BJN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1185
•31 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
BJN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1185
File number: PEG 95 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 31 May 2021 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal considered a relevant protection claim – whether the Tribunal was required to consider the rights of the children – whether the applicants were denied procedural fairness – lack of legal representation – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 10, 36, 78, 411, 412, 427, 476 Cases cited: ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099
Craig v State of South Australia (1995) 184 CLR 163
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
Minister for Immigration & Citizenship v Li [2013] HCA 18
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
Singh v Minister for Home Affairs [2020] FCAFC 7
SZBPQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 568
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Number of paragraphs: 97 Date of hearing: 28 May 2021 Place: Perth Applicants: The first applicant appeared in person and on behalf of the other applicants Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 95 of 2020 BETWEEN: BJN20
First Applicant
BJO20
Second Applicant
BJP20
Third Applicant
BJQ20
Fourth ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
31 MAY 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
REASONS FOR JUDGMENT
JUDGE KENDALL:
INTRODUCTION
The applicants are citizens of Pakistan. The first applicant and the second applicant are husband and wife respectively. The first applicant first arrived in Australia in November 2007 on a student visa (Court Book (“CB”) 292). He was granted a further student visa in March 2010. That visa expired on 11 September 2011. The applicant has remained in Australia on a Bridging visa since that time. The second applicant arrived in Australia in June 2011 (CB 199). The third applicant and the fourth applicant are the children of the first applicant and second applicant. They were both born in Australia.
On 29 January 2016, the applicants applied for a Protection (subclass 866) visa (the “visa”)(CB 154-268). The first applicant was the primary applicant and made claims for protection. The remaining applicants made no protection claims of their own.
The first applicant claimed to fear harm from the Taliban and Al Qaeda on the basis that he had refused to allow members of the Taliban to stay at his home. He claimed that when he refused to assist he was assaulted. He then provided shelter to them but, after they left, he contacted the police. He further claimed that, following this event, the Taliban came looking for him and he hid at his in-laws’ house until he was able to travel to Australia.
The applicants attended an interview before a delegate of the first respondent (the “Minister”) on 15 November 2016 (CB 284-287).
On 29 November 2016, the delegate refused to grant the visa (CB 292-301). The delegate was not satisfied that the first applicant or his family faced a real chance or a real risk of serious or significant harm in Pakistan.
On 7 December 2016, the applicants applied to the Administrative Appeals Tribunal (the “Tribunal”) for a review of the delegate’s decision (CB 302-303).
The applicants attended a hearing before the Tribunal on 24 February 2020 (CB 314-316).
On 6 March 2020, the Tribunal affirmed the delegate’s decision not to grant the applicants the visa (CB 319-330).
On 27 March 2020, the applicants filed an application for judicial review in this Court. An amended application was filed on 28 April 2021. The applicants seek review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth). To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is 12 pages long and spans 57 paragraphs.
The Tribunal began by identifying the type of visa under review. The Tribunal noted that the second, third and fourth applicants had made no protection claims of their own and summarised the delegate’s finding (at [1]-[5]).
The Tribunal then explained:
7. The applicant’s detailed written claims are on the Home Affairs Department file CLF2015/62256 formerly the Department of Immigration and Border Protection (the Department) file. The applicant’s written claims are summarised below.
8. The applicant claims, in his PV application:
He was born in Abbottabad in Pakistan and brought up there. His father works for the Police Department in Pakistan. When he visited his family on 29 April 2011 a major operation to arrest ‘Osama Bin Laden’ was carried out. He was at the wrong place at the wrong time. Osama Bin Laden was in his town with his group at that time.
The applicant was approached by one of their top leader to help them and provide shelter to some of their members in his house. He was threatened that is he did not do so they would kill him. When he was approached by the Taliban to provide them with shelter, he was physically assaulted when he initially refused. They pointed a gun to his forehead and asked again. He agreed to assist them to save his life. Later on, he told his father who is in Pakistan Police. They went to local Police station to register complaint and asked for help.
The applicant approached American and Pakistani police and explained to them all the situation. His family forced him to leave town after that. Members of the Taliban group are still searching for him. They try to torture his family and try to find out about him every now and then. He can never go back because if they find out that he is in Pakistan, they will kill him and his family.
One night, the Taliban came to his house to find him and fortunately he was away from home at his in-laws house. He was told by friends and family that Taliban members are looking for him and will kill him if he returns to Pakistan.
Taliban have strong hold and power in his home country and they can kill anyone. To take revenge for not helping them they will definitely kill him. Every now and then they visit his street and enquire from the neighbours about him. On many occasions they try to torture his family and try to find his address.
He has asked Police to help him but they cannot, due to the Taliban being strong in his country. Even though his father is a police officer, he asked the applicant to leave the country.
9. The applicant attended a PV interview on 15 November 2016. A recording of that interview is on the Department file and it is summarised in the Department decision.
The applicant stated ‘that thing happened, that whole thing with Osama bin Laden’ in 2011.
Asked whether anything else happened he said ‘no.’ A few people tried to come to his dad in the morning and threaten him because he was involved in Osama bin Laden operation. The applicant stated that ‘so these people told my dad because of the situation you are involved in it is best you leave because it’s not safe.’ They were ‘just some people.’ They said ‘We can harm you because he was involved in that case. Osama bin laden case. He was doing some kind of investigation.’ Asked why he cannot return to Pakistan almost five years later the applicant said that ‘so many things happening, bomb blasts, kidnapping we just scared about our children if something happened to them.’
He said ‘so first they approached my father and then later on they approached me.’ ‘I wasn’t sure then later I realised they were the same people who approached my father.’ They approached him outside the house. He did not recognize them. Asked why he said in his statement that the Taliban asked him to provide shelter for their leaders the applicant stated that ‘this happened with my father not me.’
Asked why the Taliban were still searching for him, he responded that ‘sometimes my friends see weird people around that area.’ He cannot return to Pakistan it was not safe and because of his kids. ‘My kids get kidnapped, we can’t take a risk because of the situation my father is involved in and the current situation there it is not safe. I don’t want to put my or my children’s life at risk.’
The Tribunal explained that, at the Tribunal hearing, the first applicant had given evidence that he was from Abbottabad, had come to Australia at the end of 2007 and studied hospitality, was and is financially supported by his father and friends and lived with his father while in Pakistan (at [10]-[11]). Further, the first applicant stated that he had last studied in September 2011 when he applied for a further student visa. That visa was refused and he unsuccessfully challenged that refusal on judicial review (at [12]).
The Tribunal asked why the first applicant had not applied for a visa until 2016. He responded that he “thought that maybe things would get better” but, after unsuccessfully challenging the student visa decision, applied for the visa as “he had no option with any other visa”.
The Tribunal put it to the first applicant that he had only applied for the visa as he had extinguished all other options. The first applicant replied that he could not go back as he had “some issues and had no other options. All the fighting and the Taliban thing”. He further explained that his life and his children’s lives are in danger “as anything could happen to him” (at [14]).
The Tribunal continued:
15. Asked what happened he said that he was approached by a few people. Bad people who do terrorist activities back there. The Osama Bin Laden thing happened. He was approached through his friends for them to stay there, a place to hide. It is different back there. He never wanted to stay there and left as soon as his wife got a visa. Things were not good for his family.
16. He went home to his parents and then sometimes they have a gathering with friends. Some people approached his friends, they needed some places to stay. His friends and his cousins told him they needed some place to hide from the police or the security. They wanted him to give them a place to hide. He said he could not help. He never met these people, and his friends just pointed them out at the shopping centre. They explained to him they were some people involved in terror groups. He confirmed he was not approached by the people.
17. He left Pakistan because he spoke to his parents and his father was in the police at that time and he suggested that "better you do not stay and do your studies. We will see how it is going and better you do not stay". He then got a visa for his wife. He did not get any direct threat from these people. He stayed in Pakistan for a week.
18. Asked why these people wanted to stay with him, as his father was a policeman, he said it is not like a house and it is a village and the family had other land and houses.
19. It was put to the applicant that he had claimed in his PV that he was approached by one of the top leaders of Taliban to help and provide shelter to some of their members in his house. They threatened him if he did not do so and said they will kill him. He was physically assaulted when he initially refused. He responded that is what they told him. It was put to the applicant that his claims were inconsistent with the claims he had made to the Department and that he created his claims to obtain the visa sought. He did not agree.
The Tribunal then put it to the first applicant that “nothing happened to him in Pakistan”. The Tribunal notes that the first applicant “agreed” (at [20]).
When asked by the Tribunal how he and his family supported themselves, the first applicant explained that he and his wife do not work in Australia but “[h]is friend has a shop in the city” (at [21]).
In response to a question about what he fears if returns to Pakistan, the first applicant indicated that, now that he has children, he does not wish to return and “[i]t could be anything. Anything could happen. He cannot get any paperwork or any witness documentation” (at [22]). The first applicant also disagreed that he could return to Pakistan as “anything could happen to him” (at [23]).
On the basis of the evidence before it, the Tribunal was satisfied that the applicants were Pakistani nationals and had no right to enter or reside in a third country (at [24]).
The Tribunal then summarised the relevant principles relevant to the assessment of credibility (at [25]-[26]) and noted as follows:
27. On 1 May 2011 Osama Bin Laden, the leader of Al Qaeda, was killed by US forces in Abbottabad. Al Qaeda lost its foothold in Pakistan, Pakistan Tehreek-e-Insaf (PTI), led by former cricket captain Imran Khan, won a plurality of seats (151 of 342) in the July 2018 elections. With the support of minority parties, PTI controls 180 votes in Pakistan’s National Assembly, more than PML-N or Pakistan People’s Party (PPP), PML-N has accused the military of manipulating the elections to favour PTI, including by coercing PML-N candidates to change party.
The Tribunal did not accept that the fist applicant was “a witness of truth” and found that he had created his claims in order to obtain the visa he was seeking (at [28] and [32]).
The Tribunal explained:
29. Firstly, the applicant claimed to the Department in his PVA that whilst he was visiting Pakistan he was approached by the Taliban, one of their top leaders to help them and provide shelter to some of their members in his house. He was threatened that if he did not do so they would kill him. When he was approached by the Taliban to provide them with shelter, he was physically assaulted when he initially refused. They pointed a gun to his forehead and asked again. He agreed to assist them to save his life. At the Department interview the applicant people approached his father regarding his claimed activities. At the Tribunal hearing the applicant said that his friends and cousins had told him that some people had approached them and told them that they wanted to hide in the applicant’s house. When he was out, at a shopping mall, with his friends and cousins they pointed these people out to him. He confirmed that nothing else happened he did not speak to those people. When put to him that the claims he has made during the hearing were inconsistent with claims made to the Department regarding the Taliban approaching him for shelter and physically assaulting him the applicant stated that is what they told him.
30. Secondly, the applicant did not apply for a PV until about 5 years after his return to Australia in 2011. When put to the applicant that he did not apply for a PV and instead appealed his student visa refusal to the MRT and the Federal Circuit Court, the applicant said that he thought that maybe things would get better with his student visa but it did not happen and he had no option with any other visa. I accept that there are avenues available to appeal a temporary student visa refusal, but the delay in applying for a PV raises serious concerns in relation to the credibility of the applicant and the veracity of his claims. I am satisfied it indicates a lack of a subjective fear of persecution.
31. Thirdly the applicant, after the inconsistencies were put to him agreed that nothing happened to him in Pakistan
As the Tribunal did not accept the first applicant was a witness of truth, the Tribunal determined as follows:
33. As I am not satisfied that the applicant is a witness of truth, I therefore find that the applicant was not approached by one of the top leaders of the Taliban to help them and provide shelter to some of their members in his house. It follows that he was not threatened or physically assaulted when he refused to assist. I find that no one pointed a gun at him and it follows he did not go to the local Police station to register a complaint and ask for help. I do not accept that his family forced him to leave town or that members of the Taliban group are still searching for him or try to torture his family and try to find out about him every now and then. I also find that a few people did not go to his dad and threatened him because the applicant was involved in the Osama bin Laden operation. I do not accept that people approached his friends and cousins seeking shelter nor do I accept anyone sought shelter from him or threatened him for any reason whatsoever.
The Tribunal accepted that the first applicant’s father was a member of the police but was not satisfied that the first applicant suffered harm for that reason (at [34]). As the first applicant had not suggested that he feared harm for any other reason, the Tribunal found that the first applicant did not suffer any serious harm while in Pakistan (at [35]). The Tribunal accordingly found that the second, third and fourth applicants had not suffered harm in Pakistan (at [36]).
The Tribunal then summarised country information relating to human rights policies in Pakistan (at [38]) and the security situation in Pakistan generally (at [39]-[41]).
The Tribunal noted that the first applicant was not a political leader. Nor was he a political worker. He was also not a member of a religious minority (at [42]).
The Tribunal concluded:
43. I have considered the applicants’ claims and evidence individually and cumulatively. Whilst I note the independent evidence, cited above, regarding the security situation in Pakistan, I find that the applicants do not have a real chance that, if returned to Pakistan, they would suffer persecution for one or more of the reasons mentioned in paragraph 5J(1)(a). I find that the applicants do not have a well-founded fear of persecution for these reasons
The Tribunal then turned to consider the complementary protection criterion and determined as follows (at [44]):
45. I accept that the applicant fears many things are happening in Pakistan, there are bomb blasts, kidnappings and he is scared about his children if something were to happen to them.
46. As the applicant did not suffer any harm when he resided in Pakistan or when he returned there for visits, and no separate claims have been made by the second named, third named or fourth named applicants of harm in Pakistan, ·I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan, there is a real risk that the applicants will suffer significant harm.
47. I do not accept on the evidence before me, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan, there is a real risk that they will be arbitrarily deprived of their life, that the death penalty will be carried out on them, that they will be subjected to torture, that they will be subjected to cruel or inhuman treatment or punishment or that they will be subjected to degrading treatment or punishment. Accordingly, I find that the applicants do not satisfy the requirements of s.36(2)(aa) of the Act
The Tribunal was not satisfied that s 36(2)(a), s 36(2)(aa) or s 36(2)(b) of the Act were satisfied and, on that basis, affirmed the delegate’s decision not to grant the applicants the protection visas (at [48]-[51]).
PROCEEDINGS IN THIS COURT
In their amended application for judicial review filed 28 April 2021 the applicants provide eight “grounds of review” as follows (without alteration):
1.I Believe AAT member didn’t understand the current situation of pandemic in my country where we can’t move and not safe.
2. AAT member made judicial error while taking my interview as I am emotionally and mentally broke with stress and hopeless and helpless with anxity and stress and cant recall all incident happened to me back in my country.
3. AAT member made judicial error and ignored US convention and childrens rights born in Australia and haven’t included my younger child part of case.
3. I believe AAT didn’t understand and made Judicial error while taking my interview. As I just want to tell that I am staying in Australia without job and I am a father of three young kids. I have too much stress and trauma so I can’t memorize the things. As I am suffering a lot in stress, trauma and has no treatment or any medical advice.
4. I Believe AAT made error accessing my mental condition and current situation. I have memory loss issue because of trauma and this on going situation as I dont have medical access.
5. I believe AAT made judicial error and while I was giving interview as I didn’t have interpreter during my interview and I realise I have english issue it was very proffessional English.
6. I believe AAT didn’t understand and made a judicial error in decision and ignored my situation and ongoing threats for me and my family as I was a son of police officer and thats why they approached me because it is safe place for them to stay. As if you can see the fact and newspaper most of the time Pakistan police providing shelters to Taliban because of bribe and some because of life threats but I rejected and my life is in danger.
7. I believe that AAT member made judicial error while accessing my Application and ignored UN Convention on children rights. Australia has recognised and ratified the UN Convention on children rights, Articles 03 for children. As I dont have money and access of lawyer I dont know much but I and my family is Genuine Refugees.
8. I believe AAT member ignored that I dont have work rights and no job and father of three children and very stressful person. If I can afford lawyers I can discuss, and because of my memory issue and lack of knowledge and helpless I forgot to tell immigration about my third child as he was born last year. I don’t have enough knowledge but I believe when AAT member made decision, she didn’t consider my all three children life, safe environment and safe healthy life.
The applicants have provided two “ground 3’s”. For clarity, the Court will reference these as ground 3A and ground 3B.
The applicants were given an opportunity to file an amended application, any supporting affidavits and a written outline of submissions. Following the filing of the amended application, no further materials were filed.
The materials before the Court thus include the amended application for judicial review filed 28 April 2021, a Court Book numbering 332 pages (marked as Exhibit 1) and outlines of submissions filed by the Minister on 21 April 2021 and 3 May 2021.
The matter first came before the Court on 28 May 2021. The applicant was assisted by a Pashto interpreter. That interpreter appeared by video-link. While the Court had no issue with the standard of interpretation being provided, the quality of the video-link was not satisfactory. The Court was required to repeat itself on many occasions. As a result, it was decided that the matter would be adjourned to obtain the services of an interpreter in person.
The matter returned on 28 May 2021. At the hearing, the first applicant appeared on his own behalf and on behalf of the other applicants. He was assisted by an Urdu interpreter who appeared in person. The Court confirmed that he had received a copy of the Court Book and the Minister’s written submissions.
Noting the remarks of the Federal Court (in particular in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8]) that it is usually appropriate for an unrepresented party to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court gave the first applicant an opportunity to explain to the Court what he thought the Tribunal “did wrong”. The Court explained that the Court’s jurisdiction was limited to determining whether the Tribunal had fallen into jurisdictional error. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap but that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
(g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
The Court also explained that the Court cannot undertake a merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the visas the applicants now seek. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
Against this background, the first applicant highlighted that he we suffering from mental health and stress related issues when he appeared at the Tribunal and this made it difficult for him to express what he needed/wanted to say to the Tribunal or to understand what was happening at the Tribunal hearing. The applicant also indicated that he was disadvantaged before the Tribunal because no interpreter had been provided. The applicant acknowledged that he had not requested an interpreter, but told the Court that this was because he thought he would have to pay for an interpreter and did not have the financial capacity to do so. The applicant’s oral submissions are addressed below when assessing the applicant’s “grounds of review” as articulated in the amended application for judicial review.
CONSIDERATION
Grounds of Review
Ground 1
Ground 1 provides:
I Believe AAT member didn’t understand the current situation of pandemic in my country where we can’t move and not safe.
This ground fails on a factual level. There is nothing to suggest that the applicants ever put to the Tribunal that they faced a real chance or a real risk of serious or significant harm as a result of the current health situation in Pakistan. Nothing express nor implicit in the materials arose which required the Tribunal to consider such a claim.
The Court is not unsympathetic. Clearly, the pandemic has given rise to a number of concerns globally, but particularly in countries like Pakistan. However, this concern was never advanced by the applicants as a basis upon which they might be entitled to protection. The applicants had the opportunity to raise this issue but did not do so. The Court cannot now consider this claim for protection.
Ground 1 is, accordingly, dismissed.
Grounds 2, 3B and 4
Grounds 2, 3B and 4 provide:
2. AAT member made judicial error while taking my interview as I am emotionally and mentally broke with stress and hopeless and helpless with anxity and stress and cant recall all incident happened to me back in my country.
…
3B. I believe AAT didn’t understand and made Judicial error while taking my interview. As I just want to tell that I am staying in Australia without job and I am a father of three young kids. I have too much stress and trauma so I can’t memorize the things. As I am suffering a lot in stress, trauma and has no treatment or any medical advice.
4. I Believe AAT made error accessing my mental condition and current situation. I have memory loss issue because of trauma and this on going situation as I dont have medical access.
What the first applicant appears to be suggesting in grounds 2, 3B and 4 is that he suffers from a mental condition (anxiety and stress) which prevented him from being able to give evidence and present arguments. He also appears to be suggesting that his mental condition caused the Tribunal’s adverse credibility assessment. The first applicant repeated these claims in his oral submissions to this Court.
Where an applicant in not mentally fit to participate in a hearing, the Tribunal will fall into jurisdictional error notwithstanding that it may not have been aware of any mental health issue or condition: Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553.
Here, however, there is no evidence that the first applicant was “unfit” or “unable” to participate in the Tribunal hearing as a result of any mental impairment or indeed at all. While the first applicant states that he does not have access to medical advice or treatment, in the absence of medical evidence the Court cannot be satisfied that he was unable to meaningfully participate in the hearing. The Tribunal’s decision clearly indicates that he did participate. He provided information asked of him and responded to matters put to him.
Further, the Tribunal gave the first applicant an opportunity to explain any inconsistencies in his evidence. At no time did the first applicant state that he had any mental conditions which affected his ability to recall events. At no time did the first applicant refer to memory loss, stress or trauma to explain any inability to recall things. It is also noteworthy that the applicant had almost two weeks following the Tribunal hearing (and before the Tribunal handed down its decision) to raise any concerns with the Tribunal about the hearing or, indeed, any mental health condition. He did not so.
On the basis of the evidence before it, the Court does not accept that the first applicant was unfit to participate in the Tribunal hearing such that he was denied an opportunity to give evidence and present arguments.
Further, to the extent that the applicants may be suggesting that Tribunal’s finding that the first applicant was not a “witness of truth” was affected by jurisdictional error, the Court disagrees. Here, the Tribunal’s adverse credibility finding was based upon the fact that:
(a)the first applicant had provided an inconsistent account of his claims and when these were put to the applicant he did not provide any detailed response (at [29]);
(b)the first applicant had delayed in applying for the visa and this indicated a lack of a subjective fear of harm (at [30]); and
(c)when put to the first applicant that nothing had actually happened to him previously in Pakistan, he agreed (something which contradicted his previous claims).
Each of those matters had a logical and probative basis. Clearly, inconsistencies are matters relevant to the credibility of a witness. It is well accepted that a delay in applying for the visa is a relevant consideration when assessing whether an applicant’s claims are genuine. Finally, the fact that the first applicant conceded that nothing had happened to him previously (contrary to what he had claimed) was relevant to, and probative of, the assessment of the first applicant’s previous evidence. Ultimately, these matters provided a sound basis upon which to make the adverse credibility finding that the first applicant was not a “witness of truth”.
To the extent that the first applicant now wishes to claim that these “inconsistencies” were a result of a mental condition, the Court does not accept this to be the case. As stated, the first applicant has advanced no evidence to this effect and no concerns of this sort were ever raised before the Tribunal.
Grounds 2, 3B and 4 fail to identify any jurisdictional error.
Ground 3A and 7
Grounds 3A and 7 provide:
3A. AAT member made judicial error and ignored US convention and childrens rights born in Australia and haven’t included my younger child part of case.
…
7. I believe that AAT member made judicial error while accessing my Application and ignored UN Convention on children rights. Australia has recognised and ratified the UN Convention on children rights, Articles 03 for children. As I dont have money and access of lawyer I dont know much but I and my family is Genuine Refugees.
While the applicants refer to the “US convention” in ground 3A, the Court understands this to be a reference to the United Nations Convention on the Rights of the Child (as they correctly identify in ground 7).
The applicants allege that the Tribunal should have considered the United Nations Convention on the Rights of the Child as their children were born in Australia.
As per ss 10 and 78 of the Act, the children are taken to have been granted the same visa as their parents and to have “entered” Australia on the date they are born.
On the facts of this case, there was no mandatory obligation on the Tribunal to consider the United Nations Convention on the Rights of the Child. The grant or refusal of the visa was predicated on the Tribunal being satisfied that the first applicant met the criterion in s 36(2)(a) and 36(2)(aa) of the Act.
In Singh v Minister for Home Affairs [2020] FCAFC 7, the appellants advanced an argument that the Tribunal in that case was required to make the best interests of the child a primary consideration in reaching its determination. The visa sought was a partner visa. The Full Court rejected the appellant’s argument stating:
62. The appellant’s submissions obfuscated how the interests of a child were to be a primary consideration in reaching the specified state of satisfaction. The insurmountable hurdle for the appellant is that it is now well accepted that un-enacted treaty obligations do not impose obligations on decision-makers to take into account international obligations arising thereunder. This was the considered conclusion in Kaur which concerned the formation of a state of mind on which a power was conditioned. It did not concern the exercise of a discretion. In SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459 at [29], Griffith J referred to the existence of a long line of authority to the effect that the principle in Teoh has no application to the exercise of a non-discretionary power. Similarly, here the process engaged in by the Tribunal was the formation of a state of satisfaction, a task not involving an exercise of discretion.
In SZBPQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 568 it was stated:
17. However, the appellant’s reliance upon the CROC, and Teoh’s case, is misplaced. That is because the RRT’s task was to determine whether it was satisfied that the appellant was a person to whom Australia had ‘protection obligations’ under the Refugees Convention as amended by the Refugees Protocol: s 36(2) of the Act. If the RRT was so satisfied, then it was required to grant the visa: s 65(1)(a) of the Act. If the RRT was not so satisfied, then it was required to refuse to grant the visa: s 65(1)(b) of the Act. No element of discretion is involved in which the interests of the appellant as a child could be brought to bear as a ‘primary consideration’. Hence, there was no scope for the application of principles derived from the reasoning of the majority in Teoh’s case, and no error on the part of the RRT in failing to take into account the provisions of the CROC in coming to its decision.
18. The RRT was bound to apply the provisions of the Act (and in particular s 91R) and the Refugees Convention, rather than the provisions of the CROC. The gravamen of the appellant’s complaint under ground 1 is that the RRT failed to give effect to what are said to be rights accruing to the child under the CROC. It was no part of the RRT’s function to do so.
Here, the applicants never put to the Tribunal that the United Nations Convention on the Rights of the Child was a relevant consideration. They never made a claim to the effect that the third applicant or the fourth applicant were owed protections as their rights under the United Nations Convention on the Rights of the Child would be breached if removed. In fact, no claims were made on behalf of the children. The Tribunal expressly noted this (at [36]).
Accordingly, it cannot be said that the Tribunal erred in failing to consider the United Nations Convention on the Rights of the Child. No claim was ever made and no claim ever arose on that basis.
To the extent that the applicants state that they did not have access to a lawyer and, therefore, their case could have been better put, the Court sympathises. However, there is no right to representation or assistance before the Tribunal: ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099 (“ADF15”). It is an applicant’s responsibility to advance their claims and evidence.
Finally, in ground 3A the applicants refer to their third child not having been included in the Tribunal’s review. This is correct. The Tribunal’s decision only related to the first applicant, his wife and two of his children.
There is nothing in the materials before the Court to suggest that the applicants advised the Tribunal that they had had another child. More importantly, the Tribunal would not have had jurisdiction to consider the new child as, relevantly, no decision had been made by a delegate in relation to that child. The Tribunal’s jurisdiction under s 411(1)(c) of the Act is limited to reviewing a decision to refuse to grant a protection visa. No such refusal appears to have been made in relation to a third child. On that basis, the Tribunal could not consider any “new child” and there was no error in it failing to do so.
Grounds 3A and 7 are dismissed.
Ground 5
Ground 5 provides:
5. I believe AAT made judicial error and while I was giving interview as I didn’t have interpreter during my interview and I realise I have english issue it was very proffessional English.
Here, the applicants claim that as no interpreter was provided, they were not, accordingly, afforded procedural fairness. The first applicant raised this concern again in his oral submissions to this Court.
Question 31 of the applicants’ visa application (CB 14) asks whether the first applicant required an interpreter for any interview. The box was marked “no”.
Question 2 of the application for review at the Tribunal (CB 305) asks whether the applicants require an interpreter. Again, the box was marked “no”.
In the hearing invitation sent 10 January 2020, the following statement is included (CB 312):
Please advise us at least 7 days before the hearing if you require an interpreter.
Before this Court, the first applicant explained that he did not request an interpreter but only because he did thought he would have to pay for interpretation assistance and did not have sufficient funds to do so.
While sympathetic, the fact that an interpreter was not provided before the Tribunal arose from the fact that the first applicant himself failed to request that assistance.
Nonetheless, the Court has considered for itself whether the lack of an interpreter could have resulted in the first applicant losing the opportunity to give evidence and present arguments.
The Tribunal hearing lasted for 50 minutes. At no time during that hearing does it appear that the first applicant raised any issue with the fact that he did not have an interpreter. Further, the first applicant does not appear to have suggested to the Tribunal or stated that he could not understand what was happening. Nor did he requested an adjournment so that an interpreter could be retained and ultimately relied on.
The Tribunal’s decision does not demonstrate that the applicant had any issue understanding the Tribunal or giving evidence. The Tribunal refers to the evidence that the applicant provided and notes his responses when questions were put to him. The responses provided to those questions (for example, at [14], [15], [18], [19]-[23]) do not demonstrate that the first applicant did not understand what was being asked of him.
Finally, s 427(7) of the Act states:
(7) If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter.
The Tribunal is undoubtedly mindful of its procedural fairness obligations. The Court considers that, if the Tribunal was of the view that the first applicant’s English skills were not proficient or that he had indicated that he was having language difficulties, the Tribunal would have obtained the assistance of an interpreter and directed communication to take place through that interpreter or adjourned the review to enable an interpreter to assist on another occasion. It did not do so. There is simply no indication that the first applicant was having any language difficulties before the Tribunal.
On the evidence before it, the Court is not satisfied that the fact that there was no interpreter present to assist the first applicant at the Tribunal hearing resulted in a denial of procedural fairness.
Ground 5 is, accordingly, dismissed.
Ground 6
Ground 6 provides:
6. I believe AAT didn’t understand and made a judicial error in decision and ignored my situation and ongoing threats for me and my family as I was a son of police officer and thats why they approached me because it is safe place for them to stay. As if you can see the fact and newspaper most of the time Pakistan police providing shelters to Taliban because of bribe and some because of life threats but I rejected and my life is in danger.
The applicants claim that the Tribunal failed to consider, or ignored, the first applicant’s claims that he was the son of a police officer and he was approached by the Taliban.
The Tribunal did not ignore the claims. It carefully summarised the first applicant’s evidence in relation to these claims (at [8]-[9] and [15]-[19]). The Tribunal then made an assessment of the credibility of the first applicant’s evidence in relation to these claims (at [28]-[32]). The Tribunal concluded that the first applicant was not a witness of truth and that he had fabricated his claims.
The Tribunal then found:
33. As I am not satisfied that the applicant is a witness of truth, I therefore find that the applicant was not approached by one of the top leaders of the Taliban to help them and provide shelter to some of their members in his house. It follows that he was not threatened or physically assaulted when he refused to assist. I find that no one pointed a gun at him and it follows he did not go to the local Police station to register a complaint and ask for help. I do not accept that his family forced him to leave town or that members of the Taliban group are still searching for him or try to torture his family and try to find out about him every now and then. I also find that a few people did not go to his dad and threatened him because the applicant was involved in the Osama bin Laden operation. I do not accept that people approached his friends and cousins seeking shelter nor do I accept anyone sought shelter from him or threatened him for any reason whatsoever.
34. Whilst I accept that the applicant’s father was in the Police Department I do not accept that the applicant suffered harm in Pakistan for that reason.
The Tribunal did not “ignore” the applicants’ situation. It carefully assessed the first applicant’s claims but, ultimately, did not accept them. The Tribunal’s reasons for doing so (i.e., that the first applicant had fabricated these claims) was logical and open on the evidence (see [43]-[44] above).
The applicants refer to “newspapers”. No supporting evidence in the form of newspapers or any other material was provided to the Tribunal.
What the applicants appear to be saying is that they disagree with the Tribunal’s conclusion. They believe that the current situation in Pakistan places them in danger. The applicants clearly believe this to be the case. However, the Tribunal’s reasons for finding that this is not the case are sound.
Ground 6 is, accordingly, dismissed.
Ground 8
Ground 8 provides:
8. I believe AAT member ignored that I dont have work rights and no job and father of three children and very stressful person. If I can afford lawyers I can discuss, and because of my memory issue and lack of knowledge and helpless I forgot to tell immigration about my third child as he was born last year. I don’t have enough knowledge but I believe when AAT member made decision, she didn’t consider my all three children life, safe environment and safe healthy life.
The applicants make reference to their lack of legal representation and their knowledge of the immigration system. The applicants are in a similar situation to many, if not most, applicants who appear before the Tribunal and this Court. While unfortunate, this is not a matter which the Tribunal was required to consider. As noted above, legal representation is not “a right”: ADF15.
In relation to the first applicant’s “memory issue”, again, no evidence has been advanced to substantiate this concern. The fact that the first applicant “forgot to tell the Department about his third child” does not support an argument that the first applicant had or currently has memory issues or mental health concerns.
If, as the Minister submits, the applicants are suggesting that the Tribunal should have considered whether this “new child” was owed protection, this too must be dismissed. The Tribunal had no power to do so as the new child, relevantly, was not the subject of a delegate’s decision: the Act, s 412(2).
Again, the first applicant refers to his children. No claims for protection were made by or for his children. The children advanced their claim on the basis that they were a member of their father’s family unit.
Further, the Tribunal considered the security situation in Pakistan and whether the applicants would face harm for this reason (at [37]-[43]). It also acknowledged the first applicant’s fears for his family and children (at [45]). However, the Tribunal concluded that as the first applicant had not been harmed when he resided in Pakistan or on any of his return visits, no risk or chance of harm arose.
Ground 8 is, accordingly, dismissed.
CONCLUSION
The applicants’ application for judicial review fails to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 31 May 2021
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