BCC21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 173
•21 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BCC21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 173
File number(s): CAG 15 of 2021 Judgment of: JUDGE HUMPHREYS Date of judgment: 21 October 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Protection visa – whether Tribunal accused the applicant of lying – whether the Tribunal did not accept that the applicant faced a serious risk of harm in Pakistan for the reasons advanced by the applicant in support of his case – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed Legislation: Migration Act 1958 (Cth), s 36 Cases cited: AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205
Abebe v Commonwealth of Australia (1999) 197 CLR 510
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Minister for Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 42 Date of last submission/s: 19 October 2021 Date of hearing: 19 October 2021 Place: Parramatta Counsel for the Applicant: The Applicant appeared in person. Solicitor for the Respondents: Ms Kelly appeared for the Respondent. ORDERS
CAG 15 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: BCC21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
21 OCTOBER 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant to pay the First Respondent’s costs, fixed in the amount of $6500.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a citizen of Pakistan. The applicant first came to Australia on 17 June 2012 on a Student visa. The applicant’s Student visa was cancelled on 28 November 2014. The applicant unsuccessfully applied for a review of that decision by the then Migration Review Tribunal (“the MRT”). The MRT affirmed the decision to cancel the applicant’s Student visa.
The applicant lodged an application for judicial review of the MRT decision, but withdrew that application before any final judgement. The applicant then requested Ministerial Intervention. On 1 August 2016, the applicant was advised that the Minister would not consider his case.
On 8 August 2016, the applicant lodged an application for a Protection visa. The applicant claimed that he was at risk of being killed by the Pakistani Taliban if he returned to Pakistan, because he had refused or resisted an attempt by the Pakistani Taliban to recruit him. The applicant claimed that his cousin was killed in July 2016 because his killers mistakenly believed that his cousin was in fact the applicant. The applicant’s application for a Protection visa was refused by a delegate of the Minister for Immigration (“the delegate”) on 20 April 2017.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 31 March 2021, the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa.
The applicant now seeks judicial review of the Tribunal decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
After setting out the background of the matter, the Tribunal, at paragraphs 3 through to 8 of its decision, properly instructed itself as to the relevant criteria for the grant of a Protection visa and the relevant mandatory considerations in undertaking the task.
At paragraph 13 of the Tribunal’s decision, the applicant confirmed that the only reason he feared returning to Pakistan was because of the Taliban. The applicant also revealed how he became involved with the Pakistani Taliban, with people who told him they were involved in humanitarian work, collecting donations for refugees from Afghanistan who were living in Pakistan on the Afghan border. The applicant journeyed with these people to an area near the border outside the control of Pakistani authorities. The applicant claimed that about 40 minutes before the end of the journey he was blindfolded. The applicant was not taken to a refugee camp, rather, he taken to a house and asked to assist the men to stop drone attacks and fight the Americans.
When the applicant arrived home, he told his father what had happened. The applicant’s father advised him that he should leave the country. The applicant said that he subsequently had limited contact with the men that he had met from the mosque, who had taken him on the trip described above, as he told the men that, he was busy with his studies and helping his father in the business.
At paragraph 19 of the Tribunal decision, the applicant gave evidence that some years later his cousin was driving his father’s car to a wedding when men from another car shot him and drove off. The men were not identified or arrested by the Police. The applicant believes that the assailants were from the Pakistani Taliban and that he was the intended victim.
From paragraph 21 of its decision onwards, the Tribunal set out a number of its concerns with the account given by the applicant. Firstly, the Tribunal was concerned with the claim that the Pakistani Taliban would attempt to recruit a young man who had never expressed any sympathy with their ideals by transporting him a long-distance to their headquarters and inviting him to join the group.
Secondly, even if the above was accepted, the Tribunal had great difficulty understanding why they would want to kill the applicant. The applicant suggested that they feared he would talk to the Government and Police about what they were doing. The Tribunal member advised the applicant that Pakistani authorities had a great deal of information about the whereabouts and activities of the Pakistani Taliban, while he appeared to know nothing of significance of their activities.
Thirdly, the Tribunal observed that the applicant’s cousin was killed some four years after the applicant left Pakistan. The Tribunal was of the view that the applicant’s claim that his cousin was killed, because the Taliban thought it was him, was pure speculation. The Tribunal had great difficulty accepting that the Taliban would have any interest in pursuing and harming the applicant, 4 years after he had left the country.
At paragraph 24 of the Tribunal decision, the Tribunal suggested that, even if it accepted that the applicant had experienced some problems with the Pakistani Taliban in the past, it doubted that the Pakistani Taliban would expend any resources locating and/or seeking to harm him 4 years after he left the country.
At paragraph 25 of the Tribunal decision onwards, the Tribunal made a number findings of fact. Firstly, the Tribunal did not find the applicant to be a truthful and credible witness. The Tribunal found that the claim that the applicant had travelled with members of the Pakistani Taliban to remote area, on the pretext of taking him to refugee camp, to be far-fetched and implausible. Further, the Tribunal found that the applicant’s claim that the Taliban would wish to harm him, because he went to their camp, to be speculation and implausible. The Tribunal noted that the Pakistani government had mounted a number of military operations during the period in question against the Taliban and that it did not accept that the Taliban would expend energy and resources over a number of years, monitoring the applicant or attempting to eliminate him merely because he did not join the group when asked to do so.
The Tribunal did not accept that the applicant was of adverse interest to the Pakistani Taliban at the time of his departure from Pakistan, or that his cousin was shot and killed in 2016 because the attackers mistook his cousin for the applicant.
At paragraph 30 through to 32 of its decision, the Tribunal set out a number of inconsistencies in the applicant’s evidence, including his account for his reasons for leaving Pakistan in 2012 and not seeking protection in Australia until some four years after he arrived, and only after his Student visa was cancelled.
Accordingly, the Tribunal concluded that there was no credible evidence before it to suggest that there was a real chance that the applicant would experience serious harm amounting to persecution if he returned to Pakistan, and that he did not satisfy the criteria for the grant of a Protection visa under s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (“The Act”). Accordingly, the Tribunal affirmed the decision of the delegate
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review relied upon are contained in an Initiating Application filed with the Court on 29 April 2021. They are as follows:
Ground One
Evidence not accepted
Ground Two
Member constantly accusing me for lieying.
Ground Three
Member stated that I am safe in my country and have no life threats after these many years without any proof.
No particulars were provided in support of the above grounds.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The hearing was conducted via Microsoft Teams due to COVID 19 health restrictions.
The applicant did not request the assistance of an Interpreter. The Court was satisfied that the applicant was able to properly participate in, and follow the proceedings. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books and the first respondent’s written submissions. The Court also ensured that the applicant had access to a pen and paper so that he was able to take notes during the course of the hearing, should he wish to.
The Court explained that it was undertaking judicial review, not merits review and the difference between the two types of review.
The applicant provided the Court with written submissions. Those written submissions did not appear to address any issue of jurisdictional error, or address the grounds of judicial review set out above. Rather, the applicant’s submissions sought to provide additional information in support of the applicant’s case. To the extent that the submissions sought to agitate impermissible merits review, and introduce new information, the Court did not consider them.
In the applicant’s submissions, he states that the decision of the Tribunal is based on assumption and overlooked the facts. The applicant set out why he stated that he fears the Pakistani Taliban if returned to Pakistan and why he did not apply for a Protection visa at an earlier point in time. The applicant suggests that it was the killing of his cousin that prompted him to apply for a Protection visa. The applicant claimed that he was manipulated by the Taliban to assist them with raising money. In oral submissions, the applicant blamed his previous legal representative for not properly advising him to make an application for a Protection visa at an earlier point in time.
In an Affidavit of 22 April 2021, the applicant attached further information which the Court took to also be submissions. The applicant stated that the documents he provided were genuine and that the information was correct. The Court does not consider these statements to be additional grounds of judicial review, as they appear to be fully encompassed by the grounds set out above.
Again, a review of the applicant’s material indicates that it does not address any matters of jurisdictional error, rather it seeks to explain, with some detail, the factual background to his claims, how he was entrapped by the Taliban and is at risk if returned. The Court indicated that it could not accept new evidence, but would consider the material in so far as it was possible as arguments and submissions.
In oral submissions, the applicant suggested that he did not get a fair hearing at the Tribunal as he was constantly interrupted by the Tribunal member and was unable to present his case fully. The Court explained that this was not a matter that was covered by the grounds of judicial review. Further, the Court would need evidence, such as a copy of the Tribunal hearing transcript and/or a copy of any audio hearing, as evidence that he was not given a fair hearing. It was the applicant’s responsibility to provide such evidence.
THE FIRST RESPONDENT’S SUBMISSIONS
The legal representative for the first respondent first noted that in the absence of particulars, the grounds articulated by the applicant in his application are meaningless and incapable of response. They appear to take issue with the Tribunal’s credibility findings.
In relation to ground one, the Tribunal was required to resolve questions of credit, attribute weight to particular evidence and consider the inherent probability or improbability of claimed events. On a fair reading of the Tribunal’s decision record, the Tribunal provided logical and cogent reasons for concluding the applicant’s claims were concocted. The comprehensive adverse credibility findings were made on the basis of inconsistencies and unconvincing aspects of the applicant’s evidence as set out in paragraphs 25 to 33 of the decision record. The conclusions relied on matters that are logically probative to the issue of credibility. The Tribunal reached the conclusion that it did not accept the applicant’s claims, after having engaged in discussion with the applicant in respect of his claims and evidence over the course of the hearing.
In respect to ground two, there is nothing on the face of the Tribunal’s decision record to indicate that it “constantly accused [the applicant] of lieying (sic)”. The applicant did not provide a transcript of the Tribunal hearing in support of this assertion. To the extent that the ground can be read as asserting actual or apprehended bias, it must fail. There is no evidence to support any assertion that a fair minded and informed person might reasonably apprehend that the Tribunal might not have bought an impartial mind to bear on the decision. The Tribunal was not required to, however, put its doubts and concerns in relation to the applicant’s claims and evidence to the applicant at the hearing.
Ground three also failed to detail any meaningful error. Contrary to the applicant’s assertion, the Tribunal did not find that the applicant would be safe in Pakistan. Rather, the Tribunal found that the applicant’s claims regarding threatened harm from the Pakistani Taliban were concocted. This adverse credibility finding did not require positive evidence, but rather demonstrates the Tribunal’s disbelief of the applicant’s evidence because of the surrounding circumstances. It was open to the Tribunal to find that the applicant was of no adverse interest to the Pakistani Taliban or that he would not face a real chance of serious harm if he returned to Pakistan.
In support of his application, the applicant filed a statement annexed to his Affidavit affirmed 22 April 21, and unsealed written submissions emailed to the Court on 4 October 2021. The applicant stated that he did not “endorse the finding of the Tribunal”. The applicant outlined his disagreements with the Tribunal’s findings, submitting that the Court should set aside the decision. The applicant’s assertions in the statements rise no higher than emphatic disagreement with Tribunal decision and invite the Court to engage in impermissible merits review. It was for the applicant to provide his evidence and arguments in sufficient detail to enable the Tribunal to establish the facts. The decision-maker is not required to make the applicant’s case for him, nor provide rebutting evidence before refusing to accept his claims.
CONSIDERATION
The Tribunal is not required to accept uncritically any and all claims made by an applicant: (see; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451). The onus of proof that an applicant meets the requirements for refugee protection lies with the applicant: (see; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]).
Further, there is no general obligation on a Tribunal to investigate an applicant’s claims: (see; Minister for Immigration and Multicultural and Indigenous Affairs vSGLB (2004) 207 ALR 12 at [43]). It is for the applicant to provide the evidence that they say supports their claim for protection.
The Court is restricted to judicial review and cannot undertake merits review of the Tribunal’s factual findings: (see; Minister for Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).
Given the lack of particulars, the bland assertions of jurisdictional error made by the applicant are liable for dismissal for that reason alone: (see; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]).
Ground one of the applicant’s purported grounds of judicial review, and his written submissions, amounts to no more than an emphatic disagreement with the factual conclusions of the Tribunal and a request for the Court to engage in impermissible merits review. Ground one has no merit.
Ground two complains that the Tribunal accused the applicant of lying. A transcript of the Tribunal hearing was not provided to the Court. A fair reading of the decision record does not support this claim. The Tribunal did not accept the applicant’s evidence. In so doing, the Tribunal’s factual findings were open to it, on the evidence provided and for the reasons it gave, including the adverse credit findings. Those findings are not tainted by any failure to afford procedural fairness, or reaching a finding without a logical or probative basis or legal unreasonableness: (see; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83]).
The mere fact that the Tribunal did not accept the assertions of the applicant, is not a matter of jurisdictional error, nor is it evidence of bias. Bias is a serious matter that requires proof. No material has been tendered to the Court which would indicate that the Tribunal was guilty of either actual or apprehended bias. Ground two has no merit.
Ground three is similarly misconceived. The Tribunal did not accept that the applicant faced a serious risk of harm in Pakistan for the reasons advanced by the applicant in support of his case. The Tribunal is not required to possess rebutting evidence before holding that a particular assertion is not made out: (see; AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 at [24]). The Tribunal did not find that the applicant would be safe, however it was under no obligation to do so. The Tribunal found that the applicant would not be at risk of serious harm for the reasons it claimed. That was what the Tribunal was required to do. Ground three has no merit
As the applicant was unrepresented the Court perused the Tribunal decision, and was unable to ascertain any jurisdictional error that was unarticulated.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.
Associate:
Dated: 21 October 2021
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