AXC17 v Minister for Immigration

[2018] FCCA 1843

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXC17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1843

Catchwords:
MIGRATION – Application for judicial review – protection visa – s.375A certificate – where document before the Tribunal relevant to issue of credibility – where applicant not provided opportunity to comment – apprehended bias – application allowed.

Legislation:

Migration Act 1958 (Cth), s.357A.

Cases cited:

Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194

Applicant: AXC17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 435 of 2017

Judgment of: Judge Riethmuller

Hearing date: 21 June 2018

Date of Last Submission: 21 June 2018

Delivered at: Melbourne

Delivered on: 21 June 2018

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent: Mr McDermott

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. A writ of certiorari issue quashing the decision of the Second Respondent dated 31 January 2017 (Case Number 1512331).

2. A writ of mandamus issue directed to the Second Respondent requiring it to determine the Applicant’s application according to law.

3. The First Respondent pay the Applicant’s costs fixed in the sum of $615.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 435 of 2017

AXC17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 31 January 2017.  That decision affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa under the Migration Act 1958. 

2. The applicant is a citizen of Pakistan.  He arrived in Australia in February 2009 on a student visa, and subsequently applied for a protection visa on 2 May 2014.

3. In August 2015, a delegate of the Minister refused to grant the applicant a protection visa.  The applicant then sought review by the Tribunal on 15 November 2016.  He was assisted by a Punjabi interpreter and represented by a registered migration agent for that review.  The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa on 31 January 2017.  The applicant then sought judicial review in the Federal Circuit Court of Australia.

The Applicant’s Claims

1. The applicant’s complaints are carefully set out by the Tribunal member in the decision.  They are well summarised in the Tribunal’s summary of the post-hearing submissions by the applicant’s representative where the Tribunal member (at [22])says:

   ·   The applicant fears serious harm on return to Pakistan because of his intention to convert to the Ahmadi faith/imputed religious opinion (which is not recognised under Pakistani laws and there are laws under the Penal code that discriminate against Ahmadis and other religious minorities); his intention to enter into a love marriage; and the dishonour which has been caused to his extended family, namely his uncle and the family members aligned with his uncle (noting they are a conservative family of religious scholars and Molvis).

   ·   The applicant faces blasphemy charges in Pakistan, lodged by his uncle on behalf of the Imtena-e-Dardadin (noting the FIR issued with respect to blasphemy charges dated April 2014). The applicant instructs that his brother Salman Ahmed received an order from the police instructing the applicant to attend the police station by a due date then the court summons would be issued; however the applicant was in Australia at the time and did not attend; since then his family have disowned him and he had had no further contact. Further, his family have been constantly threatened by the applicant’s uncle and his uncle has used his power to jail the applicant’s father.

   ·   The applicant fears these false allegations (relating to the blasphemy charges) form the basis of further prosecution by the legal system.

   ·   The applicant overtly challenged majority religious principles by expressing his intent to convert; this brought about persecutory behaviour by his family members, specifically his uncle; his uncle is a Nazim and head of the Imtena-e-Dardadin; man of power and influence; wealthy and has contact with Jamaat-e-Islami. The applicant’s uncle and the organisation he belongs to are tasked with persecuting and harassing non-believers, including the applicant.

   ·   The applicant fears he could be charged with blasphemy as a consequence of his challenge (in that he made plans and had material in his possession which is indicative of his intention to convert to Ahmadiyya) to the conservative religious principles practiced by his family members, particularly his uncle.

2. The Tribunal also had country information before it with respect to Pakistan and the security situation therein, particularly with sectarian violence and mistreatment of Ahmadis which the Tribunal quite properly took into account.

3. The Tribunal appears to have carefully reviewed the evidence and made comprehensive findings in its decision almost entirely rejecting the applicant on questions of credibility.  Those findings are long and detailed, but given the nature of the arguments led before me, I should set them out.  They are:

   24. As discussed with the applicant at hearing, the Tribunal has significant concerns about the plausibility of the applicant's evidence about the claimed events in Pakistan and as a result the genuineness of the documents he has produced in support of his claims for the following reasons.

   a) The applicant claimed to have been studying the Ahmadiyya religion from 2008 yet demonstrated very limited knowledge at hearing about the religion.  He said in Pakistan he downloaded Ahmadiyya books and “other material” but was not able to give any examples. He said it was a long time ago and he does not remember. The Tribunal accepts that it was a long time ago but it would expect the applicant to remember at least one particular book or “other material" given the importance of allegedly exploring another religion to the point of conversion and the fact he claimed in his written statement to the Department that he "continually" read material and books "in depth", and afterwards "gained true knowledge of Ahmadiyya"  Further, when asked at hearing what he learnt through reading the Ahmadiyya material the applicant replied "basic things" for instance they are different from Sunni Islam because they believe in Mirza Ghulam Ahmad who he described as one of the founders. However he was unable to provide any further details, for example when the religion was founded, or if there are different sects. The applicant argued that whilst he read about Ahmadiyya he did not memorise the religion. The representative submitted – orally and in writing – that the applicant is not a scholar, unlike his grandfather and uncle and that, combined with his memory of these materials being limited, has to be taken into account, in particular after Sumaira's death.  It is also submitted that he was a moderate Sunni, unlike the rest of his family. As discussed at hearing, the Tribunal does not expect the applicant to have memorised particular religious doctrine, for example, or to demonstrate knowledge that a scholar might, however it would expect him to have some basic knowledge of the religion given his claims to have read material about it "in-depth" and that he was seriously considering converting to that religion.  For reasons below the Tribunal does not accept the applicant's claims that Sumaira was murdered by his uncle and therefore rejects the submission that the applicant's knowledge of the Ahmadiyya faith was affected by trauma related to her death.

   b) The applicant's oral evidence about the purported threats his parents received over the phone and harassment from the applicant's uncle and/or members of Jamaat-e­Islami because of his interest in Ahmadiyya was vague and lacking in detail. For example whilst he stated that they were harassed by them, he was unable to state when the threats or harassment started, or provide any details or context. He claimed he does not know when the threats stopped because his parents disowned him after Sumaira was killed in April 2014 and he has had no further contact with his family. Hof ever for the reasons below the Tribunal does not accept the applicant's claims that Sumaira was killed.

   c) Elements of the applicant’s oral evidence about his alleged relationship with Sumaira were illogical and at times internally inconsistent. For instance, he said at hearing that he told his mother about his relationship with Sumaira (and that she followed the Ahmadi faith) before he had proposed to her, yet he also stated that Sumaira only told him about her Ahmadi faith when he proposed (consistent with what he stated in his written statement to the Department), which does not make sense.  Also, at hearing initially he said that he did not see Sumaira during his visits home to Pakistan in 2012 and 2013 and that they only spoke over the phone, because his uncle was watching him. However later during the course of the hearing when asked how his uncle found out about his relationship with Sumaira (which, he claims, was the reason he waited until 2014 to take out an FIR against the applicant), he speculated that his uncle's 'people' may have seen him when he met up with Sumaira during his second visit to Pakistan (in 2013).  When this internal inconsistency in his oral evidence was pointed out the applicant reiterated that his uncle might have seen him somewhere but did not elaborate or provide any details.

   d) There are other inconsistencies between the applicant's oral evidence to the Tribunal and written claims to the Department which cast doubt on his claims. For instance, when asked at hearing if his family members in Pakistan experienced any harm from the police or his uncle or anyone else in relation to these matters with Sumaira, the applicant said they only received threats. However this is inconsistent with his written statement provided to the Department that the police tortured his family and his sister had two of her fingers broken. Later in the hearing when this claim in his statement was pointed out, the applicant said that did happen to his sister, because of his relationship (with Sumaira), but apart from saying the police were responsible he was unable to provide any further details, timing or context. As well, the applicant told the Tribunal at hearing that after being seen to have burnt Muslim material the applicant's father was arrested and jailed for a few days however in his written statement to the Department (provided on 29 May 2015) he stated that his father was arrested and was still in jail.

   e) The applicant's oral evidence about the circumstances of Sumaira's death was vague and at times inconsistent and implausible. For instance he knew when she was allegedly shot and by whom (his uncle), but was unable to answer where she was shot, whether his uncle was arrested, or provide any other details or context or indicate if there was any follow up.  At hearing the applicant said that is because he was in Australia and does not have any links in Pakistan. The Tribunal accepts the applicant was in Australia at the time however if his fiance had been killed as claimed, it would expect him to find out as much as possible about the incident. Also his limited knowledge about the particulars of Sumaira's death at hearing was in contrast to what he described in his written statement (to the Department) that his uncle followed her in the street and shot her dead on her way back home from the market, for instance. In terms of inconsistencies between his oral evidence to the Tribunal and written claims to the Department, the applicant told the Tribunal that the last contact he had with his uncle was after he was released from hospital (allegedly suffering a broken arm at the hands of his uncle) in 2008. However in his written statement provided to the Department the applicant stated that after his uncle had killed Sumaira "he rang me over the phone and informed me and abused me a lot". Another concern the Tribunal has with the applicant's claims in this respect is his failure to explain how or when his uncle found out about his relationship with Sumaira in the first place (and that she was an Ahmadi).  The applicant speculated at the hearing that it may have been through party members (Jamaat-e-lslami), however he was unable to explain how they knew.

   f) The applicant provided two sets of written claims to the Department that are very different (as set out above): the first (in his visa application) focus primarily on leaving Pakistan to obtain an education and that he and his family would face harm due to perceived wealth given he has been overseas for a long time.  He stated that he and his family have received threats but did not specify from whom and in relation to what matters. He made no mention of having a relationship with an Ahmadi woman, of exploring conversion, and experiencing threats as a result.  Nor did he mention that his uncle murdered his fiance as later claimed, which the Tribunal considers is a significant omission. In his oral evidence to the Tribunal the applicant said that in his initial application he mentioned that things were happening to his family and they were harassed by other people. He also explained that at that time his story was not ready. The representative submitted that although Sumaira's death occurred before the visa application, the applicant did not know until after. After some confusion, the applicant clarified that was the case at the hearing. However even if the Tribunal accepts the applicant did not find out about Sumaira's death until after he lodged the visa application on 2 May 2014, this fact does not explain why the applicant failed to mention his relationship with her at all, including his exploration of the Ahmadi religion, and the alleged problems that resulted from the applicant's uncle and members of the Jamaat-e-Islami including threatening phone calls.

   g) Further, the applicant's failure to mention his central claims regarding alleged problems stemming from his relationship with an Ahmadi woman in Pakistan in previous dealings with the Department [FN: Specifically in his request for Ministerial Intervention dated 17 July 2013 and during an interview with a Status Resolution Officer on 6 August 2013, as set out in the delegate’s decision record, a copy of which the applicant provided to the Tribunal on review] and Tribunal [FN: At a hearing at the Tribunal (differently constituted) on 23 April 2013 in relation to a review of a decision to refuse to grant him a student visa, as recorded in the MRT decision record dated 12 June 2013 (MRT No 1109348] after the alleged problems began casts doubts on the veracity of his core protection claims. At hearing the applicant said because he came to Australia on a student visa, and wanted to continue his studies, he wanted to get back his student visa at the time, not make protection visa claims. He added that he was also not aware at those times. The representative said he thinks the applicant did not have the presence of mind to raise these issues at that time, or the guidance.

   h) The applicant returned home to Pakistan from Australia in 2012 and 2013, which does not indicate that he had a fear of serious harm at those times. At hearing when asked why he returned home in 2013 after allegedly receiving threatening phone calls during his visit home in 2012 from his uncle and/or members of the Jamaat-e­ Islami , the applicant said because his father, who was diabetic, was sick and in hospital.  Even if the Tribunal accepts the applicant's claims that his father was sick it is of the view that the applicant would not have returned to Pakistan at this time if he held concerns for his safety.

   i) The applicant's oral evidence at hearing that his family home was burnt down along with other houses belonging to Ahmadis in Arafat Colony in Gujranwala was vague and unconvincing. For example he was unable to state when this occurred, by whom – apart from saying 'extremists' – or why their house was burnt if Ahmadis were targeted, except to speculate that it was because he had a link with Ahmadis. The Tribunal also notes that the applicant did not mention these alleged attacks spontaneously at hearing, only after some prompting by the Tribunal.

   j) The applicant claimed his uncle broke his arm in 2008 and he was hospitalised, after discovering him reading Ahmadiyya material.  At hearing he said he received inpatient and outpatient care at hospital in Pakistan for four months subsequently. Yet, as indicated in the delegate's decision record, a copy of which the applicant provided to the Tribunal on review, the applicant ticked 'no' to the question of whether he had ever been hospitalised in his student visa application form in January 2009, which casts doubts on his claims to have been hospitalised at all.  The applicant said he was scared that if he mentioned he had been hospitalised the Department may have refused his student visa application, because of a medical condition. The Tribunal is not persuaded by this explanation given his claims are that his arm was broken (and he subsequently received treatment) not that he had an ongoing medical condition that may jeopardise his student visa application.

   k) The timing and chronology of alleged events in Pakistan in some respects does not make sense.  For instance, the applicant told the Tribunal that he downloaded Ahmadiyya reading material in 2008 (on advice from Sumaira's parents) and that it was this material that his father had burnt and thrown in the bin five years later, in 2013 (allegedly witnessed by two imams on the morning of 22 April 2013 according to information contained in the FIR provided). It is unclear to the Tribunal why the applicant's father would have kept Ahmadiyya material for five years, particularly given his claims that it was dangerous to do so.

4. Before me, the applicant raised a comprehensive series of grounds for judicial review that are single-line spaced and run for over four pages.  In large part, they could be characterised as seeking a merits based review on the basis that the applicant did not accept the fact finding of the Tribunal.  In large part, the applicant points to his mental health as a result of things that occurred in Pakistan and that he raised this with the Tribunal member.

5. It appears clear that the Tribunal member did have regard to his state of mental health although did not make a decision that there should be an independent mental health assessment.  It was, of course, open to the applicant to provide an assessment by a professional to the Tribunal should he have chosen to do so.  It is difficult to conclude that the applicant has a case that could succeed in complaining about the Tribunal’s treatment of him with respect to the mental health issues.  Similarly, despite lengthy narratives with respect to each of the grounds, it is difficult to conclude that his complaints about the findings of the Tribunal go beyond seeking to have this Court review the material and come to a different determination on the facts.

6. The issue that does arise in this case that is of significance relates to a document that it appears was provided to the Tribunal by the Department under cover of a certificate under s.357A of the Act. It is not argued that the certificate was valid, nor that the material should have been kept from the applicant. The question that arises is whether or not the material purportedly covered by that certificate is such that, having regard to the test in Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194, the determination of the Tribunal should be overturned. In this regard, the key passage of CQZ15 is at [65] which states:

   65. Further, in the absence of evidence to the contrary, it may be assumed, as Beach J did in MZAFZ, that the Tribunal has had regard to (or, in his Honour’s words “acted in some unspecified way on”: MZAFZ at [40]) any document said to be covered by a s 438 certificate in coming to its decision. To say this, however, is to allow for the possibility that evidence may be led to show that the decision-maker could not in fact have had regard to such a document in coming to his or her decision. In this context, to say a decision-maker has had ‘regard’ to or ‘acted on’ a document is to say that the decision-maker has treated the document as material in some way to the decision on review.

1. In this case, the findings against the applicant turned almost entirely on questions of the applicant’s credibility as a witness before the Tribunal.  The contents of the document that was provided to the Tribunal under the purported certificate relate to inquiries made of BankIslami Pakistan Limited with respect to a letter that purportedly set out information about the applicant in support, presumably, of his student visa.

2. The note, annexed to an Affidavit filed by the Minister, shows the result of inquiries made by a departmental officer when checking the veracity of that letter.  The note confirms that the managers of the relevant bank advised that the letterhead and signatures on the letters appeared to be correct but the content was not correct.  They also advised that a particular branch did not exist at the relevant time.  The conclusion of the note was:

   PA has provided a fraudulent document.  PA has access to no funds.

3. It is apparent that PA is referring to the applicant in this case or at least a person associated with him with respect to the application for a visa.  As the existence of funds is usually relevant with respect to student visas and certainly would be unlikely to be relevant with respect to a protection visa, it seems clear that this note indicates that the applicant was relying upon a fraudulent document to attempt to obtain a student or other form of visa.  The inference that this leads to is that the applicant has in the past been dishonest or involved in dishonest engagement with the Department.

4. This material was not drawn to the applicant’s attention, nor was he given an opportunity to comment upon it.  This leads to two problems.  The first is that on a practical level, material of this type is significant when determining whether or not to believe a person as a matter of credibility.  As a matter of common sense, if one is aware that a person has been dishonest in the past or it is alleged that a person has been dishonest in the past, this has a significant impact upon the person’s credibility. 

5. In this case, the applicant had no opportunity to either attempt to explain these claims or potentially even suggest that this document related to someone other than the applicant.  It is clear that the inference to be drawn from it is adverse to him, and it is possible that he would have some form of explanation or some form of response that may completely mitigate against the information relating to him or at least mitigate with respect to the circumstances surrounding it.  As the case turned on credibility findings it is not possible to say that this very damaging evidence would have made no real difference to the outcome.

6. Whilst the information does not directly bear upon a central feature of the facts of this case, it is significant with respect to credibility, and for that reason, it seems to me to be information that ought to have been shown to him and of such significance that the decision should not be allowed to stand. 

7. Alternatively, it seems to me that the information can be categorised as going to the question of apprehended bias.  If a decision-maker is seized of information that an applicant has been dishonest in the past, it is difficult to conclude that the decision-maker would necessarily bring a completely open mind or uncoloured mind to the determination of the particular case.

8. Depending upon the type of information, sometimes this is most appropriately dealt with by allowing an applicant an opportunity to speak to the information or in other cases at least providing on the record some statement as to the information to allow submissions as to whether or not the decision-maker should be disqualified on the basis of apprehended bias.  There can be no formulaic statement of the rule as each piece of information may be different and have a different impact.  It is ultimately a question of impression and degree.

9. When credibility is a central issue in a case and the decision-maker is aware of information that shows that, at best the applicant has been involved in a dishonest interaction with the Department, the decision-maker must disclose it to the applicant for submissions.  If it is completely irrelevant, the decision make may need to consider disqualifying themselves just as would occur in such situations before the Court. 

10. For these reasons, it seems to me that the information also falls within the test as set out in CQZ15 at [65]. As a result, I therefore allow the application for judicial review.

11. I make orders for the relevant writs to issue for the matter to be returned to the Tribunal to be heard and determined afresh.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 6 July 2018