Avp17 v Minister for Immigration and Border Protection
[2018] FCA 1188
•9 August 2018
FEDERAL COURT OF AUSTRALIA
AVP17 v Minister for Immigration and Border Protection [2018] FCA 1188
Appeal from: AVP17 & Anor v Minister for Immigration & Anor [2017] FCCA 2093 File number: NSD 2151 of 2017 Judge: ROBERTSON J Date of judgment: 9 August 2018 Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia – judicial review of decision of the Administrative Appeals Tribunal (Tribunal) – whether error on the part of the primary judge in failing to find jurisdictional error on the part of the Tribunal – appellants absent when appeal called on for hearing – Held: appeal dismissed Legislation: Migration Act 1958 (Cth)
Federal Court Rules 2011 (Cth) r 36.75(1)(a)(i)
Date of hearing: 9 August 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 49 Counsel for the Appellants: The Appellants did not appear Solicitor for the First Respondent: Mr L Leerdam of DLA Piper Counsel for the Second Respondent: The Second Respondent submitted save as to costs ORDERS
NSD 2151 of 2017 BETWEEN: AVP17
First Appellant
AVQ17
Second Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
9 AUGUST 2018
THE COURT ORDERS THAT:
1.Pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) the appeal is dismissed.
2.The appellants pay the costs of the first respondent, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ROBERTSON J:
When this appeal was called on for hearing at 10:15 AM this morning the appellants were absent. The matter was called outside the Court but there was no appearance by the appellants or either of them. I adjourned the matter for a short period to enable the solicitor for the first respondent, the Minister, to attempt to make contact with the appellants. When I resumed sitting, that solicitor for the first respondent told me that, with the assistance of the interpreter who was present in court, he had made a telephone call to the mobile telephone number he had for the appellants but the message went to voicemail. He had left a message. The matter was again called outside the court at approximately 10:38 AM and there was still no appearance for the appellants. The solicitor for the first respondent read an affidavit affirmed 8 August 2018 by Kim Mai Nguyen, legal assistant in the firm DLA Piper Australia, lawyers for the first respondent, which establishes that on 1 August 2018 the appellants were served both at their residential address and by email with a copy of the first respondent’s written submissions and list of authorities, in each case the communication reminding the appellants of the time, date and place of the hearing of the appeal.
The solicitor for the Minister then applied under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) for the appeal to be dismissed. I grant that application, with costs. In case it saves time later if an application is made, I give my reasons for concluding that as a matter of substance the appeal should be dismissed, with costs.
Introduction
This is an appeal from orders of the Federal Circuit Court of Australia made on 15 November 2017. Those orders dismissed with costs an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 25 January 2017. Earlier, on 25 June 2015, a delegate of the Minister for Immigration and Border Protection (delegate) had refused to grant the appellants Protection (Class XA) visas.
The proceedings in the Tribunal
As found by the Tribunal, the appellants are husband and wife. I shall refer to them as such even when referring to the period before they were married. The husband is a citizen of Pakistan and the wife is a citizen of Germany. The husband arrived in Australia on 16 January 2009 on a student visa. The wife arrived in Australia on 13 February 2014. They were married in Australia on 13 February 2014. The wife subsequently travelled to the United Kingdom and Pakistan in early to mid-2014. She returned to Australia on 3 August 2014. The appellants both applied for protection visas on 14 August 2014.
The Tribunal stated the appellant husband’s claims as follows. His parents and the appellant wife’s parents had initially agreed to their marriage, however the wife’s mother changed her mind and decided that her nephew should marry the appellant wife instead. The wife’s mother falsely informed the police that the appellant husband was a member of the Tehrik-i-Taliban Pakistan (TTP). This was said to have happened in 2008. The appellant husband was arrested and tortured by the police. His father bribed the police and the appellant fled to Australia. He then “called” the appellant wife to Australia and they got married. His wife’s parents subsequently came to Australia and threatened to commit suicide if the wife refused to return to the United Kingdom with them. She agreed to return to the United Kingdom with her parents, believing that she would be able to sponsor her husband to migrate to the United Kingdom. However, after being “forced” to marry her cousin in the United Kingdom, the wife ran away and came to Australia. Her parents threatened to cancel the appellant husband’s visa in Australia and send him back to Pakistan. They also threatened to come to Australia with the wife’s cousin to take her back to the United Kingdom. The appellant husband “sent [his] wife to Pakistan immediately”. The police and the TTP were planning to abduct his wife in Pakistan, so she came back to Australia. He could not lodge an application for a protection visa until his wife had returned safely to Australia.
The appellant husband feared being abducted and killed by the police and the TTP. He claimed he would be arrested by the police and he would be handed over to the TTP, who would force him to fight. The appellant husband also claimed that the police and the TTP would hurt or kill him because he “called” his wife to Australia and married her. He claimed his wife’s parents were planning to take her away.
The appellant wife first arrived in Australia on 13 February 2014. She travelled to the United Kingdom on 20 March 2014 and return to Australia on 7 April 2014. She departed Australia for Pakistan on 20 June 2014, returning to Australia on 3 August 2014.
The Tribunal did not find the appellants to be credible and truthful witnesses and concluded that the decision under review should be affirmed.
The Tribunal found the appellants’ evidence in relation to the alleged events in 2008 unreliable, unconvincing and lacking in credibility.
The Tribunal found the explanations given by the appellants about the inconsistencies concerning the appellant wife’s return to the United Kingdom in March 2014 to be contrived, unconvincing and unsatisfactory.
In relation to inconsistencies concerning the appellant wife’s travel to Pakistan in June 2014, the Tribunal also found these explanations to be contrived, unconvincing and unsatisfactory.
The Tribunal also considered contact and communication between the appellant wife and the appellant husband before October 2013. The Tribunal referred to the appellants’ contact with each other between 2006 and 2008. The appellant wife said she was only 12 years old at that time and her husband, who was 20 years old at that time, remembered that they used to talk “but not as much”. The Tribunal said it appreciated that the appellant wife was only 12 years old at time but it was unable to reconcile the inconsistencies in their evidence.
The Tribunal also considered, at [60], the appellants’ claims as to an altercation between the appellant husband’s brother and the appellant wife’s uncle in Karachi. The Tribunal accepted that an altercation may have occurred, but found that this was not in any way related to the appellants’ circumstances.
The Tribunal found at [61] that the appellants were married against the wishes of the appellant wife’s parents and that the appellant wife had fought with her parents in the United Kingdom for this reason but noted that the appellant wife had never claimed that she was seriously harmed by her mother and had expressly stated that she had never been harmed by her father.
The Tribunal held at [62] that the appellant husband did not face a real chance or real risk of serious or significant harm in Pakistan from his wife’s family, the police or the TTP for reasons related to or arising from his marriage. Similarly, the Tribunal held that the appellant wife did 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.
The Tribunal considered at [63] the appellant wife’s claims concerning her uncle in Germany. The Tribunal did not accept that her family would harm her in Germany and found that the appellant wife did not face a real chance or risk of significant harm in Germany at the hands of her relatives or anyone else for reasons related to or arising from her marriage.
For all of those reasons the Tribunal did not find the appellants to be credible and truthful witnesses. The Tribunal said the totality of the evidence showed a propensity to fabricate claims and tailor evidence in a manner which achieved their own purpose.
The Tribunal held that neither appellant was owed protection obligations by Australia.
The proceedings in the Federal Circuit Court of Australia
The primary judge summarised what the Tribunal did not accept, as follows:
·That the appellant husband was arrested, detained, threatened, mistreated or harmed by Pakistani authorities, whether in 2008 or at any other time.
·That the appellant husband had been reported to the authorities or accused of being a member of the TTP by the appellant wife’s mother.
·That the appellant husband had ever encountered any difficulties by (sic) the police of (sic) the appellant wife’s family in Pakistan.
·That the appellant wife’s parents or family had threatened to harm the appellant husband or his family.
·That the appellant wife had travelled to the United Kingdom due to threats by her parents.
·That the appellant wife was forced to marry her cousin in the United Kingdom.
·That the appellant wife’s parents had threatened to cancel the appellant husband’s visa in Australia.
·That the appellant wife’s parents had threatened to abduct the appellant wife.
·That the Pakistani police or TTP were planning to abduct the appellant wife when she returned to Pakistan.
·That the police searched for the appellant husband in Pakistan in 2014.
·That the appellant husband was 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.
·That the appellant wife’s parents had threatened to kill the appellants.
Before the primary judge, the appellants relied 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 appellants also filed written submissions which, the primary judge said, made the following further complaints about the Tribunal’s 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.
The primary judge addressed Ground 1 at [19]-[24] and held that it did no more than disagree with the findings and conclusions of the Tribunal in respect of that complaint.
The primary judge addressed Ground 2 at [25]-[30] and held that the comprehensive rejection of the appellants’ claims was based on the adverse credibility findings made by the Tribunal that their evidence was unreliable, unconvincing and lacking in credibility.
The primary judge addressed Ground 3 at [31]-[36] and held that the Tribunal comprehensively rejected the appellants’ claims of the risk of harm from family members, making findings that were open to the Tribunal on the evidence and material before it and for the reasons it gave. Again, the primary judge said, the ground was no more than a disagreement with the findings of the Tribunal, thereby inviting impermissible merits review.
The primary judge addressed Ground 4 at [37]-[40], holding that the complaint had been dealt with in Ground 1 and otherwise did not particularise any further claim.
The primary judge addressed Ground 5 at [41]-[42] and concluded that it did no more than restate Grounds 1 and 4 and for the same reasons amounted to an invitation to undertake impermissible merits review.
The primary judge then considered, at [43]-[56], the complaints in the appellants’ written submissions and held that none of those complaints were made out. The primary judge found that the Tribunal considered the appellants’ claims in detail, explored those claims with them at a hearing, put its concerns to the appellants both at the hearing and in writing referring to various inconsistencies in their evidence. The Tribunal considered the appellants’ responses.
The primary judge held that 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 appellants had manufactured evidence to strengthen their case for protection visas and that the claims presented by both appellants were not credible and were likely to be disbelieved.
To the extent that the appellants appeared to submit that the Tribunal’s conclusions were “unreasonable, unconscionable and unfair”, the primary judge found that for the reasons her Honour had already given, such a complaint was not made out. The Tribunal’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave.
There was nothing in the Tribunal’s decision record to suggest that the appellant husband 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 could be concluded that the hearing was fair and thus that administrative justice was done. The mere fact that the Tribunal made adverse findings in respect of the appellant husband did 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. There was 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 to determining the application for review.
The appeal
The grounds of appeal are as follows:
1.The Federal Circuit Court unfairly dismissed my appeal against the decision of the Tribunal during the show cause hearing on the 31st of August 2017 pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) on the basis that the grounds of the application did not disclose an arguable case for the relief sought.
Particulars
The judge failed to give any consideration to the grounds of the application that I submitted on the basis that my grounds did not disclose an arguable case for the relief sought. As I do not have the financial capability to access the assistance of a barrister, I could not put forward an amended application giving complete particulars of each ground of review relied upon. The matter was dismissed during a final hearing and the show cause hearing without giving an extension of time for me to approach a barrister after making financial arrangements.
2.The Respondents made a jurisdictional error by ignoring the relevant fact that the Applicant’s (sic) were minors when they met one another.
Particulars
I stated in my claims that my wife and I had contact with one another between 2006 and 2008 and also stated that we vaguely remembered the communication as we I (sic) was 20 years old and my wife was 12 years old at the time. I stated specifically that we were minors and we spoke now and then but not as much. The Respondents failed to consider this relevant fact and rejected the claims stating “the Tribunal is unable to reconcile the inconsistencies in their evidence”. As my wife and I had been giving explanations which we vaguely remembered while (sic) we were minors, the Tribunal did not take that relevant fact into consideration. The Tribunal made an error by coming to the conclusion that my wife and I are not credible and truthful witnesses.
3.The Respondents used excessive authority in rejecting my claims on the grounds that my wife and I had fabricated the claims and provided evidence in a manner to enhance our claims for protection.
Particulars
The Respondents failed to accept that I was arrested, detained, threatened, mistreated and harmed by the police in Pakistan in 2008 and at any other time. The Respondents completely rejected the claims, which are the crucial reasons for me to fear to return back to Pakistan. The Respondents completely rejected the relevant facts in my claims in order to reject my claims on the grounds that I have fabricated my evidence and am not a truthful witness.
4.The Respondents made a jurisdictional error in not accepting the relevant fact that I would be kidnapped by the TTP and would be arrested, detained, threatened and mistreated by the Pakistani authorities.
Particulars
The Respondents dealt with my wife’s fear of persecution rather than giving more weight to the fact that I fear persecution on my return back to Pakistan. The Respondents failed to note that my wife, the Second Appellant would not be able to return back to the UK, Germany or to Pakistan as she is married to me legally against her parents and her relative’s (sic) wishes.
5.The Respondents made a jurisdictional error by failing to consider the social group that my wife and I belonged to and the customary belief, social norms and religious values surrounding our Islamic community.
Particulars
My wife and I are Muslims and the Respondents should have noted our social and customary beliefs, which is based on the Islamic norms. Under the Islamic norms, the parents of the bride and the bridegroom along with the Islamic priest consummate marriages. When my wife’s parents objected to the marriage, as a Muslim woman, my wife would not be able to consummate the marriage against their wish. The Respondents failed to give any consideration to the fact that my wife being a Muslim woman had undergone severe harassment, intimidation and threats from her parents in order to stop her marriage in Australia. The Respondents failed to give any weight to the fact that under the Islamic custom, getting a divorce is very quick and easy but my wife and I had continuously fought against my wife’s parents in order to stop them from getting my wife taken away against her wish and forcibly married to someone else. The Respondents did not consider my claims on the grounds of religious background and our social status in conjunction with our Islamic religious practice.
6.The Respondents misconstrued and misinterpreted my wife and my claims and failed to give consideration to the relevant facts and rejected my claims on the basis of adverse credibility findings made by the Tribunal.
Particulars
The Tribunal’s findings that our evidence was “unreliable, unconvincing and lacking in credibility” arise from the Tribunal’s misconception of my relevant claims. Our social background, the enmity between our families, the affection for one another which started when my wife was a minor and the fear, harassment and detention faced by the both of us in Pakistan and in the UK were completely taken out of context when determining our claims for protection. Here, the Respondents had made a jurisdictional error by wrongfully identifying issues and facts with the view to reject my claims.
Submissions
The appellants filed no written submissions.
The first respondent submitted that Grounds 2, 5 and 6 alleged errors in the decision of the “respondents”, which were not raised in the Court below. Therefore the appellants would require leave to raise them on appeal. The first respondent submitted that leave should be refused on the basis that the grounds lacked any merit.
As to Ground 1, the first respondent submitted that the Ground was confused but at its highest could be seen to be an allegation of a breach of procedural fairness on the basis that the matter was listed for a show cause hearing but determined on a final basis. This was dealt with at [12] of her Honour’s judgment where her Honour stated that the matter was dealt with on a final basis by consent. The Court had the power to dismiss a matter on a final basis at a show cause hearing pursuant to r 44.12(1)(c), see for example SZKOX v Minister for Immigration and Border Protection [2015] FCCA 789. The appellants would need to establish some unfairness in this conduct and the ground as pleaded failed to do so. Insofar as the ground alleged that the primary judge failed to consider the grounds of the application, these were each addressed by her Honour. The ground also seemed to suggest that an extension of time should have been granted for the appellants to file an amended application, however there was no indication in the judgment or elsewhere that an extension of time was sought by the appellants.
The first respondent submitted that Ground 2 went no further than to seek impermissible merits review. In any event, the Tribunal did consider the fact that the first appellant was aged 20 and that the second appellant was aged 12 at [53]-[54].
The first respondent submitted that Ground 3 was no more than a disagreement with the Tribunal’s findings, and went no further than seeking impermissible merits review. The first respondent considered the appellants to be making a similar complaint to the that raised in Ground 4 in the Court below, considered by her Honour at [37]-[40]. The appellants had failed to identify any error in her Honour’s finding in that regard, nor was any apparent. It was not clear what was meant by “used excessive authority”, however the particulars did no more than to state matters that were rejected by the Tribunal and did not identify any jurisdictional error in the Tribunal’s reasoning.
The first respondent submitted that it was not clear what was meant by Ground 4, however he understood the ground to raise a similar complaint to that made in Ground 5 in the Court below, which was considered by the primary judge at [41] and [42]. The first respondent submitted that her Honour was correct to find that the ground went no further than to seek impermissible merits review and the appellants had not identified any error in that finding. In any event, the first respondent noted that the Tribunal did consider the circumstances surrounding the appellant wife and the claims made in regards to the United Kingdom, Germany and Pakistan at [60]-[63].
The first respondent submitted that Ground 5 alleged that the Tribunal failed to consider the appellants fell within a particular social group. How that social group was defined was unclear, however the ground must fail at a factual level because the claims were not advanced by the appellants to be on the basis of their religion, and in any event, the Tribunal found that the appellants would not face any serious harm as a result of their claims.
Ground 6, the first respondent submitted, alleged that the Tribunal misconstrued and misinterpreted the claims, however again, it seemed to be no more than a disagreement with the findings. The appellants had not identified how the claims were misconstrued or misinterpreted, and the first respondent submitted that properly understood the ground did no more than to seek impermissible merits review.
Consideration
I shall consider each ground of appeal in order.
Ground 1 alleges that the primary judge failed to give any consideration to the grounds of the application. This has no substance as a reading of the reasons of the primary judge shows. The ground suggests an unfair dismissal of the application to the Federal Circuit Court of Australia but the reasons of the primary judge, at [12], state that by consent the matter was dealt with as a final hearing and the show cause hearing was dispensed with. There is also a suggestion that the primary judge should have granted an extension of time, that is, an adjournment, for the appellants to approach a barrister after making financial arrangements but I see nothing in the materials to suggest that such an application was made. I reject Ground 1.
Ground 2 contends, as I read it, that the primary judge erred in failing to find jurisdictional error on the part of the Tribunal in that, the claim goes, the Tribunal ignored the fact that the appellants were minors when they met one another. The short answer to this ground is that the Tribunal did take that matter into consideration, at [53]-[54]. I reject Ground 2. It is not clear whether this Ground was raised before the primary judge.
Ground 3 does not identify any error on the part of the primary judge or any jurisdictional error on the part of the Tribunal and is of no substance. I reject Ground 3.
Ground 4, as I read it, is a complaint about the alleged relative lack of attention to the appellant husband’s claims but also involves the contention that the Tribunal did not deal with the appellant wife’s claim that she would not be able to return to the United Kingdom, Germany or to Pakistan “as she is married to me legally against her parents and her relative’s (sic) wishes.” In my opinion, subject to a matter I next mention, the Tribunal dealt with the claims of both the appellant husband and the appellant wife and the primary judge made no error in this respect. It is not presently clear to me that a claim was put in the broad terms that because the appellant wife married the appellant husband against her parents’ and her relatives’ wishes she would not be able to return to the United Kingdom, Germany or Pakistan.
It is not a ground of judicial review that the Tribunal gave “more weight” to the claims of one appellant over the claims of another appellant.
I reject Ground 4.
Ground 5, as I read it, involves a complaint that the primary judge erred in failing to find that the Tribunal made a jurisdictional error by failing to consider that the appellants belong to an Islamic community. It may also involve a complaint as to the appellants’ “social status”. In my opinion, the ground fails at a factual level. The matters the Tribunal dealt with necessarily involved the appellants’ “social status”, including their religion. The claims were not advanced by the appellants to the Tribunal on the basis of their religion more broadly. I reject Ground 5. It is not clear whether this Ground was raised before the primary judge.
Ground 6 amounts to no more than a complaint as to the Tribunal’s fact finding. I see no basis for the contention that the primary judge erred in failing to find that the Tribunal misconstrued and misinterpreted the appellants’ claims or failed to give consideration to the relevant facts. It is correct to say that the Tribunal rejected the claims on the basis of adverse credibility findings but that, in itself, does not establish jurisdictional error on the part of the Tribunal. Similarly, the contention that the primary judge erred in failing to find that the Tribunal made a jurisdictional error “by wrongfully identifying issues and facts with the view to reject my claims” is of no substance. I reject Ground 6. It is not clear whether this Ground was raised before the primary judge.
Conclusion and orders
Pursuant to r 36.75(1)(a)(i) of the Federal Court Rules, the appeal is dismissed, with costs.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate:
Dated: 9 August 2018
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