BQD15 v Minister for Immigration
[2019] FCCA 1293
•16 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BQD15 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1293 |
| Catchwords: MIGRATION – Application for review of decision of the Administrative Appeals Tribunal (AAT) – whether the decision was affected by jurisdictional error by reason of an apprehension of bias or actual bias on the part of the Tribunal member – whether the applicant was denied procedural fairness by the AAT – whether the AAT made findings that were illogical or unreasonable – whether the AAT took into account irrelevant considerations – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476 |
| Cases cited: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780; (2018) 359 ALR 1 |
| First Applicant: | BQD15 |
| Second Applicant: | BQE15 |
| Third Applicant: | BQF15 |
| Fourth Applicant: | BQG15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2927 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 26 April 2019 |
| Date of Last Submission: | 26 April 2019 |
| Delivered at: | Sydney |
| Delivered on: | 16 May 2019 |
REPRESENTATION
| Applicants: | In person |
| Solicitors for the Respondents: | Clayton Utz |
| Legal Representative for the Respondents: | Mr A. Moss |
ORDERS
The application made on 25 October 2016, and as further amended, is dismissed.
The first and second applicants pay the first respondent’s costs set in the amount of $6700.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2927 of 2016
| BQD15 |
First Applicant
| BQE15 |
Second Applicant
| BQF15 |
Third Applicant
| BQG15 |
Fourth 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 25 October 2016 and further amended (see below) seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 5 October 2016, which affirmed the decision of the delegate of the Minister (“the delegate”) to refuse a protection visa 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”), three affidavits filed by the Minister, dated 22 June 2017, 13 March 2019 and 16 April 2019, and three affidavit’s filed by the applicant, dated 25 October 2016, 1 June 2017, and 23 April 2019 (in part).
Background
The first applicant is a citizen of the Pakistan ([2] at CB 123). The first applicant arrived in Australia on 14 August 2013 (item 28 at CB 17) on a visitor visa. His wife and two daughters arrived in Australia in October 2013 as visitors. The applicant applied for a protection visa to remain in Australia, which was received by the Minister’s department on 4 November 2013 (CB 2 to CB 57). The applicant’s wife and two daughters are included in the application as members of the family unit (CB 32 to CB 49). On 27 March 2014, the delegate refused the application for a protection visa (CB 69 to CB 89 and [2] at CB 123).
The first applicant’s claims to fear harm are fairly outlined in the Minister’s written submissions of 28 February 2019 at [7]-[14]:
“7. As Sunni Muslims of Punjabi ethnicity based in Pakistan’s Khyber Pakhtunkhwa province, the First Applicant claims to fear harm from military and criminal groups, including the Taliban, who will target him due to his “very wealthy” status and his operation of two successful businesses.4
8. The First Applicant claims that he and his family had been “harassed [and] threatened for years” by criminal and terrorist groups, who operated with impunity in north-western Pakistan. However, the First Applicant identified two “bad incidents” which led to his family’s departure from Pakistan.
9. Firstly, the First Applicant claims that in September 2011, his aluminium fabrication company was robbed by an armed group who “held our watchmen and ti[ed] them up” before stealing approximately Rs 10,000,000 (approximately A$100,000) worth of metal and equipment.
10. Secondly, the First Applicant claims that on 18 April 2013, he was kidnapped by an anonymous armed group whilst shopping for groceries. The First Applicant claims that he was held at an unknown location until 22 April 2013, before his brother paid a ransom of Rs 10,000,000 (approximately A$100,000), half of that demanded by the kidnappers, to secure his release.
11. Two months later, in June 2013, the First Applicant claims to have received a telephone call from an unknown number demanding payment of the remaining ransom. He claimed that the callers threatened that if the money was unpaid, they would kidnap his children whilst en route to school.
12. At hearing before the Tribunal, the First Applicant also made the additional claim that a juice factory which his family was constructing in Multan was robbed in 2010 by a group of 18-19 “young boys who acted for monetary gain”. It was claimed that approximately 80% of the stolen goods in this incident were recovered, and the culprits were “apprehended by police and jailed”.5
13. The First Applicant also claimed there were other unsuccessful attempts to break into his brother’s home, but “nothing adverse happened as his security guards were able to scare off the invaders”.6
14. Furthermore, the First Applicant claimed at interview before the Delegate that his father-in-law was abducted, drugged and robbed in Abbottabad City after collecting his pension payment. As a result of this incident, the First Applicant claimed his father-in-law became ill and died.7”
[Footnotes Omitted.]
As outlined above at [3], the application for the visas was refused on 27 March 2014 by the Minister’s delegate (CB 69 to CB 89, and [2] at CB 123). The next part of the procedural history of this matter is helpfully outlined in the Minister’s written submissions at [16] – [20]:
“16. The [applicants] applied to the Tribunal, seeking merits review of the Delegate’s decision. On 17 December 2014, the Tribunal affirmed the Delegate’s decision not to grant the Applicants protection visas (the First Tribunal decision).10
17. On 11 August 2015, the Applicants filed an Application in the Federal Circuit Court, seeking an extension of time in which to seek judicial review of the First Tribunal Decision.11
18. On 13 January 2016, Judge Riley made orders (by consent), quashing the First Tribunal Decision and remitting the matter to the Tribunal for reconsideration on the basis that the Tribunal failed to consider an essential integer of the Applicant’s claim, being that they would face persecution due to their Indian ethnicity, and thus fell into jurisdictional error.12
19. The Applicants appeared before the Tribunal (differently constituted) to give evidence and present argument at a hearing on 10 May 2016, where they were assisted by an Urdu interpreter.13
20. On 5 October 2016, the Tribunal again decided to affirm the Delegate’s decision not to grant the Applicants protection visas (the Second Tribunal Decision).14”
[Errors in the Original.]
[Footnotes Omitted.]
The Tribunal Decision
In evaluating the first applicant’s claims the Tribunal considered the following:
(i)The robberies of the applicant’s factories ([42] – [43] at CB 131);
(ii)The applicant’s kidnapping ([44] at CB 131 – CB 132);
(iii)The June 2013 phone calls to the applicant “demanding money” and threatening his children ([45] – [50] CB 132 – CB 133);
(iv)The applicant’s fear of the Taliban ([51] at CB 133); and
(v)The applicant’s language group and ethnic background ([52] at CB 133 – CB 134).
The Tribunal then considered the claims under s.36(2)(a) of the Act. In evaluating the likelihood of the first applicant suffering harm in the future the following were considered:
(i)Harm from the Taliban ([54] at CB 134);
(ii)The circumstances in which the applicant travelled to Australia ([56] at CB 134);
(iii)The applicant’s status as a business man ([58] at CB 134 – CB 135);
(iv)Generalised violence in Pakistan ([59] at CB 135); and
(v)The applicant’s language and ethnic background ([60] at CB 135).
Ultimately, the Tribunal found that the applicant did not meet the s.36(2)(a) criteria set out in the Act, and was not eligible for protection “under the Refugees Convention” ([62] at CB 135).
In considering if the first applicant was eligible for complementary protection under the Act, the Tribunal considered his “circumstances and past experiences” ([64] at CB 136). The Tribunal additionally considered generalised violence in Pakistan ([65] at CB 136). The Tribunal concluded that the first applicant was not owed protection under s.36(2)(aa) of the Act. Consequently, his family did not satisfy the criterion for the grant of protection visas as persons who were members of the family unit of a person to whom a protection visa had been granted.
Before The Court
Following the (second) Tribunal decision, the applicants made an application to this Court on 25 October 2016 pursuant to s.476 of the Act. That application was said to have been prepared by the first applicant. No solicitor was on the record at that time.
On 2 March 2017 various orders were made by a Registrar of the Court for the conduct of this case, including the filing of evidence by way of affidavit and an amended application. On 24 May 2017 the Registrar set the matter down for hearing before me on 11 March 2019.
In the meantime, on 1 June 2017, the applicants filed an amended application. This was prepared, and filed on the applicants behalf by a solicitor (Mr Mohammed Ajmal Malik). It contained six grounds of review.
Although the Registrar’s order required the applicants to file written submissions at least 14 days before the final hearing, their written submissions (prepared by Mr Malik) were not filed until 9 March 2019. That is, two days before the final hearing.
At the final hearing on 11 March 2019 the applicants were represented by counsel. Mr Malik remained the solicitor on the record. Four problems were immediately apparent.
One, there were four applicants before the Court. Yet counsel had only been given instructions in relation to the first applicant. The question of representation and/or appearance of the second, third, and fourth applicants remained unsolved.
Two, the written submissions (as set out above) were filed only two days before the hearing, in circumstances where the Minister was required to file his written submissions at least seven days before the hearing. The applicants had been on notice for over two years at the hearing date. Counsel was unable to provide any explanation for the failure to comply with the Registrar’s order in this regard.
Three, the written submissions raised difficulties in understanding the applicants’ grounds, rather than explaining them. I outlined some of these with counsel. There was no dispute that the submissions were not of assistance.
Four, and of greatest importance, the grounds of the amended application, drafted by Mr Malik, could not be said to be expressions, let alone clear expressions, of assertions of jurisdictional error on the part of the Tribunal. It was clear that Mr Malik had not sought to distinguish between the need to make a clear assertion of jurisdictional error and then provide evidence by way of affidavit, and then to outline arguments in support and explanation of the grounds in light of the evidence.
Notwithstanding the Minister’s objection, I adjourned the hearing and made orders that a further amended application be filed and that it should contain proper particulars. I asked (through counsel) that before drafting the further amended application, Mr Malik might care to have regard to Hossain v Minister for Immigration and Border Protection [2018] HCA 34 (“Hossein”).
The hearing was set down for resumption on 12 April 2019.
In the meantime on 14 March 2019 Mr Malik filed a notice of intention to cease acting for the applicants. He subsequently filed a notice of withdrawal as their lawyer on 25 March 2019.
On 5 April 2019 another lawyer (Mr Artur Stuart, who gave an address for service in Berwick, in Victoria) filed a notice of acting for the applicants.
On the same day he filed a further amended application. It contained sixteen grounds of review.
At the resumption of the hearing on 12 April 2019 Mr Stuart appeared for the applicants. The Minister was represented by a solicitor.
At the commencement of the hearing Mr Stuart applied for a further adjournment of the final hearing. The basis for this application was said to be because he wanted more time to provide submissions in relation to the further amended application. It was implicit in the applicants’ submissions in support of the adjournment that they wished to press the grounds of the proposed further amended application.
The Minister opposed both applications for an adjournment, and that the applicant be given leave to proceed by way of the proposed further amended application.
The Minister’s arguments in support of his position were weighty. These included that the applicants had already been granted an adjournment, and had already had a reasonable opportunity to present their arguments in relation to the application for judicial review.
The “grounds” of the amended application could only charitably be described as a narrative series of complaints about the merits of the Tribunal decision. The applicants’ solicitor’s reliance, to a large extent, on UK, USA, and Canadian cases, which for the most part addressed the merits of the applicant’s claim, can only reasonably be explained by his misunderstanding of the fundamental difference in this country between merits, and judicial, review.
I was not satisfied that any adjournment would be of benefit to the applicants if the purpose of any such grant was to allow the applicants’ solicitor to prepare yet further arguments that went to the matter of merits review of the Tribunal’s decision.
Nonetheless, what remained is that the applicants had been unfortunate (to say the least) in their choice of the two solicitors who had represented them.
The Minister, properly, made reference to the direction provided by the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (“Aon Risk”) in relation to the granting of adjournments and delays in the management of litigation.
However, in this case what I found compelling was that the lack of competence in matters of this type, exhibited by both solicitors, argued for a short adjournment. These were not simply instances of poorly argued cases, rather, they raised the important question as to the competence of both solicitors to present migration matters in this Court.
I granted the adjournment on the basis that Mr Stuart advised the Court that he had spoken to counsel (“I’ve got a barrister in Melbourne”, later changed to “I’ve spoken to Chambers”). I was of the view that a short adjournment, if experienced counsel was to be involved, would not unduly prejudice the Minister. (Noting I subsequently made an order that the first and second applicants pay the Minister’s costs thrown away for that day). The hearing was yet further adjourned to 26 April 2019. The applicants were given the opportunity to file a further amended application “with properly pleaded grounds”.
On 23 April 2019 Mr Stuart gave notice of his withdrawal from this matter. The applicants did file an amended application.
The Grounds of the Amended Application
The grounds of that application are in the following terms:
“1. The Tribunal's decision was affected by jurisdictional error arising from the reasonable apprehension of bias by the Tribunal member.
Particulars
1.1 The Tribunal member was much influenced by the decision made by the previous Tribunal member and was therefore biased in decision making. This act of being biased has affected the result of the decision.
1.2 On the first occasion, the Tribunal member interjects and categorized the robbers as 'criminals', without the applicant having had a proper chance to clarify his own perspective on their identity.
1.3 It is accordingly submitted that the Tribunal member's bias resulted in the failure to consider the common reality that the terrorist, sectarians or other specific groups in Pakistan, are recognised as criminals and criminal organisations by people in Pakistan. Further, from the Tribunal's own independent information it was indicated that the Taliban were active and dominant in such criminal activities during the period of these events.
1.4 It is accordingly submitted that the Tribunal member's bias abetted the Tribunal's finding that the applicant has not claimed, that any of these past incidents of robbery or attempted robbery targeted the applicant, his family or his businesses were connected in any way to a terrorist, sectarian or other specific group. Thus, it is submitted that a reasonable bystander might have concluded that there was not much the appellant could say to change the pre-conceived views of the Tribunal member.
2. The Tribunal fell into Jurisdictional error in denying me procedural fairness for just giving a "limited weight" to the First Information Report (FIR) filed in June 2013 by my brother.
Particulars
The Tribunal says" In determining the weight it gives these documents, the Tribunal takes into consideration independent information before it which suggest documents is endemic in Pakistan and it is relatively simple to fraudulently produce police issues FIRs using existing FIR book numbers".
3. The Tribunal fell into Jurisdictional error in unilateral denying that kidnappers were not Talban. The Tribunal fell into Jurisdictional error by confirming that the kidnappers were not Taliban but it was just a criminal act and refused my appeal on this basis was an unfair act.
Particulars
At hearing I did not specifically confirm that the kidnappers were Taliban, but it did not mean that the kidnappers were not Taliban.
4. The Tribunal entered into Jurisdictional Error by asking materially irrelevant questions at the hearing.
Particulars
The Tribunal member placed unreasonable emphasis on the applicant's failure to accurately recall the colour and model of the car and whether the jeep was Pajero or Parado and that why I did not mention about the death of my father in law.”
[Errors in the Original.]
Before the Court at the Final Hearing
At the resumed hearing all four applicants appeared in person. They were not legally represented. I appointed the first applicant as the litigation guardian of his two daughters, who were both under the age of 18.
As set out above, the applicants had filed a further amended application. This was done “under cover” of the first applicant’s affidavit of 23 April 2019. While some of the annexures to the affidavit were already in evidence before the Court (in the Court Book) the affidavit annexed what was said to be a transcript of the Tribunal hearing, and written submissions in support of the grounds of the further amended application.
While the Minister noted some difficulties with the form of the affidavit, there was no objection to leave being granted for the transcript (“T”) to be read into evidence.
The first applicant explained that these documents had been prepared by a “retired solicitor” in Melbourne whom he had arranged to assist for this purpose through a friend. There was no indication of this on the face of the documents. The affidavit, further amended application, and, in context, the written submissions, were all said to have been “prepared” by the first applicant.
It was clear that neither the first or second applicants were in any position to make any meaningful submissions in explaining, or in support of, the grounds of the amended application. The first applicant asked that the Court have regard to the written submissions. I should also note that in light of [18] of the first applicant’s affidavit of 23 April 2019, I confirmed with the first applicant that he was not seeking a yet further adjournment of the final hearing of this matter.
Consideration: Ground One
Ground one asserts that the Tribunal’s decision was affected by jurisdictional error by reason of an apprehension of bias on the part of the Tribunal member.
However, particular one to the ground asserts actual bias. The applicant’s ground refers to Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (“Ebner”) at [8]:
“8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.”
I note further the explanation of the test for apprehension of bias as set out in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 75 ALJR 982; 179 ALR 425 (“Ex parte H”) at [27] – [28] (per Gleeson CJ, Gaudron and Gummow JJ):
“27. The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.7 That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of “a fair-minded lay observer” when, as is the case with the Tribunal, proceedings are held in private.
28. Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.”
[Footnotes Omitted.]
See also more recently ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 (“ALA15”) at [35] and [36]:
“35. Although the application of the apprehended bias test can give rise to difficulties, the parties were in substantial agreement as to the primary elements of the test. That is hardly surprising because the test is relatively well settled. It is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits (see, for example, R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner); Concrete Pty Limited v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 and British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283 (British American Tobacco)).
36. Other relevant principles are:
(a) at least the following two steps are involved in a case involving an allegation of apprehended bias:
(i) there must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and
(ii) there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits (Ebner at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ);
(b) an allegation of bias against a judge on the basis of prejudgment is a serious matter not the least because it carries with it the suggestion that the judge has failed to honour his or her judicial oath as such might be questioned by the fair-minded observer. As is also the case where such an allegation is made against an administrative officer, the allegation must be ‘distinctly made and clearly proved’ (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (Jia Legeng) at [69] per Gleeson CJ and Gummow J); and
(c) as noted above, the test assumes that the hypothetical fair-minded lay observer is to be attributed with appropriate knowledge of relevant matters so as to be in a position to make a reasonably informed assessment of the likelihood of apprehended bias (see, for example, Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [13] per Gleeson CJ, Gaudron, McHugh and Gummow and Hayne JJ and at [53] per Kirby J; British American Tobacco at [47]-[48] per French CJ and at [144] per Heydon, Kiefel and Bell JJ and Isbester v Knox City Council [2015] HCA 20 at [23] per Kiefel, Bell, Keane and Nettle JJ and at [57] per Gageler J).”
The tests for bias, and the apprehension of bias, are well settled (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (“Jia Legeng”), SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 (“Ex parte H”)). In the case of actual bias, said to arise from prejudgment by the decision maker, such a complaint must be: “…distinctly made and clearly proved” (Jia Legeng at [69] and [127]). This is because an allegation of bias, in contrast to other assertions of legal error, is extremely serious to make, because it is directed to the very integrity of the relevant decision maker.
Whether the jurisdictional error is said to be actual or apprehended bias, the particulars appear to raise the following complaints.
One, the Tribunal member was greatly “influenced” by the decision of the earlier decision of the Tribunal, which was found to be affected by jurisdictional error.
There is nothing in the transcript of the Tribunal hearing, or the decision record for that matter, to indicate, let alone make out, that the Tribunal was unduly influenced by the “first” Tribunal decision.
I note that the jurisdictional error found in the first Tribunal decision was that the Tribunal, in that instance, failed to deal with an integer of the applicant’s claim that they would face persecution in Pakistan due to their Indian ethnicity (see item “A” CB 104). As set out below, that is not the “complaint” in the amended application, or the submissions in support.
It is also the case, as the Minister submits, that a second constituted Tribunal in the same review is not prohibited from having regard to the contents of the previous Tribunal decision in respect of the same applicant and the same visa application (MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133; (2016) 328 ALR 433 at [83], [84], [88]). Noting, of course, that the Tribunal’s overriding obligation is to exercise “independent judgement” in the discharge of the review function (SZKOX v Minister for Immigration and Border Protection [2015] FCA 990 at [29]).
On what is before the Court now, the applicants have not pointed to anything, nor is it otherwise apparent, that there is any matter that might lead the fair-minded lay observer to believe that the Tribunal member brought anything other than an open mind to the review. The claim of apprehension of bias and actual bias, in this regard, is not made out.
Two, with regard to particulars two, three, and four, the complaints appear to be derived from the applicants’ disagreement with the Tribunal’s reasoning and finding, as it apparently arose from the Tribunal hearing, concerning the first applicant’s claim that he was kidnapped in April 2013, and that a ransom was paid for his release.
The reference in the written submissions in relation to ground one to lines 342 and 955 of the Tribunal hearing transcript (with the references to “criminals”) support the understanding of the ground as taking issue with the Tribunal’s finding that the kidnapping of the first applicant was a “random, criminal act” ([44] at CB 132).
In his written statement in explanation of his claim to fear harm (CB 50 – CB 52) the first applicant claimed that the Taliban, whose members were of a different ethnic group to that of the first applicant, were active in his home area. The claim was that they raised funds by “kidnapping and terrorising wealthy people” (CB 50.5). The first applicant claimed to fit this profile. In this context, he claimed to have been kidnapped for ransom in 2013 (CB 50.8 – CB 52). In the same statement, the first applicant also claimed to fear harm because in the past he and his brother had been the targets of robberies at their factories.
In short, and as it emerged before the delegate, the first applicant claimed to fear harm on return to Pakistan because of instances of past harm involving robberies at his factories and brother’s home, and his own kidnapping for ransom.
At the hearing, the Tribunal questioned the first applicant about these events. The difficulty for the applicants now is that the reference to just two lines of the transcript is, in context, selective.
At the hearing, the Tribunal asked the first applicant why he and his family left Pakistan and came to Australia (T 11, line 276, 278). Specifically at T 12, line 280, the Tribunal asked:
“Okay, so let me ask you, in your application in your written claims, you made reference to a number of incidents that happened to you in Pakistan”.
I pause to note that contrary to the claim that the Tribunal member was unduly influenced by the “first” Tribunal member’s decision, the Tribunal specifically asked the first applicant (T 12, line 284):
“Okay. As I said, I’m looking, making a fresh decision, so I’m going to ask you to recount those to me again.”
What immediately follows is the first applicant’s attempt to answer this question in relation to a number of claimed robberies. It is of note that only one such robbery (in 2011) was “mentioned” in the written statement (T 12, line 290).
The first applicant then proceeded to give his evidence about the robbery in the factory in September 2011 (T 12, line 295 and following). The Tribunal’s questions were plainly designed to elicit detail from the first applicant about the circumstances of this robbery, and what happened to the perpetrators (at T 13). This included the first applicant’s evidence that the police were involved in recovering the stolen goods (T 14, line 337; lines 335 – 339 more broadly).
Line 342, to which the applicants’ submissions now make reference, appears in the following exchanges (T 14, line 340 – 347):
“340. [Tribunal Member] Okay. And did you know anything about who these people were? Did you find out anything more about it?
341. [First Applicant] They're young. They're young, one is about 20, 25 years old.
342. [Tribunal Member] Okay, so criminals. They…
343. [First Applicant] Criminals, they are criminals.
344. [Tribunal Member]…did it for criminal gain…
345. [First Applicant] Yes.
346. [Tribunal Member]…they wanted to sell for money.
347. [First Applicant] Yes.”
[Emphasis Added.]
The Tribunal also asked the first applicant to give evidence about “another robbery” he had mentioned (T 14, line 348). The first applicant did so (T 14, line 349 – T 15 line 369).
What was not referred to in the applicants’ grounds or submissions was the following (at T 15, line 370 – T 16 line 395):
“370. [Tribunal Member] Okay. So nothing happened to your brother, he wasn't present (ui).
371. [First Applicant] No, nothing happened to him.
372. [Tribunal Member] Okay. And a police was made of this?
373. [First Applicant] Yes.
374. [Tribunal Member] And did, was any action taken, any investigation?
375. [First Applicant] So many things was happen, police called him every day in, into the court or police station, but nothing was found. Everything was gone, nothing was found.
376. [Tribunal Member] Nothing found, the, the…
377. [First Applicant] Nothing found, yeah.
378. [Tribunal Member] …people involved were not, were not…
379. [First Applicant] No.
380. [Tribunal Member] …identified?
381. [First Applicant] You couldn't find anybody, any robbers in this case. No, not any material, nothing, nothing.
382. [Tribunal Member] So no one was identified?
383. [First Applicant] No.
384. [Tribunal Member] No one's took responsibility?
385. [First Applicant] No.
386. [Tribunal Member] Do you have any idea who did it?
387. [First Applicant] No.
388. [Tribunal Member] Okay. So you suffered a couple of, of your businesses suffered a couple of robberies.
389. [First Applicant] Yes.
390. [Tribunal Member] And that would, I would imagine that's not uncommon in Pakistan, that that happens from time to time.
391. [First Applicant] Sorry?
392. [Tribunal Member] So that happens, that's not an uncommon incident for businesses.
393. [First Applicant] Is usually common the robberies and this, this is, these things are common in Pakistan.
394. [Tribunal Member] Okay. But you, did your company, did you do any, no further investigation about who, who was?
395. [First Applicant] We try our best but there was no come out and it was ti-, wasting of time and so we just leave it as it is.”
[Errors in the Original.]
As set out above, the applicants’ submissions also drew attention to line 955. This line appears in the following context (at T 43, line 944 to T 44, line 965):
“944. [Tribunal Member] Okay. Apart from those incidents that you've just referred to me, the two robberies of the factories and your kidnapping, did you have any other problems in Pakistan? In the past?
945. [First Applicant] No, not, it's no problems, I forgot, I don't know, they're the big problems there.
946. [Tribunal Member] Okay. So I guess I'm just wanting to, because this is now the third time you're telling your plans, this is your opportunity, if there's anything you haven't mentioned that you wish to mention, you know, so what I'm, what, from what I've looked at, what, the evidence you've given previously, the evidence you're giving me today, it doesn't seem to me that there's any specific fear you have from the Taliban to you directly as in any targeted, you haven't had any interactions with any organisation or any people who claim to be from this, any group, associated with the Taliban or any other extremist groups. Is that correct?
947. [First Applicant] Can you explain again? Interpreter (ui).
948. [Tribunal Member] Okay, yeah, sorry.
949. [First Applicant] (ui) question, I can't understand, I'm sorry.
950. [Tribunal Member] Yeah. Look, let me read to you from your, from your own statement. So you say, you say, you talk about the major, you talk about the Taliban and you say the major source of funds are kidnapping and terrorising wealthy people and the full extent of kidnapping, if you're talking about kidnapping extortion, families like yours would rather pay than lose a son, so you're talking about kidnapping being a concern. You've been harassed and threatened by them for years and I'm, by them I'm assuming you're referring to the Taliban in your area. Is that what you mean?
951. (Conversation between interpreter and interviewee).
952. [First Applicant] Is my assuming is they was Taliban or them, but I'm not 100% sure, I can't say anything, find out any, anybody.
953. [Tribunal Member] So essentially, well, from the evidence you've given to me today and what you've given previously, which has been consistent, there's never been any identification of the people who kidnapped you or robbed your businesses, that they've, that they have had anything to do specifically with the Taliban, is that correct?
954. [First Applicant] I'm not sure if they are Taliban or they are Punjabi or they are Hindus or they are, but it.
955. [Tribunal Member] Or just criminals doing criminal acts.
956. [First Applicant] Doing criminal and yeah.
957. [Tribunal Member] Okay.
958. [First Applicant] Yeah.
959. [Tribunal Member] So okay. I'm just wanting to clarify as to, and your fear of harm in the future in Pakistan is a fear of then having a kidnapping or robbery.
960. [First Applicant] Robbery or…
961. [Tribunal Member] As has hap-, as has happened…
962. [First Applicant] …whatever, yeah.
963. [Tribunal Member] …in the past.
964. [First Applicant] Yeah.
965. [Tribunal Member] As you claim has happened to you and family. So what I'm going to put to you is that firstly I have to assess whether I believe what happened in the past did happen, and then if I don't believe that it did, then I may not be satisfied that you will suffer harm in the future.”[Errors in the Original.]
[Emphasis Added.]
What is immediately apparent from the transcript of the Tribunal hearing (which the first applicant has put before the Court), is that the Tribunal’s questioning was focused on the issues in the review, and sought to elicit from the first applicant his explanation for the claimed fear.
Contrary to the assertion of bias, or the apprehension of bias, the Tribunal’s conduct at the hearing reveals that it did bring an open mind to the review. Bias is not revealed, nor is the apprehension of bias made out, simply because the Tribunal subsequently makes a finding with which the applicants disagreed.
In the current case, the Tribunal was well aware (at the hearing) that the first applicant initially sought to link the robberies and kidnapping to the Taliban. His own evidence however, as demonstrated in the extracts of the hearing set out above, revealed that he did not know who the perpetrators of these incidents (crimes) were.
The Tribunal accepted “as possible and plausible” ([44] at CB 131) that the first applicant was kidnapped in April 2013. It also accepted “as plausible and possible” that the first applicant’s factories were robbed as claimed in the past, and that his brother: “…experienced attempted robberies at his home” ([43] at CB 131).
What the Tribunal did not accept was that the robberies: “…were connected in any way to a terrorist, sectarian or other specific group” ([43] at CB 131). The Tribunal relied on the first applicant’s own evidence for this. Based on the evidence before the Court, it was reasonably open to the Tribunal to find that the first applicant “has not claimed” that these groups were responsible ([43] at CB 131).
The Tribunal found similarly in relation to the kidnapping claim ([44] at CB 131 – 132):
“44. The Tribunal is prepared to accept, as possible and plausible the applicant’s claim that he was kidnapped in April 2013, and a ransom paid for his release. It accepts that this claim is consistent with independent information indicating that kidnapping for ransom was a common enterprise throughout Pakistan particularly in the period in question.10 He has provided a reasonably detailed and consistent account of this incident. His own evidence is that he does not know the identity of the people who kidnapped him, and has no knowledge if they are affiliated with the Taliban or any other terrorist or extremist group. Having regard to all of the above, the Tribunal is prepared to accept that the applicant was kidnapped as claimed in April 2013, and that his family paid an amount as ransom for his release. It finds, on the evidence before it, that the motive for the kidnapping was money and that it was a random, criminal act.”
[Footnotes Omitted.]
In all, therefore, ground one is not made out.
Consideration: Ground Two
Ground two asserts that the Tribunal fell into jurisdictional error because the first applicant was denied procedural fairness. The particulars, however, reveal that the complaint concerns the “limited weight” given by the Tribunal to a First Information Report (“FIR”) provided by the first applicant, which he said had been filed by his brother in 2013. The written submissions do not explain the ground further.
The ground identifies the FIR as having been filed in June 2013. While there are three FIR’s reproduced in the Court book, only the FIR at CB 56 meets that description.
The reference to June 2013 in the applicants’ ground draws attention to [49] (at CB 133) of the Tribunal’s decision, which plainly addresses all three of the FIR’s:
“49. The Tribunal has considered the FIR document the applicant has provided in support of his claim relating to the threats made in June 2013, but ultimately it gives this document limited weight and it does not overcome the Tribunal’s other significant concerns regarding this claim. He also provided FIR documents in support of his claim about the robbery at his factory in Hassan Abdal in September 2011 and his kidnapping in April 2013 and the Tribunal discussed with the applicant during the hearing its concern that the FIR purportedly made by his brother in April 2013 appeared to contain more detail than he could have had personal knowledge of, raising concerns about its authenticity. In determining the weight it gives these documents, the Tribunal takes into consideration independent information before it which suggests document fraud is endemic in Pakistan and it is relatively simple to fraudulently produce police issued FIRs using existing FIR book numbers.11”
[Footnotes Omitted.]
The assertion of a denial of procedural fairness is not explained. In any event, the FIR of April 2013 was discussed at the Tribunal hearing (see T 30, line 714 and following). The first applicant was put squarely on notice of the Tribunal’s concerns with the FIR arising from the terms of that document in the circumstances claimed by the first applicant. (See T 31, line 739).
Further, the Tribunal specifically told the first applicant about country information that revealed: “…that getting documentation in Pakistan it’s not unusual, it is not difficult to get false documentation to have… Police reports produced” (T 31, lines 739, 741).
The first applicant’s response was to agree to this:
“Yes, of course.” (T 31, line 740).
“Of course, yes.” (T 31, line 742).
The hearing continued at T 31 (line 743 – T 32, line 746):
“743. [Tribunal Member] And this level of detail, this may lead me to come to the conclusion that this is not a genuine document, that this is not truthful. And so I put to you that that would be, that's a concern that I have. I will consider the explanation you give, and you've just told me the explanation which I also had seen that you gave earlier, that I, and I will assess that against all of the evidence as to whether it's plausible and whether I'm prepared to give you that.
744. [First Applicant] I totally agree with you, I totally agree with you. To be honest, I'm not lying person. I don't want to lie anything. I am a rich person in Pakistan and I'm driving a cab in Australia. And.
745. [Tribunal Member] Well, I understa-, I accept that, but your credibility or the believability of your story is one of the matters that I have to assess in.
746. [First Applicant] I am, that's correct, I understand. I give you all the truth, I mean, evidence and everything. And what I said, it's my third time to in a hearing and I said everything as whatever I said before in (ui).”
[Errors in the Original.]
The Tribunal’s attribution of “little weight” to the FIR’s, in part, relied on country information which the Tribunal squarely put to the first applicant, and gave him an opportunity to respond. It also involved the specific concerns with one of the FIR’s, as set out above.
Further, the assessment of weight also took place, as the Tribunal foreshadowed with the first applicant at the hearing, in the context of the various concerns it had about the credibility of his claims, which included inconsistencies in his evidence, the character of his explanations in answer to the Tribunal’s concerns, and the delay in leaving Pakistan after receiving the claimed threats. (See [45] – [48] at CB 132 – 133).
Ultimately the weight to be accorded to the evidence before it is a matter for the Tribunal. There is no jurisdictional error where the Tribunal gives, as in the current case, cogent reasons, and makes findings reasonably open to it on what is before it. In all, ground two is not made out.
Consideration: Ground Three
Ground three asserts that the Tribunal fell into jurisdictional error in making the finding that the kidnappers were not the Taliban. The particulars to the ground assert:
“At the hearing I did not specifically confirm that the kidnappers were Taliban, but it did not mean that the kidnappers were not Taliban”.
The written submissions annexed to the applicant’s affidavit of 23 April 2019 assert that the Tribunal’s finding was illogical and refers to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (“SZMDS”) at [42] (per Gummow and Kiefel JJ), and at [135] per Heydon J, which, with respect, the written submissions state “was in in [sic] minority”.
No mention is made of the joint judgment of Crennan and Bell JJ in SZMDS, particularly at [130] – [131], who, with Heydon J, were the plurality in that case.
What the applicants’ ground appears to not understand is that it was the first applicant’s own evidence on which the Tribunal relied to make the impugned finding. That is, that he did not know who the kidnappers were, including that he did not know whether they were members of the Taliban.
The Tribunal’s finding that this kidnapping was a random criminal act, and not connected to any terrorist, sectarian, or other such group, was reasonably open to it on what was before it. The Tribunal’s finding in this regard was probative of the evidence.
This ground now seeks to resile from the first applicant’s own evidence, and possibly seeks to argue that in spite of his evidence, the Tribunal should have found that the kidnappers were the Taliban. If anything, had the Tribunal done so in the face of the evidence before it, that would, in the circumstances, have been an example of the very illogicality the ground otherwise contends for. In all, ground three is not made out.
Consideration: Ground Four
Ground four asserts that the Tribunal asked “materially irrelevant questions at the hearing”. The particulars draw attention to the Tribunal’s questions concerning the make and colour of a particular vehicle, and what is said to be the first applicant’s failure to mention the death of his father-in-law.
The written submissions appear to raise the following matters, within the general complaint of the Tribunal asking irrelevant questions.
One, the colour and model of the car that was used in the first applicant’s kidnapping. The complaint in the particulars appears to be that it was unreasonable of the Tribunal to focus on the first applicant’s evidence at the hearing that the car was a “Pajero Jeep”, when in his written statement he claimed it was a “Prado Jeep”.
Two, this was a minor inconsistency which reveals bias, and further, the apprehension of bias.
Three, the Tribunal “placed unreasonable emphasis” on the first applicant’s failure to recall the date when bodyguards were appointed to protect his family. This revealed a biased approach to assessing the first applicant’s credibility.
The written submissions appeared to also, again, raise the question of illogicality and irrationality. Although, this is not further explained.
In short, the complaints can be categorised as follows. One, the kidnappers’ car. Two, the bodyguards. Three, the father-in-law’s death. The claimed jurisdictional errors range from bias, to making findings that were illogical or unreasonable, and possibly taking into account irrelevant considerations.
It is important to note that the question of the factual credibility of the first applicant’s factual account was in issue following the delegate’s decision (see CB 81 – CB 84). In the context of the claim of bias and the apprehension of bias, the Tribunal accepted some of the first applicant’s factual claims, notwithstanding, or perhaps because, it questioned him about these matters at the hearing.
Further, the first applicant was squarely put on notice at the hearing of the importance to the outcome of the review of his “credibility or the believability of your story” (T 32, line 745).
Although not clear from the ground, and certainly not clear from the written submissions, if the complaint is that the Tribunal took into account irrelevant considerations, the applicants have not made any attempt to explain the statutory context from which any such prohibition to ask the impugned questions may have arisen.
In any event, the following is clear from the evidence before the Court in relation to the complaints as identified at [94] above.
One, the kidnappers’ car matter. The Tribunal did raise the question of the model of the car in the context of the credibility concerns. (See T 32, line 747 – T 33, line 768). The Tribunal then stated at T 33, line 769:
“Okay. So again, like I will assess, I’ll consider that and I’ll take into consideration whether that’s an important detail or not an important detail looking at all of the evidence.”
In what can only be described as a powerful argument against the charge of bias or the apprehension of bias on the part of the Tribunal, the Tribunal did not rely on the model, or colour, of the kidnappers’ vehicle in any adverse credibility finding made against the first applicant. In fact, on the matter of the kidnapping, the Tribunal was persuaded to accept that it had occurred. That is, as it told the applicant at the hearing, it did consider, amongst other things, whether the make and model was an important consideration. However, given its subsequent reasoning, it obviously determined that it was not, and made no reference to it in its reasons for the decision.
Two, the bodyguards matter. The specific complaint here as revealed in written submissions, is that the Tribunal: “…placed unreasonable emphasis on the applicant’s failure to accurately recall the date of appointment of bodyguards to protect his family”.
It is important to understand the bodyguards matter in context. The first applicant claimed that after the kidnapping incident in April 2013, that is in June 2013 he received calls for further money, and that threats were made against his children.
The Tribunal found these claims to lack credibility ([45] at CB 132). The bodyguard matter was only one of a number of other matters which contributed to this finding ([45] – [50] at CB 132 – CB 133).
The Tribunal explained in relation to the bodyguards ([45] – [46] at CB 132):
“45. However the Tribunal has significant concerns about the applicant’s further claims that some two months later in June 2013 he received calls demanding money from him and threats were made against his children. For the following reasons the Tribunal rejects these claims as lacking in credibility. Firstly his evidence about the timing of when he obtained bodyguards has been inconsistent. He referred in his written statement and in his oral evidence to the previous and present Tribunal to obtaining the bodyguards after he received the calls threatening to harm his family if he did not pay the additional Rs 10 million in June 2013. However, he told the delegate at interview that he arranged for bodyguards as soon as he was released after he was kidnapped in April 2013. When the inconsistency was put to him by the previous Tribunal he claimed the correct information was that he obtained the bodyguards in April 2013 and not in June as he originally said. However, in his hearing before the present Tribunal in May 2016 he again said that he hired the bodyguards after he received the calls threatening his family in June 2013. When the changing and inconsistent evidence about this matter was put to him for his comment, he said his memory was not good and he gets confused, but confirmed that the correct information is that he hired the bodyguards in June 2013.
46. The Tribunal has considered his explanation and the inconsistencies in his evidence. If this were the only problem with his evidence the Tribunal may accept that the fact he has retold the story on numerous occasions to different people and the passage of time may reasonably explain the discrepancy. However, taken together with its other concerns, the Tribunal does not accept these reasons for the inconsistency in what it considers to be a material aspect of his claim.”
The evidence on which the Tribunal relied is set out at T 33, line 771 – T 35, line 812:
“771: [Tribunal Member] Another issue that I want to, another matter that I'll put to you is that the matter of when you got the bodyguards, when you hired bodyguards for your family.
772. [First Applicant] Yes.
773. [Tribunal Member] You have, in your written statement that you lodged with your application, and to the Tribunal earlier, you said quite clearly that after the threats were made, after you got those phone calls to kidnap your children…
774. [First Applicant] Yes.
775. [Tribunal Member] …you hired some bodyguards.
776. [First Applicant] Yes.
777. [Tribunal Member] Okay, you just also told that to me of your account…
778. [First Applicant] Yes.
779. [Tribunal Member] …to me today.
780. [First Applicant] Yes.
781. [Tribunal Member] Okay. However, when you were, gave your evidence to the Department, you said you hired bodyguards as soon as you were released from your own kidnapping, in April, you hired the bodyguards. You then, you (ui).
782. [First Applicant] You know, I, I.
783. [Tribunal Member] Now, that was put to you…
784. [First Applicant] Yep.
785. [Tribunal Member] …at the previous hearing, before the previous member, that inconsistency was put to you and you clarified to the earlier Tribunal that it was after the kidnapping.
786. [First Applicant] It was after that, maybe.
787. [Tribunal Member] It was after the kidnapping, you were kidnapped.
788. [First Applicant] No kidn- no, was, it was after the second calls when this.
789. [Tribunal Member] Okay. So what I’m saying to you is that we’re going, you’ve got, you’ve given quite different accounts, so in your written statement, you’ve said it was after the threat, the phone calls threatening your children.
790. [First Applicant] Yes.
791. [Tribunal Member] Okay. You also said that to the Tribunal earlier. You also said that to me, today, when you gave your account, or after you got the phone calls from, threatening your children.
792. [First Applicant] Yes.
793. [Tribunal Member] Okay. So three times you've said that. However, you've told the Department at the interview with the delegate, you hired bodyguards as soon as you were released in April, two days after you were released you hired bodyguards, one at home and one in the, you took to work. Okay.
794. [First Applicant] Alright.
795. [Tribunal Member] When the Tribunal, the earlier Tribunal put this to you and said this is an inconsistency, you said no, no, it was what I said to the Department, it was after the kidnapping. Now, what do you say to that? Because now you've, you've told me something different today. When did you hire your bodyguards?
796. [First Applicant] Yes, I hire after the, I mean, the, when I received the other calls for my, for my kids.
797. [Tribunal Member] Okay. So again, you've come back to your original, what you've written, said in your written statement.
798. [First Applicant] I think I said before, same, same thing, after receive the second, my, my kids, I mean, first I was released and after when I receive the other calls after two, three months, then I hire them.
799. [Tribunal Member] Okay. So you've come back to that. Now what, the problem I have is that you're giving evidence different each time. You've told one thing…
800. [First Applicant] I am sorry, I'm.
801. [Tribunal Member] …with your application, you told one thing differently to your, to the Department, then you came to the Tribunal for the first time and you gave.
802. [First Applicant] I am still confused, to be honest, I'm so confused.
803. [Tribunal Member] Okay, so I can accept and that.
804. [First Applicant] I'm, I've got bad headache today.
805. [Tribunal Member] What I'm saying to, Mr [First Applicant], I can accept a level of confusion, but this is actually quite a significant part of your claim and I would expect that if it's the truth, if it's the truthful story, that that's a factor that you would be clear about.
806. [First Applicant] I understand, yes, I understand.
807. [Tribunal Member] And what I’m saying to you is the fact that you’re going one back and forth on this, may lead me to have some doubts about whether you are telling a truthful account about whether you were kidnapped and whether you received these threatening calls and whether you actually hired bodyguards for your protection. Okay. So I, today you’re, now you’re te-, I’m putting this to you and you’re explaining to me that you want, you maintain the timing of the bodyguards was after the threat, the calls threatening your children.
808. [First Applicant] Yes.
809. [Tribunal Member] You’re returning to that. What I’m putting to you is that your jumping back and forth over the course of your evidence, might be a concern for me.
810. [First Applicant] I understand, yeah.
811. [Tribunal Member] Do you want to comment on that? Do you want, other than telling me that you're confused, is there anything more you want to say?
812. [First Applicant] No, I can't say anything, but I will, I'm very confused, I'm, I forgot everything, I want to forgot everything, what happened with me and it was, it was a terrible thing and I don't things that is, I need to remember all the thing.”
[Errors in the Original.]
The Tribunal’s findings were reasonably open to it on the evidence given by the first applicant. As the Tribunal explained, it was a “material” part of the applicants’ claims that the first applicant had received threats in June 2013, including threats against his children. What the first applicant did in response to the claimed threats, was plainly an important part in assessing the credibility of those claims. The applicants’ complaint now really is an attempt to cavil with the Tribunal’s reasoning, which was logical, and with the Tribunal’s findings and conclusion, which were reasonably open to it on what was before it.
Three, the father-in-law’s death matter. At the hearing, the following exchange took place (at T 38, line 863 – T 40, line 887):
“863. [Tribunal Member] Okay. In the Department's interview you talked about the matter of your father in law and you told the accountant what happened to him, but you didn't mention that that happened while you were in Pakistan.
864. [First Applicant] Yeah, I didn't mention on that day. But he didn't ask me, he didn't ask me.
865. [Tribunal Member] You talked about him going to, to, that he died six months ago, which was, the Department interview was held in March of 2014. And you, there was no mention in your explanation of what happened to your father in law, that he, you were there when he was abducted himself. You didn't mention any.
866. [First Applicant] Because I tell all the questions whichever he ask me, I tell every, all the questions that as it is. If I, if (ui) of my answer is, you know.
867. [Tribunal Member] Okay. I guess what I'm getting at there is, you know, if it was a case that as well as you being abducted, your father in law was abducted and it's another significant incident that I would expect you to recount in telling what happened to you, what's the basis of your fears of leaving Pakistan. And your failure to mention it might lead me to have some concerns as to whether it's just you're adding things along the way, you're adding to your story. You're embellishing your story as you go along.
868. [First Applicant] I don’t understand, can?
869. [Tribunal Member] Let me rephrase. That the failure of you mentioning the, that your father in law’s incident occurred while you were still in Pakistan…
870. (Conversation between interpreter and interviewee).
871. [Tribunal Member]…may lead me to have a concern about whether these details or these parts of your story are being added by you along the way.
872. (Conversation between interpreter and interviewee).
873. [Tribunal Member] If it were truthful, I would expect that you would include that incident in your original application…
874. (Conversation between interpreter and interviewee).
875. [Tribunal Member] ...but the way this story or this, this story about what happened to your father in law has come out…
876. (Conversation between interpreter and interviewee).
877. [Tribunal Member] …appears to be when the question is asked why didn't your family come with you.
878. (Conversation between interpreter and interviewee).
879. [Tribunal Member] In that context you have mentioned that your father in law died.
880. (Conversation between interpreter and interviewee).
881. [Tribunal Member] And well, I make it a case that you haven't provided any evidence or date of his death, you, there's no, throughout this application I've got nothing before me to confirm your father in law died when he died and by what means or by what reason he died.
882. (Conversation between interpreter and interviewee).
883. [Tribunal Member] What I'm saying to you is that I may not accept your oral evidence about this as being truthful.
884. (Conversation between interpreter and interviewee).
885. [Tribunal Member] And I may conclude that you've, and you're saying it to explain or to add to your, to your, as an explanation for your actions.
886. (Conversation between interpreter and interviewee).
887. [First Applicant] I swear to God, I'm not lying and it was happen with my father in law and I explained on the same, first time when I, in a Immigration office, that happened with my father in law, it was happen. Yes, I didn't mention in my story, I thought it's not relate, it's, it's not related with my kidnapping and it's just with this other thing, there are so many, if I want to add more stories in my, in my case, there are lots of stories in Pakistan.”
[Errors in the Original.]
It was a central part of the first applicant’s claim to fear harm, that he and his family had suffered harm in the past. One integer of this claim was that his father-in-law had been drugged and abducted.
The complaint relating to the father-in-law is raised only by mere reference in the particular to ground four. No reference is made to it in the written submissions on which the applicants now said they relied in explanation of their grounds.
At best, therefore, this complaint appears to be of the same nature as the bodyguard complaint. In this light, the Tribunal’s reasoning about an important part of the first applicant’s claims to fear harm was rational and logical. It was reasonably open to the Tribunal, on the evidence before it and for the reasons it gave, to find that the claim that his father-in-law had been drugged and abducted lacked credibility (see [47] at CB 133).
In all, ground four also is not made out.
Conclusion
None of the grounds of the amended application reveal jurisdictional error on the part of the Tribunal. The applicants confirmed at the hearing that it was these grounds on which they now sought to rely upon. In context, all earlier grounds had been abandoned. It is appropriate to dismiss the application as amended. I will make that order.
I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 16 May 2019
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Natural Justice
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Statutory Construction
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