AVU16 v Minister for Immigration

[2017] FCCA 2695

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVU16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2695

Catchwords:
MIGRATION – Application to review decision of Administrative Appeals Tribunal – whether Tribunal erred in its consideration of documents submitted by the Applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 424AA

Cases cited:

Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485; [2010] FCAFC 50
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
MZZGB v Minister for Immigration and Border Protection [2014] FCA 1052
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1; [2003] HCA 30
SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46
SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138
Tickner v Chapman [1995] FCA 987; (1995) 57 FCR 451

Applicant: AVU16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 874 of 2016

Judgment of: Judge Barnes

Hearing date: 25 October 2017

Delivered at: Sydney

Delivered on: 25 October 2017

REPRESENTATION

Applicant: In Person

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 874 of 2016

AVU16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 10 March 2016.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. 

2. The Applicant, a citizen of Pakistan, initially applied for a protection visa on 17 January 2012.  He claimed to fear harm from his uncle in Pakistan because of a property dispute.  The application was found to be invalid as the Applicant had failed to provide personal identifiers.  However the Applicant was informed that it was open to him to make a further protection visa application meeting the requirements for a valid visa application.  He did so on 16 October 2013. 

3. In Part C of the October 2013 application the Applicant’s ethnic group was said to be “Sunni” and his religion “Islam”.  However in a statement in support of the October 2013 protection visa application he claimed to be a businessman who belonged to the “minority Shia Hazara sect of Muslim” in Pakistan.  He claimed he was the local leader of the Shia political organisation he referred to as the TNFJ and that he had established a security force to protect his area from a radical Sunni group, the Sipah-e-Sahaba, which he claimed was affiliated with the Taliban.

4. The Applicant claimed he was threatened by the Sipah-e-Sahaba, that his family would be killed if he did not pay one million rupees and hence that he moved with his family and then left Pakistan.  He also claimed that he had been attacked by the Sipah-e-Sahaba in his local mosque, but that the bomb did not blow up.  He claimed that the local police had arrested him for actively criticising their role in favour of Sipah-e-Sahaba, that they tortured him and that he had to pay a bribe to get released.  He also complained generally about sectarian violence in Pakistan.  He claimed his local mosque had recently been bombed.

5. The application was refused by a delegate of the First Respondent on 8 May 2014.  The delegate found that the Applicant’s evidence at an interview was manifestly inconsistent with his written claims and information provided in his application and concluded that his material claims were false.

6. The Applicant sought review by the Tribunal on 4 June 2014.  He provided a number of documents to the Tribunal, including a copy of pages from his passport.  In addition, the Tribunal received an undated statement in English, said to be from a named advocate of the High Court in Lahore which “certified” certain claims (the advocate document); a brief document addressed “To Whom It May Concern” on letterhead (in English) of Jamia Imamia Ali Masjid and Imam Bargah (the To Whom It May Concern document); and an untranslated document bearing a stamp stating “Police Station, Shad Bagh Lahore” (the police document).

7. The Applicant attended a Tribunal hearing on 1 March 2016.  The only evidence of what occurred in the Tribunal hearing is the hearing record and the Tribunal’s account in its reasons for decision.  The Tribunal hearing record states that the hearing commenced at 9.57am and ended at 1.35pm and that the Applicant was given an opportunity to provide information, comments or a response in writing by 8 March 2016.

8. On 10 March 2016 the Tribunal affirmed the delegate’s decision.

9. In its reasons for decision the Tribunal set out the Applicant’s claims and evidence, including the claims he made in support of both protection visa applications and the documents he provided.  The Tribunal described, at length, evidence given by the Applicant at the Tribunal hearing.

10. In essence, the Tribunal saw the issue before it as being in relation to the Applicant’s claims to fear harm if he returned to Pakistan on the basis of his Shia religious beliefs, Hazara ethnic extraction and/or an actual or imputed political opinion of supporting the TNFJ.

11. The Tribunal recorded that in his first protection visa application the Applicant had claimed his uncle would kill him because of a family property dispute, that in the October 2013 protection visa application it was stated that the Applicant belonged to the Sunni ethnic group and that his religion was Islam, but that in the written statement provided in support of that application the Applicant had claimed that he belonged to the minority Shia sect in Pakistan and was of Hazara ethnicity and feared harm on that basis.

12. The Tribunal acknowledged that the Applicant had provided material in support of his application, including a copy of pages from his Pakistani passport and the three other documents to which I have referred.  It recorded, at paragraph 15 of the reasons, that it received the advocate document in August 2014 from a person describing himself as an “advocate High Court” in Pakistan, that this document referred to a client of the advocate who was said to be the brother of the Applicant and stated that the Applicant belonged to a Shia sect party called TNF and that members of the Sipah-e-Sahaba wanted to kill him and that the Applicant’s wife and children lived with his brother in Pakistan.  The Tribunal recorded that this document also claimed that the Applicant’s enemies had been to see his brother and had threatened to kill his brother’s family if the brother did not tell him the whereabouts of the Applicant; that the brother had reported this incident to the police and had registered a first information report but that the Applicant’s enemies had influence with the police and the “enemies” had not been arrested.  

13. The Tribunal found that this document was unclear about claims that the police wanted to arrest either the Applicant or his brother and as to whether members of the Pakistan Muslim League wanted to kill the Applicant or his brother.  It recorded that the document stated that the Applicant was advised to seek asylum outside Pakistan, as his enemies were in power and the local police would not help him.

14. The Tribunal also described the To Whom It May Concern document headed Jamia Imamia Ali Masjid and Imam Bargah, which, it stated, appeared to be dated June 2014.  I note that on the copy of this document in the Courtbook, the year the document is dated is obscured by other writing.  Later in its decision the Tribunal considered this document on the basis that it was dated either 2014 or 2011.  It recorded that this document certified that the Applicant was an “active and devoted member of our organisation”.  

15. The Tribunal also referred to the police document, described as a document in a foreign language, without an English language translation, which had a stamp attached entitled “Police Station Shad Bagh” and bore number 5530.  It is apparent, from the Tribunal’s subsequent discussion of the evidence at the Tribunal hearing that the Applicant explained that this document was the First Information Report (FIR) that his brother had given to the police (as described in the advocate document).

16. The Tribunal described, in some detail, its discussion with the Applicant at the hearing of his circumstances and claims and the documents he had provided. It recorded that it had raised certain information with the Applicant pursuant to s.424AA of the Migration Act 1958 (the Act) and allowed him a week (that is, until 8 March 2016) to provide further comments, responses or any submissions in relation to his claims, but that no such material was received. 

17. The Tribunal also referred to country information, in particular in DFAT reports, including information in relation to document fraud and its relevance to the FIR.  It described the manner in which it had raised various concerns with the Applicant about his claims and evidence, in particular about his claims that he was a Shia Muslim and fearful of harm on the basis of his claimed Hazara ethnic extraction, having regard to inconsistencies in his claims and his vague evidence and a lack of detail. 

18. The Tribunal also recorded that it raised with the Applicant its concern about the authenticity of the documents he had provided in support of his claims, as well as his inconsistent evidence as to the dates of claimed events, his delay in applying for protection and his failure to seek protection in any of the other countries he had visited before he came to Australia.  It addressed the Applicant’s comments in relation to its concerns. 

19. Under the heading “Consideration of Claims and Evidence”, the Tribunal accepted that the Applicant was a Pakistani citizen.  It was not satisfied he had a well-founded fear of persecution based on his claims and evidence.  It was not satisfied as to his credibility in relation to some aspects of his evidence and claims. 

20. The Tribunal did not accept that the Applicant was of Hazara extraction and hence at risk of harm in Pakistan on that basis.  It had regard to his vague evidence and the very limited information he had provided in support of this claim.  It observed that while the Applicant claimed his mother had been born in Pakistan and was of Hazara extraction, he did not know where she was born or whether her family had migrated to Pakistan from Afghanistan.  The Tribunal found that the Applicant had provided virtually no evidence in support of this claim, apart from the assertion of a risk of harm on this basis.  The Tribunal also had regard to the fact that the Applicant had told the delegate that he identified as Punjabi and in neither of his protection visa applications had he claimed he was of Hazara ethnic extraction in response to specific questions in the application form.  It also took into account the fact that the Applicant had provided no details about this aspect of his claim in the first protection visa application and in the second protection visa application was described as “Sunni” in response to the question about ethnic extraction (although in the supporting statement he claimed he was of Hazara ethnic extraction). 

21. The Tribunal also had regard to the fact that the Applicant did not claim that he had been specifically harmed in Pakistan because of his claimed Hazara extraction, but, rather, appeared to “roll” any claims to fear harm on this basis into his claimed Shia religious beliefs.  The Tribunal continued at paragraph 50:

    … The Tribunal has considered the applicant’s claims that he fears harm on the basis of his claimed ethnic extraction as an Hazara.  As indicated the applicant provided no details or evidence in support of this claim other than to assert the claim.  He gave no evidence about his mother’s background that would indicate to the Tribunal that he had any knowledge of his mother’s ethnic extraction other than to claim that she was of Hazara extraction but she was born in Pakistan.  He did not indicate to the Tribunal that he had any historical knowledge of Hazara people having migrated from Afghanistan to Pakistan (as per the DFAT thematic/country information referred to elsewhere in these reasons).  He told the Tribunal his father had been born in Pakistan and did not claim that he was of Hazara extraction.  The Tribunal after considering the totality of the applicant’s evidence and having regard to the Tribunal’s concerns about the applicant’s credibility does not accept the applicant’s claim that he is of Hazara ethnic extraction and at risk of harm in Parkistan on the (sic) basis.  The Tribunal does not accept that the applicant faces a real chance of serious harm on the basis of this claim if he returned to Pakistan either now or in the reasonably foreseeable future.

22. The Tribunal found that the Applicant’s overall evidence about his claims to fear harm in Pakistan was vague and to an extent inconsistent.  It referred to specific instances of inconsistency in relation to the Applicant’s claims about being threatened for extortion by the SSP and to his very general evidence about a claimed attempted bomb attack on a mosque which he eventually said had occurred in 2009.  It observed that notwithstanding that the Applicant claimed that it was these particular incidents which caused him to be fearful and to leave Pakistan and also claimed to be one of the people in charge of security for the mosque or holy place, his evidence about the dates of claimed incidents was of concern.  The Tribunal stated that it would have expected the Applicant to be able to provide significantly more detail had he been involved in arranging security arrangements for the mosque.

23. The Tribunal explained why it found the Applicant’s evidence about his claimed arrest and torture by the police to be very vague, general and an overstatement in light of his evidence that he was not charged and was released. 

24. The Tribunal considered the Applicant’s evidence about his involvement with the TNFJ as follows at paragraph 52:

    … His evidence about his involvement in the TNFJ was also in the Tribunal’s view very general.  As indicated elsewhere in these reasons he initially described that as a Shia religious organisation but in his statement claimed it was a Shia political organisation but eventually told the Tribunal that he was unaware of any details surrounding any political activities carried out by that organisation other than to claim that some people from that organisation had stood for election but he did not know the details.  He claimed that he was a leader in the organisation but was very vague in terms of his role in providing security in that position.  He produced no documentation to show that he was a member of that organisation.

25. The Tribunal had regard to the Applicant’s failure to seek asylum in a number of other countries he had travelled to before coming to Australia (and his explanation that he had not thought about it) as well as to his significant delay in claiming protection in Australia.  It was not persuaded by his explanations.  It also found the Applicant’s evidence as to why he claimed to fear harm from the SSP and the Taliban was lacking in any real detail and that he was inconsistent in relation to any claim that he feared harm from the Pakistan Muslim League and was not able to indicate why that League would be his enemy.  The Tribunal found the Applicant’s evidence about claims that relatives had been killed in religious processions and because of being of Hazara extraction was very general.  It recorded that it had found it difficult to get specific details from the Applicant in relation to these claims.

26. The Tribunal concluded that, having considered the totality of the evidence, it did not accept that the Applicant was a credible witness.  It did not accept the Applicant’s explanation for the difficulties with his evidence (that he had memory difficulties and was stressed in responding to Tribunal questions).  It noted he did not claim he was receiving any medication or treatment in relation to any conditions that would have affected his memory or in relation to any stress condition.  The Tribunal continued at paragraphs 55-56:

    The Tribunal has considered the applicant’s claims that he feared harm if he returned to Pakistan on the basis of an actual or imputed political opinion of supporting the TNFJ.  The applicant’s evidence about that aspect and that claim has been referred to elsewhere in these reasons.  As indicated the Tribunal’s overall assessment of the applicant’s evidence in relation to this claim is that it lacked detail.  He spoke in a very general way about being involved in charitable work with that organisation.  He provided no documentation to indicate that he was a member of that organisation.  His evidence about any political aspect of that organisation’s work was very vague and lacking in detail and did not suggest or indicate to the Tribunal that the applicant had any real knowledge of that organisation’s overall activities.  He told the Tribunal that it was a Shia religious organisation but claimed in his statement that it was a Shia political organisation.

    The Tribunal’s overall assessment after considering the totality of the evidence and its assessment of the applicant’s credibility is that the applicant was not a member or supporter of the TNFJ.  The Tribunal would have expected that the applicant would have been able to provide significant more detail about his actual role and work with that organisation and to have provided significant (sic) more detail about that organisation’s overall activities and including both its religious and any political activities engaged in by that organisation had he been involved with that organisation as he claimed.  The Tribunal does not accept that the applicant faces a real change of serious harm on the basis of an actual or imputed political opinion of being pro- TNFJ if he returned to Pakistan either now or in the reasonably foreseeable future.

27. The Tribunal also explained why it did not accept that the Applicant was of the Shia Muslim faith, noting the absence of such claims in his protection visa applications, and the fact that his evidence about his religious practices in Pakistan was very general and lacking in detail.  The Tribunal believed the Applicant should have been able to provide significantly more detail about his religious practices, particularly given his claim to be a security leader protecting a Shia holy place.  In addition, it noted that he did not claim to attend a mosque in Australia, but to practice his religion at home and that he did not interact with other members of the Shia faith in Australia. 

28. The Tribunal then addressed the documents the Applicant had provided in support of his claims.  It referred to information that document fraud was endemic in Pakistan and stated at paragraph 59:

    The Tribunal notes that the document provided in relation to the applicant’s claimed religious activities in Pakistan refers to him being an “active” member of that organisation but even though there is some confusion about the date of that document the applicant has been in Australia since February 2011 and therefore could not have been an active member of that organisation in either June 2011 or June 2014.  The applicant said that he had arranged to be provided with that document in essence to support his protection Visa application.  The Tribunal after considering that document and country information regarding widespread document fraud in Pakistan as well as the Tribunal’s assessment of the applicant’s evidence and his credibility is not prepared to accept the veracity of that document.  As indicated the Tribunal believes that if the applicant was a practising Shia in Pakistan that he would have been able to provide significant (sic) more detail about his religious activities in Pakistan than he was able to provide to the Tribunal and that evidence is not consistent with the claim in the document that he was an active member of that religious organisation.  Other evidence and information before the Tribunal that has been referred to, such as the two protection Visa applications, also do not support the applicant’s claim that he is of the Shia faith. The Tribunal also considered the High Court advocate document provided by the applicant which he said his brother forwarded to him.  The Tribunal for the reasons that have been referred to regarding its concern about document fraud in Pakistan and its assessment of the applicant’s claims and evidence does not accept the veracity of that document.  The Tribunal does not accept on its assessment of the evidence that a number of the claims about the applicant and referred to in that document are true and in those circumstances having regard to its concerns about document fraud is not prepared to accept the veracity of that document.  The applicant also provided an untranslated document which appeared to be a copy of a first information report in relation to his brother lodging a complaint about threats said to have been made to his brother in relation to the applicant.  As indicated there is no translation of that document and in the circumstances the Tribunal does not accept that document assists in overcoming the Tribunal’s concerns about the applicant’s claims and his credibility.

1. The Tribunal concluded that it rejected the Applicant’s claims he was of Hazara ethnic extraction or a Shia Muslim or that he had an actual or imputed political opinion of supporting the TNFJ.  Considering the totality of the evidence, it did not accept the Applicant’s claims that he had been the target of a bomb attack at a mosque in 2009, that he was the target of an extortion attempt by the SSP or that he was arrested and mistreated by the police as claimed.  It did not accept that the Applicant was at risk of harm from the SSP or the Taliban or that his family or brother were at such risk because of their connection to the Applicant.  Because of its concerns about his credibility, the Tribunal also did not accept the Applicant’s claims that relatives and neighbours had been killed because of their ethnic extraction or religious activities or his claims about the Taliban killing religious leaders under the direction of the Pakistani police.  The Tribunal found that cited DFAT reports provided recent and credible information relevant to the Applicant’s claims. 

2. On this basis, the Tribunal found that the Applicant did not meet the Refugees Convention criterion. 

3. For the same reasons, after considering the totality of the evidence, the Applicant’s claims, its assessment of his credibility and country information, the Tribunal did not accept that the Applicant met the complementary protection criterion.  In particular, it did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed to Pakistan, there was a real risk he would face significant harm because of his claimed Hazara ethnic extraction, his claimed Shia religion or his claimed actual or imputed political opinion of being pro-TNFJ. 

4. The Tribunal also found that it was not satisfied that there were substantial grounds for believing there was a real risk the Applicant would be subjected to any of the forms of harm within the definitions of harm constituting “significant harm” in the Migration Act for the purposes of the complementary protection criterion, having regard to the Applicant’s claims and the evidence, its assessment of his credibility and country information.

5. The Tribunal affirmed the delegate’s decision. 

6. The Applicant sought review by application filed in this Court on 13 April 2016.  He did not file an amended application or written submissions.  He was given the opportunity in the hearing today to address the grounds in the application and any other concerns he had with the Tribunal decision or procedures. 

7. The first ground in the application is that the Tribunal constructively failed to exercise its jurisdiction.  The particulars are as follows:

   The applicant provided documents to the Tribunal to corroborate his claims that the (sic) was an active member of TNFJ in Pakistan.  The Tribunal failed to engage in an active intellectual process of (sic) 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 (sic) 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.

8. In oral submissions the Applicant did not elaborate in any meaningful sense on this ground, beyond claiming that whatever he had he had provided to the Tribunal. 

9. As indicated, the advocate document does not purport to be from the TNFJ although it does state that the Applicant (described as the brother of the advocate’s client) belonged to the “TNF”, and was an active member of that party.  In its reasons for decision the Tribunal considered the documents provided by the Applicant, including the advocate’s document.  It also recorded that the Applicant had stated at the hearing that he had no documents to show his membership of the TNFJ.  I asked the Applicant what documents he had provided to the Tribunal “to corroborate his claims he was an active member of the TNFJ in Pakistan” as claimed in this ground.  He confirmed that the only documents he had provided to the Tribunal were the three documents and passport copy to which I have referred.  There is no suggestion or evidence that there was any document from the TNFJ as to the Applicant’s claimed membership of that party.

10. Relevantly, in the course of describing what occurred at the Tribunal hearing, the Tribunal recorded a discussion of the claims made in the documents that were provided.  The Tribunal asked the Applicant whether the To Whom It May Concern document provided by Jamia Imamia Ali Masjid and Imam Bargah (which stated that the Applicant “is an active and devoted member of our organisation”) related to the Applicant’s claims about being involved in the TNFJ.  However the Tribunal recorded that the Applicant said that this document related to the holy place he attended in Pakistan.  The Tribunal also recorded that it queried how this letter could attest to the Applicant being an active member of the organisation when he was in Australia in both June 2011 and June 2014.  This was obviously a reference to uncertainty as to the date of the letter.

11. The Tribunal did not believe the Applicant effectively engaged with this question.  It was in that context that it observed that the Applicant had told it he did not have any documents showing his membership of the TNFJ which he described as an organisation that operated throughout Pakistan.  The Tribunal also noted there was no reference in this document to the Applicant being a local leader responsible for protection of a holy place. 

12. Elsewhere in its reasons, the Tribunal recorded that it asked the Applicant about the advocate document and the claims therein.  It endeavoured to clarify why he would be at risk from the Pakistan Muslim League and recorded his vagueness in that respect and the fact that his evidence was that nothing had happened to his brother in Pakistan.

13. The Tribunal also referred to DFAT reports and the fact that during the Tribunal hearing, it had discussed the police document, which it accepted was a First Information Report.  It stated that this was provided in relation to the November 2013 incident said to involve the Applicant.  It appears that this is a typographical error and is intended to be a reference to an incident involving the Applicant’s brother while the Applicant was in Australia, as referred to in the advocate document.  The Tribunal had regard to a DFAT report which indicated that document fraud was endemic in Pakistan and stated that there was credible evidence of police in Pakistan accepting bribes to verify fraudulent first information reports.  The Tribunal observed that the country information noted that “the existence of a first information report does not therefore constitute evidence that the described events actually occurred”.

14. In addition, in considering the Applicant’s claims, the Tribunal addressed the claims made in the documents the Applicant had provided as well as making the findings about these documents (set out at [28] above) at paragraph 59 of its reasons.

15. As submitted by the First Respondent, ground 1 is not made out.  First, the Applicant did not provide documents to corroborate his claim that he was an active member of the TNFJ in Pakistan, except insofar as the advocate’s letter (which was considered by the Tribunal) referred to that claim.  He acknowledged this in the course of the hearing.

16. Second, it is apparent from the Tribunal reasons for decision considered as a whole that the Tribunal did not fail to engage in an “active intellectual process” in relation to the documents that were provided (see Tickner v Chapman [1995] FCA 987; (1995) 57 FCR 451 at 462 per Black CJ and NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134). On the contrary. As indicated, the Tribunal engaged with and considered the content of each of these documents and the claims made therein. On its account in its reasons of what occurred in the Tribunal hearing (the only evidence before the Court in that respect) the Tribunal also raised with the Applicant its concerns about aspects of those claims and also about the veracity of the documents, including on the basis of the independent country information.

17. Beyond this, the Tribunal has not been shown to have fallen into jurisdictional error in its findings in relation to the documents.  It did not simply place no weight on the documents.  I am not satisfied the Tribunal fell into jurisdictional error in finding that it was not prepared to accept the veracity of the To Whom It May Concern document or of the advocate document or in its finding that the untranslated police document did not assist in overcoming its concerns about the Applicant’s claims and his credibility.

18. This is not a case in which the Tribunal failed to consider documents such that a concern of the nature considered in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 arises (whether seen as a failure to consider evidence or an integer of claims). The Tribunal had the documents before it. It considered the documents and the claims made therein. It is apparent that there was a discussion of those documents and the claims therein at the Tribunal hearing as well as in the Tribunal reasons for decision.

19. Importantly, in the course of its reasons, the Tribunal made significant findings that were contrary to certain fundamental aspects of the claims made in those documents.  In the context of making those findings the Tribunal considered the documents (at paragraph 59) in the manner described.  The findings in relation to the veracity of the documents and whether the FIR assisted in overcoming the Tribunal’s credibility concerns were reasonably open to the Tribunal on the material before it for the reasons it gave in the particular circumstances of this case.

20. In a case such as the present it was also open to the Tribunal to assess the Applicant’s credibility and, in light of that assessment, to consider what weight should be given to potentially corroborative documents proffered by him (see the discussion by North and Lander JJ (with whom Katzmann J agreed) in Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485; [2010] FCAFC 50 at [35] to [38]). In this case, as in SZNSP, the provenance of the proffered documents was not established.  The Tribunal had conducted a hearing, had heard the Applicant and had clearly reached a tentative conclusion rejecting the veracity of his claims.  It was, as was the Tribunal in SZNSP, entitled to reject evidence which, if accepted, would have corroborated, at least in some respects, the Applicant’s account.

21. I bear in mind that, as their Honours pointed out in SZNSP at [36], this does not mean that any evidence of corroboration could be rejected. However this is not a case in which the Tribunal refused to consider potentially corroborative evidence. It assessed and weighed such evidence in the balance with other evidence. It considered the nature, content and quality of the corroborative evidence. There was nothing irrational or unreasonable in the Tribunal’s approach to the documents in the circumstances of this case. As pointed out in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1; [2003] HCA 30 at [14], the Tribunal does not act irrationally and thereby fall into jurisdictional error by first assessing the Applicant’s credit and then giving attention to the corroborative evidence. The sequence in which the Tribunal proceeded has not been shown to give rise to jurisdictional error having regard to the principles discussed in Applicant S20/2002 and SZNSP.

22. In written submissions the First Respondent also addressed the possibility that the Applicant may have intended to contend that the Tribunal erred in failing to have the FIR translated into English.  There is no evidence that the Tribunal was asked to obtain a translation but declined to do so.  Nor is it appropriate to draw such inference in the absence of a transcript of the Tribunal hearing.  Further, while the untranslated police document was provided by the Applicant and the Tribunal did not take steps to obtain a translation, it is also apparent from the Tribunal reasons for decision that the Tribunal asked the Applicant about this untranslated document at the hearing and proceeded on the basis that it was, as he claimed, the FIR referred to in the advocate’s letter.  In other words, the Tribunal ascertained the gist of the material.  It can be inferred from the Tribunal’s reasons and discussion of this document that the Applicant had the opportunity at the hearing to explain the relevance of the untranslated police document. 

23. The Tribunal considered the potential relevance of this document in light of country information, in particular in relation to document fraud and to the effect that the existence of a FIR does not constitute evidence that the described events actually occurred. 

24. There is nothing to suggest that the Tribunal’s failure to obtain a translation of the police document amounted to a failure to make inquiries in relation to a critical fact, the existence of which was easily ascertained, or that it acted unreasonably in failing to obtain such a translation.  As White J stated in MZZGB v Minister for Immigration and Border Protection [2014] FCA 1052 at [63], the fact that it may have been reasonable for a decision-maker to make a certain inquiry does not elevate the lack of such inquiry into jurisdictional error. This case is not one of the “rare and exceptional” (see MZZGB at [63]) cases in which a decision-maker is under a duty to make an inquiry as to the availability of a translation or to obtain a translation. No jurisdictional error is established in relation to the Tribunal’s approach to the untranslated FIR.

25. Ground 2 is that the Tribunal failed to comply with s.424A read with s.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 it being relied upon, and to invite the applicant to comment upon or respond to that information”. 

26. The particulars to this ground are that “[t]he 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”.

27. The Applicant has not identified the particulars of the information which he contended enlivened s.424A(1) of the Act. In any event, contrary to the assertion that the Tribunal made no attempt to comply with the requirements of s.424AA, the Tribunal recorded (in a comprehensive manner) that at the hearing it raised certain information with the Applicant pursuant to s.424AA of the Act.

28. The Tribunal recorded that the information it raised with the Applicant at the hearing was information contained in his January 2012 protection visa application.  It put to him that the reasons he provided in support of that protection visa application were “completely different to” the reasons claimed in his later application and also that he had not claimed to fear harm in the January 2012 application because of his ethnic extraction or religion and had told the Tribunal at the hearing that the claims advanced in the January 2012 application were untrue. 

29. The Tribunal also recorded that it put to the Applicant information referred to in the delegate’s record of decision in relation to his current protection visa application. The solicitor for the First Respondent has explained that insofar as reliance might otherwise be placed on the fact that the Applicant had given a copy of the delegate’s decision to the Tribunal such that the exception in s.424A(3)(b) of the Act would apply, it appeared that in this case the Applicant may not have provided a copy of the delegate’s decision to the Tribunal.

30. In any event, even if the Tribunal proceeded under the facultative procedure in s.424AA out of an abundance of caution, that would not in itself be indicative of jurisdictional error (and see SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46 at [2] per Moore J and [74]-[96] per Tracey and Foster JJ).

31. The Tribunal explained that it put to the Applicant that the relevance of the information contained in the delegate’s decision and in the first protection visa application was that any inconsistencies in relation to the Applicant’s claims and the evidence he provided to the delegate could cause it to not believe his claims and to make an adverse credibility finding.  It also recorded that the Applicant was given the opportunity to comment or respond; that he said that he had no comments or responses; that he was nonetheless asked if he would like extra time; and that initially he said no but then said that he would like some extra time.  The Tribunal allowed him one week.  This is consistent with the hearing record.  The Tribunal recorded that it received no further comment, response or submissions. 

32. There is no transcript of the Tribunal hearing in evidence, notwithstanding that the Applicant was given an opportunity to provide a transcript of the Tribunal hearing in accordance with directions made in this matter.

33. In these circumstances and having regard to the Tribunal’s detailed account of having put information to the Applicant pursuant to s.424AA of the Act, it has not been established that there was a failure by the Tribunal to follow the procedures in s.424AA of the Act in relation to information put to the Applicant such that s.424A(2A) would not apply or that there was other information that enlivened s.424A of the Act such that the Tribunal contravened that section.

34. There is authority to support the view that, in the absence of a transcript of the Tribunal hearing as to evidence of non-compliance with s.424AA of the Act and having regard to the Tribunal’s account in its reasons for decision, it should be inferred that the Tribunal complied with its obligations (see SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138 at [38] and SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312 at [19]). There is nothing to the contrary in the present circumstances, but in any event it has not been established that the Tribunal failed to comply with s.424A of the Act or with the alternative method of compliance by virtue of the procedures in s.424AA of the Act (see s.424A(2A)). Ground 2 is not made out.

35. Ground 3 is that the Tribunal “misconstrued the risk and fear of significant harm as set out in s.36(2A) of the Migration Act 1958”.  The particulars are that the Tribunal “construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns (sic) to Pakistan”. 

36. The Applicant did not elaborate on this ground.  He did not explain the nature of the allegedly erroneous and narrow construction of the concepts of risk to life and fear of significant harm. 

37. This was not a case in which the Tribunal accepted that there was some risk of harm, but found that it did not meet the threshold of significant harm in any of the ways in which that concept is defined in the Migration Act. Rather, the Applicant’s claims were rejected at a factual level. There is nothing in the circumstances of this case or in the material before the Court to support any contention that the Tribunal misconstrued any aspect of the definitions of conduct amounting to significant harm or any other aspect of the law in relation to the complementary protection criterion (which the Tribunal summarised at the start of its reasons for decision).

1. Insofar as this ground is in substance an attempt to engage the Court in merits review, merits review is not available in this court.  Ground 3 is not made out. 

2. In oral submissions the Applicant took issue with the Tribunal’s conclusions.  In this respect he also sought impermissible merits review. 

3. The Applicant also suggested that his mind was “not working”.  If this was intended to be a reference to his state of mind at the Tribunal hearing, the Tribunal addressed this issue as a proffered explanation for inadequacies and inconsistencies in the Applicant’s evidence.  The Tribunal did not accept the explanation that the Applicant had memory difficulties and was stressed, in the absence of any claims or evidence of medication or treatment.  There is no evidence before the Court to suggest that the Applicant was unfit to participate in the Tribunal hearing.  Nor did I have any concern about the Applicant’s ability to participate in the hearing today and the Applicant did not raise such a concern.

4. As no jurisdictional error has been established on any of the bases contended for by the Applicant the application must be dismissed. 

5. The Minister seeks costs in the sum of $5,600.  The Applicant stated from the bar table that he had no money.  I am not satisfied that the Applicant’s lack of funds is a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent, although it may be taken into account by the Minister in determining when and how to seek to recover such costs.  The amount sought is appropriate and reasonable, in light of the nature of this and other similar matters.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  6 November 2017