BCL15 v Minister for Immigration

[2015] FCCA 3083

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCL15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3083

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – whether Tribunal erred in finding documents not genuine – whether Tribunal erred in making adverse credit finding against applicant – whether applicant given opportunity to comment on findings – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 424AA, 425, 476

Criminal Procedure Code of Pakistan, ss.22A, 22B

First Applicant: BCL15

Second Applicant: BCM15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1683 of 2015

Judgment of: Judge Street

Hearing date: 18 November 2015

Date of Last Submission: 18 November 2015

Delivered at: Sydney

Delivered on: 18 November 2015

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Solicitors for the Applicant: Hutchison Lawyers

Counsel for the Respondents: Mr D Hughes

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The amended application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1683 of 2015

BCL15

First Applicant

BCM15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 25 May 2015 affirming a decision of the delegate not to grant the applicants protection visas. The applicants were found to be nationals of Pakistan and their claims for complementary protection were assessed against that country. The Tribunal formed the view that the applicant husband was not a witness of truth and had fabricated his entire claim. The Tribunal also found that the second applicant wife’s evidence was evasive throughout the hearing and inconsistent with the husband’s evidence.

2. The Tribunal found that a first information report or police complaint (FIR) and Court documents were not genuine and had been fabricated and the Tribunal placed no weight on those documents or the affidavits or letter to the inspector of police for reasons given by the Tribunal. 

3. The delegate found that the applicant’s claimed series of events during his visit to Pakistan in February 2013 were ones in which the applicant had fabricated the incidents in order to create a refugee claim in Australia.  The delegate accepted that the Court documents provided suggested they are a genuine document from a Pakistan Court and, accordingly, the delegate accepted those as genuine documents. 

4. The delegate, however, did not accept that the FIR was genuine. The delegate did not accept that the applicant had complained to the authorities in Pakistan. The delegate did not accept that the applicant was harassed in Pakistan on the basis of his religion as a Christian. 

5. The grounds of the amended application are as follows:

   GROUND 1

   I. The Tribunal committed jurisdictional error in applying the wrong test and/or ignoring relevant considerations and taking into account irrelevant considerations and/or misapprehending the Applicant's claim.

   Particulars

   1.1 The tribunal fell into error when it misapprehended the procedural application and the full scope of sections 22A and 228 of Criminal Procedure Code of Pakistan (CB 242; RRT decision at [13]) and thereby applying incorrect test in reaching concluding that the proceedings under these sections were not appropriate or competent in relation to the claim of applicant.

   1.2 The tribunal further fell into error by wrongly and incorrectly informing itself that sections 22A and 228 of Criminal Procedure Code does not address the Applicant's problem (and concluding that the whole process was not genuine and thereby making adverse findings) and thereby failing to assess the Applicant's claims as required by the Act.

   1.3 The Tribunal considered OECD summary (CB 242; RRT decision at [13] and Footnote 1) but failed to consider the Code and thereby failed to take into account a relevant consideration.

   GROUND 2

   2. The Tribunal was procedural unfair and denied the opportunity to be heard in relation to its findings on issues that affected the overall fact finding by the Tribunal and thereby breached s 425 and/or s 424AA of the Migration Act and/or made finding not supported by evidence. The Tribunal thereby committed jurisdictional error.

   Particulars

   2.1 The tribunal denied the Applicant procedural fairness in relation to identification of the Applicant by reference to his father-in-law (CB 244 - 245; RRT decision at [26] - [28]).

   2.2 The Applicant was not given any opportunity to address any cultural practices by the Tribunal and a finding is not supported by evidence of cultural practices evidence.

   2.3 The Tribunal failed to provide Applicant sufficient opportunity to address the application if the Code of Criminal Procedure of Pakistan and thereby breached s 424AA and/or s 425 of the Act

   GROUND 3

   3. The Tribunal 's decision is affected by legal unreasonableness when rejected the letter written by the Applicant and the application made and failed to properly consider the Pakistani law in rejecting documents and/or erred in construction of the Pakistani and/or applied wrong test or asked itself incorrect question. The Tribunal thereby committed jurisdictional error.

   Particulars

   3.1 The Tribunal rejected the genuineness of the application to the Court and rejected the relevant documents (CB 243 at [20]).

   3.2 The Tribunal erred by properly considering the law and that the Applicants' lawyers have made proper application to the Court.

   3.3 Any reasonable Tribunal would ascertain the facts and the law in carrying out its duties and properly construed and applied law and facts in making its findings.

   3.4 Relied on country information rather than ascertaining the actual law.

   3.5 Erred in its finding as to who could issue writs and petitions.

   GROUND 4

   4. The Tribunal further breached s 424AA of the Migration Act / denied procedural fairness on a number of claims in manner of running the hearing and thereby committed jurisdictional error.

   Particulars

   4.1 The tribunal denied the Applicant procedural fairness in relation to range of matter not giving the Applicant the time to deal with the information put to the Applicants (breaching s 424AA(2)(b)(ii) of the Act) by globally dealing with claims (transcript p36 line 25 to p 39).

   4.2 The Applicant was not given any opportunity to address information till the end of the hearing (although the Applicant was advised that additional time could be sought (transcript p36 line 33 - 33).

   4.3 The hearing ran in a manner denying the Applicant opportunity to seek additional time (424AA(2)(b )(ii) of the Act).

   4.4. The Tribunal failed to provide the applicant sufficient opportunity to address the information. The Tribunal thereby breached s 424AA of the Act.

6. At the commencement of the hearing, Mr Kumar, of counsel, sought to read an affidavit to adduce evidence of the law in Pakistan from a practitioner who identified he was admitted to practice law in Pakistan, purporting to identify, relevantly, the correct version of s.22A of the Criminal Procedure Code of Pakistan. That affidavit annexed a version of the provision of s.22A that referred in subs.(6) to an ex officio Justice of the Peace having power to issue appropriate directions to police authority concerning a complaint regarding (i) non-registration of a criminal case; (ii) transfer of investigation from one police officer to another; and (iii) neglect, failure or excess committed by a police authority in relation to its functions and duties.

7. The footnote to the provision identified it was added by Ordinance CXXXI of 2002 dated 21 November 2002. There was no other authenticity provided to identify the currency of the version of s.22A annexed to the proposed affidavit. The tender was objected to by counsel for the first respondent on the basis of relevance.  The question of foreign law is a question of fact for the Tribunal and, in essence, is in the same position as country information and it is not a matter in which this court can receive fresh evidence to make fresh findings of fact. The applicant tendered ss.22A and 22B referred to in the footnote of the reasons of the Tribunal, which included a partial description in the web address of September 2007.

8. That version of s.22A had no similar provision of s.22A(6) as was propounded by Mr Kumar to be the correct provision. The proposed affidavit material in support of the version of s.22A(6) was rejected by the Court on the grounds of not being relevant given that it was for the Tribunal to make findings of fact as to foreign law. It is clear from the material that was tendered, being exhibit C, that there was a rational and logical foundation for the finding made by the Tribunal as to foreign law in the present case. Mr Kumar, of counsel, conceded that without the benefit of s.22A(6) in the version of the legislation that he was seeking to propound, ground 1 could not be made out.

9. It is clear from the transcript that the Tribunal raised with the applicants the concern as to whether the FIR and Court documents were genuine and that the applicants appreciated that this was a live issue in the hearing before the Tribunal. The Tribunal also raised the legislative provision of ss.22A and 22B identified on the Court document purporting to be a petition under those provisions and identified that those provisions appeared to have nothing to do with petitions about harassment or humiliation. That concern was raised a second time by the Tribunal in compliance with s.424AA, relevantly as follows:

   MEMBER: The time is 11:58. Hearing is resumed. Okay. What I might just do now, Mr [BCL15], is just put to you some information in a formal manner because I’ve got to – I’m required to do that by legislation, and then I’ll – but just listen to it, I’ll explain it, and then I’ll get your comments. Okay?

   So, I have information that would be the reason, or part of the reason, for affirming the decision under review and I’ll explain the relevance of that information. You can seek additional time to respond if you wish. So, I’ll just explain the information and I’ll get you to comment or respond on that. Okay?

   So, that information is – the first part relates to information that you said in your interview with the Department of Immigration. So, in that interview you didn’t remember that you had – that – that when you were hit that you fell down. You said when they – when the people came to visit your father-in-law that they had said that you had been charged when in fact you hadn’t been charged for – until a number of days after that. You mentioned that you – other than this incident that you’d never suffered any previous harm or that your wife has suffered any previous harm.

   Now, in your – your wife’s evidence today – I know you’ve heard it, but I have to formally go over some of that with you and talk to you about that. So, some of that was – some of your wife’s evidence was inconsistent with your evidence. For instance that she said that she saw the FIR and documents about a week after you returned, whereas you said that you didn’t get that for two or three weeks after you returned. She said that someone tried to rescue you when you had fallen down, whereas you hadn’t mentioned that.

   Your wife said that your mother knows about the incident, whereas you said that she didn’t. Your wife said that people came in plain clothes and they may have been extremists but – but she wasn’t sure – they weren’t sure who they were, whereas you said they were Molvis and the police. Later your wife added that they could be police. Your wife’s evidence was also evasive about trying to explain when it was that she first knew – or, when it was that you told her about the incident and was evasive in discussions about what had happened since then, or whether there were any visits that have happened since the incident, and she didn’t know when the last visits by the people were.

   So, that information is relevant because your wife and yourself have given quite different accounts in major parts of the – your story. And, you’ve also given a slightly different account at your interview compared to in your – compared to in – compared to the hearing. So, as to that the Tribunal may doubt that – doubt your claims in relation to this incident or that people came looking for you or that you were charged with anything. The Tribunal – and, the Tribunal may doubt your credibility and your wife’s credibility and your credibility generally and as a result the Tribunal may affirm the decision under review.

   So, do you understand that information?

   MR [BCL15]: Yes.

   MEMBER: Okay. So, as I said, I – I haven’t made up my mind it’s just I have got to put that information to you and I need to get your response in terms of what you have to say. Did you want to say anything about that?

   MR [BCL15]: First point – the first point, on the 17th, when they came to my father-in-law’s home and said that, “[X] has been charged,” so that “charged” word was used just to threaten and – and to make me scared. So, officially, the FIR that was submitted was actually submitted on the 22nd. So then, later on, my lawyer sent me those copies. So, I have not mentioned to my mother anything about this. It is possible that she might know about it, but she didn’t talk to me about it.

   MS [BCM15]: So, it was - - -

   INTERPRETER: Sorry, what was the - - -

   MS [BCM15]: Like, I could not resist and – and – and the younger  daughter as well because she felt that there was something happening in the house.

   MR [BCL15]: If all this was not true then why would I go up to the court to save my life? On whatever steps I have taken so far are all legal steps. Even the immigration officers accept this part – point. So, even they – all my legal documents, my court documents are all genuine.

   MEMBER: And, as I said, you’d be aware that the country information is such that that court document that you say you filed for your protection, the section that it’s referring to is not the correct section.

   Sections 22A and 22B are about the appointments of Justices of the Peace and what their duties are.

   INTERPRETER: So, section 21A or - - -

   MEMBER: Twenty-two. Twenty-two.

   INTERPRETER: Sorry. Sorry.

   MR [BCL15]: So, Ma’am, this is not my fault. I had trusted my lawyer and I had mentioned to him about my situation and I – it was all about harassment and humiliation and that was that I was going through. So, all these legal things, all these legal things we don’t – as – as a common man we don’t understand all of that. That is – that is the reason why we go to the lawyers and we discuss everything with the lawyers.

   MEMBER: Okay. All right. Is there anything else you want to say about that information?

   MR [BCL15]: We are just requesting you that please don’t send us back to Pakistan as this time the Molvis come there every so often. But, if I got there then they will definitely find me and they will kill me.  Please save me from the death. I don’t want to go back.

   MEMBER: Let me just put some information to you, too, that you need to be aware of, some country information. So, I’m just reading from the Department of Foreign Affairs country report on Pakistan. So, this is the Australian Government report. And, it’s 5 to say that there’s between four and six million Christians living in Pakistan and Christians are the second-largest non-Muslim minority and the majority live in the Punjab. Though many are still among the poorest in Pakistan a small number are economically and socially prosperous and are employed in politics, education and the health sector.

   It’s said Christians are disproportionately represented in the blasphemy cases. Christians are legally able to worship freely. And, then there have been some attacks, particularly where there’s been allegations of blasphemy. That there is a low level of official discrimination and a moderate level of societal discrimination and that there’s a low level of communal and sectarian violence.

   They say several cases of blasphemy have been dismissed by the courts after dubious accusations or improper investigations. So, yes, I mean, sometimes people will bring false blasphemy charges against others. We talked about that your FIR looks like it’s a fraudulent document. There’s country information also that says that bogus FIRs and court documents can be registered by bribing the police, and also to initiate simulated criminal proceedings against, for example, by also putting in fake stories in newspapers.

   So, for instance, the FIR, as I said, that you’ve provided the country information says it’s to be signed by both the complainant and by the police, and your document’s not – hasn’t done that. The other problem with your FIR is that it – it’s inconsistent with what you say has occurred because it says that you introduced yourself to the – to the – the Molvis.

   So, for that – my concerns are about the credit of those claims, and if – while I accept that there’s some – my – there’s some discrimination against Christians it’s – I need to be satisfied that there’s any serious harm or significant harm.

10. It is clear from the reasons of the Tribunal that there were a combination of concerns in relation to the FIR and the Court documents in the adverse finding made by the Tribunal and in the adverse finding was not restricted to consideration of the work done ss.22A and 22B of the Criminal Procedure Code of Pakistan. The adverse findings that the FIR and Court documents were not genuine cannot be said to lack an evident and intelligible justification and were clearly open on the material before the Tribunal. No jurisdictional error is made out by ground 1.

11. In relation to ground 2, counsel for the applicant focused on the findings by the Tribunal in paras.26 to 28 as follows:

    26. Further, that he could get up with a crowd gathered around him and escape to his motorbike, which was parked on the side of the road, and then leave his cousin behind lacked credibility. Further, that he did not know and was not interested in how his cousin got home lacked credibility. The applicant said it was because he was scared for his life. Even if he were scared, leaving his cousin behind would also have implications for him and his cousin, as a witness left behind who might be further harassed and help to identify the husband. Further, on his evidence, his cousin helped him up from the ground so it seems odd that the husband would then get on the bike alone and leave his cousin behind. The tribunal was of the view that the applicant was making up his story as he went along. Further that after being so scared for his life he continued on his way for another 15 minutes by bike to get his mother’s medicine and leave his cousin behind lacked credibility. The tribunal does not accept if he were that scared and just been involved in a such an incident that he would continue on to buy his mother’s medicine.

    27. The husband claimed he was recognised as the son in law by someone in the crowd and they told the police, so the police went to the father in law’s house for him. However the tribunal considers that someone recognised him as a relation to the father in law relation but did not recognise him is lacking in credibility, particularly given the applicant was at his local market close to home. Even if well-known, his father in law lived 30 minutes away by car from where the husband was harassed, whereas it was the husband’s local market. Further, if they knew the father in law’s name and the husband’s relationship it does not make sense that they did not know or could not find the husband’s home as he lived locally and had lived at the same place all his life.

    28. The applicant said as his father had died 12 years ago, so he was recognised by the father in law’s name. The tribunal does not accept this explanation as the applicant had been married for some time and lived at his mother’s home as the male of the family. The tribunal does not accept that he, as a married adult male, would be linked to or recognised by his father in law’s name. Further his passport confirms that he is known and associated to his own father’s name, and not that of his father in law. His wife’s passport refers to the husband as well. The husband also has always lived at his own family home. The husband then claimed he stayed sometimes at the father in law’s house. The tribunal considers the husband was making up the account and adding to it in response to tribunal concerns.

1. During the hearing the Tribunal raised concern about how the applicant was identified in relation to the incident alleged to have taken place on 15 February 2013.  The applicant gave evidence:

   They recognised me.  The reason why they recognised me is because of my father-in-law, because he works in the electricity department.

2. The Tribunal explored with the applicant where the applicant was in fact living and the applicant’s assertions in relation to police coming to his father-in-law’s home. It was a matter for the Tribunal, whether or not to accept the applicant’s credit in relation to the incident described by the applicant and it was open to the Tribunal to make an adverse finding in relation to the applicant’s evidence about being recognised because of his father-in-law. The evidence of the applicant in relation to his father-in-law is not a matter that enlivened any obligation under s.424A. This issue surrounding the father-in-law was the same issue that the delegate had not accepted in relation to the events that occurred in February of 2013.

3. No evidence was led about particular cultural practices, and the reference to cultural considerations does not identify any rational or logical error in the adverse finding made by the Tribunal being open. I find there is no breach of s.425 of the Act. I do not accept that the adverse finding in relation to the father-in-law was information of a kind that enlivened any obligation under s.424A or could give rise to any breach of s.424AA.

4. Insofar as the applicant has referred to information concerning the criminal procedure of Pakistan, it is clear that that was raised as a live issue in the course of the transcript and that there was no breach of s.425 in that regard. It was not suggested by counsel for the applicant that the provisions of the criminal code fell within s.424A. I do no regard the provisions of ss.22A and 22B as enlivening any obligation under s.424A(1). Even if, contrary to the view I have expressed, those provisions did fall within s.424A(1), the Tribunal complied with the requirements of s.424AA, given the matters identified on pp.36 to 39 of the transcript quoted above. Accordingly, ground 2 fails to make out any jurisdictional error.

5. In relation to ground 3, again Mr Kumar of counsel properly conceded that the substance of this ground was dependent upon the version of s.22A(6) that was rejected by the Court. Insofar as ground 3 raises an issue of unreasonableness of the adverse findings of the Tribunal concerning the FIR document and the Court documents, those adverse findings cannot be said to lack an evident and intelligible justification. There is no substance in the contention that the Tribunal applied the wrong test or asked itself the wrong question. Ground 3 fails to make out any jurisdictional error.

6. In relation to ground 4, Mr Kumar of counsel submitted that the information raised on pp.36 to 37 was not information in respect of which the applicant was given the opportunity to comment, as required by s.424AA(1)(b)(ii). It is clear that the Tribunal indicated to the applicant that the applicant could give comments on the information being provided by the Tribunal that would the reason or part of the reason for affirming a decision under review and that the applicant was informed he could seek additional time to respond, if he wished. The applicant was told for a second time that he could then comment or respond. It is clear that the applicant did comment and respond and did not seek any adjournment or further opportunity to respond. There was no breach of s.424AA(1)(b)(ii) by the Tribunal.

7. To the extent that ground 4 in submissions refers to the Tribunal finding the FIR was not authentic and there was an alleged breach of ss.424, 425 and 424AA or 424A, I accept the submissions of the first respondent, that the requirements of s.424AA were complied with, and there was no breach of ss.424 or 425. Ground 4 fails to make out any jurisdiction error. The amended application is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  25 November 2015