BHM15 v Minister for Immigration
[2017] FCCA 2974
•4 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHM15 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2974 |
| Catchwords: MIGRATION – Application for review of former Refugee Review Tribunal decision – whether the Tribunal complied with s.425 of the Migration Act 1958 (Cth) – whether the Tribunal failed to consider a claim – whether the Tribunal properly considered the complementary protection criterion – whether the applicants were denied procedural fairness – whether the Tribunal failed to make inquiries – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424A, 425, 476 |
| Cases cited: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 |
| First Applicant: | BHM15 |
| Second Applicant: | BHN15 |
| Third Applicant: | BHO15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1897 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 16 May 2017 |
| Date of Last Submission: | 16 May 2017 |
| Delivered at: | Sydney |
| Delivered on: | 4 December 2017 |
REPRESENTATION
| Counsel for the Applicants: | Mr A Kumar |
| Solicitors for the Applicants: | Hutchison Lawyers |
| Counsel for the Respondents: | Mr M Cleary |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 8 July 2015 and amended on 22 October 2015 is dismissed.
The first and second applicants pay the first respondent’s costs set in the amount of $6,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1897 of 2015
| BHM15 |
First Applicant
| BHN15 |
Second Applicant
| BHO15 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 8 July 2015, and amended on 22 October 2015, seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 5 June 2015 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse protection (Class XA) visas to the applicants.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”). Also in evidence is a document filed by the applicants on 9 October 2015 and tendered by the applicants at the final hearing on 16 May 2017, being a transcript of the applicants’ hearing before the Tribunal (no objection from the Minister) (“AE1”).
Background
The applicants are citizens of Pakistan (CB 2, CB 28 and CB 35). The second applicant is the husband of the first applicant. The third applicant is their child. The first and second applicants first arrived in Australia as holders of student visas in 2011 (CB 181). The third applicant was born in Sydney in August of 2012 (CB 181). In May 2013, the first and third applicants departed Australia for Pakistan (CB 181). They re-entered Australia on 23 July 2013 after which the first applicant applied for a protection visa on 26 August 2013 (CB 181 and CB 1 to CB 36). The second and third applicants were included in the first applicant’s application as members of her family unit.
On 26 May 2014 the delegate refused the applicants’ application for the protection visas (CB 172 to CB 200). The delegate made an adverse credibility finding against the first applicant and did not accept her claims. The applicants sought review of the delegate’s decision on 17 June 2014 (CB 201 to CB 206), and the first and second applicants appeared before the Tribunal on 28 May 2015 (CB 215 to CB 218).
The Minister’s written submissions filed on 9 May 2017 set out a brief background to the first applicant’s claims for protection. I am satisfied, having regard to the evidence before the Court, that they contain a fair summary of the relevant background as follows ([4] – [6] of the Minister’s written submissions):
“[4] The first applicant claims to fear harm in Pakistan as a result of her Christian activities. She claims that she has been a practising Christian since her birth and that her father provided the Hosanna Church with a property to accommodate young Christian children who had been converted from Christianity to Islam and re-converted back to Christianity. The applicant claimed that after completing her studies in 2007, she volunteered with a Christian church and performed various works, including travelling (with her family and with other church members) to Peshawar and convincing parents to relocate children, who had been captured by militants and forced to work as slaves, to churches in Rawalpindi.
[5] The applicant claimed that in August 2010, a pastor at their church who also helped children from Peshawar was beaten by militants and by the police and he later died. The militants found out about the applicant’s involvement with the relocation and reconversion of children from Peshawar, which led to the police going to her house in February 2011 looking for her. At this time, a local mullah in Rawalpindi also started pursuing the applicant because of her activities, although her father was able to convince him that the applicant was not involved in those activities. The applicant stopped attending her church in April 2011 and moved to live with a relative in Islamabad.
[6] The applicant further claimed that militants attacked her when she travelled to Pakistan in 2013. The applicant filed a first incident report (FIR) with the police who told her that they could not protect it from the militants due to her involvement with the children in Peshawar. In support of her claims, the applicants admitted several documents including a copy of her FIR, a letter from a pastor of a church in Rawalpindi stating that the applicant was involved in church activities in Rawalpindi and Peshawar, along with other letters stating that the applicant is a church member, a letter from the applicant's Church in Australia and numerous items of country information about Christians in Pakistan.”
[Footnotes omitted.]
The Application to the Court
The grounds of the amended application to the Court are in the following terms:
“GROUND 1
1. The Tribunal denied the Applicant procedural fairness and / or breached s 425 of the Migration Act.
Particulars
(a) The Tribunal stated (CB 281, RRT decision, pp p-10 at [42]) that “… it does not believe her claims about attending the H Church and this church was based in a building owned by her father.
(b) This issue was a determinative issue regarding the Applicant’s claim. The Tribunal denied the Applicant opportunity to present arguments and / or be heard on the issue.
(c) The Tribunal thereby committed jurisdictional error.
GROUND 2
2. The Tribunal committed jurisdictional error when it failed to consider the social group that the Applicant is member of and / or has been procedural unfair in consideration of the social group and / or failed to consider a claim and / or integer of claim and / or asked itself wrong questions and / or misapprehended the Applicant’s claim.
Particulars
(a) The Tribunal stated it has considered the practice of Christianity in Pakistan (CB 281 – 283; - RRT decision, pp 10-12 at [45] – [51]).
(b) The Tribunal has not considered the particular social group that applied to the applicant with attribute of Christian, preaching Christianity in Pakistan and is singled out as a target.
(c) The Applicant specific area of residence and incidents of violence was not considered specifically considered thereby the Tribunal failed to address an integer / claim and or failed to ask itself the correct questions and / or asked itself the incorrect questions.
(d) The Tribunal misapprehended the claim that Applicants in the minority from the specific areas of residence had high probability of being subjected to incidents of violence and misapprehended the country information (CB 84 – 85).
(e) Did not consider the risk from practising religion; carrying out religious work and / or work for NGO. The Tribunal carried out the risk assessment against the general population of Christians.
(f) The Tribunal failed to address the claim of ‘religious work’ and not simply as Christian.
(g) Failed to address the risk as Christian preacher in Punjab
(h) The Tribunal thereby committed jurisdictional error.
GROUND 3
3. The Tribunal committed jurisdictional error when it did not properly consider complementary protection.
(a) The Tribunal has not considered the protection was available to preacher / activist of Christian faith in Pakistan.
(b) The Tribunal thereby committed jurisdictional error.
GROUND 4
4. The Tribunal denied the second applicant procedural fairness (and or breached s 425) when it found that he was not credible and was to be “disbelieved” (CB 280 at [37 - 38]) when the second Applicant was not given any opportunity to give any evidence (and was not aware what evidence was given by the First Applicant being outside the hearing room) and thereby committed jurisdictional error.
Particulars
(a) The Tribunal made findings that the second applicant was to be ‘disbelieved’.
(b) The Tribunal did not give the opportunity to second applicant to address any evidence that the First applicant may have given to the Tribunal (transcript p32 – 33).
(c) Erroneously rejecting the First applicant’s evidence upon rejection of the second applicant’s evidence.
GROUND 5
5. The Tribunal committed jurisdictional error and was procedurally unfair and / or breached s425 when it failed to put to the Applicant the various critical documents that were submitted in support of the claims (CB 281).
Particulars
(a) The Tribunal proceeded to make a decision without allowing the Applicant to present arguments in relation to the documents submitted.
(b) The Tribunal did not seek comments / allow presenting of arguments in relation H Church and other documents.
(c) The matter was about critical aspect of the Applicant’s claim.
(d) The Tribunal committed jurisdictional error.
GROUND 6
6. The Tribunal committed jurisdictional error when it failed to take into account relevant considerations.
Particulars
(a) The Tribunal did not take into accounts other documents submitted such as airline tickets and other documents submitted by the Applicants.
(b) The Tribunal committed jurisdictional error.
GROUND 7
7. The Tribunal committed jurisdictional error when it failed to carry out its statutory duties when it was under duty to make further enquiries to ensure that the Applicant could participate in the review process regarding H Church (CB 281).
Particulars
(a) The Tribunal proceeded to make a decision without allowing the Applicant to appear and present arguments.
(b) The Tribunal knew that that the details of the H Church was readily available to the Tribunal.
(c) The matter was about critical aspect of the Applicant’s claim.
(d) It was reasonably easy for the Tribunal to obtain address details (email and telephone contact was with the Tribunal).
GROUND 8
The Tribunal denied the applicants procedural fairness (and or breached s 425) by taking into account applicant’s brothers protection claims (accepted by another Tribunal Member) without advising the First applicant before or after the hearing that this is relevant to conclude the Applicants’ case and thereby committed jurisdictional error.
Particulars
(a) Tribunal noted that applicant’s brother was not called as a witness by the applicant to appear before the Tribunal. This concern was not put to applicant for a comment.
(b) The Tribunal made findings that the applicant’s brother ‘would purport to corroborate’ (CB 280 (RRT dec at [38] – [39]) applicants claims without hearing the applicants brother.
(c) The Tribunal never heard applicant’s brother’s claims and disbelieves his claims, which are already accepted by another tribunal member.
(d) It is important to note that applicant lodged her protection visa application on 26 August 2013 and her brother’s application was lodged after on 6 September 2013.
GROUND 9
The Tribunal committed jurisdictional error when it failed to consider applicant of surviving a kidnapping attempt and / or has been procedural unfair in considering the probability of similar attack in light of country information submitted by the applicant and / or failed to consider a claim and / or integrity of claim and / or asked itself wrong questions and / or misapprehended the Applicant’s claim.
Particulars
(a) The Tribunal stated it has carefully considered the country information and submissions made by the applicant - (CB 281 – 283) RRT decision, pp 10-12 at [45] – [51] and, in particular, at pp 11, para 47.
(b) The applicant claimed that she survived a kidnapping attempt, which threatened her life and her son who was an infant then. The delegate in her decision dated 26 March 2014, pp 20, at 3 acknowledges this as a serious harm.
(c) The applicant remains a potential target, as she has been singled out and DFAT report submitted by the applicant also endorses the high risk of kidnapping prevailing in the country.
(d) The Tribunal has failed to assess her claims of fear in the context to survive kidnapping attempt of an individual who was a religious and an aid worker, working for an International Aid Organisation.
(e) The Tribunal thereby committed jurisdictional error.”
[Errors in the original.]
At the final hearing, the applicants and the Minister were each represented by counsel. The applicants did not press ground nine of the amended application.
Ground one asserts a breach of s.425 of the Act. The particulars direct attention to [42] (at CB 280 to CB 281) of the Tribunal’s decision record.
The first applicant had claimed to fear harm in Pakistan because of her Christian activities. The first applicant claimed that she approached other Christian families and encouraged them to allow their children, some of whom had suffered forms of harm, to accompany her to the “H church” (the Hosanna Church) in Rawalpindi, which operated in a building owned by her father. She took children there to study their religious faith and to receive an education.
The Tribunal acknowledged this claim ([10] at CB 275). It noted that the first applicant had provided documentary evidence to it that she had attended a church in Rawalpindi, but not the H church ([42] at CB 280 to CB 281).
The Tribunal accepted that the applicants were Christians. However, it did not believe that the first applicant attended the H church in a building owned by her father. The Tribunal’s reason for this was that it had otherwise found that the first applicant was not a witness of truth, and therefore disbelieved her claims in relation to the H church, and its location in her father’s building ([42] at CB 280 to CB 281).
The applicants’ complaint now is that the Tribunal did not put the first applicant on notice that the “issue” of her attending the H church in a building owned by her father, would not be accepted by the Tribunal.
In their submissions, the applicants did not refer to relevant authority (including SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 (“SZBEL”)), even when that authority was raised by the Court. In SZBEL, the High Court held that it is the Tribunal’s obligation to give an applicant a meaningful opportunity to give evidence and make arguments in relation to issues dispositive of the review, that is, issues which were not “live” issues as a result of the delegate’s decision.
It is the case that not every piece of evidence or integer of a claim is an “issue” in the review. Further, as was made clear in SZBEL, the relevant question is to be directed to whether the first applicant received a fair hearing (SZBEL at [25] and [32]), having regard to the statutory context within which the Tribunal is required to operate (SZBEL at [26] – [28]).
Before the Court, the applicants’ counsel explained the ground as follows. The Tribunal did not put the first applicant on sufficient notice that the “issue” of her attending at the H church and the fact that the building was owned by her father, was something that the Tribunal was not “inclined” to accept.
However, in my view, in the current case, given the stated basis for the first applicant’s claim to fear harm, a relevant and determinative issue in the review inclusive of the claim to have attended the H church, was whether the first applicant, as a part of her Christian beliefs and practice, took children from Christian families to the H church, so that they could learn about Christianity and receive an education. The first applicant claimed to have come to the attention of Muslims and the local mullah for this reason, and feared harm from these people as a result of her activities.
The applicants put a transcript of the Tribunal hearing into evidence before the Court. However, in submissions, no reference was made to the transcript in relation to this ground. In any event, the transcript reveals that the issue of the first applicant’s engagement in the activity of taking children to the H church was discussed at the Tribunal hearing. This included that the H church was in a building owned by her father (see T4 at line 28, see also T7 line 6 to line 12, T7 line 40 to T11 line 24, T12 line 21, T16 line 23 to T16 line 42 and T18 line 1 to line 37).
At the hearing, the Tribunal also heard evidence from the first applicant in relation to other issues. Then after a short break the Tribunal returned to the matter of the bringing of children to the H church (T26 line 17). Specifically in relation to this issue, the Tribunal put its concerns to the first applicant (see T26 line 40 to T27 line 8), and the first applicant responded (T27 line 10 to line 20). The Tribunal expressed further concerns and the first applicant again responded (T27 line 26 to T29 line 1).
The applicants’ ground is not made out. First, although the applicants’ ground and submissions asserted that the Tribunal failed to give the first applicant the opportunity to address this issue, no satisfactory attempt was made to demonstrate how this was the case.
Second, the transcript of the Tribunal hearing reveals that the matter of the first applicant taking children to the H church was discussed at the hearing. The first applicant was given the opportunity to comment, and respond to, the Tribunal’s concerns, and the first applicant did respond.
Third, the applicants’ ground and submissions relied on one part of the Tribunal’s decision record as follows ([42] at CB 280 to 281):
“To the department the applicant submitted letters from a church in Rawalpindi (not the H church) saying that she is a regular member of the church. The applicant also submitted evidence with respect to her church attendance in Australia, to the effect that she regularly attends, that she has, on occasions, preached at church and that she is involved in church and youth activities. The Tribunal accepts that the applicant, her husband and child are all Christians. However, because the applicant is not a witness of truth, it does not believe her claims about attending the H church and that this church was based in a building owned by her father.”
[Footnotes omitted.]
On a fair reading, including when read in the context of what precedes it, the Tribunal at [42] (at CB 280 to CB 281) of its decision record, was addressing documentary evidence submitted by the first applicant in support of her claim (see also [40] – [41] at CB 280).
The Tribunal had previously comprehensively set out in its decision record, its concerns and findings in relation to the credibility of the first applicant (see [7] at CB 274 to [33] at CB 279 and in particular [16] at CB 276 to [33] at CB 279). The Tribunal’s conclusions on credibility are set out at [34] at CB 279 to [39] at CB 280). This culminated in the finding that the first applicant’s claim that she came into conflict with the local mullah because of her Christian activities, was a fabrication ([34] at CB 279).
What appears at [42] (at CB 280 to CB 281) of the Tribunal’s decision record, is, in the context of the documentary evidence, the Tribunal’s expression of the distinction between the first applicant’s claim to be a Christian, which it accepted, and its rejection of her claim to have attended the H church in a building owned by her father.
In relation to the first point, the Tribunal accepted that the first applicant was a Christian based, in part, on relevant documentary evidence. It did not accept claims in relation to the H church because it had found that she was not a witness of truth. There was no documentary evidence before the Tribunal in relation to the H church claim, as there was regarding her claim to be a Christian.
Fourth, there is nothing specific in the transcript to show that the Tribunal put to the first applicant that her father did not own the building in which the H church was situated.
However, the first applicant never claimed to fear harm on the basis that her father owned a building in which a church was located. The reference to the H church being in such a building, was part of the substratum of facts in relation to the issue of whether she engaged in activities in taking Christian children to the H church (SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 at [25]). That issue was discussed at the Tribunal hearing.
On the evidence, the first applicant would have been on notice that her account of the events involved in the claim that she engaged in activities taking children to the H church was a “live” issue (SZBEL). She was given the opportunity by the Tribunal to give evidence and make arguments on that issue.
Fifth, an “issue” for the purposes of s.425 of the Act are matters “not of an insubstantial nature which the Tribunal considers to be in question” (SZHKAv Minister for Immigration and Citizenship [2008] FCAFC 138; (2008) 249 ALR 58 at [115]). In that light, the issue of “substance” in this case, the taking of children to, and attendance at, the H Church, was discussed at the hearing.
In all, ground one is not made out.
I should also note that in written submissions, the applicants also asserted a breach of s424A of the Act. As I understood from oral submissions, the complaint in ground one was only pressed in relation to s.425 of the Act.
Ground two asserts jurisdictional error because the Tribunal is said to have failed to consider a claim made by the first applicant, that she feared harm because she was a member of a “particular social group”. The particulars assert that the group was a “Christian, preaching Christianity in Pakistan” (see particulars “a” and “b” to ground two of the amended application).
Particulars “c” and “d” of ground two assert that the Tribunal did not consider the applicant[s]’ “specific area of residence and incidents of violence”. That is, that the applicants were from a minority group who resided in a specific area, and would be subjected to violence for this reason.
Although the ground asserts a failure to consider the first applicant’s membership of a particular social group, particular “d” appears to assert, that the Tribunal “misapprehended” the first applicant’s claim, and relevant country information in regards to that claim.
Further, it is difficult to see how the failure to consider the membership of a particular social group can be made out with reference to characteristics that were said to be specific to the first applicant.
The applicants’ written submissions appear to have ignored the ground as pleaded, and to assert with reference to the transcript of the Tribunal hearing, that the Tribunal “misapprehended and or misdirected the enquiries” ([15] of the applicants’ written submissions). Although some references are made to “social group”, it is not exactly clear what the “social group” was said to be.
Plainly, there is a lack of precision by the applicants in articulating exactly what the jurisdictional error is said to be, and how it is said to arise.
Before the Court, the applicants’ counsel explained the ground as follows. The Tribunal misapprehended the first applicant’s claim. There were two aspects to her claim. One, that the first applicant was a Christian, and two, that the first applicant claimed before the delegate that she was a Christian who also feared harm because she assisted in providing food for poor Christians.
The applicants’ counsel explained, with reference to a part of the first applicant’s written statement to the delegate (see CB 68 to CB 80), that the first applicant claimed to be a member of a “social group” (ultimately he agreed that it would need to be seen as a “particular social group”), with the classification of a Christian in Pakistan who teaches and performs social work.
The extract of the written statement relied on now by the applicants is as follows (CB 74 and CB 75):
“…My siblings along with my mother attended the Emmanuel Church and Hosanna Church in Rawalpindi and involved in Sunday school teaching, assisting and providing food for the poor Christians who found hard to run their lives without jobs or salary amongst the radical Muslims. We had to serve these Christians and give them courage and confidence to study and learn our scriptures and to involve in Church activities. Most of these Christian youths were forced into drug trafficking and later got addicted to drugs and ruined their lives. The terrorists were taking away these youths to convert and to involve them in military training to fight the USA and UN forces at the Afghan/Pakistan border. I was involved along with my family in visiting Christian suburbs and private Christian houses living in poverty in search of intelligent and talented Christian boys and girls, and after convincing their parents brought them to our Churches and made arrangements with the Church to educated them including teaching them the Scriptures. I always felt happy and contended when I brought these youths to the Church and also felt that as it was a great service to God. Many Christian youths became involved in the Hosanna Church and in our Churches in Rawalpindi. These youths were involved not only in our Church Choir but also involved in the Hosanna Music Academy and in Children Choir as well. These youths were promoting many Christian youths to joint them so that they could pick musically talented youths to participate in Church programmes around Pakistan. I was taken up with the idea of introducing many Christian youths from remote areas as these youths were later found to be personally involved in Church activities and were found to be interested in pursuing their own carriers to do well in life. My father encouraged me to involve with the church full time till I got a full time job.
…
… When I went to Peshawar, I was shocked to find talented Christian youths from poor families who had no future and were discriminated and forcibly converted to Islam. When I talked to their family members, I found it hard to accept that these talented youths had been taken away by the militants and were forced to work as slaves after being converted. I pleaded with my father to permit me to bring these youths to Rawalpindi and accommodate them in the Churches. My father talked with the Church Pastors and one of the Pastors, Rev. Pastor Titus of Hosanna Church who was from our area, came forward to assist me to bring these children to him so that he could accommodate them at the Church premises around Islamabad and Rawalpindi areas. I was travelling to Peshawar with senior Church youths who were working with me for a long time at the Church. These youths are musically talented and could recognise and select talented youths for us to take them to our area.”
[Errors in the original.]
A number of things may be said. First, the applicants’ ultimate explanation of their ground before the Court was not how the ground was pleaded, or what was stated in the written submissions. Further, no attempt was made to reconcile the ground as pleaded with the written and oral submissions.
The amended application was drafted by lawyers on the applicants’ behalf. The written submissions were drafted by Counsel. The same counsel made oral submissions different in important aspects to the ground as pleaded, and the written submissions. I proceeded to consider ground two as articulated and explained in oral submissions.
Second, on a fair reading of the first applicant’s written statement on which she now relies, I cannot see that the evidence supports the proposition that a particular social group is apparent, let alone that the first applicant was a member of such a group.
It is of note that at the time of the drafting of the first applicant’s written statement (which accompanied her protection visa application), she was assisted by a registered migration agent (CB 24). It is the case that, even in this light, the absence of any specific reference to the term “particular social group” in her written statement is not determinative.
However, even at its highest, the first applicant’s written statement is plainly directed to her own activities, not activities which share characteristics with other persons, such that a social group, let alone a particular social group, could be said to exist.
Third, on the evidence, I do not agree with the submission the applicants make now, that the first applicant was a (Christian) teacher who did social work. This is a claim made now by their counsel.
The first applicant’s written statement is clear, in that her claim was that she was involved in a Christian church, in particular the “H church”. The first applicant claimed that she was involved in finding and transporting “talented” Christian children from Peshawar to Rawalpindi, where they would receive an education from the H church.
The first applicant’s written statement makes a clear distinction between her activities, and those of her siblings and her mother, who were also engaged in seeking “talented” Christian children, but also provided food for them and engaged in Sunday school teaching.
Before the Tribunal, the first applicant confirmed that she feared harm as a Christian, and that her activities which gave rise to her fear of harm were that she transported children from Peshawar to Rawalpindi (see T30).
In short, I cannot see, on the evidence, that the first applicant ever made a claim that she feared harm because she preached or taught Christianity, or that she was a Christian activist beyond the activity of transporting children to the H Church. Nor does any such claim clearly arise from the evidence. Ground two, as ultimately explained before the Court is not made out.
Ground three asserts that the Tribunal did not properly consider the complementary protection criterion in the Act (s.36(2)(aa) of the Act). This is explained in particulars as being because the Tribunal did not consider whether protection was available to a “preacher and/or activist” of the Christian faith in Pakistan.
Before the Tribunal, the first applicant said that she would be tortured in Pakistan because of her religious work (see T30 lines 33 to 35). The submission now is that the word “torture” engaged the complementary protection criterion (s.36(2)(aa) of the Act).
The Tribunal’s consideration of the first applicant’s claims as against the complementary protection criterion (s.36( 2)(aa) of the Act) is at [52] – [54] (at CB 283) of its decision record. The Tribunal relied on its earlier expressed findings of fact, which informed its conclusion that the first applicant was not a witness of truth, and that her account of events on which her claims were based were false. On this basis, the Tribunal found that the first applicant (and therefore the second and third applicants) did not satisfy the complementary protection criterion (s.36(2)(aa) of the Act) for the grant of the visa.
In relation to its assessment of the complementary protection criterion (s.36(2)(aa) of the Act), the Tribunal was entitled to rely on earlier expressed findings of fact in its decision record, which were reasonably open to it. The Tribunal did not need to repeat its findings (SZSGA v Minister for Immigration, Multicultural and Indigenous Affairs [2013] FCA 774 and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26).
Further, the applicants’ complaint also arises from the same submission as made in ground two. That is, that the first applicant was a Christian preacher and/or activist and would be tortured because of this.
The Tribunal considered the first applicant’s claims as expressly made and clearly arising. No error in its approach to the complementary protection criterion (s.36(2)(aa) of the Act) is apparent. Ground three is therefore not made out.
Ground four asserts that the second applicant (the first applicant’s husband), was denied procedural fairness, as he was the subject of a breach of s.425 of the Act, because he was not “aware” of the evidence given by the first applicant to the Tribunal. This was subsequently explained in written and oral submissions to have occurred because the second applicant was not in the hearing room when the first applicant gave her evidence, and therefore he was not given notice of what she had said.
In written and oral submissions the applicants pressed an additional complaint. This was that there was no basis for the Tribunal to form a view that it had doubts about the second applicant’s evidence. This was said to be in circumstances where there was no inconsistency in his evidence. The applicants’ counsel also separately explained to the Court that this was also a circumstance where the second applicant gave “limited evidence”.
In apparent contradiction to what was actually asserted in the ground, the applicants’ counsel also submitted “that there was no need for [the second applicant] to be present in the [hearing] room because he was giving independent evidence.” The applicants’ ground, even as “expanded”, is not made out.
First, the second applicant did not make any claims to fear harm in his own right. He applied as a member of his wife’s family unit. His application relied on her claims (see [37] at CB 279 and T32 line 8 to line 13).
Second, the Tribunal found that the first applicant was not a witness of truth ([34] at CB 279). The first applicant was given the opportunity to address the Tribunal’s concerns. It gave reasons for this, and made findings which informed that conclusion which were reasonably open to it on what was before it.
In circumstances where the second applicant made no claims on his own behalf, and on the evidence before the Court now, it was reasonably open for the Tribunal to find that he “purported to corroborate the claims made by the [first] applicant” ([37] at CB 279 and see particularly at T32 lines 8 to 13 and lines 26 to 40).
The Tribunal’s critical finding (relevant to the applicants’ ground four) is that the second applicant’s evidence did “not overcome the concerns [it held] about the [first] applicant’s credibility” ([37] at CB 280). The Tribunal disbelieved the second applicant to the extent that he purported to corroborate the first applicant’s claims. This was also reasonably open to the Tribunal.
Third, in this light, whether or not the second applicant gave inconsistent evidence was not relevant to the Tribunal’s findings in relation to the first applicant. Nor did it form any part of the Tribunal’s reasoning.
Fourth, the applicants appeared to resile from the initial complaint before the Court that the second applicant was not in the room when the first applicant gave her evidence. Even if this were to have been pressed, in the circumstances of this case, no failure to accord procedural fairness is evident. Nor is any breach of s.425 of the Act apparent.
The transcript of the Tribunal hearing before the Court reveals that the second applicant was given a meaningful opportunity to present his evidence in support of his wife’s (the first applicant’s) claims (see T32 line 6 to T34). Ground four is not made out.
Ground five makes the same assertion of jurisdictional error as ground four. However the particulars focus on documents presented by the first applicant in support of her claims. The complaint is that the Tribunal did not allow the first applicant to “present arguments” in relation to these documents.
The documents are not identified in the ground as pleaded. However, the written submissions identify two documents. One, a letter from the “Hosanna church” (at CB 229, “the H church letter”). Two, a report from the (New South Wales) Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) concerning the first applicant, commissioned by the Australian Red Cross (CB 219 to CB 222).
Before the Court, the complaint in relation to the STARTTS report was not pressed. In relation to the H church letter, the complaint was that the first applicant presented the document to the Tribunal, however the Tribunal did not give her an opportunity to make arguments about this document. As best as the complaint could be understood, it is that the Tribunal did not put the contents of the H church letter to her to enable her to comment, yet the Tribunal proceeded to “criticise” the document, and had “doubts” about it.
First, there is no procedural fairness obligation on the Tribunal, a breach of which would constitute a breach of s.425 of the Act, to put to an applicant the contents or details of a letter that they have submitted for the purposes of the review. Further, the Tribunal’s relevant obligation under s.424A(1) of the Act, does not apply given the operation of s.424A(3)(b) of the Act.
Second, the H church letter stated that the first applicant was a member of the church, participated in church activities, including visiting Christian homes to encourage children to attend church, and that she had received threats as a result of these activities.
The Tribunal noted in its decision record that the first applicant had submitted this letter in support of her claims ([40] at CB 280). Also in relation to a number of other documents, the Tribunal stated that it had ([41] at CB 280):
“…carefully considered the contents of these documents but they do not overcome the concerns the Tribunal holds about the [first] applicant’s credibility which significantly discredit her as a witness. The Tribunal therefore does not give evidentiary weight to the claims made in these documents because those claims are all false.”
For the purposes of s.425 of the Act, the issue relevantly dispositive of the review, was whether the first applicant had engaged in certain activities in locating and taking Christian children to the H church.
This issue was extensively discussed at the hearing. The first applicant was given the opportunity to make her arguments and give her evidence. There was no obligation on the Tribunal to specifically ask her about the contents of a letter she herself had provided to the Tribunal, which did no more than seek to corroborate her claims. The Tribunal made specific reference to the letter at the hearing (see T4 line 2). Her activities and involvement with the H church were also extensively discussed at the hearing (see T4 and T7 to T10). Ground five is not made out.
Ground six presses the same allegation of jurisdictional error as in grounds four and five. However, here the particulars refer to “other documents” submitted by the first applicant, including airline tickets. The written submissions do not identify other any other documents other than the airline tickets.
Before the Court, the applicants pressed the complaint only in relation to a document which was said to be the first applicant’s “travel itinerary” regarding the first applicant’s travel from Australia to Pakistan in 2013.
It must be said, the exact nature of the applicants’ ground was not satisfactorily explained before the Court. At best, the complaint appeared to be as follows. The family left Pakistan in July 2011. They came to Australia. In May 2013 the first applicant (possibly with the third applicant) returned to Pakistan. Her “family” remained in Australia. She returned to Australia in July 2013. The travel itinerary document was in relation to this travel. On return she applied for a protection visa in August 2013.
The submission was that the first applicant “was a bona fide person who did not [necessarily] want to seek refugee status.” The applicants’ counsel saw this as a matter going to the first applicant’s credibility.
The central difficulty for the applicants’ complaint now, is that the fact of the first applicant’s travel to and from Pakistan in 2013, was never in issue before the Tribunal. The Tribunal accepted that the travel had occurred. In fact, the Tribunal specifically found that she had returned to Pakistan in May 2013 ([27] at CB 278).
As a result of the applicants’ counsel’s subsequent submissions, it appeared that the real complaint was that the Tribunal should have found that the first applicant was credible in her claims to fear harm, because she returned to Pakistan in 2013, after having left in 2011, and then came back to Australia.
The ground as ultimately explained can only be described as, with respect, without merit.
One, the Tribunal made specific reference to the travel itinerary (see [40] at CB 280 and see in particular footnote 4).
Two, the travel itinerary goes no further than supporting the first applicant’s claim that she returned to Pakistan. The Tribunal accepted this.
Three, the fact the Tribunal took the view that the first applicant “was willing” to return to Pakistan in 2013 when she claimed to have left in 2011 because she feared harm, and that this raised concerns about the credibility of her claims to fear harm, was entirely reasonable and open to the Tribunal on what was before it. Ground six is not made out.
Ground seven asserts that the Tribunal failed in its statutory duty because the Tribunal did not make any enquiries (by email or telephone), about documents submitted by the first applicant concerning the H church.
Before the Court, the applicants’ counsel initially submitted that ground seven involved a “section 425 argument”. This was withdrawn and the ground was described as an “SZIAI sort of claim.”
This “claim” was described as follows. The first applicant’s involvement with the H church was a “critical point” in her claim to fear harm. The first applicant provided a letter from the pastor of the H church in support of her claim (CB 229). The Tribunal had “doubts” about the H church. The Tribunal should have made inquiries to “verif[y]” whether she was a member a member of the H church, whether she attended at the church, and whether the church was “renting” the premises in which it was located.
Although the applicants’ counsel made reference to Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 (“SZIAI”), it is instructive to note what the High Court actually said in that case in relation to the relevant duty to inquire (SZIAI at [25]):
“Although decisions in the Federal court concerned with a failure to make obvious inquiries have led to references to a ‘duty to inquire’, that terms is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as a jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.”
Further, in relation to the applicants’ submission that the Tribunal could easily have made inquiries of the pastor from the H church who signed the H church letter, the High Court relevantly said (SZIAI at [26]):
“The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves…”
The applicants were unable to satisfactorily explain before the Court what the pastor of the H church could have said if the Tribunal had telephoned or sent an email to him, other than to confirm what he had written.
The Tribunal rejected the first applicant’s claim to have been a member of the H church and of having participated in church related activities involving the transportation of Christian children to Rawalpindi. The Tribunal rejected the first applicant’s claim on the basis that she was not a credible witness. This was a finding reasonably open to the Tribunal on what was before it. As the Minister correctly submitted, there was nothing put forward by the applicants now to say that a telephone call could have changed that conclusion. Ground seven is not made out.
Ground eight asserts a denial of procedural fairness, or a breach of s.425 of the Act, because the Tribunal took into account the first applicant’s brother’s protection claims, which were accepted by another Tribunal member, without putting her on notice that it would do so.
The particulars to the ground make the following complaints. One, the first applicant was not put on notice that the Tribunal would “note” that she did not call her brother as a witness to support her claims to fear harm.
Two, the Tribunal found that the first applicant’s brother “would purport to corroborate” the first applicant’s claims. The Tribunal made this finding without hearing from the brother.
Three, the Tribunal disbelieved the brother’s claims without hearing from him.
The applicants’ submissions before the Court suffered from a number of misunderstandings about what the Tribunal actually reasoned and found.
First, contrary to the applicants’ submissions now, the Tribunal did not make any adverse, or for that matter, any finding at all, about the first applicant’s brother’s claims to protection.
The first applicant’s brother had made an application for a protection visa separate to that of the first applicant and her immediate family. A different Tribunal member found that he should be given a protection visa.
The Tribunal in the current case stated relevantly as follows
([38] – [39] at CB 280):
“[38] The Tribunal acknowledges that the applicant has a brother in Australia who was granted protection following a decision in his favour by the Tribunal (differently constituted) on the basis of his fear of harm from the local Mullah. His evidence was found to be credible but this Tribunal is not bound by that finding. The brother was not called as a witness by the applicant to appear before this Tribunal. His claims made to a differently constituted Tribunal about a fear of harm from the local Mullah including his own involvement in the claimed attack of July 2013 and his dealings with the local mullah after that event, would purport to corroborate the claims made by this applicant in support of her own protection visa application.
[39] However, that does not overcome the concerns the Tribunal holds about the applicant’s credibility and so it finds that her evidence about her brother being in conflict with the local mullah including his involvement in the attack of July 2013 and his dealings with the local mullah after that, is false. The Tribunal finds that it has no credible evidence before it about the applicant’s brother and, in particular, that he suffered harm in Pakistan. The Tribunal rejects the applicant’s claims about being in conflict with a local mullah and finds her evidence in this respect a fabrication.”
It is important to note that there was no error in the Tribunal taking the view that it was not bound by another Tribunal member’s views and considerations about the first applicant’s brother’s claims. In any event, the Tribunal made no adverse finding about the first applicant’s brother’s claims.
At the Tribunal hearing, the first applicant gave evidence about an incident in which she was involved, which also involved her brother, in July 2000. The first applicant claimed she was in a car with her brother and they were attacked by “bearded men” (T23 line 18).
The first applicant also gave evidence to the Tribunal that her brother “definitely… had a problem” in Pakistan (T23 line 33). She gave further evidence that this was with the local mullah who wanted him to convert to Islam (T23 line 37). She stated that her brother was beaten (T24 line 5 to line 6). The first applicant proceeded to give further evidence about what she said she knew about her brother’s situation in Pakistan, and his claims for protection (T24 line 11 to T25 line 41).
As set out above, the Tribunal’s relevant findings were not about the first applicant’s brother’s claims. The Tribunal found adversely to the first applicant’s credit, and rejected her claim to fear harm on this basis.
At [38] (at CB 280) of its decision record, the Tribunal considered whether the fact that the first applicant’s brother was granted protection, and whether his claims involving the local mullah, could corroborate the first applicant’s claim.
The Tribunal did not reject the first applicant’s claims because of her brother. Rather, the Tribunal found that her evidence about her brother’s situation was “false” ([39] at CB 280). It found that her claim to be involved in the attack by the local mullah was a fabrication ([39] at CB 280). This was reasonably open to the Tribunal on what was before it.
In this light, it was not necessary for the Tribunal to hear from the first applicant’s brother. Nor was it a failure to afford procedural fairness for the Tribunal not to have heard from the first applicant’s brother. The Tribunal’s analysis and findings were focused on her evidence about her brother’s circumstances. She was given the opportunity at the hearing to explain this.
It was reasonably open to the Tribunal to find that the first applicant’s brother’s claims were put by the first applicant to it, in purported corroboration of her own claims.
Finally, the Tribunal’s finding that the first applicant did not call her brother to give evidence on her behalf was also reasonably open to it on what was before it. In context, the Tribunal’s finding that the first applicant did not call her brother to give evidence (at [38] at CB 280), was part of its analysis that her brother’s situation, which the first applicant presented as being parallel to her own claims to fear harm (the shared fear of the local mullah), was to corroborate her own claim. The first applicant plainly would have been on notice that she had not asked the Tribunal to take evidence from her brother. Ground eight is not made out.
Conclusion
None of the applicants’ grounds reveal jurisdictional error. Therefore it is appropriate to dismiss the application. I will make the appropriate order.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 4 December 2017
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