AWA15 v Minister for Immigration
[2017] FCCA 391
•28 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AWA15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 391 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Pakistan – applicant not believed – whether the Tribunal hearing was procedurally unfair or whether the Tribunal decision was otherwise affected by jurisdictional error considered – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 426 |
| Cases cited: BTF15 v Minister for Immigration [2016] FCA 647 CZBH v Minister for Immigration [2014] FCA 1023 |
| Applicant: | AWA15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1447 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 2 March 2017 |
| Date of last submissions: | 23 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 28 April 2017 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr M Cleary |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application filed on 26 May 2015 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1447 of 2015
| AWA15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) made on 30 April 2015. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the Minister filed on 16 November 2016.
The applicant is a male citizen of Pakistan. On 28 November 2013 the applicant applied for a protection (Class XA) visa under s.36 of the Migration Act 1958 (Migration Act).
In his protection visa application[1], the applicant claimed that in 2006 he worked as a trainee journalist for a newspaper for which his uncle was the editor. The applicant claimed that his uncle asked him to obtain information about a political party in Pakistan known as the Muttahida Quami Movement (MQM). The applicant claimed the information he obtained prevented a major attack against the Pakistan People’s Party (PPP). The applicant claimed that persons associated with the MQM since that time had sought him out, and that he had been a victim of extortion and violence.
[1] Court Book (CB) 1-37.
On 30 June 2014 the delegate refused to grant a protection visa to the applicant on the basis that the applicant’s claims were contradictory and implausible. The delegate held that any extortion was by criminals who were motivated by monetary gain.
The Tribunal hearing
The applicant applied to the Tribunal for review of the delegate's decision on 10 July 2014.
The applicant attended the Tribunal and gave oral evidence on 21 April 2015.
In the Response to Hearing Invitation the applicant requested that the Tribunal take evidence from his brother in Karachi, Pakistan[2]. At the hearing the Tribunal indicated that it did not intend to telephone his brother in Pakistan[3]. The applicant agreed with the Tribunal member during the hearing that he would provide a statement from his brother after the hearing[4].
[2] CB 250.
[3] See affidavit of Ada Wong sworn 21 July 2015, annexure “A”, transcript page (TP) 54 lines 21-24.
[4] TP 55, lines 27-44.
Tribunal decision
The Tribunal handed down its decision on 30 April 2015, affirming the decision under review.
The Tribunal did not accept that the applicant was ever employed as a journalist, or that he was attacked by the MQM, or any person associated with political parties due to his involvement in exposing corruption activities of the MQM in 2007, or as a result of any subsequent involvement with PPP[5].
[5] CB 333 [48].
The Tribunal did not accept that the applicant was ever attacked; that he was threatened or harassed; that unknown persons fired on him and his wife; or that a gun was held to his head; that he was ever issued with ransom demands; or that he had been extorted by the MQM[6]. It did not accept that the applicant’s mother was injured or hospitalised for any of the reasons claimed by the applicant, or that any persons had come to his home asking for him[7].
[6] CB 333 [49].
[7] CB 333 [49].
The Tribunal did not accept that the applicant had attended any MQM meeting, was the friend of the MQM leader, or that he found a named individual’s dead body. The Tribunal did not accept that the applicant fled Karachi for that reason, or because he was suspected of being an informer. It accepted that his brother’s car and property were destroyed, but not in the circumstances that the applicant claimed. The Tribunal did not accept that this was, in any way, connected with the applicant’s involvement in undercover activities opposed by the MQM[8].
[8] CB 333 [50].
The Tribunal accepted that the applicant had obtained a new identity card, but was not satisfied that he did so for the reasons that he claimed. It held that the applicant was not involved in the re-opening of his uncle’s case in 2010, and considered that these claims had been fabricated[9].
[9] CB 334 [50].
The Tribunal accepted that the applicant was a member of the Sindh People’s Youth Party at some point, but did not accept that there was evidence that he had any on-going involvement with the PPP, or that he was ever threatened and told he should join the MQM or he would be killed. The Tribunal also did not accept that he had any involvement in politics or with the PPP, or that he was involved in elections for the PPP[10].
[10] CB 334 [50].
The Tribunal accepted that another person R[11] was killed in February 2007. It was prepared to accept that Mr R was in some way related to the applicant. However, the Tribunal did not accept that the applicant had anything other than a peripheral involvement in his death by virtue of his relationship with him, rather than his involvement in writing or conducting investigative work for the newspaper for which Mr R was the editor. The Tribunal did not accept that such peripheral involvement was such that the applicant would suffer serious harm due to his relationship with Mr R, upon his return to Pakistan[12].
[11] Name has been anonymised.
[12] CB 334 [51].
The Tribunal found that the applicant left Pakistan in an orderly manner whilst working for a named company until he left Pakistan. The Tribunal was not satisfied that applicant had any adverse profile in Karachi from opposing political parties, or that any minor political involvement he may have had, resulted in him having an adverse political profile such that there was a real chance he would be sought for this reason upon his return to Pakistan[13].
[13] CB 334 [51].
The Tribunal found the applicant did not satisfy the criterion in s.36(2)(a) or s.36(2)(aa) of the Migration Act.
The present proceedings
These proceedings began with a show cause application filed on 26 May 2015. The applicant continues to rely upon that application. There are five grounds in that application appearing at different parts of the application form:
1. Presiding Member did not take phone [evidence] from my brother
2. Presiding member was not allowing me to speak freely only through interpreter.
3. Presiding member has continuously rejected my [evidence] of giving fraudulent.
4.Presiding member decision is based in fraud document.
5.Presiding member did not take phone [evidence] of my only witness. She had the opportunity to send all docs again.
(errors in original)
The application is supported by an affidavit filed with it which simply introduces the Tribunal decision. I received that affidavit. I also received as evidence the affidavit of Ada Oi-Yee Wong made on 21 July 2015, to which is annexed a transcript of the hearing conducted by the Tribunal on 21 April 2015. I also received as evidence the court book filed on 3 July 2015.
Only the Minister prepared written submissions in accordance with procedural orders made by a Registrar. Those submissions were read to the applicant by the interpreter engaged for the hearing of this matter on 2 March 2017. At the outset of the hearing, the applicant complained that, while the submissions had been read to him, he was not in a position to respond to them because of a lack of understanding of the legal issues. I invited counsel for the Minister to present his submissions orally and then invited oral submissions from the applicant. The applicant reiterated that he was at an unfair disadvantage in the absence of legal advice or representation and sought the opportunity to make submissions in writing after the hearing.
I gave leave for the applicant to make written submissions after the hearing, taking into account that, having received the Minister’s submissions in late 2016, the applicant had engaged counsel on a direct access brief to advise and represent him. Unfortunately, counsel had withdrawn shortly before the hearing of this matter on 2 March 2017. I accepted that the applicant had anticipated being assisted by counsel and reasonably required a short amount of time to obtain advice and assistance in preparing written submissions.
The applicant filed written submissions on 23 March 2017. The Minister elected not to file any submissions in reply.
Consideration
Grounds 1- 3
The first three grounds in the application appear to have been advanced in the erroneous belief that the applicant required an extension of time for his application, as those grounds appear in that part of the application form dealing with applications for an extension of time. Ground 1 covers the same ground as Ground 5 and Ground 3 covers the same ground as Ground 4.
Ground 2, in effect, asserts procedural unfairness at the Tribunal hearing through the use of an interpreter. The applicant made no submissions in relation to this ground. The court book discloses[14] that the applicant requested a “Sindhi” interpreter for the hearing in a telephone call to the Tribunal on 20 March 2015. In his Response to Hearing Invitation received by the Tribunal on 7 April 2015 the applicant indicated that he did not need an interpreter[15]. The Tribunal hearing record shows[16] that the applicant was assisted by an Urdu interpreter at the Tribunal hearing. The transcript shows at pages 3 to 4 that the applicant confirmed that he needed the Urdu interpreter. There was in my view no procedural unfairness in the Tribunal’s use of an interpreter.
[14] at CB 245.
[15] CB 249.
[16] at CB 253.
Ground 4
Ground 4 is in the following terms:
Presiding member decision is based in fraud documents.
This ground of review appears to challenge the findings made by the Tribunal member that various documents provided by the applicant to the Tribunal were not genuine and were fabricated. In his post hearing submissions the applicant contends that the Tribunal did not properly verify the authenticity of his documents.
At [48]-[49] of the Tribunal decision the Tribunal member made findings that a number of documents provided by the applicant were not genuine, and had been fabricated to substantiate the applicant’s claims for protection. The Minister submits the Tribunal properly considered these documents (and others provided by the applicant). In other words, the Minister submits that the Tribunal properly engaged in an active intellectual process in regard to each of the documents referred to in [48]-[49].
The Minister provided with his submission a schedule of references in the decision where the Tribunal has considered the documents submitted to the Tribunal by the applicant.
It is true that the Tribunal did not accept that certain documents, being letters demanding a ransom, the First Information Report (FIR) or police documents were genuine. However, the finding that the particular documents were not “genuine” was open to the Tribunal to make as a finding of fact based on the evidence before it. Further, it is clear from the decision, and the transcript of the hearing before the Tribunal, that the Tribunal member discussed with the applicant that false documents are readily available in Pakistan (or “come out of Pakistan”)[17].
[17] TP 53.
For these reasons I reject Ground 4.
Ground 5
Ground 5 states:
Presiding member did not take phone evidence of my only witness. She had the opportunity to send all docs again.
This ground of review appears to challenge the decision made by the Tribunal member not to take evidence by telephone from the applicant’s brother in Pakistan, even though the applicant’s brother had been nominated[18] as a witness to give oral evidence by telephone at the hearing[19]. In his post hearing submissions the applicant complains that the presiding member did not adequately explain why the Tribunal would not telephone his brother.
[18] under s.426(2) of the Migration Act
[19] CB 250 Response to Hearing Invitation.
Section 426(3) gives the Tribunal a discretion to obtain evidence (orally or otherwise) from a person nominated by the applicant.
In CZBH v Minister for Immigration[20], Rangiah J held that s.426(3) requires that the Tribunal give genuine consideration to an applicant’s wish that the Tribunal obtain oral evidence from a nominated witness, and that the Tribunal exercise its discretionary power under s.426(3) reasonably.
[20] [2014] FCA 1023
In CZBH Rangiah J held that it was a jurisdictional error if the Tribunal’s decision not to obtain evidence from the nominated witness (orally or otherwise) was unreasonable. That is, it lacked an “evident and intelligible justification”.
More recently in BTF15 v Minister for Immigration[21] Katzmann J held that[22]:
…The appellant’s case is not that the Tribunal was obliged to call them; it is that the Tribunal had a discretion to do so and that it was obliged to exercise that discretion reasonably, both of which propositions the Minister rightly accepted. That discretion is conferred by s 429A of the Migration Act and it is independent of the regime in s 426. Every statutory discretion must be exercised reasonably: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and the cases referred to there. The legislature is taken to have so intended: Kruger v The Commonwealth (1997) 190 CLR 1 at 36 (Brennan CJ); Li at [28]–[29] (French CJ), [63] (Hayne, Kiefel and Bell JJ), and [88]–[89] (Gageler J). The “indicia” of legal unreasonableness are to be found in the subject matter, scope and purpose of the particular statutory provisions “in issue” in a given case: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [48].
As the plurality explained in Li, at [76], a court may infer unreasonableness in the exercise of a statutory discretion where, even if reasons are given, it is not possible to understand how the decision was reached (see, too, French CJ at [27]). Their Honours said (also at [76]) that “[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”. In the court below and on appeal, the appellant contended that the decision not to take oral evidence from the two witnesses was one lacking in intelligible justification.
The Full Court said in Singh at [47]:
The “intelligiblejustification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved.That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court.It is not, as in House v The King (1936) 55 CLR 499, on an appeal from an exercise of ajudicial discretion, for the Court to re-exercise the discretion.If a supervisingcourt goes outside the reasons given by a decision-maker for anotherjustification for the exercise of power, thatCourt might then be seen to beplacing itself in the position of the repository ofthe power and therefore actingimpermissibly. Where there are reasons,either the reasons given by thedecision-maker demonstrate a justification or theydo not. It would, we think, bea rare case where the reasons demonstrate ajustification but the ultimate exercise of the power would be seen to be legally unreasonable.
[21] [2016] FCA 647.
[22] At [39]-[41].
The issue in the present case therefore is whether the decision of the Tribunal member not to take oral evidence by telephone from the applicant’s brother was an unreasonable decision, in the sense of lacking an “evident and intelligible justification”. In my view, the Tribunal member did not commit an error of the kind identified in CZBH, and the decision made was a legally reasonable one.
First, while the Tribunal decision itself in the present matter does not contain any reasons for the decision not to take evidence by telephone from the applicant’s brother, the hearing transcript reveals[23] that the Tribunal member gave two reasons at the hearing as to why she decided not to take oral evidence from the applicant’s brother over the telephone. Those two reasons were first, she would not be able to verify the identity of the witness over the telephone, and, secondly she did not think the evidence provided orally by the witness over the phone would be useful. The first reason was self-evidently justifiable. The second reason was justifiable given that the applicant had not identified in the Response to Hearing Invitation, or at the hearing, what issue his brother’s evidence was relevant to. In my opinion these reasons would satisfy the test in CZBH. They would constitute an “evident and intelligible justification” for the decision. In CZBH no reasons at all were given either in the decision of the Tribunal, or at the hearing before the Tribunal member, so the Court was left to speculate as to why the Tribunal refused to take evidence from the witness by telephone. This was made clear at [60] in CZBH. Unlike in CZBH, in the present case the Tribunal member explained the reasons for her decision at the hearing not to take evidence by telephone from the applicant’s brother.
[23] at TP 54, lines 21 –24.
Secondly, in CZBH there was also a misunderstanding by the Tribunal member as to whether or not the witness in that case (who was nominated to give oral evidence by telephone) had given a written statement to the Tribunal prior to the hearing. The Tribunal member believed he had not done so at the time of the hearing, when in fact the witness had in fact provided a written statement[24]. This was the reason why Rangiah J concluded that the Tribunal member in CZBH had “failed to understand the purpose of the oral evidence”, and a further reason why the Court decided that the Tribunal’s decision not to obtain oral evidence from the witness was “legally unreasonable”. This is to be contrasted with the situation in the present case. In the present case there was no misunderstanding about the evidence. The applicant’s brother had not provided a written statement at or prior to the Tribunal hearing on 21 April 2015. At page 54 of the transcript[25], , the Tribunal member gave the applicant the opportunity to provide a written statement from his brother, and at page 54 of the transcript[26], the applicant said, “Okay”. Further, at page 55 of the transcript[27] the Tribunal member again made the offer to the applicant to provide a written statement from his brother, and the applicant made the following statements, “Yes I will provide” and “yes”. This is confirmed in the Tribunal’s decision, where the Tribunal member recorded at [28] of her decision that:
After some discussion during which the Tribunal indicated that he did not intend to telephone brother in Pakistan, the applicant agreed that he would provide a statement from his brother after hearing.
[24] see CZBH [62].
[25] at lines 23-24.
[26] line 26.
[27] lines 27 – 34.
This was an accurate record of what had occurred. For these reasons the Tribunal did not commit any jurisdictional error of the kind identified in CZBH and discussed in BTF15.
The balance of the applicant’s post hearing submissions address his claims for protection and the current situation in Pakistan, which are beyond the scope of these proceedings.
Conclusion
I conclude that the decision of the Tribunal is not affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 28 April 2017
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