BQJ17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 806
Federal Circuit and Family Court of Australia
(DIVISION 2)
BQJ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 806
File number: MLG 773 of 2017 Judgment of: JUDGE FORBES Date of judgment: 12 October 2022 Catchwords: MIGRATION – refusal to grant protection visa – claims of fears arising from renunciation of religious beliefs and charges of involvement in illegal sex and consumption of alcohol – no well-founded fear of persecution – refugee and complementary protection criterion not met - application for judicial review - vague jurisdictional error alleged – alleged procedural unfairness – Tribunal decision not affected by error Legislation: Migration Act 1958 (Cth), s 36, 476
Migration Regulations 1994, cl 866.221
Cases cited: Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575
Minister for Immigration & Ethnic Affairs v Wu Shan Lu (1996) 185 CLR 259
Division: Division 2 General Federal Law Number of paragraphs: 79 Date of hearing: 28 September 2022 Place: Melbourne Applicant: In Person Solicitor for the First Respondent: Ms Connolly Solicitor for the First Respondent: The Australian Government Solicitor ORDERS
MLG 773 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BQJ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE FORBES
DATE OF ORDER:
12 October 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The application for judicial review filed on 18 April 2017 be dismissed.
3.The applicant pay the First Respondent’s costs calculated in accordance with Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
This matter involves an application under section 476 of the Migration Act 1958 (Cth) (the Act) seeking judicial review of a decision of the Administrative Appeals Tribunal made on 29 March 2017, which affirmed a decision of a delegate of the Minister to refuse to grant the applicant a Protection (Class XA) visa (the visa).
Having heard and considered oral submissions from the applicant and written and oral submissions from the Minister, I am satisfied that the Tribunal’s decision is not affected by jurisdictional error.
For the reasons that I explain below, I have decided that the applicant’s application for review should be dismissed and that the applicant should pay the Minister’s costs.
BACKGROUND
The applicant is a 41 year old citizen of Pakistan who first arrived in Australia on 21 August 2013 as the holder of a visitor visa.
On 17 September 2013, the applicant applied for a Protection visa. A migration agent assisted with that application.
In support of his visa application, the applicant provided the Department with a letter which claimed that he feared harm from Pakistani authorities as he had been caught “red‑handed” by police in May 2013 having pre-marital sex with his girlfriend whilst both were under the influence of alcohol. The applicant contended that the punishment for alcohol and fornication was nearly 7 to 10 years in prison, lashes and a small fine.[1] He claimed to have been arrested by police and locked away for 4 days, but was then released on bail. He subsequently received an “arrest warrant” document which required his attendance at court at a later date. The applicant then fled and failed to attend the scheduled court date. He claimed to have subsequently moved in with his sister and brother-in-law (an army officer colonel) for a period in an army cantonment, but they asked him to move out as they feared being court marshalled if it came to be known that he was staying with them. The applicant then travelled to Karachi and then to Australia via Thailand on a visitor visa which had been granted to him in April 2013.
[1] Court Book (“CB”), p 12
The applicant fears being tortured by the police if he returns to Pakistan by reason of evading the police.
On 20 March 2014 the Department of Immigration and Border Protection (the Department) invited the applicant to attend an interview scheduled on 17 April 2014. In response to that email invitation, the applicant’s migration agent provided the delegate with a large number of documents, including a statutory declaration dated 31 March 2014, a police report, an arrest warrant, country information and various online articles including one publication headlined ‘Young girl’s attempt to suicide by burning in Petrol foiled’ which the applicant claims references his pre-marital affair, alcohol consumption and arrest by police.[2] The applicant also provided various medical certificates to the Department which record his history of depression, anxiety and stress, as well as a mental health care plan.[3]
[2] CB, p 86
[3] CB, p 94
On 17 April 2014 the applicant attended the protection visa interview and provided oral evidence in support of his claims. A full transcript of the hearing is contained in the Court Book at pages [162] – [166].[4]
[4] CB, p 162
On 11 September 2014, the delegate refused to grant the visa as it was unsatisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36 of the Act and clause 866.221 of Schedule 2 to the Migration Regulations 1994 (“Migration Regulations”).
THE TRIBUNAL
On 29 September 2014 the applicant lodged an application for review of the delegate’s decision to the then Refugee Review Tribunal (the RRT). The applicant provided a number of documents to the RRT in support of his application for review, including a ‘grounds for asylum’ statement, medical certificates and various articles relating to blasphemy. Additionally, the applicant requested access to documents held by the department in relation to his visa application, under the Freedom of Information Act 1982.
On 16 December 2015 the applicant was invited to attend a hearing before the Tribunal which was to take place on 4 February 2016.
On 3 February 2016, the applicant provided a statutory declaration to the RRT.[5] The applicant again detailed his claims pertaining to fornication and drinking which led to his alleged arrest in Pakistan in 2013. The applicant stated that his actions are considered Federal crimes and that he would be “liable to be arrested anywhere in Pakistan” if he was to return.[6] In this document, the applicant also stated that he is afraid of returning to Pakistan as he fears serious harm on account of his religious beliefs, as he no longer identifies as a Muslim and he would therefore be treated as an apostate. He claims to have converted from Islam while in Australia and fears a return to Pakistan where the punishment for Apostasy is death. The applicant also declared that his fornication and drinking would be viewed as anti-Islamic and that he fears threats or harm for acting “against Islam”, especially as his arrest was published in local newspapers and is now public knowledge. Further, the applicant stated that he has ‘liked’ and ‘shared’ a number of posts and articles in the last 12 months on Facebook which supported individuals who had been convicted of blasphemy in Pakistan. He contends that he has a few acquaintances on Facebook who live in Pakistan who could have viewed these posts, and it would be obvious to those Facebook friends that he was no longer a Muslim.
[5] CB, p 226
[6] CB, p 233
On 12 April 2016, the RRT affirmed the delegate’s decision.[7] However, that decision was quashed by consent by the then Federal Circuit Court on 8 July 2016, and the matter was remitted to the Tribunal for reconsideration.
[7] CB, p 249
On 19 September 2016, the Department released the documents relevant to the applicant’s FOI request made on 29 October 2014.
On 28 September 2016 the applicant’s support person and case worker, Ms Magill, submitted a ‘letter of support’ to the Tribunal. In essence, Ms Magill commented on the applicant’s mental health issues and upon his outlook on religion, stating that “he is very clear about rejecting the Muslim faith”.[8]
[8] CB, p 288
On 4 October 2016 the applicant appeared before the Tribunal to give evidence and present arguments relating to the issues arising in his case. Ms Magill was also in attendance at this hearing in the capacity of a ‘witness’.[9]
[9] CB, p 290
On 29 March 2017, the Tribunal affirmed the decision of the delegate to refuse to grant the applicant a Protection visa.
In its decision record, the Tribunal accepted that the applicant had renounced Islam and that he has no religion. The Tribunal noted the applicant’s evidence that he “stopped believing” in Islam in or around 2005 or 2006 which is also when he stopped going to religious events and did not attend the Mosque. The applicant’s evidence was that “no-one took any notice of the fact that he was not practicing being a Muslim”.[10] The Tribunal found that the applicant had ‘lived in his home area for a significant period of time without practicing his religion’.[11] The Tribunal was of the view that this conduct had not caused anyone in his community concern and that the applicant had not been threatened or harmed for his failure to be an observant Muslim for the many years he was in Pakistan.
[10] CB, p 350 para [43]
[11] CB, p 351 para [51]
The Tribunal accepted that the applicant had now gone further and considers that he is not a Muslim and has renounced his religion. However, while the applicant has talked about various religions and the thoughts of writers he does not support any particular belief and has not converted to any other religion.
Moreover, the Tribunal noted that the applicant had spoken to his family about his religious views in Pakistan, that he had posted comments on Facebook about his religious beliefs, shared other information and “liked” the posts of others. He said it was not a secret that he did not like Islam and as he lived in a conservative area he believed his views would be noticed. He also said that he had expressed his renunciation of Islam on Facebook whilst residing in Australia and that he had discussed his religious views with a friend in Australia.[12]
[12] CB, p 350
The Tribunal observed that the applicant’s Facebook posts were viewed by a small number of people that the applicant was acquainted with (approximately 20 acquaintances), and that he was not threatened because of his expressed view and renunciation. It also noted the applicant’s evidence that he would continue having discussions regarding comparative religion if he was to return to Pakistan. The Tribunal found that the applicant would not need to restrict his expressions of his beliefs if he were to return to Pakistan and that he would be able to continue making Facebook posts and to discuss his views in comfortable situations controlled by him and his friends. It did not consider that the threat of harm would lead the applicant to keep private about his beliefs on comparative religions.
The Tribunal was also of the view that the applicant could continue his discussions on life, belief and religion with like-minded individuals and in his private realm if he was to return to Pakistan, akin to what he has done whilst residing in Australia.
Moreover, the Tribunal relied on country information by the Department of Foreign Affairs (DFAT) when forming the view that the applicant’s region of Gojra Punjab is a location which has been relatively free of sectarian and generalised violence in recent years.[13] It also found that the security situation is stable and open to divergent views, like that of the applicant.
[13] CB, p 353 para [58]
The Tribunal also considered country information pertaining to blasphemy laws in Pakistan. Noting the applicant’s evidence that he had not identified and practised as a Muslim for several years whilst living in Pakistan, the Tribunal did not consider that the beliefs and practises of the applicant or his academic interest in other faiths would lead to his being identified as a blasphemer within his community, or that he will face any charges or violent behaviour because of his practises and beliefs.[14] The Tribunal found that the applicant’s fears of harm were mere speculation on his part and not something that had a real chance or real risk of occurring. The Tribunal concluded that the applicant’s renunciation of Islam, his behaviour and belief did not give rise to a well-founded fear of persecution.
[14] CB, p 354 para [61]
The Tribunal also had regard to the applicant’s claim that he had a relationship with an unmarried woman, K, and that he was arrested whilst drinking alcohol in her company. In its decision record, the Tribunal canvassed a range of concerns it held about the credibility of the applicant’s claims in this respect. For example, the Tribunal held concerns about why the relationship proceeded to such an extent so quickly, if the applicant believed it was completely illegal in Pakistani society.[15] The Tribunal also noted the various inconsistencies in the applicant’s explanation of the events, including who was present at the time of the arrest and his knowledge of K’s prior relationships.
[15] CB, p 354 para [65]
Between paragraphs [72] and [78] of the Tribunal’s decision record, the Tribunal outlined its concerns about the documentary material provided by the applicant in support of the criminal proceedings he claims he faces in Pakistan. Namely, the charge for drinking alcohol and for sexual immorality crimes.
Firstly, the first incident report (FIR) provided to the previous Tribunal stated that the applicant was charged under section 496 B/PPC and 11 of the Control of Narcotic Substances Act. However, the Tribunal found that section 11 of that Act deals with ‘penalties for owning or operating premises or machinery for the manufacture of narcotic drugs’[16] not matters about which the applicant claims to have been charged.
[16] CB, p 356 para [73]
In support of his claim that he was criminally charged, the applicant also supplied an “arrest warrant”, which was handwritten.[17] The Tribunal questioned why an official document of this nature would not be typed, if it was produced by an official source.[18]
[17] CB, p 88
[18] CB, p 356 para [77]
The Tribunal relied on country information obtained from DFAT concerning the availability of fraudulent documents in Pakistan and concluded that the documents supplied by the applicant, namely the FIR, arrest warrant and the newspaper articles are all fraudulent.[19] In light of its findings regarding the applicant’s criminal charges, the Tribunal was of the view that the applicant does not face a real chance of serious harm or a real and significant harm on return to Pakistan arising out of any criminal charges or proceedings in Pakistan.[20]
[19] CB, p 357 para [81]
[20] CB, p 358 para [84]
Furthermore, the Tribunal considered the applicant’s delay in departing Pakistan, in circumstances where he had been granted a visa allowing him to enter Australia in April 2013 but he first arrived in Australia in August 2013. It ultimately found that the applicant would not have remained in Pakistan for over four months after being entitled to arrive, if he truly had concerns about his welfare.[21]
[21] CB, p 358 para [87]
Finally, the Tribunal considered the applicant’s mental health condition and his claims that appropriate treatment was not available in Pakistan and that he would face stigmatisation in Pakistan for his mental health conditions. The Tribunal considered relevant country information and found that although the mental health system in Pakistan is not as well developed as in Australia, the applicant had obtained medical assistance in the past and he would be able seek free or subsidised treatment by a doctor and medications for his mental health concerns if he was to return.[22]
[22] CB, p 359 para [91]
For the individual and cumulative reasons set out above, the Tribunal did not accept that the applicant has a well-founded fear or persecution or that he faces a real chance of serious harm if he was to return to Pakistan.
APPLICATION FOR JUDICIAL REVIEW
On 18 April 2017, the applicant applied to this Court for a review of the Tribunal’s decision. The application identifies two grounds of judicial review expressed as follows:
The decision of the Tribunal:
is affected by an error of law; and denied the applicant procedural fairness.
I have made an application for assistance through Victoria Legal Aid and am awaiting for a decision.
The applicant also filed an affidavit in support of his application for review. The affidavit annexed a copy of the Tribunal’s statement of decision and reasons and simply requested that the Court review the decision.
On 28 April 2017 the first respondent, the Minister, filed a response seeking an order that the application be dismissed and that the applicant pay the first respondent’s costs of the proceedings. The Minister contends that the decision under review is not affected by jurisdictional error.
On 25 October 2017 a Registrar of this Court made orders to enable this matter to be prepared for trial. The Minister was directed to file a court book and written submissions and the applicant was invited to file any amended application, any supplementary court book and any written submissions. The Minister filed a court book on 2 November 2017 and submissions on 28 April 2022.
When the matter came on for hearing, the applicant had not filed any amended application, court book materials, affidavits or written submissions. The only material before me in respect of the application is the initiating application and affidavit, and, of course, the materials in the court book.
Submissions at hearing
At the hearing before me Ms Connolly appeared on behalf of the Minister. The applicant was self-represented and was afforded the assistance of an Urdu Interpreter. However, it became apparent at the outset of the hearing that the applicant had a reasonable grasp of the English language and did not require the Interpreter’s assistance.
The procedure for the hearing was carefully explained to the applicant and he confirmed that he understood the procedure and had no questions to raise about it.
The applicant also confirmed that he had been served the court book and the Minister’s outline of submissions, but that he did not bring any documents filed in this proceeding with him to the hearing. The Minister’s representative helpfully made another copy of the written submissions available to the applicant.
Applicant’s submissions
When asked to address the Court about the basis of his application for judicial review, the applicant commenced by stating that he had seen a lawyer at the time that the application was filed and that the lawyer had identified the two grounds for review as outlined in his application. However, as he is not a lawyer himself, he said he is unable to speak to those jurisdictional errors. The applicant also submitted that he sought legal advice through Justice Connect in or around July of 2022, but to no avail.
The applicant submitted that “there are countries of particular concern for religious reasons” and that Pakistan was now identified as one of those countries, although this was not further particularised.
In relation to Ground 1, the Court asked the applicant to identify the error in the Tribunal’s decision, to which the applicant stated that he did not agree with any of the Tribunal’s reasons. The applicant did not elaborate further on this contention, except to say that the Tribunal incorrectly concluded that he would be able to express himself in Pakistan when the applicant had informed the Tribunal he was only able to express himself in Australia, and not in Pakistan.
The Court also asked the applicant to explain how the Tribunal did not afford him procedural fairness, to which the applicant responded that he was “not healthy enough” during the Tribunal hearing. In relation to that point, he stated that “communication was a problem” during the hearing as he was not mentally sound at the time, and that he communicated this concern to the Tribunal. He says that he cannot recall much of the hearing and was unable to inform the Court as to the severity of his condition during that period. The applicant submitted that the Tribunal accepted in its decision record that he was unwell.
Minister’s submissions
The Minister opposed the application and said it should be dismissed. Ms Connolly made oral submissions which developed the written submissions filed with the Court on 28 April 2022.
In relation to the allegation that the Tribunal had erred in law, the Minister submitted, and I accept, that the error has not been properly identified or particularised by the applicant. Notwithstanding, the Minister argued that the Tribunal’s decision does not disclose any error of law, either in its consideration of the applicant’s religious beliefs or in respect of his alleged outstanding criminal charges in Pakistan.
The Minister submitted that it was open to the Tribunal to reject the applicant’s claim that he would be unable to pronounce his religious views and beliefs in Pakistan due to a fear of physical harm.
Whilst the Tribunal accepted the applicant’s claim that he is a non-believer and no longer practises as a Muslim, it found that the applicant had not previously been targeted for harm arising out of his religious views whilst residing in Pakistan, despite being someone who did not practise Islam for many years. The Tribunal also concluded that the applicant was not threatened because of the view he expressed on Facebook, and noted that his dissemination of opinion was contained to a small number of acquaintances. The applicant gave evidence that he would not change this behaviour, and would continue to express his views in a similar vein if he was to return to Pakistan.
Unlike the previous decision made by the RRT in this case, the Tribunal did not find that the applicant would or should keep his religious views private. Rather, in light of its findings, including the applicant’s own assertion that he would continue to make Facebook posts and that he had not been threatened or harmed due to his beliefs to date, the Tribunal concluded that the applicant would be able to continue posting his views publicly in Pakistan, if he wished to do so. Similarly, the Minister submitted that it was open to the Tribunal to find that the applicant could continue having conversations about religion in a private realm, as he has done in Australia.
Ms Connolly also made oral submissions relating to the Tribunal’s adverse finding pertaining to the applicant’s relationship with K and his arrest in Pakistan, and pressed that there was no jurisdictional error in that finding.
On the evidence before it, the Tribunal found inconsistencies in the applicant’s story and ultimately concluded that his claim of having a relationship with K was contrived. This adverse finding was based on irregularities in the applicant’s version of events over time, including who was present at his home at the time of the alleged arrest and the applicant’s knowledge of whether K had any previous relationships.
The Minister also took the Court to the Tribunal’s discussion on the various documents supplied by the applicant in support of his claim that he was criminally charged for having relations with an unmarried woman and for drinking alcohol. The Tribunal found that the FIR provided by the applicant, which states that the applicant was charged under section 11 of the Narcotic Control Act, in fact relates to penalties for owning or operating premises or machinery for the manufacture of narcotic drugs. The Tribunal also questioned the arrest warrant provided by the applicant, which was handwritten. Moreover, the Tribunal considered country information which identified the availability of fraudulent documents in Pakistan. The Minister submits that, on all the evidence, it was open to the Tribunal to conclude that documents supplied by the applicant, including the FIR, arrest warrant and the newspaper articles, were fraudulent.
In relation to the assertion that the Tribunal failed to afford the applicant with procedural fairness, the Minister submits that there is no evidence to support this claim. The Minister submitted that the Tribunal complied with its procedural fairness obligations under Part 7 of the Act. The applicant was notified of the determinative issues in the review, which were largely the same as the issues before the RRT in the first decision. The applicant was invited to attend a hearing before the Tribunal in order to present arguments and put his case, and the applicant availed himself of that opportunity. The documents in the court book would appear to make good this proposition.
In response to the applicant’s claim that he was not able to meaningfully engage in the Tribunal hearing due to his mental health issues, the Minister submitted that there is insufficient evidence to support this contention. Whilst there was medical evidence before the Tribunal regarding the applicant’s diagnosis of depression and anxiety, the evidence did not suggest that the applicant was prevented from giving evidence, answering questions or otherwise presenting arguments at the hearing.
The Minister also submitted that the applicant was provided a ‘mental health break’ during the course of the Tribunal hearing, which infers that the Tribunal was alive to and did take into consideration the applicant’s mental health at the time.
The Minister submitted that Ground 2 of the applicant’s application does not assert any error by the Tribunal and is not a ground of review. I accept that submission.
In brief reply to the Minister’s submissions, the applicant submitted that the Tribunal incorrectly found that persons who share or create anti-Muslim posts on Facebook will not face any harm. The applicant asserted that even individuals who merely ‘like’ Facebook posts in Pakistan that are against Islam will be punished.
The applicant also disagreed with the Tribunal’s finding that people in Pakistan are able to freely receive medical assistance for mental health issues.
Further, the applicant submitted that the Tribunal incorrectly concluded that persons in Pakistan who consume alcohol will not be punished. He submitted that individuals caught drinking alcohol would “definitely” be imprisoned for two years and will be lashed, and the Tribunal’s almost liberalised view of alcohol consumption in Pakistan is poorly founded.
CONSIDERATION
I have carefully considered the Minister’s written and oral submissions and I have taken into account the relevant authorities to which I have been directed in those submissions. I have also given consideration to the applicant’s oral submissions to the Court.
To obtain relief from this Court, the applicant must show jurisdictional error in the Tribunal’s decision. The application does not present as an opportunity for a merits review.[23] The applicant’s submission that he “does not agree” with any of the Tribunal’s decision does not give rise to jurisdictional error.
[23] Minister for Immigration & Ethnic Affairs v Wu Shan Lu (1996) 185 CLR 259 at 272
Alleged error of law
Ground 1 seeks to impugn the decision of the Tribunal on the basis that it is infected by “an error of law”, although that error has not been articulated.
Doing the best I can to comprehend his submission, the applicant says he told the Tribunal that he was able to express himself in Australia but he did not say that he would be able to express himself in Pakistan. He said that the Tribunal is wrong if it thinks he made that concession.
I note that at paragraph 27 of its written submissions the Minister says that the applicant’s ‘evidence to the Tribunal was that he had made his [religious] views public by posting on his Facebook page whilst in Pakistan’ (my underlining). That submission is questionable. The Court Book and Tribunal decision record references supplied by the Minister do not corroborate this submission. Whilst the applicant may have stated to the Tribunal that he did not practise Islam for some years and was gathering knowledge about other faiths and religions whilst in Pakistan, the Tribunal did not make a specific finding that the applicant actually made Facebook posts when residing in Pakistan. The applicant’s statutory declaration provided to the RRT and dated 3 February 2016 (two and a half years after having arrived in Australia) suggests this activity might have commenced later:
“In the last 12 months I have become more comfortable with my renunciation of Islam. Right now I am not practicing any religion, I only believe that there is a god and he is the creator. I have “liked” and “shared” a number of posts and articles on Facebook in support of people who have been convicted of blasphemy in Pakistan. I did it to express myself.”[24]
[24] CB, p 233
The Tribunal found that the applicant’s evidence was limited as to how he had disclosed information about his renunciation of Islam. The applicant certainly told the Tribunal that while he has been in Australia he had been posting comments and liking other posts on Facebook, including in support of those charged with blasphemy in Pakistan, but he did not say, nor did the Tribunal unequivocally find, that he had been doing this before he left Pakistan.
Notwithstanding some lack of clarity around this issue, it does not in my view reveal error in the Tribunal’s consideration of the applicant’s religious claims. At paragraphs [43] to [62] of its reasons the Tribunal clearly had extensive regard to the applicant’s religious beliefs and his claims that he would be charged with blasphemy or otherwise subjected to harm or persecution because of his renunciation of Islam. The Tribunal also had very extensive regard, based on country information and other material, to the consequences of the applicant communicating his views and beliefs privately and more publicly in the event of return to Pakistan.
There is evidence that the applicant renounced Islam to himself privately while he was in Pakistan and he did not practise as a Muslim for many years without recrimination. His views were never of a proselytising nature and were more in keeping with an academic exercise of gathering knowledge and information about other faiths and beliefs. He admits having discussions with his sister’s husband about his views before leaving for Australia. As far as the Facebook posts and “likes” are concerned, whether they commenced in Pakistan or only after the applicant arrived in Australia, the applicant squarely told the Tribunal that he intended to continue that activity[25] and a fair reading of the reasons reveals that the Tribunal properly considered the consequences of him doing so in Pakistan.
[25] CB, p 350 para [44]
I am satisfied that the Tribunal properly engaged with the applicant’s claims of persecution for religious reasons and measured those claims against the relevant statutory criteria. It was open to the Tribunal to find that the applicant did not face a real chance of serious harm or a real risk of significant harm because he has renounced Islam, or because he is a blasphemer, either now or in the reasonably foreseeable future. It is not the task of this Court to revisit the Tribunal’s finding.
Alleged procedural unfairness
I do not accept the applicant’s submission that he was denied procedural fairness as he was “not healthy enough” to participate in the Tribunal hearing.
Nothing in the applicant’s application or in his submissions to the Court further illuminate this ground of review. I infer from his submission that the applicant believes the Tribunal should have been more accommodating of his disadvantage and should have judged his evidence or performance on the day accordingly.
The critical question is whether the applicant was afforded the meaningful opportunity required by section 425 of the Act to give an account of his experiences, to present arguments in support of his claims and to understand and respond to the questions asked of him by the Tribunal.[26]
[26] Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [20]
The medical evidence provided by the applicant to the Tribunal indicates that he did suffer (and had a history of) mental health issues and required ongoing psychological assistance, but there is no evidence that the applicant was unable to meaningfully engage in the hearing. The Tribunal invited the applicant to attend the hearing to give evidence and present arguments in accordance with s 425 of the Act. The Tribunal’s decision record makes clear that the applicant gave detailed oral evidence in support of all elements of his application at the hearing, which lasted for 1½ hours. The applicant was also afforded a break about half-way through the hearing. He attended the meeting with the assistance of an interpreter and a witness/support person.
There is no evidence that the applicant was incapacitated from participating in the hearing. Even though the applicant did allude to his history of mental health issues, s 425 of the Act did not require the Tribunal to press the applicant to call further evidence of his psychological problems or to expand his arguments relating to the ramifications of his problems for any aspect of the case he sought to present[27].
[27] Ibid
Where an applicant is not disabled by his psychological deficits from giving evidence and presenting arguments, the hearing required by section 425 is not nullified by a mere failure by an applicant to present his case in the best possible light.
I am satisfied on the evidence that the necessary elements of procedural fairness were afforded to the applicant in the present case. The applicant has not demonstrated that he was denied procedural fairness, such as to give rise to jurisdictional error.
CONCLUSION
Neither the application for judicial review nor the applicant’s submissions reveal any jurisdictional error in the Tribunal’s decision.
Accordingly, the application for judicial review filed on 18 April 2017 will be dismissed.
The applicant should pay the Minister’s costs calculated in accordance with Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
I certify that the preceding seventy-five (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 12 October 2022
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