BKG17 v Minister for Immigration
[2019] FCCA 384
•21 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BKG17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 384 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection (class XA) visa – application dismissed. |
| Legislation: Migration Act 1958 (Cth). |
| Cases cited: Minister for Immigration and Citizenship v MZYHS [2011] FCA 53 SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 |
| Applicant: | BKG17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 668 of 2017 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 15 October 2018 |
| Date of Last Submission: | 15 October 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 21 February 2019 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Counsel for the respondents: | Mr Knowles |
| Solicitors for the respondents: | Sparke Helmore |
ORDERS
The applicant’s application for judicial review filed on 3 April 2017 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 668 of 2017
| BKG17 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed in this court on 3 April 2017 under the Migration Act 1958 (Cth) (“the Act”) in which the applicant seeks judicial review against the decision of the second respondent, the Administrative Appeals Tribunal (“the tribunal”) made on 10 May 2011.
In its decision, the tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection
(“the Minister”) made on 8 March 2017 refusing to grant the applicant a Protection (class XA) visa (“the visa”).
The tribunal’s decision is found in the court book at pages 433 to 449.
Summary
For the reasons that follow this application for judicial review fails.
I make orders dismissing the proceedings and order the applicant to pay the first respondent’s costs. .
Background
The applicant is a citizen of Pakistan.
The applicant initially arrived in Australia on 5 January 2007 as a holder of a student (subclass 572) visa. The applicant made a further application for a student visa on 22 December 2008 which was granted on 8 May 2009 and a third application for a student visa on
30 October 2009.[1]
[1] Court book page 95.
The applicant departed Australia on 9 December 2009 as the holder of a bridging visa B (subclass 020) and arrived in Australia again on
16 January 2010 on the same bridging visa.[2]
[2] Court book page 95.
The applicant was granted a third student visa on 11 June 2010. The applicant applied for a fourth student visa on 4 September 2010 which was granted on 1 October 2010. Whilst the holder of this student visa, the applicant departed Australia on 13 December 2010 and returned on 15 January 2011.[3]
[3] Court book page 95.
On 9 February 2011, the applicant first applied for the visa. He claimed that on any return to Pakistan in the reasonably foreseeable future, he would face a real chance of persecution on account of his Christian religion. Among other things, he claimed that he would face a real chance of persecution due to a past relationship with a Muslim woman (“first visa application”).[4]
[4] Court book page 434 at paragraph [2].
On 10 May 2011, a delegate of the Minister refused to grant the applicant’s first visa application. The applicant sought a review of that decision which was also rejected and on 28 February 2012, the
Refugee Review Tribunal (as it then was) affirmed the delegate’s decision.[5]
[5] Court book page 434 at paragraph [2].
The applicant sought judicial review of that decision but the
Federal Magistrates’ Court (as it then was) dismissed the application on 5 October 2012. The applicant then sought Ministerial intervention in October 2013, but the Minister deemed the application “inappropriate to consider” and the applicant was advised accordingly on 2 April 2014.[6]
[6] Court book page 434 at paragraph [2].
On 13 March 2014, the applicant made a further application for a visa relying on the Federal Court decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 (“second visa application”).
The applicant was assisted with his second visa application by an interpreter in the Urdu and English languages.[7]
[7] Court book page 434 at paragraph [3].
On 23 September 2015, a delegate of the Minister refused to grant the visa to the applicant.[8]
[8] Court book page 424 at paragraph [2].
On 30 September 2015, the applicant applied to the tribunal for review of the decision made by the Minister’s delegate on 23 September 2015. The applicant and his representative subsequently lodged various documents with the tribunal.
On 24 November 2016, the tribunal conducted a hearing, at which the applicant was represented and gave evidence. The applicant’s brother also gave evidence by telephone from Pakistan.
On 5 December 2016, the tribunal wrote to the applicant and his representative pursuant to section 424A of the Act. The tribunal invited the applicant to comment on information which it considered would be the reason or a part of the reason for its decision. The information related to inconsistencies between the evidence given by the applicant’s brother and the applicant’s claims and evidence.
On 27 and 28 December 2016, the applicant’s representative responded to the tribunal’s correspondence, lodging written statements made by the applicant and others.
On 9 March 2017, the tribunal handed down its decision in which it affirmed the delegate’s decision of 23 September 2015.
On 3 April 2017, the applicant applied to this court seeking judicial review of the tribunal’s decision.
The tribunal’s decision
The tribunal set out the relevant law in its decision at paragraph [5] of its reasons. As noted above, the second visa application was made under the complementary protection criterion.
Under the complementary protection criterion, if a person is found not to meet the refugee criterion under section 36(2)(a) of the Act, they may still meet the criteria for the issuing of a protection visa if the Minister is satisfied Australia has protection obligations under section 36(2)(aa) of the Act. The Minister must have substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.[9]
[9] Court book pages 434 to 435 at paragraphs [7] to [12].
The tribunal dealt with the applicant’s mental health considerations at paragraphs [15] to [17] of its decision record. It is common ground that although much of the applicant’s evidence in relation to his mental health was expressly referred to in the decision record, the tribunal did not expressly refer to the report provided to the tribunal by Khai Wong
(“the Wong Report”).[10]
[10] Court book pages 366 to 381.
The Wong Report was dated 26 June 2016 and followed three consultations with the applicant, on 12 May 2016, 30 May 2016 and
24 June 2016. The Wong Report relevantly concluded as follows:
(the applicant) is presenting with genuine symptoms of trauma, depression and anxiety. …
…
It is my observation that (the applicant) is not good at explaining his experiences which may have led the Department of Immigration and Border Protection to misconstruing his situation. It is my opinion that people of countries exposed to different cultural extremes that he experiences he cannot confidently have expressed himself well for fear of being vulnerable to violence and persecution.[11]
[11] Court book pages 380 to 381.
The tribunal also considered a report from the applicant’s treating psychologist, Ms Bower. Ms Bower’s report indicated:
a)she has been treating the applicant for almost 12 months since he was referred to her under a mental health plan by his GP in September 2015;
b)her diagnosis is that the applicant is suffering from Post-Traumatic Stress Disorder;
c)the applicant is also suffering from extremely severe level of depression with symptoms worsening over time as his appeal goes on; and
d)the applicant had undertaken 13 sessions with Ms Bower.
The tribunal noted that the applicant gave evidence about his mental health issues and the fact that, among other things, it had affected his sleep. The tribunal further noted the applicant’s comments that “given his mental health issues it would be hard for him to get a job in Pakistan and survive.”[12]
[12] Court book page 436 at paragraph [17].
The tribunal went on to say:
(We do) not accept that (the applicant) would not be able to get work on return to Pakistan on the basis of his mental health issues, noting that he gave evidence at hearing that he has been working in Australia for the past year on a casual basis as a patient assistant at various hospitals. On this basis and the evidence before it, the Tribunal is not satisfied that his mental health issues are so severe that they would result in a real risk of significant harm to him in Pakistan.[13]
[13] Court book page 436 at paragraph [17].
Notwithstanding these findings, the tribunal accepted that the applicant may be suffering from mental health issues for which he was receiving treatment in Australia.[14] However, it was not satisfied that this explained the inconsistency in his evidence or the implausibility of his claims, nor did it accept the reasons given for this condition set out in the reports. The tribunal concluded that the applicant was able to meaningfully participate in the tribunal hearing on the basis that he was able to understand the questions asked of him and respond clearly.[15]
[14] Court book page 436 at paragraph [18].
[15] Court book page 432 at paragraph [18].
The tribunal accepted that the applicant comes from a Christian family in Pakistan and grew up in an area of Karachi with many Muslim neighbours, some of whom were his friends. The tribunal also accepted that he may have had a neighbour called Javerea who was a Muslim and friend of his sister. However, the tribunal expressed “significant concerns about the credibility of the applicant’s evidence about his claimed relationship with Javerea and the claimed incidents in Pakistan as a result…”[16]
[16] Court book page 439 at paragraph [32].
In addition, the tribunal found that the applicant’s evidence about the alleged assault he suffered at the hands of three or four mullahs on
5 January 2011 upon the discovery of his relationship with Javerea, and the resultant police charges and mistreatment lacked credibility.[17]
[17] Court book page 440 to 441 at paragraph [33].
The tribunal also expressed concern about the applicant’s allegations that his family who remained in Pakistan had experienced threats and harm after he left.[18]
[18] Court book pages 441 to 443 at paragraphs [34] and [35].
As a result of these concerns, the tribunal did not accept that the applicant:
a)formed a relationship with a Muslim girl called Javerea in Pakistan;
b)was beaten unconscious by mullahs as a consequence in January 2011;
c)was accused of and charged with blasphemy or any other law;
d)was detained by police;
e)was under pressure to convert to Islam and to join the jihad;
f)was accused of forcing Javerea to convert to Christianity; or
g)the applicant’s family was threatened or harmed by Muslim extremists or anyone including his brother either after he left Pakistan or more recently in 2016.[19]
[19] Court book pages 443 to 444 at paragraph [36].
The tribunal did not accept that the applicant was of ongoing interest to Muslim extremists or anyone else in Pakistan, or that a fatwa had been issued against the applicant.[20]
[20] Court book page 444 at paragraph [37].
Having rejected the applicant’s claims of past harm, the tribunal did not accept that on any return to Pakistan, the applicant would face a real chance of significant harm from mullahs, Muslim extremists, the Pakistani authorities or others due to any relationship with a Muslim woman or for any other reason.[21]
[21] Court book page 445 at paragraph [42].
The tribunal also considered whether the applicant would be at risk of significant harm on his return to Pakistan as a Christian. It accepted that he was a Christian but did not accept that he faced a real chance of significant harm in Pakistan on account of his Christian religion. In making that finding, the tribunal had regard to the applicant’s evidence and country information about the circumstances of Christians in Pakistan.[22]
[22] Court book pages 445 to 447 at paragraphs [44] to [52].
The tribunal also considered the applicant’s claim that the blasphemy laws could be misused against him. It concluded that whilst blasphemy laws are misused against Christians in some instances in Pakistan, it was not satisfied that there was a real risk of the applicant being subjected to charges under blasphemy laws as a Christian on his return.[23]
[23] Court book pages 447 to 448 at paragraph [53].
For each of these reasons, the tribunal was not satisfied that the applicant met the criterion for complementary protection under section 36(2)(aa) of the Act and consequently affirmed the decision of the delegate not to grant the visa to the applicant.[24]
[24] Court book page 448 at paragraphs [54] to [58].
Ground one
The first ground of review in the applicant’s application states:
The decision of the Tribunal:
(a)Is affected by an error of law; and
(b)Denied the applicant procedural fairness.[25]
[25] Page 3 of the applicant’s application filed 3 April 2017.
The applicant has not particularised this ground of review.
Notwithstanding orders having been made by Registrar Allaway in these proceedings on 11 October 2017 permitting the applicant, among other things, to file and serve any amended application with proper particulars of the grounds of the application, the applicant filed no such amended application.
In addition, the orders made by Registrar Allaway permitted the applicant to file any written submissions 28 days prior to the hearing in this matter. Notwithstanding the applicant not filing any written submissions in accordance with those orders, at the commencement of the hearing before me, the applicant sought to provide a document which appeared to be written submissions.
After hearing from the parties, I granted leave to the applicant to file those written submissions.[26] I also made orders permitting the Minister to file further written submissions in response to the applicant’s written submissions within 7 days and that the applicant could file any reply material.
[26] Exhibit A.
The Minister filed submissions in response on 22 October 2018. The applicant filed reply submissions on 29 October 2018.
I have had regard to all of this material.
At the hearing before me, the applicant represented himself and was assisted by an interpreter. Although the interpreter was available to assist the applicant throughout the hearing, the applicant, who had a reasonable command of the English language, preferred to speak directly to the court in English.
When asked to expand upon the grounds raised in his application for review, the applicant said that the tribunal failed to mention the Wong Report submitted on his behalf.
The applicant also raised concerns about the tribunal’s handling of the evidence given by his brother. He said that there were difficulties with the telephone call to his brother and that there were a lot of things that his brother could not understand. The applicant also said that his brother did not have any experience in giving an interview of that kind and that all of these factors impacted upon his capacity to give evidence to the tribunal.
In his written submissions, the applicant raised a number of points which are summarised below.
I will deal with the Minister’s response to each of these matters in turn.
Mental health issues
The applicant submitted that the tribunal member had come to the wrong conclusion about his mental health problems. In particular, he asserted that in concluding that he would be able to work in Pakistan, the tribunal made an error. Moreover, the tribunal made an error in concluding that his mental health issues were not so severe as to create a real risk of significant harm if he were to return to Pakistan, particularly having regard to the fact that the tribunal member is not a psychologist.
It was submitted that the tribunal member did not have regard to the type of services available to someone with mental health concerns in Pakistan and the negative attitudes that are held in Pakistan to people who suffer from mental health issues. It was said that the assessment that the applicant would be able to find employment in Pakistan was not based on a “factual assessment of the circumstances and discrimination that (he) would suffered (sic) in Pakistan if (he) apply (sic) for any employment in Pakistan”.[27]
[27] Paragraph 1 of the applicant’s written submissions dated 13 October 2018.
Moreover without employment, the applicant submitted he would be at increased risk to people who kidnap individuals for slavery, prostitution or sale for body parts.[28] The tribunal failed, according to the applicant, to have regard to these matters.
[28] Paragraph 1 of the applicant’s written submissions dated 13 October 2018.
In addition, it was submitted that the tribunal’s finding that the applicant was able to fully participate in the interview did not take into account that he had been medicated to allow him to participate and that during the interview, he broke down many times and cried. The applicant maintains that he therefore did not meaningfully participate in the hearing and that the tribunal failed to appreciate his vulnerability.
In relation to the applicant’s claim that the tribunal made an error in concluding that the applicant would be able to find employment in Pakistan notwithstanding his mental health issues, it was submitted on behalf of the Minister that the tribunal did consider the applicant’s mental health issues at paragraphs [15] to [18] of its reasons.
Specifically at paragraph [17], the tribunal addresses the issue of the applicant’s claim that it would be hard for him to get a job in Pakistan given his mental health issues. On the basis of the information before it, in particular having regard to the fact that the applicant was indeed working in Australia, albeit on a casual basis, I am satisfied that it was open to the tribunal to conclude that the applicant would find employment of some nature in Pakistan.
To the extent that the applicant is now seeking to argue that the tribunal did not but should have considered the availability of mental health facilities in Pakistan and the discrimination to which the applicant, as a person suffering from ill mental health, might experience, no such claim was made, nor did any such claim reasonably arise from the material before the tribunal.[29]
[29] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58], [60]–[61] and [68].
To the extent that the psychological reports were submitted on the applicant’s behalf, they addressed issues of his current condition and the causes of that condition. The reports did not in any way address the applicant’s capacity for employment. Indeed, the tribunal accepted that the applicant suffered from mental health issues and was receiving treatment in Australia.
This aspect of the applicant’s submissions otherwise seeks impermissible merits review.
It was submitted on behalf of the Minister that the applicant’s claim that the tribunal, in assessing his capacity to participate in the hearing, did not have regard to the fact that he was heavily medicated, should be rejected. I agree. The tribunal accepted that the applicant was receiving both counselling and medication for his mental health issues.[30] Moreover, insofar as concluding that the applicant was able to meaningfully participate in the hearing, this was based on the tribunal’s assessment that the applicant was able to “understand the tribunal’s questions and respond clearly”.[31] It was open to the tribunal to reach such a conclusion from its own observations.
[30] Court book page 436 at paragraph [18].
[31] Court book page 436 at paragraph [18].
Relationship between the applicant and Javerea
The applicant submitted that the tribunal misunderstood the evidence he provided regarding his relationship with Javerea. He submitted that he did not face any difficulties arising from this relationship, which was known to her family and his family, until 2011 when it became public.[32]
[32] Paragraph 3 of the applicant’s written submissions dated 13 October 2018.
Contrary to the assertions by the applicant, the tribunal acknowledged the applicant’s claims that both families were aware of his relationship with Javerea and had come to accept it.[33] The tribunal also acknowledged that it was after the applicant’s sister’s wedding on
5 January 2011 that the applicant was allegedly discovered in Javerea’s home by three or four local mullahs.[34]
[33] Court book page 437 at paragraph [22].
[34] Court book page 437 at paragraph [23].
At paragraph [32] of its reasons, the tribunal identifies a number of inconsistencies in the applicant’s claims regarding his ‘relationship’ with Javerea.
In particular, the tribunal noted that the applicant’s return to Pakistan in 2009 and 2011 was at odds with the existence of an interfaith relationship given his claims that such a relationship was extremely risky.[35] This went to the issues of the tribunal’s assessment of the applicant’s credibility and the plausibility of his claims.
[35] Court book page 440 at paragraph [32(c)].
The findings made by the tribunal were open to it and there is nothing to suggest that the tribunal’s assessment of this evidence was manifestly illogical or irrational or unreasonable in the sense necessary to warrant a finding of jurisdictional error.
Consideration of applicant’s evidence
The applicant also submitted that the tribunal acted unreasonably, in the manner in which it considered the evidence about:
a)how the mullahs may have become aware of the applicant’s relationship with Javerea;[36]
b)the use by the applicant of the term ‘mullahs’ and ‘angry men’ interchangeably;[37] and
c)the failure by the applicant to explain the delay between the alleged attack by the mullahs in 2011 and the threatening letter allegedly sent in May 2013.[38]
[36] Paragraph 4 of the applicant’s written submissions dated 13 October 2018.
[37] Paragraph 5 of the applicant’s written submissions dated 13 October 2018.
[38] Paragraph 5 of the applicant’s written submissions dated 13 October 2018.
The applicant further complains that the tribunal made no reference in its decision to the Wong Report.[39]
[39] Paragraph 6 of the applicant’s written submissions dated 13 October 2018.
The applicant submitted that the tribunal misunderstood his brother’s evidence and that any inconsistencies with his brother’s evidence were understandable given the amount of time between the attack in 2011 and the interview in 2017.[40] It was submitted that any difficulties arising from the applicant’s brother’s evidence could be explained having regard to the logistical difficulties of conducting a telephone interview and his brother’s inexperience with such interviews.[41]
[40] Paragraph 7 of the applicant’s written submissions dated 13 October 2018.
[41] Paragraph 7 of the applicant’s written submissions dated 13 October 2018.
In terms of concerns about evidentiary matters, paragraph [33] of the tribunal’s reasons clearly explains the reasoning behind the tribunal’s conclusion that the applicant’s evidence about his claimed assault and subsequent treatment by the authorities lacked credibility. It is clear that no one factor was determinative, but taken together, the various factors led the tribunal to make such credibility findings.
When read in their entirety, these findings were reasonably open to the tribunal. The complaints now raised by the applicant are in essence seeking a review of the merits of the tribunal’s finding. This is not permissible in a judicial review application such as this.
I accept the submission put on behalf of the Minister that when read in their entirety, the tribunal’s findings are not manifestly illogical, irrational or unreasonable in the sense necessary to find jurisdictional error has occurred.
In response to the claim that the tribunal engaged in jurisdictional error by not referring to the Wong Report in its reasons, the Minister conceded that the tribunal’s decision record does not expressly refer to the Wong Report. However, it was submitted that the Wong Report was consistent with other psychological reports submitted on behalf of the applicant and referred to in the decision record. It was submitted that both the Wong Report and the report prepared by Ms Bower (which is expressly referred to in the tribunal decision record), deal with the applicant’s mental health issues, his ability to give evidence and the consistency between his condition and the applicant’s version of events.
Neither the Wong Report nor the report prepared by Ms Bower deal with the question of medical treatments available in Pakistan for people suffering from mental health issues.
Moreover, I accept the submissions made on behalf of the Minister that the mere failure to refer to one item of evidence is not in itself evidence of jurisdictional error. It was submitted that the tribunal was not obliged to refer to the Wong Report. As noted in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the tribunal is not required to comment on each item of material before it and explain why it has rejected any particular item or placed less weight on it than another item.[42]
[42] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [14].
It was further submitted that even if the tribunal did fail to consider the Wong Report as alleged, this of itself does not give rise to a jurisdictional error per Minister for Immigration and Citizenship v MZYHS [2011] FCA 53.[43]
[43] Minister for Immigration and Citizenship v MZYHS [2011] FCA 53 at [23] to [35].
I agree with the Minister’s submissions and find that the failure to make reference to the Wong Report in its decision does not, of itself, give rise to a jurisdictional error.
Insofar as the brother’s evidence is concerned, the tribunal had regard to the evidence and the conclusions made on this evidence were open to it.
Importantly, not only did the tribunal consider the brother’s oral evidence given over the telephone, but the tribunal raised specific concerns arising from that evidence with the applicant by letter dated
5 December 2016[44] and invited to comment or respond to those concerns. The applicant responded to these concerns by letter dated 20 December 2016 and provided an explanation. In addition, the applicant’s representative also submitted a further statement from the applicant’s brother in which the brother himself addressed some of the difficulties he said he experienced in the course of giving evidence to the tribunal by telephone.
[44] Court book pages 412 to 414.
All of this material was before the tribunal and it is evident that the tribunal had regard to it in coming to its conclusions.[45] There is nothing illogical or irrational in the legal sense which could properly be said to give rise to jurisdictional error.
[45] Court book pages 440 and 441 at paragraph [33(b)].
For each of these reasons, I find that there is no basis on which it could properly be said that the tribunal’s reasons were affected by an error of law. I note that the applicant has not, neither in his application nor in his submissions to this court, articulated specifically how the tribunal’s decision denied him procedural fairness.
As is evident from the discussion above:
a)the applicant was invited to a hearing to give evidence and make submissions;
b)the applicant attended that hearing and was assisted throughout that process by a migration agent;
c)although the tribunal was aware and accepted that he suffered from mental health issues, there was no evidence indicating that the applicant could not meaningfully participate in the hearing nor were any such representations made either by the applicant or his representative; and
d)the tribunal put its concerns about evidence led by and on behalf of the applicant to him, both during the hearing and in a post hearing letter and the applicant was provided with a further opportunity to respond to those concerns.
In those circumstances and in the absence of any particular submissions to the contrary from the applicant, I find that there is no basis on which to conclude that the applicant had not been afforded procedural fairness as required under the Act.
For each of these reasons, ground one is not made out.
Ground two
The second ground of review in the applicant’s application states:
I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.[46]
[46] Page 3 of the applicant’s application filed 3 April 2017.
This ground does not identify any possible jurisdictional error in the tribunal’s decision. It does no more than state that the applicant is seeking legal assistance.
As such, there is no basis for finding jurisdictional error with the tribunal’s decision arising from this ground.
Conclusion
As neither of the applicant’s grounds of review are made out, the application is dismissed with costs.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 21 February 2019
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