BBX17 v Minister for Immigration
[2019] FCCA 59
•31 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BBX17 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 59 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – principal applicant claiming a fear of harm in Pakistan – applicant not believed – whether the Tribunal breached s.424A of the Migration Act 1958 (Cth), failed to invite evidence or arguments about one of the applicant’s claims or failed to properly consider the claim considered – jurisdictional error established in relation to the breach of s.424A. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424, 424A, 424AA, 425, 441A |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 Carrascalao v Minister for Immigration [2017] FCAFC 107 Drake v Minister for Immigration (1979) 46 FLR 409 Dranichnikov v Minister for Immigration (2003) 77 ALJR 1088 SZBEL v Minister for Immigration [2006] HCA 63 SZBYR v Minister for Immigration (2007) 235 ALR 609; (2007) 81 ALJR 1190; (2007) 96 ALD 1 SZLIQ v Minister for Immigration [2008] FCA 1405 SZMCD v Minister for Immigration (2009) 174 FCR 415 SZNKO v Minister for Immigration (2010) 184 FCR 505 SZTGV v Minister for Immigration (2015) 229 FCR 90 VHAJ v Minister for Immigration (2003) 75 ALD 609 |
| First Applicant: | BBX17 |
| Second Applicant: | BBY17 |
| Third Applicant: | BBZ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 752 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 23 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 31 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Chia |
| Solicitors for the Respondents: | Mr T Hillyard of Sparke Helmore |
ORDERS
A writ of certiorari shall issue, removing the record of the Administrative Appeals Tribunal decision made on 14 February 2017 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Tribunal to redetermine the review application before it, according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 752 of 2017
| BBX17 |
First Applicant
| BBY17 |
Second Applicant
| BBZ17 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 14 February 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. There are three applicants, who are a father (applicant), his wife (second applicant) and their infant daughter (third applicant).
The applicant, a citizen of Pakistan, arrived in Australia on 16 March 2012 on a Vocational Education and Training Sector (subclass 572) visa with the second applicant, as a dependent.[1] On 18 April 2013, the third applicant, was born in Australia.[2]
[1] Court Book (CB) 119
[2] CB 36 and 119
On 12 July 2013, the applicants were granted Higher Education Sector (subclass 573) visas.[3] On 6 October 2013, the second and third applicants departed Australia for Pakistan, with the applicant following on 15 February 2014.[4] On 4 March 2014, the applicants returned to Australia.[5]
[3] CB 119
[4] CB 119
[5] CB 119
On 10 July 2014, the applicant lodged an application for a protection visa including the second and third applicants as family members.[6] On 4 February 2015, the delegate refused to grant the protection visas.[7]
[6] CB 1-108 and 119
[7] CB 113-130
On 3 March 2015, the applicants applied to the Tribunal for review of the delegate’s decision.[8] On 7 September 2016, the applicant appeared before the Tribunal to give evidence and present arguments.[9] On 14 February 2017, the Tribunal affirmed the decision under review.[10]
[8] CB 131-137
[9] CB 145-150
[10] CB 165-178
The applicants’ claims
The applicant’s claims for protection were initially set out in a statement accompanying his visa application.[11] He elaborated on these claims at an interview with the delegate on 28 January 2015[12] and at a hearing before the Tribunal on 7 September 2016.[13]
[11] CB 42-52
[12] CB 121
[13] CB 147-150
In summary, the applicant’s claims for protection were as follows:
a)the applicant is a Pakistani Muslim who lived in Shadman Town in North Karachi. Shadman Town became dangerous after Afghan Pathans arrived and established groups such as Tehrik-e-Taliban Pakistan (TTP). His parents were originally from India and so they were considered to be Mohajirs.[14] They supported the MQM Party;[15]
b)the applicant was employed by “Getz Pharma” and was required to travel to nearby provinces with his manager. On a work trip in October 2010, his manager was abducted and the applicant was “bashed” trying to stop the abduction. On return to Karachi, his employers advised him that his manager was involved in illegal drug transactions with the TTP and had failed to pay the money he owed them. Getz Pharma paid a sum of money for his manager’s release. His manager fled Pakistan and, in February 2011, the local Mullah asked him to continue his manager’s work travelling with TTP militants to other provinces and to Afghanistan; and
c)his father sent him to Thailand to “get [him] out of the country” but when he returned, his father told him that the Mullah wanted to meet with him and that if he failed to do so he could be taken away permanently. He continued to work with the TTP militants, travelling to Baluchistan in January 2012. Instead of returning to his home, he hid at a place close by and his father told the Mullah that the applicant had failed to return. His father was taken to the police station and interrogated. He remained in hiding until he secured a student visa and was able to flee Pakistan for Australia. After he left, the Mullah continued to visit the applicant’s house asking his father whether he had returned. After a while, they stopped “pestering” his father.
[14] a term used to describe Muslims who had migrated from India following Pakistani independence in 1947
[15] Muttahida Qaumi Movement
In February 2014, after the third applicant was born in Australia, he returned to Pakistan. While he was there, the new Mullah contacted the applicant’s father about his involvement with the TTP militants. He immediately went into hiding and left Pakistan. After he left, he heard that the police had visited his house to arrest him and his father had to pay the mosque thousands of rupees for deceiving the Mullah.
Lodged with the protection visa application was a statement by the applicant dated 7 July 2014,[16] in which he said that in Pakistan he had lived with his parents, a retired textile company executive and a beauty salon owner. He said that his parents were originally from Bangalore in India and that he and his family were accordingly considered to be Mohajirs, and supporters of the MQM Party:[17]
… [W]here we lived became a dangerous area after the Afghan Pathans arrived in large numbers as refugees and settled near our residence. These Pathans are Pashtun speaking people and are supporters of Taliban, Al Qaeda and other terrorist organization in Pakistan. As my parents are originally from Bangalore, India we are considered as Mohajirs and the Taliban hated us. They wanted us to support them and not to support our MQM party which is mainly for the Urdu speaking Mohajirs. We Mohajirs openly condemned the Taliban infiltration among the Pathans from Afghanistan and even the MQM had their own cadres who worked against the Taliban and other terrorists groups and after the USA and UN forces along with the Pakistani army attacked the Taliban to chase them out of Pakistan, the Taliban started to attack those authorities, MQM party members and supporters who were working against the Taliban. Target killings became frequent and many MQM members were killed …
[16] CB 42
[17] CB 47
The statement continued that, after finishing college, the applicant got a job as a medical representative for Getz Pharma, a pharmaceutical company, which involved him travelling with his manager to the provinces of Baluchistan and Khyber Pakhtunkhwa to supply medication and equipment to private hospitals.[18]
[18] Khyber Pakhtunkhwa was formerly called “North-West Frontier Province”. Note that the statement also refers to Quetta and Peshawar, however these are the provincial capitals of Baluchistan and Khyber Pakhtunkhwa respectively
The applicant said that in October 2010, whilst away, his manager was abducted and he was later told that he had been involved in dealings with the TTP. The applicant continued with his work upon being given an assurance by his company that he would be safe. However in February 2011 he was approached by the Mullah at his mosque and asked to continue the work his manager had been doing with the TTP as the funds were needed to run the madrassa. He was told he would be accompanied on his next trip to Baluchistan and Khyber Pakhtunkhwa by TTP militants, who would protect him and take him to Afghan drug agents, who would pay him a good commission for his work.
The applicant said he made immediate plans to leave Pakistan under the guise of arrangements for his wedding. He travelled to Thailand in March 2011 before coming to Australia.
The applicant was interviewed by the Minister’s Department on 28 January 2015 and, on 4 February 2015, the delegate refused to grant him a protection visa.[19]
[19] CB 113
In the absence of supporting documentation, the delegate did not accept the applicant had worked for Getz Pharma “at the level claimed not for the period claimed” and did not accept that he had travelled extensively to Baluchistan and Khyber Pakhtunkhwa as claimed.
Importantly, the delegate’s decision is silent on the applicants’ claim concerning his status as a Mohajir and MQM Party supporter.
Tribunal decision
The Tribunal set out the applicant’s claims and evidence,[20] the procedural history of the matter[21] and the relevant law.[22] The Tribunal also recorded having received several documents from the applicant at the hearing, including an offer of employment from Getz Pharma, as well as other letters, payslips and certificates relating to his employment.[23]
[20] CB 167 at [4] – 170 at [23]
[21] CB 170 at [24]-[25]
[22] CB 170 at [29] – 171 at [33]
[23] CB 170 at [28]
The Tribunal did not consider the applicant to be a credible or truthful witness, having regard to several inconsistencies in the applicant’s oral and written evidence and unconvincing accounts of key aspects of his claims.[24] In particular:
a)on the basis of documents tendered at the hearing, the Tribunal accepted that the applicant was employed by Getz Pharma.[25] However, having regard to independent information regarding the pharmaceutical industry in Pakistan and Getz Pharma,[26] as well as the applicant’s evidence in relation to his role within Getz Pharma,[27] the Tribunal found the applicant’s evidence about his employment to be contrived and unpersuasive. Notably, the Tribunal did not accept that he would have been required to or even able to operate across zones so far from his area in Karachi and with such a degree of impunity, given his junior role;[28]
b)the Tribunal considered the applicant’s claim that he had been involved in illegal drug transactions with Getz Pharma, the Mullah and the TTP to be improbable and unconvincing.[29] Noting that the applicant was from a moderate Muslim family and was not previously known to the TTP, the Tribunal did not accept that he would be singled out by the TTP to engage in illegal drug trafficking by reason of his applicant’s age, profession or capacity to travel.[30] Further, the Tribunal was not satisfied that Getz Pharma, as one of Pakistan’s largest pharmaceutical companies, would be part of a conspiracy involving the TTP.[31] The Tribunal considered the applicant’s responses to its concerns in this regard, but ultimately considered the claims to be far-fetched and implausible;[32]
c)in relation to the applicant’s claim to have been taken to the Afghan border in March 2011 and asked to go to Afghanistan, the Tribunal expressed doubt that he would have been allowed to return home without completing his mission.[33] Turning to the applicant’s passport, the Tribunal noted that the applicant’s Thailand visa was valid for two months, and did not accept that an educated person such as the applicant would be unaware of the duration of his visa, as claimed.[34] The Tribunal also noted the applicant’s evidence that he returned to work at Getz Pharma upon returning from Thailand, despite his claimed fears.[35] In this respect, the Tribunal identified inconsistencies between the applicant’s statement and his oral evidence at the hearing with respect to his movements when he returned from Thailand;[36] and
d)the Tribunal noted that the applicant had arrived in Australia in March 2012 but did not apply for a protection visa until July 2014.[37] The Tribunal noted that its concerns were exacerbated by the applicant’s decision to return to Pakistan in February 2014.[38] The Tribunal did not accept the applicant’s explanations for his conduct and did not consider that conduct to be compatible with that of a person who had a genuine fear of harm.[39]
[24] CB 171 at [34]
[25] CB 171 at [36]
[26] CB 172 at [38]-[39] and 173 at [41]
[27] CB 171 at [36] – 172 at [37]
[28] CB 173 at [41]
[29] CB 173 at [42]
[30] CB 173 at [43]
[31] CB 174 at [45]
[32] CB 174 at [45]
[33] CB 174 at [46]
[34] CB 175 at [48]
[35] CB 175 at [48]
[36] CB 175 at [49]
[37] CB 175 at [50]
[38] CB 176 at [51]
[39] CB 176 at [51]
Overall, the Tribunal found that the applicant showed a propensity to fabricate claims and tailor his evidence to achieve his purpose[40] and rejected each of the applicant’s claims of past harm.[41]
[40] CB 176 at [52]
[41] CB 176 at [53]
The applicant did not develop his claims concerning his parents being Mohajirs and members of the MQM Party at the hearing, nor had he claimed to have been targeted or harmed by anyone on that basis.[42] In any event, the Tribunal did not accept that the applicant faced a risk of harm in Pakistan on the basis of his Mohajir origin, his imputed political opinion, his association with his family,[43] or any other Convention reason.[44]
[42] CB 177 at [54]
[43] CB 177 at [54]
[44] CB 177 at [55]
Noting the news articles and reports that the applicant had provided, the Tribunal did not consider that the forms of violence they related to were faced by the applicant personally.[45] The Tribunal was not satisfied that there was a real risk that the applicant would be subjected to any form of harm that amounted to “significant harm” in s.36(2A) of the Migration Act 1958 (Cth) (Migration Act)[46] as a result of general violence and instability in Pakistan[47] and/or on the basis of his ethnicity, religion, political opinion, familial links, former employment or any other circumstances.[48]
[45] CB 177 at [56]-[57]
[46] CB 177 at [58]
[47] CB 177 at [57] by reference to s.36(2B)(c)
[48] CB 177 at [55]
Accordingly, the Tribunal affirmed the decision under review.[49]
[49] CB 178 at [60]
The current proceedings
These proceedings began with a show cause application filed on 14 March 2017. The applicants now rely upon an amended application filed on 23 August 2017. There are three grounds in the amended application:
1.The second respondent failed to give the applicant information and invitation in accordance with section 424A of the Migration Act 1958 in respect of “information” it had “gotten” about Getz Pharma.
2.Further or in the alternative, the second respondent failed to “invite” the applicant to give evidence and present arguments relating to the issue of whether he would suffer harm by reason of him being considered a Mohajir.
3.Further or in the alternative to 1 and 2, the second respondent failed to give proper, genuine and realistic consideration to the applicant's claim based upon being considered a Mohajir.
In addition to the court book filed on 27 July 2017, I have before me as evidence the affidavit of Lecia Maree Stark made on 16 August 2017, to which is annexed a transcript of the Tribunal hearing conducted on 7 September 2016.
Consideration
Ground 1 – did the Tribunal breach s.424A?
Applicants’ submissions
Section 424A of the Migration Act provides as follows:
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) … by one of the methods specified in section 441A; …
(b) …
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(4) …
Section 441A requires that the invitation under subsection 424A(1) be in writing.
Section 424AA(1) of the Migration Act provides as follows:
(1)If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
The requirements of s.424A(1) are mandatory and failure to comply will constitute jurisdictional error;[50] however the Tribunal has a discretion to provide oral particulars under s.424AA. If the Tribunal chooses to provide particulars orally, the Tribunal is required to comply with the requirements set out in s.424AA(1)(b); however the failure to do so will not itself constitute jurisdictional error but would mean that the Tribunal does not get the benefit of s.424A(2A) and will therefore have to comply with the requirements of s.424A(1), and the failure so to do may then constitute jurisdictional error.[51] A consequence of this construction is that the other exceptions to the requirements of s.424A(1), namely those set out in s.424A(3), also apply to circumstances where the Tribunal has elected to give information and invitation orally pursuant to s.424AA.[52]
[50] SAAP v Minister for Immigration (2005) 228 CLR 294 at [77] per McHugh J, at [173] per Kirby J, and at [208] per Hayne J
[51] SZMCD v Minister for Immigration (2009) 174 FCR 415 at [103] per Tracey and Foster JJ (Moore J agreeing at [2])
[52] Ibid at [106] per Tracey and Foster JJ
In the present case, the Tribunal relied on information regarding Getz Pharma,[53] which had been obtained from the internet and other independent sources but did not disclose these sources to the applicant at the hearing or prior to it making its decision. This is said to have been information the Tribunal considered to be “… part of the reason, for affirming the decision that is under review” because the Tribunal ultimately relied upon this material in its decision at [38]-[41]. The information established that Getz Pharma had a sales and distribution structure which made the applicant’s claim to have travelled to Baluchistan and Khyber Pakhtunkhwa for work and made deliveries for Getz Pharma in the way claimed implausible. The information, both to the Tribunal and independently of the Tribunal’s reasons, is said to have been information which “contain[ed] in their terms a rejection, denial or undermining” of the applicant’s claims.[54]
[53] Reasons at footnotes 1 to 5
[54] SZBYR v Minister for Immigration (2007) 235 ALR 609; (2007) 81 ALJR 1190; (2007) 96 ALD 1 at [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ
The applicant submits that the Tribunal did not invite the applicant to comment on or respond to the information in writing or orally in accordance with s.424AA of the Migration Act. The Tribunal did not put to the applicant all the factual information regarding Getz Pharma that it ultimately relied upon in its reasons, nor did it disclose the sources of the information.[55] Even if particulars of information had been given, the Tribunal did not advise the applicant that he could seek further time to respond at the time the information was given,[56] if at all.
[55] SZNKO v Minister for Immigration (2010) 184 FCR 505
[56] SZTGV v Minister for Immigration (2015) 229 FCR 90 at [56]-[57]
The applicant submits that none of the exceptions apply to the information. None of the information had been given to the Tribunal or the Minister’s Department. The Tribunal had obtained the information itself. Nor was it “country information”,[57] namely information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”, or “non-disclosable information”. It is said to be comparable to the independently sourced material that was used to reject the applicants’ claims in SZNKO and SZLIQ v Minister for Immigration.[58]
[57] VHAJ v Minister for Immigration (2003) 75 ALD 609 at [50] per Kenny J
[58] [2008] FCA 1405
The applicant contends that the Tribunal failed to give the applicant information and invitation under s.424A(1) and thereby committed jurisdictional error.
Minister’s submissions
Pursuant to s.424A, the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
Relevantly, s.424A(3) stipulates that s.424A does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non disclosable information.
(Minister’s emphasis retained)
It is not disputed that the Tribunal acted upon independent country information, being information pertaining to the pharmaceutical industry in Pakistan and Getz Pharma.[59] However, that information was not information specifically about the applicant nor was it specifically about another person.[60] Accordingly, the Minister submits that because this information fell within s.424A(3), s.424A(1) had no application.
[59] CB 172-175
[60] Migration Act, s.424(3)(a)
In any event, and notwithstanding there being no obligation to do so, the Minister submits that the Tribunal disclosed, to the applicant, the substance of that information and its relevance such that the applicant could meaningfully comment on or respond to that information.[61]
[61] Cf. SZLIQ. See also SZNKO at [23]
Resolution
By Ground 1 the applicants contend that the Tribunal failed to comply with s.424A of the Migration Act because it failed to put information “…it had “gotten” about Getz Pharma” to the applicant for comment. In his submissions, the applicant identifies the information set out in footnotes 1 to 5 of the Tribunal’s decision, as the relevant information that gave rise to an obligation enlivening s.424A.
The resolution to the contest over this ground depends on how the information obtained by the Tribunal is properly viewed. Was it information about a “person” that needed to be disclosed or was it relevantly just information about a class of persons including the applicant, being employees of Getz Pharma?
If it was information attracting the obligation of disclosure under s.424A, it is no answer to say that the Tribunal disclosed the substance of information at the Tribunal hearing. At the trial of this matter, the Minister conceded that, while there was disclosure at the Tribunal hearing, it was not disclosure that met the requirements of s.424AA. It was, it seems to me, disclosure by the Tribunal which it considered necessary for the purposes of s.425.
The Tribunal accepted that the applicant had worked at Getz Pharma during the period claimed but rejected his claims regarding the role and duties he had assumed. The Tribunal found that his evidence in this regard was “implausible, unreliable and unpersuasive”:[62]
As it was put to the applicant at the hearing, consistently with his evidence, most of the companies in Pakistan, including Getz Pharma, have divided Pakistan into 3 regions and 9 Zones/Area/Territories. They have one Regional Sales Manager responsible for each region, and one Zonal/Area/Territory Sales Manager under them. On an average, each Area Manager is responsible for managing 6-10 representatives, who have their own well demarcated territories …
As it was put to the applicant at the hearing, in 2010, more than 900 people were working in the sales and marketing departments of Getz Pharma, making the company one of the largest pharmaceutical companies in terms of human resources in sales and marketing. This evidence casts doubt on the applicant's claims that the company was in need of volunteers, such as him, to sell its products in Baluchistan and Khyber Pukhtunkhwa (formerly NWFP). … The Tribunal considers it highly implausible that, as a junior sales representative designated to Karachi, he was permitted to operate in other zones and encroach into areas that came under the responsibility of other Sales Managers, Assistant Sales Managers and Territory Managers without any problems. The Tribunal also considers it highly implausible that his immediate supervisor, Mr Zeeshan, who would have been responsible for sales in a particular, albeit wider, area, had the authority to assign the applicant to work in zones within other regions without any apparent authorisation by or intervention of the Sales Manager.
[62] at [38] and [39], footnotes omitted and errors in original
The Tribunal continued:[63]
… Getz Pharma is associated with Muller & Phipps (M&P), the largest distribution company in Pakistan, with an extensive distribution network of more than 975 towns and districts; and more than 32,000 chemists, pharmacies, institutes and medical specialists across Pakistan, including in urban and rural areas in Sindh, Baluchistan, Khyber Pakhtunkhwa and Punjab. According to M&P's website, the company has a strong liaison with institutions, government and local hospitals, clinics and pharmacies across Pakistan in relation to its distribution and logistics services. … The Tribunal finds the applicant’s evidence in this regard contrived and highly unpersuasive. The Tribunal does not accept as plausible or credible that Getz Pharma would have arranged a van for the applicant to deliver company's products to random locations in three provinces if M&P had managed delivery and distribution across Pakistan. The Tribunal does not accept as plausible or credible that the applicant and Mr Zeeshan would have been able to operate with such a degree of impunity to circumvent the company's well-established logistics, distribution and delivery systems for its products because they had offered discounts to clients. Nor does the Tribunal accept that, as a junior sales representative, any payment was made to the applicant personally in cash or by cheque or that he had to carry these payments with him on public transportation to be delivered to his manager.
[63] at [41]
The Tribunal found implausible the applicant’s claims that Getz Pharma, the local Mullah and the TTP had all been involved in recruiting him to import illicit drugs from Afghanistan,[64] and his evidence that he had returned from Thailand after a few days because his visa expired when his visa stamp showed he could have stayed for two months.[65] The Tribunal also noted the delay in applying for a protection visa between March 2012 and July 2014.[66]
[64] at [42]-[45]
[65] at [46]-[49]
[66] at [50]
The Tribunal accepted the applicant had worked at Getz Pharma between June 2008 and January 2012 but did not accept his other claims regarding past events in Pakistan.[67] It concluded that he was not a person in respect of whom Australia has protection obligations and affirmed the delegate’s decision.
[67] at [53]
The information referred to above was clearly deployed by the Tribunal to reject the applicant’s claims for reasons of credibility. In my view, this was not simply information about a class of persons, including the applicant, namely employees of Getz Pharma. It was information about a person, Getz Pharma. The information described in detail the way in which the corporation conducted its business. That information went directly to the credibility of the applicant’s claims concerning his employment and should have been disclosed by the Tribunal to the applicant either in writing, in accordance with s.424A or orally, in accordance with s.424AA. It was not and in the result, the Tribunal fell into jurisdictional error.
Ground 2 – did the Tribunal breach s.425 in relation to the Mohajir claim?
Applicants’ submissions
Subsection 425(1) of the Migration Act provides that
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Failure to afford such an opportunity can constitute jurisdictional error.[68]
[68] SZBEL v Minister for Immigration [2006] HCA 63; see also Minister for Immigration v SCAR (2003) 128 FCR 553 at [38] per the Court (Gray, Cooper and Selway JJ)
The obligation to “invite” under s.425 of the Migration Act includes a requirement that the Tribunal put the applicant on notice of issues arising in relation to the review. As the High Court stated in SZBEL:[69]
… Ordinarily … the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
[69] at [36]
The applicant in the present case had claimed in his statement to fear harm based on being perceived to be a Mohajir.[70]
[70] above at [9]
This was a claim that was not abandoned or disowned by the applicant at the hearing. The Tribunal started by giving his introductory comments, confirming some biographical details and then discussed the Getz Pharma claims. The hearing concludes with the Tribunal saying that “… that’s all I wanted to put to you today”, even before the applicant had completed what he wanted to say about Getz Pharma.[71] The Tribunal did not ask the applicant about the Mohajir claim, ask him whether he still made that claim, ask him if there was any other claim he relied upon or even ask if there was anything else he wanted to say.
[71] transcript at 48
The Tribunal rejected the claim in its reasons as follows:[72]
In his written statement to the Department, the applicant stated that his parents are considered Mohajirs and Mohajirs support the MQM Party. He further stated that some MQM ‘cadres’ worked against the Taliban and MQM members became frequent victims of Taliban targeted killings. The applicant, however, did not pursue these claims in his oral evidence to the delegate or in his evidence to the Tribunal. The applicant did not claim that he or his parents were ever targeted or harmed by anyone as Mohajirs. Nor did he claim that he was a member of the MQM. The Tribunal is not satisfied that there is real chance that the applicant would face serious harm in Pakistan at the hands of the Pathans, the Taliban, other militant groups or anyone else for the reason of his Mohajir origin, his expressed or imputed political opinion, his membership of any particular social group, including his family. The Tribunal is not satisfied that the applicant faces a real risk of significant harm in Pakistan by anyone arising from his Mohajir origin, his expressed or imputed political opinion or his association with his family. The Tribunal is not satisfied that there is a real chance or a real risk that, as a ‘Pakistani Muslim youth’, he would be abducted and trained by the Taliban to fight the US, the UN and the Pakistani army.
[72] at [54]
The Tribunal, in the passage above, accepted that the applicant had made the Mohajir claim in his statement but rejected the claim based on the fact that they were not “pursued” in oral evidence, and the absence of any supporting or subsidiary claim that he had been “targeted or harmed … as Mohajirs” or that he had been a member of the MQM Party. These were factual issues which had never been the subject of findings by the delegate – the delegate did not consider the Mohajir claim at all – and were matters of which the applicant ought to have been, but was not, put on notice. The applicant submits that, by failing to do so, the Tribunal failed to “invite” the applicant under s.425 of the Migration Act and committed jurisdictional error.
Minister’s submissions
By Ground 2, the applicants contend that the Tribunal breached s.425 of the Migration Act by not inviting the applicant to comment on whether he would face harm on account of being considered a Mohajir. The Minister submits that this contention must fail for the following reasons:
a)first, it was for the applicant to satisfy the Tribunal that he met the criterion for the grant of a protection visa by providing evidence and argument in sufficient detail for the Tribunal to be satisfied of those facts;[73]
b)secondly, on 4 March 2015, the Tribunal wrote to the applicants confirming receipt of the application for review and stating in part:[74]
If you wish to provide material or written arguments for the Tribunal to consider, you should do so as soon as possible.
c)similarly, by letter dated 3 August 2016, the applicants were advised that the Tribunal was unable to make a favourable decision on the papers before it and invited them to attend a hearing before Tribunal to give evidence and present arguments.[75] Accordingly, the applicants were on notice that they could provide further information to the Tribunal, and did so, though only in respect of the applicant’s employment at Getz Pharma; and
d)thirdly, s.425 does not require the Tribunal to actively assist the applicant in putting his case, nor was it required to carry out an inquiry in order to identify what that case might be.[76]
[73] Abebe v Commonwealth of Australia 197 CLR 510; Minister for Immigration v Lay Lat (2006) 151 FCR 214
[74] CB 138
[75] CB 145
[76] SCAR at [36]; see also the applicants’ submissions at [42]
For completeness, and insofar as the applicant contends that the delegate overlooked his claim to be a Mohajir, this had no bearing on the Tribunal’s decision in circumstances where the Tribunal did consider the claim. The Tribunal’s function “is to hear matters de novo and to reach a view for itself, unrestricted by the view taken by the primary decision-maker”.[77] The Tribunal‘s decision is said to have cured any defect in the delegate’s decision.[78]
[77] Drake v Minister for Immigration (1979) 46 FLR 409
[78] Minister for Immigration v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314; Martinez v Minister for Immigration & Anor (2009) 177 FCR 337at [20] per Rares J
Resolution
In my view, there was no breach of s.425. The applicant was on notice from the delegate’s decision that the delegate had made no mention of the Mohajir claim. He was entitled to conclude from that that the delegate had overlooked the claim and make submissions to the Tribunal in relation to it. He did not do so. In contrast to the delegate, the Tribunal did consider the claim, but that was not a new issue requiring disclosure. The applicant was on notice also from the hearing invitation and other Tribunal correspondence, and the opening statements by the presiding member, that the Tribunal was not going to make his case for him. It was his responsibility to develop his claim if he had wished to do so. He did not do so.
Ground 3 – did the Tribunal properly consider the Mohajir claim?
Applicants’ submissions
In Khan v Minister for Immigration,[79] his Honour Gummow J stated:
[W]hat was required of the decision maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy ... The assertion by a decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense ...
[79] [1987] FCA 457; (1987) 14 ALD 291 at [25] (citations omitted)
The Full Federal Court has more recently stated:[80]
… when a decision maker is required by statute to consider a claim or other mandatory criteria, the decision maker must engage in an active intellectual process directed at that claim or criteria … This does not require the decision-maker to refer in the reasons for decision to every piece of evidence and every contention made by an applicant, and it may be that some material provided will not be relevant to the criteria. Also, in accordance with well-known authority, the reasons of the decision-maker should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error” …
[80] Carrascalao v Minister for Immigration [2017] FCAFC 107 at [45] per the Court (Griffiths, White and Bromwich JJ)
As previously noted, the Tribunal in the present case at [54] accepted that the Mohajir claim had been made but rejected the claim on the basis that the applicant did not pursue “these claims” in his oral evidence and had not claimed he or his parents were targeted or harmed “as Mohajirs” or that he was a member of the MQM Party. The applicant contends that he had not discussed the Mohajir claim at the hearing because he was not asked about it and was not given the opportunity to talk about it. The absence of discussion of the claim in oral evidence was not a basis for concluding the claim was not true, nor was the absence of claimed past harm or actual (as opposed to perceived) membership of the MQM Party fatal to his claim.
The applicant contends that the Tribunal failed to engage in an active intellectual process to make findings in relation to the issues relevant to the Mohajir claim, namely whether the persons perceived to be Mohajirs was capable of being a “particular social group”, whether he would be a member of such a group and whether there was a well-founded fear by reason of that membership.[81] He contends that the Tribunal failed to do so and thereby failed to give proper, genuine and realistic consideration to the claim.
[81] Dranichnikov v Minister for Immigration (2003) 77 ALJR 1088 at [26] per Gummow and Callinan JJ
Minister’s submissions
The Minister submits that, contrary to the applicants’ assertion, this is not a case where the Tribunal acted perfunctorily. As intimated above, it was for the applicant to advance whatever evidence or argument he wished to make in support of his claim for protection[82] and for the Tribunal to decide whether that claim was made out.[83] Accordingly, the Minister submits that it fell to the applicant to advance whatever evidence or argument he wished. Having failed to do so, the Tribunal’s consideration could, and indeed did, only reflect the limited nature of the claim itself. Any plain reading of the transcript reveals that the Tribunal’s findings were consistent with case “…raised by the material or evidence before it”.[84]
[82] SZBEL at [40] and [47]; and Re Minister for Immigration; Ex parte Applicant S154/2002 (2003) 201 ALR 437; 75 ALD 1 at [57]–[58]
[83] Abebe at 576 per Gummow and Hayne JJ
[84] NABE v Minister for Immigration (No 2) [2004] FCAFC 263 at [58] per Black CJ, French and Selway JJ; see also Dranichnikov at [78] per Kirby J
Moreover, in circumstances where the Tribunal made a finding that the applicant did not face a real chance of serious harm as a Mohajir, it is plain that the Tribunal proceeded on the basis that that group was capable of constituting a social group for the purposes of the Convention and the applicant was a member of the said group. In any event, no jurisdictional error can arise from any omission to define the social group, in circumstances where the Tribunal adequately addressed and disposed of the related claims.[85]
[85] Minister for Immigration v MZYNN [2012] FCA 1177
Resolution
By Ground 3 the applicants contend that the Tribunal failed to give proper, genuine and realistic consideration to the applicant’s claim to fear harm as a Mohajir. Paragraph [54] of the Tribunal’s decision is as follows:
In his written statement of the Department, the applicant stated that his parents are considered Mohajirs and Mohajirs support the MQM Party. He further stated that some MQM ‘cadres’ worked against the Taliban and MQM members became frequent victims of Taliban targeted killings. The applicant, however, did not pursue these claims in his oral evidence to the delegate or in his evidence to the Tribunal. The applicant did not claim that he or his parents were ever targeted or harmed by anyone as Mohajirs. Nor did he claim that he was a member of the MQM. The Tribunal is not satisfied that there is a real chance that the applicant would face serious harm in Pakistan at the hands of the Pathans, the Taliban, or other militant groups or anyone else for the reason of his Mohajir origin, his expressed or imputed political opinion, his membership of any particular social group, including his family. The Tribunal is not satisfied that the applicant faces a real risk of significant harm in Pakistan by anyone arising from his Mohajir origin, his expressed or imputed political opinion, his membership of any particular social group, including his family…
(emphasis added)
There is no doubt that the Tribunal considered the Mohajir claim. That consideration needs to be viewed in the context of the complete failure by the delegate to mention it (which bespeaks error) and the complete failure by the applicant to develop the claim either before the delegate or the Tribunal. If the Tribunal had overlooked the claim, as the delegate apparently did, it would have repeated the delegate’s error and thus fallen into jurisdictional error. The claim having been made in writing and not abandoned, needed to be considered. If the consideration given by the Tribunal was adequate, the error by the delegate becomes irrelevant.
In my view, the Tribunal gave to the Mohajir claim the consideration that was warranted, having regard to the general terms in which it was put and the failure by the applicant to develop it. I see no error in the Tribunal’s approach.
Conclusion
The applicants have succeeded in establishing that the decision of the Tribunal is affected by jurisdictional error. They should receive the relief they seek.
I will hear the parties as to costs.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 31 January 2019
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