AWU15 v Minister for Immigration
[2019] FCCA 496
•15 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AWU15 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 496 |
| Catchwords: MIGRATION – Judicial review – citizen of Pakistan – decision of Administrative Appeals Tribunal – decision affirming a decision of a delegate to refuse Protection (Class XA) visa – unparticularised assertion of jurisdictional error – whether failure to take into account relevant or material consideration as to steps taken by applicant to reach safety and applicant’s mental condition – whether error in country name typographical or jurisdictional – whether Tribunal considered claim as to applicant’s profile – whether impermissible merits review sought – [text redacted] – [text redacted] – whether applicant on active service – whether arbitrary judgment or denial of procedural fairness in relation to complementary protections obligations – whether jurisdictional error. |
| Legislation: Evidence Act 1995 (Cth), s.174 [text redacted] |
| AYE16 v Minister for Immigration & Border Protection [2018] FCA 108 AYE16 v Minister for Immigration & Anor [2017] FCCA 1424 BYF15 v Minister for Immigration & Border Protection [2016] FCA 774 Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 EII17 v Minister for Immigration & Border Protection [2018] FCA 1863 Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424 Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 Minister for Immigration & Citizenship v SZJSS & Ors [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 119 ALD 446 Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181; (2001) 64 ALD 1 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 MZAIB v Minister for Immigration & Border Protection & Anor [2015] FCA 1392; (2015) 238 FCR 158 MZAQN v Minister for Immigration & Anor [2016] FCCA 1538 MZXLD v Minister for Immigration & Citizenship [2007] FCA 1912 NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 S14/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1153 Singh v Minister for Immigration & Border Protection [2016] FCA 108 Sullivan v Department of Transport (1978) 20 ALR 323; (1978) 1 ALD 383 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 SZDFZ v Minister for Immigration & Citizenship & Anor [2008] FCA 390; (2008) 168 FCR 1; (2008) 100 ALD 575 SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145 SZRTN v Minister for Immigration & Border Protection [2015] HCASL 12 SZRTN v Minister for Immigration & Border Protection [2014] FCAFC 129 SZRTN v Minister for Immigration & Border Protection [2014] FCA 303; (2014) 63 AAR 243; (2014) 141 ALD 395 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 WZATI v Minister for Immigration & Border Protection [2015] FCA 923 WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 |
| Applicant: | AWU15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 234 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 16 March and 24 June 2016 |
| Date of Last Submission: | 24 June 2016 |
| Delivered at: | Perth |
| Delivered on: | 15 March 2019 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) | ||
| Counsel for the First Respondent: | Ms E Tattersall (on 16 March 2016) and Mr A Burgess (on 24 June 2016) | ||
| For the Second Respondent:
| Submitting appearance, save as to costs Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG234 of 2015
| AWU15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the second respondent, the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision”). The Tribunal affirmed a decision of a delegate (“Delegate” and “Delegate’s Decision”) of the first respondent, the Minister for Immigration & Border Protection (“Minister”, then the Minister for Immigration, Multicultural Affairs & Citizenship), to refuse to grant a Protection (Class XA) visa (“Protection Visa”) to the applicant.
The Tribunal Decision is in the Court Book (“CB”) at 186-217.
The applicant also seeks an extension of time for making the application for judicial review under s.477 of the Migration Act. The Tribunal Decision was delivered on 30 April 2015 and the Judicial Review Application was filed on 29 May 2015, 29 days after the Tribunal Decision and, therefore, does not fall outside the 35 day period stipulated under s.477 of the Migration Act for the filing of such an application. It follows that no extension of time is necessary.
Background
The background to the Judicial Review Application is as follows:
a)the applicant is a citizen of Pakistan: CB 15;
b)on 8 September 2014 the applicant was located [text redacted]: CB 87;
c)on 23 October 2014 the applicant lodged a Protection Visa application: CB 2-29;
d)the applicant claimed to “fear being killed or seriously harmed by the Taliban, its allies and extremist elements [text redacted]” if he returned to Pakistan: CB 32 at [23];
e)[text redacted]: CB 30 at [6];
f)[text redacted]:
i)[text redacted];
ii)[text redacted];
iii)[text redacted];
iv)[text redacted];
v)[text redacted]
vi)as a result of his employment he was not able to freely go back to his family home as extremist groups and elements are against the Pakistani Government (“Government”) and anyone associated with the Government: CB 30 at [9]-[10];
g)[text redacted];
h)[text redacted] CB 31 at [19]-[21];
i)[text redacted];
j)on 15 October 2014, the applicant attended an interview with the Delegate: CB 90, in which the applicant further claimed that his parents had received threat letters or brochures about him approximately five to six months previously, which mentioned the applicant by name and said [text redacted]: CB 92;
k)on 4 December 2014, the Delegate refused the grant of a Protection Visa to the applicant: CB 86-117;
l)the applicant lodged an application for review with the Tribunal on 11 December 2014: CB 118-124;
m)the applicant submitted a number of further documents to the Tribunal including two letters said to have been the threats from the Taliban: CB 141-142; and
n)on 4 and 17 March 2015, the applicant attended a hearing before the Tribunal to give evidence and present arguments: CB 172 and 180 (“Tribunal Hearing”).
Tribunal Decision
In the Tribunal Decision dated 30 April 2015 the Tribunal:
a)[text redacted];
b)found the applicant’s home area was one of great instability and under the control of the Taliban from 2007 to 2009: CB 207 at [161], however, independent material indicated that the Pakistan Army (“Army”) had gone into the area for the purpose of routing the Taliban, and was successful, and that the applicant accepted this, and that it was further supported by the applicant’s own material provided to the Tribunal: CB 207 at [165];
c)found that the Taliban had not targeted Government workers solely because they were Government workers, but rather Government workers who were in conflict with the Taliban: CB 207 at [170];
d)accepted that there were Taliban militants active in the applicant’s home area, but that authorities were actively and effectively engaging with them to protect the people of the area: CB 209 at [196];
e)found that, apart from incidents of terrorism, most of which were targeting specific people or classes of people, the Government had control of the situation in the applicant’s home area: CB 210 at [197];
f)[text redacted]: CB 210 at [201], and that the applicant’s chance of serious harm was no greater than remote both now and in the reasonably foreseeable future: CB 211 at [212];
g)found the letters purported to be from the Taliban were not genuine: CB 208 at [184], and had been “added to embellish in an attempt to validate his claims”: CB 209 at [189];
h)found that Pashtun people do not suffer serious harm for reasons of their race: CB 212 at [222], [text redacted];
i)based on Department of Foreign Affairs and Trade (“DFAT”) advice, found that the applicant did not face serious harm based on his political opinion as a failed asylum seeker: CB 213 at [245];
j)found that the remote and insubstantial chance of harm in the applicant’s home area could be avoided by relocation to Karachi: CB 214 at [249], and that it was reasonable, in the sense that it was practicable, for the applicant to relocate to Karachi away from any feared harm in his home area: CB 214-215 at [260];
k)found the applicant’s [text redacted] was based on subjective fear and speculation: CB 215 at [265], and without more did not constitute substantial grounds for fearing harm: CB 215 at [267];
l)[text redacted]: CB 216 at [272]-[273];
m)accepted the applicant’s parents were contacted and that the applicant was threatened with the loss of his job: CB 216 at [274]-[275];
n)[text redacted];
o)[text redacted]; and
p)found that the applicant did not satisfy s.36(2)(a) or (aa) of the Migration Act and the Delegate’s Decision was affirmed: CB 217 at [294]-[295].
Judicial Review Application
The sole ground (hereinafter “Ground 1”) set out in the Judicial Review Application is as follows (transcribed verbatim):
1.The Refugee Review Tribunal made an error of law and/or jurisdictional error in finding that the applicant was not a person to whom Australia owes protection obligations for the purposes of s 36(2) of the Migration Act 1958 (Cth).
On 2 September 2015 a Registrar of the Court made orders (“Registrar’s Orders”) to progress this matter to a hearing listed for 24 March 2016. The Registrar’s Orders also provided the opportunity for the applicant to file and serve any amended Judicial Review Application and further affidavits, and to file written submissions prior to the hearing. The applicant did not file an amended Judicial Review Application, any affidavits or written submissions.
The Minister filed written submissions on 24 February 2016.
On 16 March 2016 a Judge of the Court made orders relisting the hearing to 24 June 2016, and providing a further opportunity for the applicant to file and serve any amended Judicial Review Application and further affidavits, and to file written submissions prior to the hearing, and reserving the costs of the 16 March 2016 hearing. The applicant did not file an amended Judicial Review Application. The applicant did file an affidavit annexing written submissions (“Applicant’s Written Submissions”) prior to the hearing. The Applicant’s Written Submissions are a mix of submissions, which the Court will treat as such, and further and more particularised grounds of review which the Court will treat as further grounds (hereinafter, Further Grounds 1 to 5 respectively).
On 2 May 2016 the Minister filed the affidavit of Azeena Nuhumaan (“Nuhumaan Affidavit”). The Nuhumaan Affidavit relates to the issue of costs in relation to the adjourned hearing on 16 March 2016. The Minister filed supplementary submissions on 30 May 2016.
On 17 June 2016 the applicant filed a further affidavit (”Applicant’s June 2016 Affidavit”) annexed to which were further written submissions (“Applicant’s Final Written Submissions”). Insofar as the Applicant’s Final Written Submissions are relatable to Further Grounds 1-5 the Court will treat them as submissions in relation to Further Grounds 1-5. Insofar as they are not relatable to Further Grounds 1-5, the Court will treat them as Additional Further Grounds, as identified below: see [79]-[80] below.
[text redacted]: CB 204-205 at [132]-[136].
The Minister – appropriately it must be said – took no objection at the hearing on 24 June 2016 to the manner in which the applicant had run his case before the Court, and in particular, there was no objection to the manner in which the Applicant’s Written Submissions and the Applicant’s Final Written Submissions had been filed, or their form, or the documents handed up at hearing, or to the manner in which the Court dealt with the applicant’s submissions and documents, but rather the Minister made submissions as to the ultimate admissibility of the documents, and the content of the submissions and documents.
Given that the applicant is self-represented, and does not have English as a first language, and was plainly unfamiliar with the Australian legal system, it is not inappropriate for the Court to treat the applicant’s materials in the manner set out above, and to be vigilant for any possible jurisdictional error which might arise on the face of the Tribunal Decision: MZAIB v Minister for Immigration & Border Protection & Anor [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J (and see also what the Federal Court has more recently said as to this Court necessarily having “to pursue a more active role in the review that it undertakes of Tribunal decisions … and to do so in a manner not necessarily confined to the arguments or concerns raised for resolution by an unrepresented claimant: EII17 v Minister for Immigration & Border Protection [2018] FCA 1863 at [16] per Flick J).
The Court has therefore considered, to the extent they are relevant, the written submissions and materials filed by both the applicant and the Minister.
Consideration
The requirement for jurisdictional error
The Tribunal Decision may be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An error may constitute a jurisdictional error where the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given to the Tribunal under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”), as may unreasonableness: as to which see the summary in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) at [41] per Wigney J.
The applicant bears the onus of establishing jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424.
This Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine the applicant’s claim for protection: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”); CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Ground 1
Ground 1, which is set out at [6] above, is an unparticularised assertion of jurisdictional error which as a stand-alone ground cannot succeed, and must therefore fail: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 (“WZAVW”) at [35] per Gilmour J; AYE16 v Minister for Immigration & Anor [2017] FCCA 1424 (“AYE16”) at [20] per Judge Lucev, from which an appeal was dismissed in AYE16 v Minister for Immigration & Border Protection [2018] FCA 108.
In this case, the Court cannot dismiss the Judicial Review Application for want of particularisation, given that the Court has elected to treat the Applicant’s Written Submissions and the Applicant’s Final Written Submissions as providing further and additional grounds of judicial review, which are either adequately or sufficiently particularised or outlined for the purposes of enabling the Court to determine the Judicial Review Application.
Further Ground 1
Further Ground 1 (transcribed verbatim) is as follows:
1. This is an application for judicial review of a decision made by the Second Respondent (RRT) on 30 April 2015.The tribunal made a decision which has errors and unfair to the applicant claim and his position.
There was no consideration given to the circumstances of the applicant or emphasis on the drastic step he has taken to reach for safety. Also not been taken into account the mental condition of the applicant who found almost the same level of insecurity in the detention centre, being new and alone in the country with limited knowledge of legal process and the negative response by different humanitarian organisation because applicant was detained in Christmas Island. Even now as applicant being lodged with the convicted criminals in IDC Yongah Hill (Hardened Criminals has been described by Australia Immigration Minister) applicant is still not in a best mental state to be defending himself, but is producing hereunder for the honourable judge’s perusal.
In the Applicant’s Final Written Submissions at [1] the applicant submits as follows with respect to his mental condition (transcribed verbatim):
1. The mental condition of the applicant no consideration given to who has been constantly moved from one IDC to another and being lodged with high risk detainees where there is a constant struggle to keep one which have a telling. The reason the applicant opted to ask from protection from the institution of Australia was fear of life and degrading treatment and the belief that the socio-political condition of his country of birth and its institutions were in-effective in providing safety to him. The same harsh and degrading treatment has been extended to him so as to break his personality to agree to arbitrary judgements of the authorities including RRT. I am producing hereunder dubious judgements been concluded relying on the general appraisal of information rather than the individual circumstance where results can be death or long imprisonment and the least a humiliating and degrading life if return to the country of origin.
Further Ground 1 essentially contains two separate assertions which might arguably constitute jurisdictional error, namely:
a)there was no consideration given to a material consideration, that being the circumstances of the applicant in relation to the drastic steps the applicant took to reach safety; and
b)the Tribunal did not take into account a relevant consideration, that being the mental condition of the applicant and his treatment in detention.
The applicant’s claim that no consideration was given to the drastic steps taken by the applicant to reach safety is without foundation because:
a)[text redacted]: CB 188-190 at [13];
b)[text redacted]: CB 203-204 at [130]-[131];
c)[text redacted]: CB 205 at [138]; and
d)the Tribunal implicitly accepted the applicant’s claims as to the steps taken to reach safety once in Australian waters, however, based on the applicant’s evidence, it found that his fears to suffer harm in Pakistan were based not on objective evidence, but on subjective fear and speculation: CB 215 at [265][267].
The weight to be given to all of the material put before the Tribunal in considering whether or not a Protection Visa ought to be granted is a matter for the Tribunal: Minister for Immigration & Citizenship v SZJSS & Ors [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 119 ALD 446 (“SZJSS”) at [33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181; (2001) 64 ALD 1 (“Indatissa”) at [31]-[32] per Sundberg, Emmett and Conti JJ. In SZRTN v Minister for Immigration & Border Protection [2014] FCA 303; (2014) 63 AAR 243; (2014) 141 ALD 395 (“SZRTN”) at [81]-[82] per Katzmann J the Federal Court held that it was for the Tribunal to consider statements and submissions and to decide whether they were persuasive, and what weight to attach to them. SZRTN was the subject of an appeal by the applicant in that case which was dismissed: SZRTN v Minister for Immigration & Border Protection [2014] FCAFC 129, and the High Court subsequently refused special leave to appeal: SZRTN v Minister for Immigration & Border Protection [2015] HCASL 12. In this case, as is evident from what is set out at [24] above, the Tribunal has considered the relevant material before it, and weighed that material before coming to its ultimate conclusion with respect to the applicant’s fear of harm, a conclusion reached on a consideration of not just the material with respect to the applicant’s steps taken to reach safety, but other, and not inconsiderable, factual and country information. In the circumstances, the Tribunal has properly weighed and considered the material before it in relation to the applicant’s claim, including the steps taken by the applicant to reach safety once in Australian waters, and no error, let alone jurisdictional error, is evident in the Tribunal’s treatment of the applicant’s claims in that regard.
Judgments of the Federal Court and this Court, both in migration proceedings and other proceedings, establish that a person alleging a medical condition, and seeking to rely upon that medical condition to support an assertion that the applicant was medically unfit, needs to put proper evidence concerning the medical condition (and not just a bare assertion or a bare medical certificate) before the Tribunal or the federal courts: see, for example, NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 at [5]-[10] per Lindgren J; Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [48]-[49] per Collier, Griffiths and Mortimer J; Singh v Minister for Immigration & Border Protection [2016] FCA 108 at [20] per Pagone J; BYF15 v Minister for Immigration & Border Protection [2016] FCA 774 at [35] per Perry J; MZAQN v Minister for Immigration & Anor [2016] FCCA 1538 (“MZAQN”) at [9]-[10] per Judge Jones.
In relation to the applicant’s claim that the Tribunal did not take into account the mental condition of the applicant the Tribunal noted that it had taken into account “the stress the applicant was under”, and that he was self-represented, and that the Tribunal had “taken every care to ensure he has been able to put his claims clearly”: CB 206 at [150]. Accordingly, it cannot be said that the Tribunal failed to take into account, at least insofar as the Tribunal recognised it, that the applicant may have been under stress at the Tribunal Hearing: CB 206 at [150]. Having reviewed the CB it is not, however, otherwise apparent that the applicant made any claim, at any stage, before the Tribunal that he had any type of medical or mental condition which would impact upon his capacity to properly represent himself before the Tribunal. It was therefore not incumbent upon the Tribunal to consider this matter, or do more than it did by acknowledging that the applicant, as with so many other applicants: MZAQN at [10] per Judge Jones, was under stress by reason of having to appear before the Tribunal. There is, therefore, nothing to indicate that the Tribunal made any error, let alone jurisdictional error, by failing to take into account a claim which was not actually made before the Tribunal.
Before this Court the applicant did not provide any evidence of his alleged mental condition. The applicant had ample opportunity to do so: the Judicial Review Application made in May 2015 did not come before a Registrar of the Court until September 2015, and then further time was provided for the applicant to file any further affidavits, and ultimately the matter was not heard to completion until 24 June 2016. During that process, and during the Tribunal process which preceded it, the applicant did nothing to establish that he had a mental condition which might affect, or be relevant to, his claim for a Protection Visa. Therefore, even if there was such a claim, there was no evidence proffered by the applicant to support it, and therefore no basis upon which the Tribunal could have reached any conclusion with respect to such a claim if made (which in the Court’s view it was not).
The applicant’s un-particularised assertions that the Tribunal Decision “has errors and [is] unfair” do not of themselves establish jurisdictional error in the Tribunal Decision: WZAVW at [35] per Gilmour J; AYE16 at [20] per Judge Lucev. If the assertion of unfairness is an allegation that the Tribunal denied the applicant procedural fairness it is relevant to observe that s.422B of the Migration Act provides that Division 4 of Part 7 of the Migration Act is an exhaustive statement of the natural justice hearing rule in relation to the matters that it deals with. The Tribunal Decision demonstrates that the Tribunal complied with the provisions of Division 4 of Part 7 of the Migration Act, and there is nothing before the Court to suggest that the applicant was denied a fair hearing or otherwise denied procedural fairness. The Court observes that:
a)pursuant to s.425 of the Migration Act the applicant was invited to, and attended, the Tribunal Hearing: CB 180-182, and that the Tribunal Hearing lasted for approximately an hour and a half: CB 180-182;
b)the Tribunal Hearing provided to the applicant a meaningful opportunity to present his claims and evidence, noting that prior to the Tribunal Hearing the applicant provided various country information to the Tribunal: CB 148-171;
c)the applicant was assisted by interpreters at the Tribunal Hearing, and although there appears to have been some issue with respect to the quality of the interpretation provided to the applicant by a first interpreter, a second interpreter was brought in, and the applicant expressed himself to be satisfied with respect to the interpreter ultimately provided at the Tribunal Hearing: CB 205-206 at [143]-[149]. The applicant has not, in the Judicial Review Application, the Applicant’s Written Submissions, or the Applicant’s Final Written Submissions, made any assertion whatsoever as to an inadequate standard of interpretation, nor has he put any evidence before the Court which would enable the Court to make any findings with respect to the standard of interpretation before the Tribunal, and there is therefore nothing otherwise to suggest there was any issue or matter that inhibited the applicant from partaking and giving evidence and providing arguments in support of the Protection Visa application: contrast SZBEL at [44] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; and
d)to the extent that the Tribunal sought the applicant to expand upon aspects of the country information or to comment on what the country information said, the Tribunal gave that opportunity to the applicant: see, for example, CB 206 at [152], [154]-[156] and 207 at [164].
It follows from the above observations that the Court has been unable to identify any denial of the procedural fairness obligations owed by the Tribunal to the applicant in relation to the Tribunal Hearing process.
Insofar as Further Ground 1 makes assertions about the applicant’s treatment whilst in detention, and the nature of that treatment, and the reasons for it, there is no evidence as to those matters, and even if there were, there is nothing which would suggest that those are matters which constitute jurisdictional error in the Tribunal Decision: indeed those matters do not relate to the terms of the Tribunal Decision, but rather the applicant’s treatment in detention for the purposes, he says, of making him accept, or agree to, the terms of the Tribunal Decision. There is nothing in the assertions made, or otherwise in the evidence which was before the Tribunal, or which is now before this Court, upon which the Court could be satisfied that the applicant’s treatment in detention has adversely impacted upon his capacity to progress the Tribunal proceedings, or participate in and properly represent himself before the Tribunal. Furthermore, having reviewed the CB, there is nothing to indicate that the applicant made any claim about his treatment in detention either before, or at, the Tribunal Hearing.
In all the above circumstances, Further Ground 1 does not establish any jurisdictional error in the Tribunal Decision.
Further Ground 2
Further Ground 2 is as follows:
2. RRT point 181 the applicant’s never visited Afghanistan.
The Tribunal at CB 208 at [181] stated:
He provided copies of what he claimed were the letters and they are variously dated September and October 2013, before he left Afghanistan and, around the time he visited his family.
The applicant appears to claim that the Tribunal Decision is affected by error on the basis that he has never visited Afghanistan.
The Minister submitted that the Tribunal’s reference to Afghanistan at CB 208 at [181] was no more than a typographical error, and furthermore, cannot constitute jurisdictional error.
Typographical errors in Tribunal Decisions are not exceptional. In S14/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1153 at [34] per Moore J the Federal Court said:
34…The second is that the decision of the Tribunal had not been proof read, with the result that all transcription or typographical errors were not corrected. Experience would indicate that reasons for decision or judgment of members of administrative tribunals as well as judges, are not always models of perfection when first published. Typing and other errors can be overlooked in the proof reading process. It is commonplace for corrigenda to issue. In my opinion, it is probable that the word “not” was omitted. That conclusion is reinforced by the approach the Tribunal ultimately took to the applicant’s claims, namely that the applicant could live in Jakarta without facing a “real chance” of persecution.
In Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 (“SZNPG”) at [28] per North and Lander JJ a majority of the Full Court of the Federal Court said:
28 However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294.
The Tribunal found that the applicant was a national of Pakistan and the applicant’s claims were assessed on that basis: CB 205 at [142]. The reference to “Afghanistan” at CB 208 at [181] appears to be a typographical error, and the Court notes that “Afghanistan” is not referred to again in the Tribunal Decision.
The Court is of the view that the reference to “Afghanistan” is properly characterised as a typographical error, and therefore not a jurisdictional error. Even if it were not a typographical error, it would be an error of fact, and one which, particularly in the context of the remaining findings of the Tribunal, which are otherwise carefully set out in considerable detail, is not one capable of constituting a jurisdictional error because the remaining findings plainly demonstrate that the Tribunal has properly considered the applicant’s claims, and did so by reference to his being a Pakistani national: CB 188 at [9] and 205 at [42]: SZNPG at [28] per North and Lander JJ.
In all the above circumstances, Further Ground 2 does not establish any jurisdictional error in the Tribunal Decision.
Further Ground 3
Further Ground 3 is as follows:
3. RRT point 201 and 203 describing the applicant as low profile is wrong as the threat is not to the position of applicant hold but to the institution applicant represents. Further elaborations will be made in the court at the time of hearing.
[text redacted]: CB 210 at [198]. The Tribunal found that:
a)[text redacted]: CB 210 at [201]-[203]; and
b)based on country information, including that provided by the applicant, that the Government has control of the situation in the applicant’s home area, and that the Taliban were targeting specific groups or classes of people of which the applicant was not a member: CB 207 at [169]-[170] and 209-210 at [191]-[197].
The applicant made oral submissions at hearing in relation to materials which the Tribunal considered in evaluating the applicant’s profile: CB 202-203 at [129]-[131]. The applicant claims that the Tribunal’s finding that the applicant had a low profile was wrong and should have been a finding that the profile of the applicant was high, and therefore the risk to the applicant was high. In the Applicant’s Final Written Submissions at [4] the applicant sets out various assertions and refers to various materials in relation to the claim concerning the applicant’s profile and the alleged threat to the applicant from the Taliban.
The Minister submits that the applicant is seeking to challenge the Tribunal’s findings and the country information, and that this is not an exercise within the jurisdiction of this Court on an application for judicial review.
The Applicant’s Final Written Submissions at [4] refer not only to CB 210 at [201] and [203], but also to CB 208 at [176] [text redacted], but at a low level, as a stock taker, and is not a person opposing, or posing a risk to, the Taliban, and that the Tribunal was therefore not satisfied that the applicant being [text redacted] enhanced his profile to any degree above that of the other people in his home area. The applicant takes issue with the Tribunal’s conclusions on two bases, namely:
a)[text redacted]; and
b)that the country information referred to by the Tribunal supported the fact that the Taliban would be particularly interested in the applicant due to his home area origins, the fact that he is a Sunni Muslim, a Pashto speaker and from the Yousafzai tribe, [text redacted] and his tolerant and progressive way of life.
In relation to the applicant’s profile the applicant refers to three media reports which post-date the Tribunal Decision, and in relation to which the applicant does no more than seek to rely upon those reports to dispute the Tribunal’s findings, and as such the three media reports are not materials which the Court can have regard to: WZATI v Minister for Immigration & Border Protection [2015] FCA 923 (“WZATI”) at [70] per Barker J; SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145 (“SZJMG”) at [27] per McKerracher J. The remaining documents which the applicant now seeks to rely upon, and which pre-date the Tribunal Hearing, mistake the role of the Court, in that they invite the Court to assess the merits of the applicant’s claims by reference to selected country information: but that is, for reasons set out above: see [18] and [25] above, the role of the Tribunal: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. In circumstances where, as here, the Tribunal has set out the relevant law, and assessed the applicant’s claims by reference to relevant country information (and there was country information referred to by the Tribunal which was specific to the applicant’s home area: CB 207 at [169], 208 at [175] and 209 at [191]-[196], and to his Pashtun ethnicity and religion: CB 211-213 at [216]-[236]) no jurisdictional error in the Tribunal Decision is established by this aspect of the Applicant’s Final Written Submissions. Even if the Court were to be able to have regard to the press reports referred to by the applicant which pre-date the Tribunal Hearing it is to be noted that:
a)[text redacted]; and
b)the fourth press report relates to the shooting of the then 14 year old peace activist Malala Yousafzai,
and would do nothing to advance the applicant’s case on the merits in circumstances where the Tribunal has, in a finding open to it, assessed [text redacted] whose profile would not warrant attention from the Taliban. [text redacted]. It follows that he would therefore be unlikely to be in the vicinity of the type of infrastructure attacked by the Taliban as referred to in the press reports now sought to be relied upon by the applicant. The comparison to Ms Yousafzai is simply not apt: Ms Yousafzai is an internationally recognised activist whereas the applicant is [text redacted] who, in a finding that the Court considers was open to the Tribunal, was found to be a person not of interest to the Taliban.
In relation to the second aspect of the applicant’s submissions concerning his home area origins, religion, language, tribal affiliations, [text redacted] and way of life, these are all matters which were put to the Tribunal, and considered by the Tribunal, as is evident from the Tribunal Decision summary set out above: see [5] above, and from the country information referred to by the applicant in the Applicant’s Further Written Submissions. Once again, the applicant’s submissions amount to no more than an invitation to the Court to reassess the merits of the Tribunal Decision. This Court cannot substitute its own view in relation to the applicant’s profile and alleged threat from the Taliban for that of the Tribunal. To undertake that task is to engage in fact-finding for the purposes of merits review, which is not a permissible task for this Court on judicial review of the Tribunal Decision: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ, particularly where, as here, the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ. The weight to be given to an applicant’s claims and the evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; SZJSS at [33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; SZRTN at [81]-[82] per Katzmann J. It is also well established that the consideration of, and weight attributed to, country information is a matter for the Tribunal and that the Court will generally not interfere with factual findings open to be made based on country information: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11] per Gray, Tamberlin and Lander JJ; Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 (“Lee”) at [27] per French J; Indatissa at [32] per Sundberg, Emmett and Conti JJ. While the applicant may disagree with the country information, or dispute the factual findings drawn from it by the Tribunal, disagreement with a finding does not support a contention the Tribunal failed to consider evidence properly or fairly: SZDFZ v Minister for Immigration & Citizenship & Anor [2008] FCA 390; (2008) 168 FCR 1; (2008) 100 ALD 575 (“SZDFZ”) at [40] per Flick J.
The Tribunal considered all the material put before it in relation to the applicant’s claim to have a profile which would result in his being threatened by the Taliban in Pakistan, both on the basis of his experience [text redacted], and on the claims made peculiar to the applicant’s home area, religion, language, tribal affiliations, [text redacted] and his way of life, and the Tribunal applied itself to that material to make findings which were open to be made in relation the applicant’s profile.
In all the above circumstances, Further Ground 3 does not establish any jurisdictional error in the Tribunal Decision.
Further Ground 4
Further Ground 4 is as follows (transcribed verbatim):
4. RRT points 281,273,132 detailing the consequences applicant will face are sweeping judgements devoid of any real thought of processess and possibilities. Applicant will endeavour to produce materials and circumstance and appraisals.
In the Applicant’s Final Written Submissions at [2] the applicant submits as follows with respect to the Tribunal’s findings concerning the penalty [text redacted] (transcribed verbatim):
RRT GROUNDS (CB 29,30, 132,273,281,283,285)
[text redacted]
[text redacted]
The Minister submits that:
a)this ground argues that the Tribunal was required to put its thought processes to the applicant adopting the procedure under s.424A of the Migration Act, but that the Tribunal’s subjective appraisals, thought processes or determinations in relation to the evidence are not “information” for the purpose of s.424A of the Migration Act; and
b)the Tribunal’s reasons reveal that it comprehensively considered each of the applicant’s claims advanced, as can be gleaned from the lengthy Tribunal Decision, and made findings open to it and for the reasons it gave in the Tribunal Decision.
In the Court’s view the Minister’s submission that this ground argues that the Tribunal was required to put its thought processes to the applicant adopting the procedure under s.424A of the Migration Act is misconceived. Rather, it appears that the applicant is saying that the Tribunal has not considered a component integer of the applicant’s claim to meet the criteria for a Protection Visa, or not engaged in an appropriate intellectual process thereby leaving the applicant guessing at what particular role a particular issue, [text redacted], which on either account constitutes jurisdictional error: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [24]-[25] per Gummow and Callinan JJ; Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop J; Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 at [62] per Kenny, Griffiths and Mortimer JJ; Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [47]-[54] per Lindgren, Rares and Foster JJ.
The High Court considered the approach a Tribunal ought to take in the Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [133] per Crennan and Bell JJ:
[133] However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it.
The Court is also cognisant of the fact that the Tribunal Decision ought not be overzealously examined for error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
[text redacted]: CB 192 at [29].
The Tribunal was plainly aware that:
a)[text redacted]; and
b)[text redacted]: CB 192 at [29].
[text redacted] and what the applicant thought might happen if he was returned to Pakistan, in relation to which the applicant thought he might be executed, and in relation to which the Tribunal noted and discussed with the applicant that the country information that he relied upon for that view was related to the slaughter of school students by terrorists, and [text redacted]: CB 200-201 at [115]-[119].
[text redacted]: CB 201 at [125].
The Tribunal also:
a)[text redacted];
b)[text redacted]:
[text redacted]
c)[text redacted]: CB 216 at [273];
d)[text redacted]: CB 216 at [278]; and
e)[text redacted]: CB 202 at [129], [text redacted] but rather whilst on an exercise involving a number of countries, and therefore the [text redacted]: CB 216 at [279]-[280].
[text redacted]
The material relied upon by the applicant seeks, as is expressed in the Applicant’s Final Written Submissions, to reargue the conclusions reached by the Tribunal, arguing that the Tribunal’s conclusion is based on irrelevant material and information, and that the statutory provisions provide for long imprisonment and not short detention as concluded by the Tribunal.
The Court has determined that it ought not have regard to the Wikipedia extract which the applicant seeks to rely upon for the purposes of establishing jurisdictional error in the Tribunal Decision because:
a)whilst it is a well-established principle that there is no prohibition as such on receiving new evidence in judicial review proceedings, ordinarily the Court should exercise “resistance to the admission of fresh evidence”: MZXLD v Minister for Immigration & Citizenship [2007] FCA 1912 at [120] per Gordon J;
b)it is not open to the Court on a judicial review application to consider material which was not put before the Tribunal, where:
i)the applicant had more than one opportunity to submit evidence and material over a lengthy period of time, and simply did not take advantage of the opportunity provided to put the Wikipedia extract before the Tribunal: Sullivan v Department of Transport (1978) 20 ALR 323; (1978) 1 ALD 383; and
ii)the applicant is effectively inviting the Court to admit new evidence for the purpose of disagreeing with the factual conclusion reached by the Tribunal, as opposed to the new evidence bearing on some jurisdictional error, and that invitation mistakes the role of the Court upon judicial review and seeks to invite the Court to undertake impermissible merits review: SZJMG at [27] per McKerracher J; Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; and
c)there is no means of knowing if the information in the Wikipedia extract is reliable, and the reliability of the information therein is, at the very least, uncertain.
[text redacted]
It follows from the foregoing that the Court is of the view that there was no error, let alone jurisdictional error, in this regard in relation to the Tribunal Decision and it was open for the Tribunal to make the findings it did on the material before it, and therefore Further Ground 4 does not establish any jurisdictional error in the Tribunal Decision.
[text redacted]
Further Ground 5
Further Ground 5 is as follows:
5. Arbitrary judgement has been concluded in determining the complimentary protection obligations not taken into account the socio-economic and law & order conditions.
In the Applicant’s Final Written Submissions at [5] the applicant submits as follows with respect to the prospect of significant harm if he is returned to Pakistan (transcribed verbatim):
(a) [text redacted]
(b) [text redacted]
(c) [text redacted]
(d) The serious threat from Taliban and extremest group to follow their orders or perish.
(e) As drastic and spur of the moment applicant action was to seek protection out of desperation & helplessness also means I can’t go back & live a normal life ever again.
The Minister submits that:
a)the Tribunal considered the complementary protection guidelines in the Tribunal Decision: CB 215-217 at [261]-[294];
b)the Tribunal specifically took into account the “law & order conditions”;
c)[text redacted]: CB 217 at [285];
d)the Tribunal considered the country information regarding Karachi, as well as the applicant’s particular circumstances, and found that the applicant would not face a risk of harm as a result of the crime rate and incidence of violence in Karachi if he were to relocate there: CB 217 at [290];
e)the applicant made no claim that he would face significant harm upon return due to “socio-economic” conditions and accordingly, the Tribunal was not required to consider the claim not made; and
f)to the extent that the applicant complains that the findings of the Tribunal were illogical or irrational the process of reasoning and findings made by the Tribunal were open on the material before it.
The Tribunal:
a)[text redacted]: CB 215-217;
b)[text redacted]: CB 216 at [284];
c)addressed the applicant’s claims of fear for non-Convention reasons in relation to the level of violence and crime in Karachi, and found on the evidence, provided by the applicant and independently: CB 208 at [181], 209 at [191]-[195] and 210 at [205], that the applicant did not face serious harm at the hands of the Taliban in Karachi: CB 211 at [215]; and
d)found on the figures provided by the applicant regarding the crime rate and incidence of violence in Karachi, that there is no significant risk to the applicant based on the rate of violence: CB 217 at [290].
As stated at [48] above it is well established that:
a)the consideration of, and weight attributed to, country information is a matter for the Tribunal, and the Court will generally not interfere with factual findings based on country information: NAHI at [11] per Gray, Tamberlin and Lander JJ; Lee at [27] per French J; Indatissa at [32] per Sundberg, Emmett and Conti JJ; and
b)while the applicant may disagree with the country information, or dispute the factual findings drawn from it by the Tribunal, mere disagreement with a finding does not support a contention the Tribunal failed to consider evidence properly or fairly: SZDFZ at [40] per Flick J.
The applicant claims that the Tribunal’s judgment was “Arbitrary” in determining the complementary protection obligations. Unreasonableness can be inferred if the Tribunal Decision was arbitrary: Pandey at [41(c)] per Wigney J (and cases there cited).
The Tribunal’s reasons for determining that the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Migration Act were, in the Court’s view, expressed in a transparent, logical and rational manner. [text redacted]. The Tribunal considered the applicant’s situation in Karachi, and referred to the figures regarding crime statistics provided by the applicant and country information, finding that there was no significant risk to the applicant in Karachi based on the level of violence. On the material before the Tribunal the reasons provided in relation to the complementary protection claim actually made by the applicant were open to the Tribunal, and there is nothing “arbitrary” about the conclusions reached in the Tribunal Decision.
The applicant did not raise a claim with respect to socio-economic conditions before the Tribunal in relation to the complementary protection obligations. The Tribunal Decision stated that the applicant claimed that the significant harm that the applicant fears [text redacted] and because of the level of violence in Karachi: CB 215 at [261]. The applicant’s contention that the Tribunal did not take into account the “socio-economic” conditions when determining the complementary protection obligations and therefore is a jurisdictional error has no basis, as the Tribunal has not failed to address and consider the actual claims put before them.
The specific matters now sought to be raised: see [70] above, as giving rise to the prospect of significant harm if the applicant is returned to Pakistan are matters which seek to have this Court determine matters of merit in relation to the administrative review function of the Tribunal, rather than the judicial review function of this Court, and as such are not matters for this Court to determine upon judicial review: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
In all the above circumstances, Further Ground 5 does not establish any jurisdictional error in the Tribunal Decision.
Additional Further Ground
In the Applicant’s Final Written Submissions at [3] the applicant might be said to raise an Additional Further Ground in the following terms:
RRT GROUNDS (CB 207)
RRT assertion that why applicant’s brother and father are not threatened please note that the threat applicant face is because of his convictions and beliefs and his refusal to abide by Taliban code of conduct. Other people do not have the opportunity or strength to stand up to the culprits.
The applicant’s submission is an argument upon a factual matter, and not an assertion of jurisdictional error in the Tribunal Decision, and as such this Additional Further Ground (if that is in fact what it be) does no more than invite the Court to engage in impermissible merits review: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. The Additional Further Ground therefore does not establish any jurisdictional error in the Tribunal Decision.
Conclusion and orders
The Court has concluded that the Tribunal Decision is not affected by jurisdictional error. It follows that the Judicial Review Application, incorporating therein Ground 1, Further Grounds 1-5, and the Additional Further Ground, must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 15 March 2019
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