Awo21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 172
•21 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AWO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 172
File number(s): CAG 10 of 2021 Judgment of: JUDGE HUMPHREYS Date of judgment: 21 October 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Protection Visa – whether the AAT committed jurisdictional error by declaring documents to be fraudulent and not considering other information – whether jurisdictional error is made out – no jurisdictional error proven or identified – application dismissed Legislation: Migration Act 1958 (Cth), ss 36 and 424C Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Anor (1996) 185 CLR 259
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Division: Division 2 General Federal Law Number of paragraphs: 40 Date of last submission/s: 18 October 2021 Date of hearing: 18 October 2021 Place: Parramatta Solicitor for the Applicant: The Applicant appeared in person. Solicitor for the Respondents: Ms Prasad appeared on behalf of the First Respondent. ORDERS
CAG 10 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: AWO21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
21 OCTOBER 2021
THE COURT ORDERS THAT:
1.The application for judicial review is dismissed.
2.The Applicant is to pay the First Respondents costs fixed in the amount of $5900.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a citizen of Pakistan. The applicant arrived in Australia in July 2013 as the holder of a Student visa. That Student visa was subsequently cancelled. The applicant then applied for a Protection visa on 26 April 2016.
On 16 December 2016, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a Protection visa. The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 10 March 2021, the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa.
The applicant now seeks judicial review of the Tribunal decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
At paragraphs 1 to 4 of its decision, the Tribunal set out the background of the matter, noting that the applicant had only applied for a Protection visa after his initial Student visa was cancelled. The Tribunal noted that the applicant appeared before the Tribunal on 30 November 2020, provided further documentary evidence after the hearing, and as a result, a further hearing was scheduled on 18 February 21 to give the applicant the opportunity to explain the provenance of these documents.
After setting out the criteria for the grant of a Protection visa and the mandatory considerations, the Tribunal listed at paragraphs 13 through to 18 of its decision, the complete background of the matter. This included at paragraphs 19 through to 39 of the Tribunals decision, a discussion of the applicant’s claims and evidence. These can be summarised as claims of fear from the Tehrik-e-Taliban (“TTP”) as a result of the applicant’s membership of the Shi’a-Sunni Ittehad (“SSI”), an organisation seeking to reconcile Shia and Sunni Muslims.
The Tribunal noted that the applicant sought to rely on alleged threats made in letters sent to him, but that he was unable to produce these documents, to the delegate who considered his case. The applicant was unable to produce these documents to the Tribunal initially, but following an adjournment, provided copies of the letters together with translations of the contents.
At paragraph 37 and 38 of its decision, the Tribunal sets out the applicant’s explanation as to why he says he was unable to produce the documents earlier, given that he had been given an opportunity produce them before the delegate and did not produce them initially before the Tribunal. The Tribunal put to the applicant that he had manufactured the documents for the purpose of the Tribunal hearing, which he denied.
Paragraphs 40 through to 59 of the Tribunal decision, outline the country information relied upon by the Tribunal in its findings. The Tribunal noted at paragraph 55 of its decision that there was little information that could be assessed regarding the SSI. The SSI was not referred to in the Department of Foreign Affairs and Trade (“DFAT”) Country Information report accessed by the Tribunal as regards to Pakistan. The applicant provided no country information regarding the SSI and Pakistan to the Tribunal. The Tribunal noted that there was some other information available regarding the SSI, including a Facebook page, together with two media reports. The Tribunal concluded that there is very little authoritative information that could be located about the SSI, its previous operations, and whether it was still active at that time.
At paragraph 62 of its decision, the Tribunal was not satisfied, on the available information, that the applicant was threatened by the TTP in April 2013. The Tribunal was not satisfied that the letters provided by the applicant to the Tribunal were genuine. At paragraphs 63 through to 69 of its decision, the Tribunal set out in some detail its reasons as to why it was not satisfied that the letters were genuine. This included their late production, the implausibility of the reason given by the applicant as to why the letters could not be produced earlier, and inconsistencies between the applicant’s own evidence about the TTP. The Tribunal found the applicant’s evidence to be vague and unconvincing.
At paragraph 77 of its decision, the Tribunal found that its concerns as to the credibility of the letters provided by the applicant, undermined his overall credibility. The Tribunal found the applicant’s other evidence to be vague and unconvincing.
Having regard to these findings, the Tribunal was not satisfied that the applicant faced a real chance of harm from the TTP, on return to Pakistan, such that he met the criteria for protection under s 36(2)(a) or s36(2)(aa) of the Migration Act 1958 (Cth) (“The Act”).
GROUNDS FOR JUDICIAL REVIEW
The grounds of judicial review relied upon are set out in an Originating Application filed with the Court on 21 May 2021. They are as follows, reproduced as they appear in the application:
1. Member declared documents fraudulent
2. Member neglected the existence or organization
3. Member ignored the enquiries made by TTP in Nov 2019.
THE APPLICANT’S SUBMISSIONS
Due to COVID-19 health restrictions, the hearing was conducted remotely by Microsoft Teams videoconference.
The applicant appeared before the Court unrepresented. The applicant was assisted by an Urdu Interpreter. Whilst the applicant was able to understand most of the proceedings, he used the Interpreter to ensure he understood precisely what was being said.
Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that a copy of the first respondent’s written submissions were interpreted to him. The Court also ensured that the applicant was in possession of a pen and paper so that he could take notes during the course of the hearing, should he wish to.
Despite previous Court orders, no written submissions were provided by the applicant. In an Affidavit affirmed by the applicant on 6 April 2021, the applicant set out various paragraphs from the Tribunal decision and provided commentary as to his complaints, regarding each of the paragraphs referenced. The tender of the applicant’s Affidavit was objected to by the legal representative for the first respondent on the basis that it was argument, not evidence. The Court determined to treat the applicant’s Affidavit, including his commentary, as the applicant’s submissions, but not as evidence of any of the matters contained therein.
The Court also explained that it was undertaking judicial review, not merits review, and what the difference between the two types of review are.
In relation to the findings by the Tribunal at paragraph 62 of its decision, the applicant complained that the Tribunal found the letters that he had provided were fraudulent, without any proof and investigations. The applicant reiterated that they were genuine.
In relation to the reasoning by the Tribunal at paragraph 64 of its decision, as to why the Tribunal found the applicant’s explanation implausible that he was not able to provide the letters previously, the applicant stated that his mother cannot read or write and that as a result, she was unable to determine which documents the applicant specifically wanted. The applicant stated that he did try to contact his mother after he was asked initially to provide the documents.
The applicant stated that in relation to paragraph 67 of its decision, in which the Tribunal set out country information as to the SSI, indicating that it was very small and would not have attracted the attention of the TTP that, this was because the TTP supressed the SSI and many members had left the country.
The applicant took issue with the finding by the Tribunal at paragraph 68 of its decision that his evidence was vague and unconvincing in relation to the threats made in November 2019. The applicant stated that he did not contact his cousins as he could only trust his mother.
The applicant complained about the finding at paragraph 69 of the Tribunal’s decision, about the alleged death of two of his friends as being was vague and unconvincing as he made no enquiries about their deaths. The applicant suggested that the deaths were reported to the police, but that they were not reported by any newspapers.
Following the first respondent’s oral submissions, the applicant was asked if he wished to say anything in reply. The applicant stated that he did not have a lawyer and that he just wanted the Court to give him justice.
THE FIRST RESPONDENT’S SUBMISSIONS
In relation to ground one, the legal representative for the first respondent submitted that the Tribunal raised its concerns that the letters, being the alleged threatening letters, were not genuine as they were requested by the delegate and the Tribunal at an earlier time. It was submitted that it was open for the Tribunal to find that the threatening letters were not genuine for the reasons it gave. There is nothing to suggest that the Tribunal’s findings as to the genuineness of the threatening letters were illogical, irrational, legally unreasonable or, without probative basis: (see; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30]).
The legal representative for the first respondent submitted that this was an ancillary finding because at paragraph 77 of the decision, the Tribunal found that even that if the letters were genuine, it would still not be satisfied that the applicant would face a real chance of harm in Pakistan. The Tribunal gave cogent reasons for this finding. The legal representative for the first respondent submitted that the finding in relation to the letters, even if it was wrong (which was not admitted), was not material to the ultimate outcome of the matter, and therefore could not amount to jurisdictional error: (see; Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [46]).
In relation to ground two, the Tribunal expressly acknowledged the existence of the SSI at paragraph 76 and his membership of it at paragraph 60 of its decision. To the extent that the applicant argues that his membership of the SSI would give him a high adverse profile, the Tribunal found against the applicant on the basis of country information. The applicant’s contention seeks to engage the Court impermissible merits review.
In relation to ground three, the Tribunal did consider the claims that enquiries were made by the TTP in November 2019. The Tribunal noted that there was an inconsistency in the evidence given between the first and resumed hearings and found the applicant’s to be vague and unconvincing. In particular, the Tribunal found that the source of the information was vague and that the TTP were not expressly mentioned in the reported discussions.
It was submitted that this finding was open to the Tribunal and that there was nothing to suggest that the finding was illogical, irrational, legally unreasonable or without a probative basis. Again, it was submitted by the legal representative for the first respondent that this ground amounts to no more than a disagreement with the factual findings made by the Tribunal and an attempt to engage the Court in impermissible merits review.
As a matter of propriety, the legal representative for the first respondent submitted that, as the applicant did not respond to a request for information sent to him on 27 October 2020, within the given time frame, the Tribunal was entitled, pursuant to s 424C of the Act, to make a decision to proceed with the review without taking any further action to obtain the relevant information.
The Tribunal did invite the applicant to appear before it. The legal representative for the first respondent submitted that this was open to the Tribunal and that no jurisdictional error resulted as the applicant suffered no practical injustice.
CONSIDERATION
The Tribunal is not required to accept uncritically any and all claims made by an applicant: (see; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451). The onus of proof, that an applicant meets the requirements for refugee protection, lies with the applicant: (see; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]).
Further, there is no general obligation on a Tribunal to investigate an applicant’s claims: (see; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]).
The Court is restricted to judicial review and cannot undertake merits review of the Tribunal’s factual findings: (see; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Anor (1996) 185 CLR 259 at 272).
Ground one complains that the member found the letters that the applicant produced were fraudulent. The Tribunal set out at paragraphs 63 to 65 of its decision its concerns as to why the documents were not produced earlier, and as a result, its concerns about their authenticity. The applicant suggested that the Tribunal should have investigated his claims before dismissing them. This is not the role of the Tribunal.
There is nothing illogical, irrational or legally unreasonable in the way in which the Tribunal came to its conclusion in regards to the documents. This ground goes no further than to express emphatic disagreement with the Tribunal’s conclusions and invites the Court to undertake impermissible merits review. Ground one has no merit.
Ground two complains that the Tribunal ‘neglected’ the existence of organisations. This appears to be a complaint that the Tribunal relied upon country information as to the existence of the SSI. The country information suggested that the SSI was not of such a profile that it would attract the attention of the TTP. The matter was properly considered by the Tribunal at paragraphs 67 and 68 of its decision. The selection of and weight given to relevant country information is a matter for the Tribunal: (see; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10). Ground two reveals no jurisdictional error.
Ground three alleges that the Tribunal ignored the alleged enquiries made by the TTP as regards the applicant in 2019. The Tribunal dealt with this matter at paragraphs 68 and 69 of its decision. The Tribunal found that the applicant’s claims were vague and unconvincing, noting that his evidence was inconsistent between the first Tribunal hearing and its resumed hearing. The Tribunal was concerned that the applicant did not seek to verify the information that had allegedly been relayed from his cousins, via the applicant’s mother. At paragraph 77 of its decision, the Tribunal noted its concerns regarding the authenticity of the letters which undermined the applicant’s overall credibility. There is nothing illogical, irrational or legally unreasonable in the Tribunal’s findings. The findings were open to the Tribunal, including the adverse credibility findings on the evidence that was before it, and for the reasons it gave, Ground three reveals no jurisdictional error.
The Court is satisfied that no practical injustice affected the applicant as a result of the Tribunal inviting the applicant to appear before it, notwithstanding that he had failed to comply with a request to provide information. In these circumstances, no jurisdictional error arises that would lead the Court to overturn the Tribunal’s findings for that reason.
As the applicant is unrepresented, the Court has carefully perused the Tribunal’s decision record but is unable to detect any unarticulated jurisdictional error.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 21 October 2021
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