. The Tribunal found that the applicants gave differing accounts of the circumstances of the arrest and detention. The Tribunal noted that it discussed various inconsistencies with the applicants at the hearing. The Tribunal further put its concerns about their evidence to them in writing and invited their comment. The Tribunal had regard to the explanations given but found those not to be satisfactory. The Tribunal found the explanations to be “improvised and unsatisfactory”.
Ultimately, the Tribunal found the applicants’ evidence in relation to the alleged events in 2008 to be “unreliable, unconvincing and lacking in credibility”. A fair reading of the Tribunal’s reasons in relation to the applicants’ fear of harm from Pakistani authorities was considered in detail and rejected.
Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Those findings were not tainted by any failure to afford procedural fairness, reaching a finding without a logical or probative basis or unreasonableness (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).
Accordingly, Ground 1 does no more than disagree with the findings and conclusions of the Tribunal in respect of that complaint, thereby inviting merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:
“It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”
Accordingly, Ground 1 is not made out.
Ground 2
Ground 2 asserts that the Tribunal erred in failing to find that the second applicant has a genuine fear of being kidnapped and harmed by the TTP.
Again, a fair reading of the Tribunal’s decision record makes clear that the Tribunal understood that the applicants feared harm by the police and the TTP in Pakistan. However, the Tribunal did not accept that the police and TTP were planning to abduct the second applicant when she visited Pakistan in June 2014.
The Tribunal rejected the applicants’ claims that the Applicant was arrested, detained, threatened, mistreated or harmed in any way by the police in Pakistan in 2008 or at any other time. The Tribunal did not accept that the Applicant had ever encountered any difficulties or problems at the hands of the police or the second applicant’s family in Pakistan. The Tribunal rejected the Applicant’s claim to be at risk of abduction and death by the police and TTP and did not accept that the Applicant would be arrested by the police and handed over to the TTP or that the Applicant would be forced to fight for the TTP.
The comprehensive rejection of the applicants’ claims was based on the adverse credibility findings made by the Tribunal that their evidence was “unreliable, unconvincing and lacking in credibility”. The Tribunal’s decision record makes clear that, as stated above, it raised and discussed with the Applicant various inconsistencies that caused it concern and further put those inconsistencies again to the applicants in writing. The Tribunal found their explanations and evidence generally showed “a propensity to fabricate claims and tailor evidence in a manner that achieves their own purpose”.
As stated above, those findings were open to the Tribunal on the evidence before it and for the reasons it gave. Ground 2 otherwise also disagrees with the adverse findings of the Tribunal, thereby inviting merits review which this Court, as stated above, cannot undertake.
Accordingly, Ground 2 is not made out.
Ground 3
Ground 3 asserts that the Tribunal refused to consider that the applicants have a genuine fear of physical harm from radical Muslim family members if they returned to the United Kingdom.
Again, the Tribunal’s decision record makes clear that the Tribunal explored those claims with the applicants in some detail, put to the applicants its concerns both at the hearing and in writing and considered their responses. The Tribunal expressly referred to the applicants’ claims to fear harm from Muslim family members and rejected them. The Tribunal did not accept that the second applicant’s parents or members of her family had threated to harm the Applicant or his family.
Further, the Tribunal did not accept that the second applicant’s parents had forced her to marry her cousin in the United Kingdom, threatened the Applicant, threatened to abduct the second applicant or had otherwise threatened the applicants. The Tribunal accepted that the second applicant had quarrelled with the family in the United Kingdom, but did not accept that she had ever been harmed by either of her parents.
The Tribunal comprehensively rejected the applicants’ claims of a risk of harm from family members.
Again, those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave. Ground 3 is also no more than a disagreement with the findings of the Tribunal, thereby inviting impermissible merits review.
Accordingly, Ground 3 is not made out.
Ground 4
Ground 4 asserts that the Tribunal exceeded its authority in disregarding the Applicant’s main claim of arrest, detention and physical harm by Pakistani authorities.
This complaint has been dealt with in Ground 1 above and otherwise does not particularise any further claim.
As stated above, the Tribunal’s findings were open to it on the evidence and material before it including its adverse credibility findings, for the reasons it gave.
Accordingly, Ground 4 is not made out.
Ground 5
Ground 5 asserts that the Tribunal erred by denying the Applicant was accused of being a member of the TTP and was detained or suffered serious physical harm by the Pakistani authorities.
Again, Ground 5 does no more than restate Grounds 1 and 4 and for the same reasons amounts to impermissible merits review.
Complaints in applicants’ written submissions
In relation to the further complaints made by the applicants in their written submission to this Court, none of those complaints are made out.
As stated above, the Tribunal considered the applicants’ claims in detail, explored those claims with them at a hearing, put its concerns to the applicants both at the hearing and in writing referring to various inconsistencies in their evidence. The Tribunal considered the applicants’ responses.
The Tribunal’s letter, dated 30 September 2016, made clear that, based on the inconsistences and changes in evidence, the Tribunal was likely to find that the applicants had manufactured evidence to strengthen their case for protection visas and that the claims presented by both applicants were not credible and are likely to be disbelieved.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
To the extent that the applicants appear to submit that the Tribunal’s conclusions were “unreasonable, unconscionable and unfair”, for the reasons given above, such a complaint is not made out.
Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it (see Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [28] per French CJ), or where a decision has been made that lacks an “evident and intelligible justification” (see Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [76]; see also Associated Provincial Picture House Limited v Wednesbury Corporation [1949] 1 KB 223 at [234]). The test for unreasonableness is “stringent” and only arises in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgments made by the decision maker (see Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [30], [113]).
As stated above, the Tribunal’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave.
There is nothing in the Tribunal’s decision record to suggest that the applicant did not have a real and fair opportunity to put whatever he wished and to participate in the hearing in a way from which it can be concluded that the hearing was fair and thus that administrative justice was done (see SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 at 24 per Allsop CJ).
The Tribunal complied with the requirements of Part 7, Division 4 of the Act. Section 422B of the Act states that compliance with Part 7, Division 4 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule (see SZMOK v Minister for Immigration and Citizenship (2009) 110 ALD 15 at [15] per Emmett, Kenney and Jacobson JJ).
It is for an applicant to satisfy the Tribunal, being the relevant decision-maker, that the applicant meets the criteria for being a refugee. As stated in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ:
“…The proceedings before the [Tribunal] are inquisitorial and the [Tribunal] is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The [Tribunal] must then decide whether that claim is made out.”
Insofar as the Applicant asserts that he had not been fairly treated or that the Tribunal was prejudiced against him, such allegations are serious, to the extent that they suggest bias and require evidence. The Applicant was given an opportunity to file any further evidence in support of his application, including any transcript of the Tribunal hearing. The Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).
Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).
A fair reading of the Tribunal’s decision record does not suggest that the Tribunal approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115] per Allsop J, with whom Moore and Tamberlin JJ agreed).
Accordingly, none of the applicants’ complaints are made out and the proceeding should be dismissed with costs.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 15 November 2017
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Jurisdiction
0
25
0