BGZ15 v Minister for Immigration

[2017] FCCA 202

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGZ15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 202

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the standard of interpretation at the Administrative Appeals Tribunal hearing was such that it was a denial of procedural fairness under section 425 of the Migration Act 1968 (Cth) – whether the Administrative Appeals Tribunal took into account irrelevant considerations – whether the Administrative Appeals Tribunal failed to take into account relevant considerations – whether the Administrative Appeals Tribunal failed to give a proper, genuine and realistic consideration to the applicant’s claims – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 411, 422B, 424A, 424AA, 425, 474,
Migration Regulations 1994 (Cth), reg.2.01.

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
BZAID v Minister for Immigration and Border Protection [2016] FCA 508
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996)
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

Applicant: BGZ15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1872 of 2015

Judgment of: Judge Emmett

Hearing date: 7 February 2017

Date of Last Submission: 7 February 2017

Delivered at: Sydney

Delivered on: 7 February 2017

REPRESENTATION

The Applicant appeared in person with the assistance of an Urdu interpreter.

Solicitor for the Respondents: Tomas Shaw
(Clayton Utz)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 1872 of 2015

BGZ15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 12 June 2015 (“the Tribunal”).

2. The applicant claims to be a citizen of Pakistan and a Shia Muslim, who fears harm from the Sunni Muslims in Pakistan.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

1. The applicant arrived in Australia on 10 December 2013 having departed legally from Pakistan on a passport issued in his own name and a visitor visa issued on 3 September 2013.

2. On 17 January 2014, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 31 July2014, the Delegate refused the applicant’s application for a protection visa.

4. On 16 August 2014, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

5. On 12 June 2015, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

6. On 6 July 2015, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

3. Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Sections 36(2A) and 5 of the Act defines “significant harm.”

7. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

8. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:

   “424A  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.

   425  Tribunal must invite Applicant to appear

   (1) 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.”

9. Section 424AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

10. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

11. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a protection visa

1. In his application for a protection visa, the applicant claimed to have been born a Shia Muslim and to be actively involved in the management of his local Imam Bargah. The applicant claimed to have received numerous threats from members of Sipah-e-Sahaba who he claimed threatened to stop funding and supporting the local Imam Bargah.

2. The applicant claimed that he was attacked in June 2009 and that he tried to lodge a complaint against his assailants. The applicant claimed that he was informed that his assailants were members of Sipah-e-Sahaba. The applicant claimed that the police office did not believe him and recorded the assailants as “unknown”.

3. Following this event, the applicant felt threatened and he and his entire family moved to Layyah a couple of months after the incident. The applicant attempted to obtain a visa to go to the UK but it was refused. The applicant obtained a visa to go to Malaysia in 2012 and arrived in Malaysia, following which he obtained a visa in 2013 to come to Australia.

4. The applicant claimed he would be killed by Sunni militants and other anti-Shia persons in Pakistan, and that Shia Muslims are a minority in Pakistan and are under constant threat. The applicant claimed to fear harm from Sunnis and militants from Sipah-e-Sahaba because of his Shia religion and his active involvement in the management of the local Imam Bargah. The applicant claimed that authorities in Pakistan failed to protect its citizens.

5. The applicant provided a further statement in support of his protection visa in which the applicant expanded on his claims. He claimed to have left Pakistan in 1998 for Korea due to constant reprisals, threats and hatred from his neighbours. The applicant claimed that he returned from Korea in 2003 and started his own business in toy manufacturing. The applicant became involved with his local Imam Bargah and was on the management committee to look after and care for the Imam Bargah. The applicant claimed to be constantly harassed and threatened with abduction and death if he did not stop. His family was also threatened.

6. The applicant provided further details about the attack on him in June 2009 and the police’s refusal to record his attackers as anti-Shia militants, Sipah-e-Sahaba.

7. The applicant stated that whilst he and his family moved to Layyah out of fear following the attack, he would return to his original neighbourhood because he had a successful business running in Faisalabad.

8. The applicant claimed that if he was to return to Pakistan he would be identified by Sunni militants and killed due to his sponsorship and involvement in the Shia mosque. The applicant also claimed that he would not be safe anywhere else in the country as he would not be able to express his religion with complete freedom.  

The Delegate’s decision

1. On 28 July 2014, the applicant attended an interview with the Delegate.

2. The Delegate noted that, despite the threats received, the applicant repeatedly returned to Faisalabad to run his business. As such, the Delegate was concerned about the veracity of the applicant’s claims, and found that that his actions did not reflect a fear of serious harm.

3. The Delegate also had regard to country information and the applicant’s personal circumstances, including the fact that the applicant and his family had successfully relocated and resided in Layyah since 2009. The Delegate also noted country information suggested that state protection existed in Pakistan. Accordingly the Delegate found that the applicant could reasonably relocate within Pakistan. 

4. On 31 July 2014, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

The Tribunal’s review and decision

1. On 16 August 2014, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. The applicant provided further documents in support of his review application, including written submissions by his migration agent, statements in support by friends and various newspaper articles.

3. On 20 April 2015, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 25 May 2015 to give oral evidence and present arguments.

4. On 25 May 2015, the applicant attended the Tribunal hearing and gave evidence. The Tribunal also heard submissions from his representative and considered further post-hearing written submissions.

5. The Tribunal’s proceeding is accurately summarised by the first respondent in written submissions filed on 3 February 2017 as follows:

   “Tribunal proceedings

   11. During the course of the Tribunal review, the applicant provided various submissions, affidavits and other documents in support of his application. In a post hearing submission to the Tribunal, the applicant asserted that:

   (a) he suffered from a communication disorder. The applicant claimed that in “high pressure” circumstances or times of “high nervousness” he experiences trouble comprehending “the communications of others" and in formulating responses; and

   (b) upon listening back to the Tribunal hearing with “others”, he had identified many instances where the translation was incomplete or otherwise not accurate.

   12. The Tribunal did not accept that the applicant was a truthful witness. It found that the applicant manufactured his claims to fear harm in Pakistan. The Tribunal did not accept:

   (a) the applicant's evidence regarding the circumstances of his arrival in Sydney or his claims to have fled Pakistan because he feared harm. The Tribunal found that the applicant had attempted to conceal details regarding the assistance he received upon his arrival in Australia;

   (b) the applicant's evidence that for two years he was trying to sell his business rather than continuing to operate it. The Tribunal found that this evidence was altered in response to its concerns as to why the applicant would continue to operate his business in Faisalabad in circumstances where he was allegedly sought by terrorists;

   (c) that the applicant was targeted by, or feared harm from terrorists given he remained operating his business in Faisalabad until at least 2011 after being told he would be killed in 2009;

   (d) that the Sipah-e-Sahaba would continually threaten the applicant for some two and a half years and not be able to harm him after August 2009;

   (e) that the First Information Report (FIR) was genuine. Similarly, the Tribunal did not accept that the other documentary statements from persons in Pakistan were genuine;

   (t) that the applicant's 2009 injuries were sustained due to an attack by terrorists. The Tribunal did accept that the medical documents were genuine. It found that the applicant had sought to rely on the injuries sustained in 2009 and his subsequent hospitalisation in order to fabricate claims for protection in Australia;

   (g) that the applicant suffered from a communication disorder. It considered that the disorder bad been raised in an attempt to overcome the problematic nature of the evidence given during the hearing and the Tribunal's concerns in relation to that evidence; and

   (h) the applicant's claims regarding the “interpretation difficulties" during the hearing. Having considered the applicant's complaints, in the context of its exchanges with the applicant at the hearing, the Tribunal did not accept it was necessary to obtain a transcript of the hearing or to provide the applicant with additional time to listen to the recording of the hearing.

   13. The Tribunal considered it likely that the applicant had fabricated his claims to be a Shia to provide a basis for Australia's protection. It found that the applicant was likely to be a member of the Sunni majority in Pakistan. The Tribunal was not satisfied that there was a real risk that the applicant would suffer serious or significant harm if he returned to Pakistan.”

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of an Urdu interpreter. 

2. On 30 July 2015, the applicant attended a directions hearing before a Registrar of the Court. On that occasion, the applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.

3. At the outset of today’s hearing, I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.

4. The applicant confirmed that he has not filed any Amended Application, evidence or submissions in support of his application and that he has no further documents to present to the Court this morning in support of his application.

5. The applicant confirmed that he relied on the grounds contained in his initiating Application filed on 6 July 2015, as follows:

   “1. The second responded relied on a disputed interpretation of the applicant's responses. Also the tribunal hired an incompetent interpreter, who made numerous mistakes during translation, which were identified by the applicant's representative in subsequent responses.

   2. The second responded did not considered full extent of evidence presented and omitted to take into account some trivial evidences.

   3. The second responded failed to take into consideration applicant's vulnerable situation after arrival in Australia and have relied heavily on his residence in a “sunny dominated area” of Lakemba.

   4. That the second respondent failed to afford to the applicant procedural fairness, by failing to give proper, genuine and realistic consideration to the applicant's claims.

   5. The second respondent failed to take into account the applicant's articulated fear of attack at the hands of Sipahe Sahaba, and evidence to support it.”

   (Errors in original).

6. Each of the grounds was interpreted for the applicant and the applicant was invited to say whatever he wished in support of each of the grounds and in support of the application generally.

Ground 1

1. Ground 1 asserts that the Tribunal relied on a disputed interpretation of the applicant’s responses, that the Tribunal’s interpreter was incompetent and made numerous mistakes in translation which were identified to the Tribunal by the applicant’s representative.

2. On 31 May 2015, following the Tribunal hearing, the applicant’s representative wrote to the Tribunal, identifying various translation errors which the representative submitted were incomplete or inaccurate. In its decision record, the Tribunal summarised in detail the concerns expressed by the representative at paragraphs 21 to 23 of its reasons. Those paragraphs were interpreted for the applicant this morning and he confirmed that the Tribunal’s summary of the interpretation complaints was both accurate and complete.

3. The applicant’s representative claimed that he listened to the recording of the hearing with other identified persons who could speak and understand Urdu and English. The representative stated that:

   i)The applicant’s business involved children’s leisure and ride equipment, yet the interpreter interpreted the applicant’s evidence of his business to involve toys and swings, thereby giving an incorrect view of the applicant’s business model;

   ii)The applicant’s evidence to have moved to a small village or town of Layyah, whereas the interpreter interpreted the applicant’s evidence as a small area of Layyah;

   iii)When translating in English, the interpreter frequently inserted the word “like” at the beginning of phrases and sentences and the word “like” was not used by the applicant.

1. The representative asserted that the applicant’s evidence in relation to Layyah and the use of the word “like” may have been perceived by the Tribunal as evasive on the part of the applicant.

2. The Tribunal then noted the applicant’s request for a word-for-word transcription of the Tribunal hearing by an experienced NAATI qualified professional Urdu/English translator. The Tribunal considered these complaints at paragraph 47 of its reasons, which was also interpreted for the applicant at the hearing before me.

3. The Tribunal did not accept the applicant’s claims in relation to the identified interpretation errors. The Tribunal found that the examples referred to were clarified during the hearing.

4. In relation to (i) the applicant’s business, the Tribunal noted that it initially had some difficulties understanding the nature of the applicant’s business and noted that the applicant’s statement to the Department referred to his business in toy manufacturing. The Tribunal did not accept that the Tribunal’s difficulties in understand the nature of the applicant’s business were due to interpreting problems but found that they were due to the Tribunal seeking to clarify how the applicant made an income from making swings and other equipment installed in parks.

5. In relation to (ii), the Tribunal accepted that the interpreter may have incorrectly interpreted the applicant’s response as a small area of Layyah, however, this was also explored and clarified by the Tribunal at the hearing.

6. In relation to (iii), the Tribunal noted that it re-listened to the recording of the hearing and did not accept that the interpreter frequently used the term “like” or that the interpretation in any way undermined the seriousness of the issues involved or affected the Tribunal’s assessment of the evidence.

7. The Tribunal noted that the applicant did not identify any other area of concern which was material to his claims and did not accept that he has identified any incorrect translation errors or mistakes. Further, the Tribunal did not accept that the applicant’s failure to do so was due to inadequate time. The Tribunal found that the applicant had not done so because there were no interpreting errors which were material to the applicant’s claims and evidence provided during the hearing.

8. The Tribunal did not accept that it was necessary or desirable to obtain a transcript or provide the applicant with additional time to listen to the recording. The Tribunal found that the applicant had “clearly listened to the recording and has identified two areas of concerns.” The Tribunal was satisfied that the areas of concerns had been clarified during the hearing.

9. In BZAID v Minister for Immigration and Border Protection [2016] FCA 508 at [50] – [54], Edelman J summarised the relevant legal principles concerning whether defective interpretation would cause a denial of procedural fairness under s.425 of the Act. Those paragraphs are as follows:

   “[50] In Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6, 19 [29], Kenny J said of an earlier version of s 425 that:

   Whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language.

   [51] That statement has been described as the "seminal" statement in this area and has been applied to s 425 in its current form: SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 [29] (Jacobson J).

   [52] The legal principles concerning whether defective interpretation has caused a denial of procedural fairness under s 425 are well established. Some of the leading cases other than Perera are as follows: SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR 1; and SZSEI v Minister for Immigration and Border Protection [2014] FCA 465. See also the illuminating article by Perry M and Zornada K, "Working with Interpreters: Judicial Perspectives" (2015) 24 JJA 207. The relevant principles are summarised below:

   (1) interpretation involves an expert exercise involving judgment based on close correspondence in meaning. It is not necessary, and indeed might never be possible, to achieve a “perfect” interpretation;

   (2) whether or not an inadequate translation or interpretation means that a hearing has not been fair is an evaluative exercise which will depend on the particular circumstances;

   (3) in making the evaluative assessment, all of the circumstances are relevant including the course the hearing took as well as the reasoning of the decision-maker;

   (4) where interpretation is necessary, it must be adequate to convey “the substance of what is said" or “the essential elements that were being conveyed by the appellant” in order to communicate the substance of the appellant's case and his or her response to the issues raised to a sufficient degree that the hearing can be described as real and fair;

   (5) where there are frequent or continuous errors in translation, it may be easier to conclude that the process has miscarried and that there has been a denial of procedural fairness;

   (6) where there are intermittent errors, the individual errors must be assessed in the context of the overall fairness of the hearing. Individually, the errors may not be significant but viewed in aggregate they may demonstrate a pattern that indicates a denial of procedural fairness;

   (7) if an error of interpretation or translation leads to a material adverse finding, the unfairness of the hearing will often be self-evident;

   (8) however, it is not necessary, and in many cases will not be possible, to establish a causal link between an error of interpretation or translation and an adverse finding. It might be sufficient for a finding that a hearing was procedurally unfair if the irregularity might reasonably have led to an adverse finding either because of its materiality or repetition or context.

   [53] The last point emphasises the focus on process. As Allsop CJ said in SZRMQ v Minister for Immigration and Border Protection (215 [9]):

   The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.

   [54] In some circumstances it might be the case that a process is procedurally unfair even if a conclusion cannot be reached that the irregularity might reasonably have led to an adverse finding. One reason for this is that the reviewing body, and the appellate court, does not have the benefit of all of the advantages of the Tribunal which sees and hears the witnesses and considers that evidence in the context of the whole record, usually with less time constraints. Those disadvantages of the review or appellate court could require a finding of procedural unfairness in some circumstances even if the reviewing or appellate court is unable to conclude that the irregularity might reasonably have led to an adverse finding. It is not necessary to consider that issue further in this case because, as I explain below, I consider that the irregularities in this case, when viewed as a whole, might reasonably have led to an adverse finding.”

10. Relevantly, the question of whether there was a denial of procedural fairness is a question of the fairness of the hearing. The Tribunal’s decision record makes clear that it considered in some detail each of the complaints made by the applicant in relation to interpretation deficiency. As is clear from the summary above, the complaints related to two matters that were clarified at the hearing with the consequence that the Tribunal did not rely on the inaccurate interpretation. In relation to the allegation that the interpreter regularly prefaced his or her interpretation by the word “like”, the Tribunal found that not to be the case and in any event, found that the use of the term “like” did not in any way undermine the seriousness of the issues involved or affected the Tribunal’s assessment of the evidence.

11. The applicant did not provide a transcript or other evidence to the Court and made no other submissions in support of Ground 1.

12. Accordingly, Ground 1 is not made out.

Ground 2

1. Ground 2 asserts that the Tribunal did not consider all of the applicant’s evidence and omitted to take into account “some trivial evidences”. I asked the applicant what was the evidence that he contends the Tribunal failed to take into account. The applicant answered that it was all of the documents that he submitted but particularly, the police report and the medical certificate. The applicant submitted that the Tribunal ignored those documents and did not believe them.

2. In its decision record, the Tribunal made clear reference to both the documents referred to by the applicant.

3. The Tribunal accepted that the medical documents were genuine and accepted that the applicant was hospitalised with injuries and a broken arm during that time. The Tribunal noted that the medical certificate referred to a “fight”, but did not provide any other details of how the applicant sustained his injuries. The Tribunal did not accept that the injuries were sustained due to an attack by terrorists. The Tribunal found that the applicant attempted to rely on the injuries he sustained in 2009 in order to fabricate his claims for protection in Australia.

4. In relation to the police documents, the Tribunal did not accept the report as genuine or, in any event, that it was capable of establishing that the applicant was beaten by extremists. The Tribunal did not accept the applicant’s evidence that he told the police that his assailants were members of the banned terrorist organisation, Sipah-e-Sahaba, and they refused to record that complaint.

5. The Tribunal then referred to various documents provided by the applicant, some of which it found to be inconsistent with the applicant’s evidence. Further, the Tribunal found that the applicant’s explanation for the inconsistencies was untruthful.

6. Ultimately, the Tribunal found that the applicant was not a credible or truthful witness and found that he was prepared “to fabricate evidence in an attempt to support his claims for protection in Australia.”

7. The Tribunal’s findings were open to it on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

8. Accordingly, Ground 2 is not made out.

Ground 3

1. Ground 3 asserts that the Tribunal failed to take into consideration the applicant’s “vulnerable situation” after arriving in Australia and relied on his residence in Lakemba.

2. I asked the applicant what he meant by this complaint. The applicant said that the Tribunal explored with him why he went straight to Lakemba where it was full of Sunni Mosques when the applicant is a Shia Muslim.

3. I also asked the applicant what was the vulnerable situation that the Tribunal failed to consider. The applicant responded that the Tribunal failed to consider that his life was in danger in Pakistan as a Shia Muslim.

4. The Tribunal’s decision record referred to its exchange with the applicant in relation to his evidence about his initial arrival in Australia, in circumstances where he claimed to know nobody in Australia and that a Pakistani/Indian taxi driver took him to Lakemba.

5. The Tribunal found the applicant to be untruthful in relation to his claim that he knew no one in Sydney and that he asked a taxi driver where he should go and that the taxi driver took him to Lakemba and that he was able to find someone’s house where he could stay for a few days before moving to Auburn. The Tribunal found that the applicant provide this untruthful evidence because he was attempting to conceal details regarding the assistance he received from persons upon his arrival in Australia.  The Tribunal found that the applicant did so because he intended to fabricate claims to have been harmed in Pakistan due to his Shia faith. The Tribunal found that the applicant was assisted by persons pursuant to plans made prior to arriving in Australia.

6. Ultimately, the Tribunal did not accept the applicant’s evidence regarding the circumstances of his arrival in Sydney or that it supported his claims to have fled Pakistan because he feared harm. The Tribunal did not accept that someone who had previous travel and work experience and was actively involved in the Shia community in Pakistan would have failed at least to make some inquiries regarding the presence of Shia community in Sydney before departing Pakistan for Australia.

7. Again, those findings were open to the Tribunal on the materials and evidence before it, and for the reasons it gave.

8. To the extent the applicant claimed that the Tribunal failed to consider his claims that his life was in danger in Pakistan because he is a Shia Muslim, a fair reading of the Tribunal’s decision record does not support such assertion. The Tribunal considered all claims made by the applicant in significant detail, noting the applicant’s evidence and the representative’s submissions both oral and in writing. The Tribunal referred to the documents provided in support, including post-hearing submissions. The applicant did not otherwise identify in what way the Tribunal failed to consider his life was in danger in Pakistan as a Shia Muslim.

9. As stated above, the Tribunal’s findings were open to it on the materials and evidence before it, and for the reasons it gave.

10. Accordingly, Ground 3 is not made out.

Ground 4

1. Ground 4 asserts that the Tribunal failed to afford the applicant procedural fairness by failing to give proper, genuine and realistic consideration to the applicant’s evidence.

2. I asked the applicant in what way the Tribunal failed to give proper, genuine and realistic consideration to his claims. The applicant responded that he had given newspaper articles about Shias being killed in Pakistan and they were ignored by the Tribunal.

3. However, the Tribunal’s decision record records with specificity the various articles provided by the applicant to the Tribunal, including newspaper reports.

4. As stated above, the Tribunal did not accept the applicant sought protection in Australia because he genuinely feared harm in Pakistan. The Tribunal did not accept that the documents provided by persons in Pakistan were genuine and, even if they were, did not accept the truth of the facts asserted in them.

5. The newspaper articles referred to the violence in Pakistan. The Tribunal accepted that there is considerable evidence of attacks against Shias in Pakistan, however, independent evidence provided by the applicant did not establish that those attacks were occurring or increasingly occurring in Faisalabad.  In any event, as stated above, the Tribunal did not accept that the applicant had any involvement with Shia organisations in Pakistan. The Tribunal found it likely that the applicant fabricated his claims of being a Shia in an attempt to provide a basis for protection and that, in fact, he is a member of the Sunni majority in Pakistan.

6. The Tribunal comprehensively rejected the applicant’s claims for protection. In such circumstances, it is not necessarily irrational or illogical for the Tribunal to reject corroborative evidence where it is convinced that the applicant had fabricated his story even though there may be no separate or independent ground for rejecting that evidence apart from the reasons given for disbelieving the applicant. It is well accepted that where a party’s credibility has been so weakened, corroborative evidence maybe found to be of no weight “because the well has been poisoned beyond redemption” (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49] per McHugh and Gummow JJ). The case before this Court is such a case and the Tribunal’s clear and comprehensive adverse credibility findings are such that it was open to the Tribunal to place no weight on the applicant’s documents as corroborative of his claims (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49] per McHugh and Gummow JJ).

7. In this case, the Tribunal found even the applicant’s claim to be a Shia was fabricated and comprehensively rejected his claims of past harm in Pakistan for involvement in Shia organisations. The Tribunal found that even if the applicant is a Shia, based on independent information it did not accept that there is a real chance for serious harm for Shia in Faisalabad or near Layyah where his family now resides now or in the reasonably foreseeable future.

8. Further, the Tribunal was not satisfied there is a real risk that the applicant will suffer serious harm if he were to return to Pakistan and accordingly found that the applicant was not entitled to protection under s.36(2)(a) or s.36(2)(aa) of the Act.

9. In the circumstances, I do not accept that the Tribunal failed to give the applicant’s claims proper, genuine and realistic consideration. As stated above, the Tribunal considered the applicant’s claims in great detail and made findings that were open to it on the evidence and material before it and for the reasons it gave.

10. Accordingly, Ground 4 is not made out.

Ground 5

1. Ground 5 asserts that the Tribunal failed to take into account the applicant’s claimed fear of the Sipha-e-Sahaba and his evidence in support.

2. For the reasons above, a fair reading of the Tribunal’s decision record makes clear that it considered in great detail the applicant’s claim that he has been attacked by members of the Sipha-e-Sahaba in June 2009 but disbelieved those claims.

3. The applicant’s complaints otherwise appear more to be a disagreement with the findings and conclusions of the Tribunal thereby inviting merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

   “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

1. Accordingly, Ground 5 is not made out.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant and his representative at a hearing; and, had regard to all material provided in support, including post-hearing submissions. The Tribunal identified independent country information to which it had regard.

2. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 7 February 2017