BFY15 v Minister for Immigration

[2016] FCCA 1672

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFY15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1672

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to notify the applicant that his credibility was in issue – whether the Tribunal failed to consider an integer of the applicant’s claims – whether the Tribunal failed to apply the relevant law – real chance test – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 116, 351, 474, 476, 486E

Federal Circuit Court Rules 2001, r.44.05

Cases cited:
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Applicant: BFY15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1838 of 2015

Judgment of: Judge Street

Hearing date: 5 July 2016

Date of Last Submission: 5 July 2016

Delivered at: Sydney

Delivered on: 5 July 2016

REPRESENTATION

Solicitors for the Applicant: Mr S Hodges
Stephen Hodges Solicitor

Solicitors for the Respondents: Mr J Hutton
Australian Government Solicitor

ORDERS

1. The particulars in the Applicant’s written submissions filed on 9 September 2015 be treated as the particulars in the amended application filed on 9 September 2015 and the need to file any further document in this regard be dispensed with.

2. The amended application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1838 of 2015

BFY15

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 12 June 2015 affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Pakistan. The applicant applied for a student visa on 27 March 2007 which was approved on 30 May 2007 and the applicant arrived in Australia on 10 June 2007. The applicant applied then for a student visa vocational education and training sector visa on 26 August 2009 which was approved on 3 December 2009.

2. On 26 July 2012 visa cancellation consideration commenced. On 24 August 2012 the visa was cancelled under s.116 of the Migration Act 1958. On 25 September 2012 a review application of the cancellation commenced and on the 9 April 2013 the then-named Migration Review Tribunal affirmed the cancellation of the applicant’s visa. The applicant then applied for ministerial intervention on 9 May 2013. On 5 September 2013 the decision not to exercise any power under s.351 of the Migration Act 1958 was conveyed and it was not until 26 September 2013 that the applicant first applied for protection.

3. The delegate made adverse credit findings in relation to the applicant’s credibility and was not satisfied there was a real chance of the applicant being persecuted for a Refugee Convention reason and was not satisfied that the applicant’s fear was well-founded. The delegate was also not satisfied that the applicant faced a real chance of being subject to significant harm should he return to Pakistan and it was in those circumstances that the delegate found that the applicant failed to meet the criteria under s.36(2) of the Act.

4. The applicant applied for review on 4 April 2014.  By letter dated 16 March 2015, the applicant was invited to attend a hearing before the Tribunal.  The applicant attended on that date to give evidence and present arguments and was assisted by an interpreter as well as being represented by his registered migration agent and his wife also gave evidence.  The Tribunal made adverse credibility findings in relation to the applicant’s evidence.  The Tribunal found that the applicant and his wife were not witnesses of truth and that the account of events on which the applicant’s protection claims were based was false.

5. The Tribunal made express reference to the inordinate delay by the applicant in seeking to advance any claim for protection.  The adverse credibility findings by the Tribunal were open on the material before the Tribunal.  It is in those circumstances that the Tribunal dealt with the applicant’s claims and evidence and made adverse findings including that it was not satisfied that the evidence of the applicant and his wife demonstrated a genuine relationship.  The applicant claimed to fear harm on the basis of being a Shia man from a particular area who lived in Australia since 2007 and had married a Christian woman from Fiji of Indian ethnicity and, at the time of the hearing, who were expecting a child.

6. The applicant claimed that he left Pakistan after being beaten by a parental uncle for assisting a cousin in a relationship. The applicant claimed in 2009 he began a relationship with a Christian woman of Indian ethnicity who is a Fiji national and that the couple had been living together in August 2011 and were married in June 2012.  The applicant alleged that his family in Pakistan disapproved of the relationship and marriage to the Christian woman and that in June 2012 his father threatened to kill him if he came back to Pakistan.

7. The applicant alleged that, at or about the same time, he received telephone calls from people that did not identify themselves but who he thinks was his paternal uncle threatening to kill him if he goes back to Pakistan. The Tribunal gave detailed reasons in support of the adverse credibility findings and found that there was not a real chance the applicant will suffer serious harm in Pakistan because he is a Shia man from a particular area who has been in Australia since 2007 or because he married a woman of Indian ethnicity from Fiji who will give birth to their child later in the year.

8. The Tribunal found that the applicant did not have a well-founded fear of persecution based on any Convention reason. The Tribunal took into account the applicant’s claim in relation to his wife being a Christian and the Tribunal found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country that there is real risk he will suffer significant harm. It was in those circumstances the Tribunal found that the applicant did not meet the criteria under s.36(2) of the Migration Act 1958 and affirmed the decision of the delegate.

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

   Ground 1

   The tribunal committed a jurisdictional error because its credibility/factual findings generally in the decision depart from the Delegate's reasons without warning for the purposes of Section 425 of the Migration Act and contrary to the requirements described by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006]HCA63.

   PARTICULARS

   21.1 The delegate's decision against which the applicant appealed [86-92] accepted that the applicant and his wife were in a genuine relationship [88].

   21.2 During the hearing the AAT did not inform the applicant that the above finding of the delegate was suspect to challenge;

   21.3 The letter of 5 May 2015 did not advise that the delegate's finding that the applicant and his wife were in a genuine relationship was an issue.

   21.4 Similarly, the applicant was not informed either in the hearing or in the letter of 5 May 2015 that his wife's pregnancy was an issue;

   21.5 Similarly, the applicant was not informed that representations he and his wife made to the third party witnesses were likely to be found to be “false”"

   21.6 The findings particularised were inconsistent with the findings of the Delegate

   21.7 While the AAT in the hearing and in the 5 May 2015 letter did inform the applicant that his credibility was in issue that was insufficient warning that basic facts accepted by the Delegate were to be re-opened. To the contrary, the letter of 5 May 2015 led the applicant to understand that peripheral matters were in issue.

   21.8 The applicant did not have any or sufficient notice that the findings of the Delegate were to be departed from.

   Ground 2

   22 The AAT committed jurisdictional error by failing to identify, or sufficiently identify, describe or consider the Refugees Convention reasons alleged by the applicant to be the cause of his well-founded fears. The AAT failed to fully analyse and/or make findings about the bases of the applicant's fears as discussed by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.

   PARTICULARS

   22.1 The AAT described the applicant [185] as a Shia man from Karachi who has lived in Australia since 2007 and married a Christian woman from Fiji of Indian ethnicity who is expecting their child.

   22.2 At [187] the AAT refers to country information which “revealed that harm is most likely to ensue in those cases where a Christian man marries a Muslim woman. The basis of this assertion is [footnote 33] “in Muslim societies the father determines what religion the children will have ............”.

   22.3 The AAT did not identify this source or reason to the applicant or his representative, either during the hearing or in the letter of 5 May 2015.

   22.4 The AAT did not consider or explore the possibility that by reason of his many years in Australia the applicant had more modem or western views on how the religion of his children would be determined.

   22.5 The AAT did not give the applicant the opportunity to comment on the arrangements with his wife as to the proposed religion of the child;

   22.6 The AAT did not consider the possible harm to the applicant and the child if the child is a returned to Pakistan as a Christian.

   22.7 The AAT did not consider that the applicant's intermingling with the followers of his wife's religion indicates an abatement of his strict Muslim religious beliefs.

   22.8 The AAT did not consider the harm likely to ensue to the applicant whose profile should have been “former Shia Muslim man from Karachi, who has lived in Australia since 2007, has adapted Western values and behaviour, has attended Christian churches, married to Christian woman, has a child who is also a Christian and is returned to Pakistan”

   Ground 3

   23 The AAT committed jurisdictional error by failing to follow the principles stated by the High Court in the matter of Minister/or Immigration v SGLB [2004] HCA 21 at 73 and the Federal Court in Sundaraj v MIMA [ 1999] FCA 76. In the latter case the court determined that

   “The Tribunal should understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people .. . ... ... ...... ...... .... should be recognised and recognised by more than lip service”.

   PARTICULARS

   23.1 The AAT's finding that the applicant lacked credibility is based on poor reasoning, is internally inconsistent and relies almost entirely on alleged inconsistencies, many of which are of little note.

   23.2 At [184] the AAT found that it has no credible evidence about the relationship between the applicant and his wife beyond the fact that they were married in a registry office in Sydney in June 2012 and the fact that the wife is pregnant. The AAT disbelieved all of their claims about how they met, how they saw each other and how and when they started living together. The AAT also did not “believe” this couple are genuinely committed to each other as partners or spouses. The AAT stated no evidence for its belief.

   23.3 At [184] the AAT reversed both the benefit of doubt and the “real chance test” particularly in the statement, which cannot be a finding, “it is not inconceivable,,,,,,”. And “there is no credible evidence as to the pregnancy of the applicant's wife”. This is despite the presentation of what is described as the “the results of an ultrasound” [see foot note 16].

   23.4 At [185] the AAT considered evidence adduced to prove the genuineness of the relationship between the applicant and his wife. Some is in the form of documents and is from third parties.

   23.5 At [185] the AAT acknowledged third party evidence adduced and found that it did not overcome the concerns the AAT held. The AAT made no findings as to the third party evidence. The inference is that the AAT accepted the claims of the third parties but found it did not establish proof.

   23.6 In [par 74 on 184] the AAT found that the third party evidence was nothing more than “false representations” that they (the applicant and his wife) have made to the church.

   23.7 The AAT does not identify the representations made to the witnesses and there is no evidence to support the claim that they are false.

   23.8 At 184 and 185, the AAT appears to accept that the applicant's wife is pregnant [paragraph 70], no credible evidence of pregnancy [paragraph 71] and pregnant [paragraph 75].

   23.9 Generally the AAT relied on inconsistencies about inconsequential matters to and allowed concentration of finding to distract it from adequate consideration of the applicant's relationship. Given that the applicant's wife was pregnant, it is clear that the couple had met. Discrepancies in events relating to how they met, how often they met and other practical details are of no relevance.

10. At the commencement of the hearing, the Court made an order treating the particulars identified in the applicant’s submissions as if part of the application and dispensing with the need for the applicant to file any further application. The Court rules under r.44.05 of the Federal Circuit Court Rules 2001 require an application to be in the approved form.

11. The approved form of application to show cause identifies a requirement that there be set out grounds of application in accordance with the instructions for completion. Those instructions for completion specify that each ground of the application must identify jurisdictional error by reason of which it is claimed the migration decision under review is not a privative clause within the meaning given by s.474 of the Migration Act 1958. The instruction further provides particulars of each ground must be provided which are sufficient to allow the court to understand how each ground relates to the decision, the reasons for the decision, the circumstances of the decision or the procedures concerned with the making of the decision as the case may be.

12. The amended application in the present case did refine with greater clarity and precision the more numerous grounds identified in the application originally filed.  It is obviously desirable for applications or amended applications to be in the form required under the rules in accordance with the instructions because of the requirements of the Migration Act 1958 in relation to the certification of a practitioner and the consequences that may follow if there is found to be a breach of s.486E of the Migration Act 1958. That said, the Court was satisfied that this was an appropriate case in which to dispense with the need for the filing of any further application given the clarity of the grounds as articulated by the solicitor for the respondent. 

13. In relation to ground 1, it is apparent on the reading of the Tribunal’s decision that the issue of the applicant’s credibility was a live issue before the Tribunal.  The solicitor for the respondent relied upon the proposition that the delegate had found that the relationship between the applicant and his wife was genuine.

14. No transcript was tendered in relation to the hearing before the Tribunal.  From the Tribunal’s reasons alone, it is apparent that there was a live issue in relation to the applicant’s credibility raised during the hearing.  Following the hearing, a letter was sent to the applicant’s representative dated 5 May 2015 which raised a number of matters in relation to which it might be found that the applicant was not a witness of truth and those matters included issues relating to the relationship with the applicant.

15. That the letter sufficiently raised the issue of a genuine relationship, even if it had not otherwise been apparent from the hearing before the Tribunal, is clear from the submissions in response dated 13 May 2015, which expressly addressed the issue of whether there was a genuine spousal relationship. To the extent of reference to the wife’s pregnancy, there was no adverse finding in that regard by the Tribunal and the reference to doubt about that matter could not be said to have been the subject of any material adverse finding.

16. A criticism in relation to the Tribunal’s reasoning about the representation of the applicant and his wife to third parties attending churches was an adverse finding based on the credibility of the applicant and was open on the material before the Tribunal.  I reject the submission that the finding that the representations by the applicant’s wife were false was an issue of a kind that engaged in the obligation under SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. It is not necessary for the Tribunal to raise its reasoning process with the applicant and the issue of the applicant’s credit was patently a live issue at the hearing and was further addressed in subsequent communication sent by the Tribunal to the applicant’s representative and addressed by the applicant’s representative. Ground 1 fails to make out any jurisdictional error.

17. In relation to ground 2, the Tribunal made adverse findings in relation to the applicant’s claims.  There was no claim advanced before the Tribunal or the delegate that the child was a Christian.  Indeed, the child was not born at the time of the hearing before the Tribunal.  The only evidence that had been adduced which was referred to by the delegate was that a child of a Muslim male was likely to take the religion of the father.  Be that as it may, no claim was advanced before the Tribunal and no claim arose on the papers before the Tribunal to make findings as to whether the child would be a Christian.

18. There was no failure by the Tribunal to address the applicant’s claims and the Tribunal properly identified the relevant law in relation to the adverse finding made as to whether the applicant had a well-founded fear of persecution.  Ground 2 fails to make out any jurisdictional error. 

19. In relation to ground 3, this is, in substance, an impermissible challenge to the adverse findings of fact made by the Tribunal.  This is not a case where it could be said that the adverse credit findings were not open.

20. The Tribunal expressly took into account the submissions made in relation to the assessment of credibility of the applicant and the submission that the Tribunal should extend the benefit of doubt to the applicant and his wife.  With respect to concerns the Tribunal might hold about their credibility of witnesses, I do not accept that the Tribunal’s reasoning reflected the uncovering of little discrepancies.  It is apparent that the Tribunal gave careful and detailed analysis to the credibility issues that arose in relation to the applicant’s evidence.

21. There was no error of principle in the adverse credibility findings made by the applicant and, as indicated, those adverse credibility findings were open. Ground 3 fails to make out any jurisdictional error. 

22. The amended application is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 18 July 2016