BQN16 v Minister for Immigration
[2019] FCCA 481
•4 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BQN16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 481 |
| Catchwords: MIGRATION – protection (class XA) visa – where applicants arrived on student visas – sole ground of review unparticularised – not made out – tribunal comprehensively considered all of applicants’ claims – applicants’ evidence embellished or contrived – where first applicant additionally alleged defective interpretation at tribunal hearing – first applicant failed to adduce evidence of defective interpretation – where second applicant admitted in evidence before the court that she and the first applicant had no basis upon which to claim protection – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001, r.44.12 |
| Cases cited: Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 AQN15 v Minister for Immigration and Border Protection [2016] FCA 571 M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212 MZARG v Minister for Immigration and Border Protection [2018] FCA 624 Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 SZOBN v Minister for Immigration and Citizenship [2010] FCA 1280 Vaofusi v Minister for Immigration and Border Protection [2018] FCA 1939 VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723 WZATH v Minister for Immigration and Border Protection [2014] FCA 969 WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 | ||
| First Applicant: | BQN16 | |
| Second Applicant: | BQO16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1393 of 2016 |
| Judgment of: | His Honour Judge J D Wilson QC |
| Hearing date: | 22 February 2019 |
| Date of Last Submission: | 22 February 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 4 March 2019 |
REPRESENTATION
| First Applicant: | In person |
| Solicitors for the First Applicant: | None |
| Second Applicant: | In person |
| Solicitors for the Second Applicant: | None |
| Counsel for the First Respondent: | Mr W Mosley |
| Solicitors for the First Respondent: | Clayon Utz |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
The application filed on 1 July 2016 is dismissed.
The applicants pay the first respondent’s costs of the proceeding fixed in the amount of $7 467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1393 of 2016
| BQN16 |
First Applicant
| BQO16 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Inrtroduction
In this application for judicial review the applicants relied on the following grounds of review (with the error in the original) –
1.The decision of the Tribunal:
(a)is affected by an error of law; and
(b)denied the applicant procedural fairness.
2.I have made an application for assistance through Victoria Legal Aid and am waiting for a decision.
Surprisingly, by order made by Registrar Caporale on 7 December 2016, the registrar did not list this case for a show cause hearing under r 44.12 of the Federal Circuit Court Rules and instead ordered the case to proceed to a final hearing on a date to be fixed, later scheduled for 22 February 2019.
The applicants were ordered to file and serve any amended application on which they intended to rely. They failed to do so. They were ordered to file and serve any submissions on which they intended to rely. They failed to do that as well.
Before addressing the merits of this application, it is relevant to point out that the grounds of review were not the subject of particulars. A long line of cases at Federal Court level has held that assertions about the existence of jurisdictional error that are vague and without substance, and which do not identify the nature of the legal error allegedly committed, provide a sufficient basis to dismiss the ground. Those cases include SZNXA v Minister for Immigration and Citizenship,[1] WZATH v Minister for Immigration and Border Protection,[2] BHK15 v Minister for Immigration and Border Protection,[3] AQN15 v Minister for Immigration and Border Protection,[4] WZAVW v Minister for Immigration and Border Protection,[5] CNN15 v Minister for Immigration and Border Protection,[6] BYM16 v Minister for Immigration and Border Protection,[7] MZARG v Minister for Immigration and Border Protection,[8] DQQ17 v Minister for Immigration and Border Protection[9] and Vaofusi v Minister for Immigration and Border Protection.[10]
[1] [2010] FCA 775
[2] [2014] FCA 969
[3] [2016] FCA 569
[4] [2016] FCA 571
[5] [2016] FCA 760
[6] [2017] FCA 579
[7] [2017] FCA 326
[8] [2018] FCA 624
[9] [2018] FCA 784
[10] [2018] FCA 1939
Let me turn now to the details of this application for judicial review. The first applicant is the husband of the second applicant. The husband is the primary visa applicant. The first and second applicants arrived in Australia in 2010 on student visas. On 24 October 2013 the first applicant lodged an application for a protection visa. The second applicant was named in that application as a member of the same family unit although she did not make separate claims for protection. In his protection application, the first applicant claimed as follows –
a)he left Pakistan because it was not safe for him and the second applicant to live there;
b)he received an injury when someone in a car tried to run him over whilst he was on his motorbike in Karachi,
c)he feared he would be killed or seriously injured by family members and their associates if he returns to Pakistan; and
d)the authorities will not protect him because the members of his family and their associates have strong affiliations with corrupt and influential political parties and therefore the police and the Pakistani state itself are unable to protect citizens from such political parties.
On 27 March 2014 the applicants’ representative provided the minister’s department with further documents in support of the application.[11] Amongst those documents were statements of the applicants and submissions in which the first applicant claimed that he feared harm in the form of threats, assault, serious injury or death at the hands of certain family members and members and associates of the Muttahida Quami Movement including harm from the second applicant’s former fiancé. The first applicant claimed to fear such harm by reason of the consequences arising from his breaking an arranged intra family marriage. The first applicant claimed that the second applicant was suffering from serious medical issues and it would be difficult to obtain medical services to treat those issues in Pakistan.
[11] Court book (filed on 16 December 2016) 63-158
The minister’s delegate refused the protection visa on 22 August 2014. Among the reasons given for that refusal was the near‑four year delay in lodging the protection application.
On 22 September 2014 the applicants applied to the tribunal for merits review.
On 4 April 2016 the applicants’ representative provided submissions to the Tribunal.
On 5 April 2014 the applicants attended a tribunal hearing, assisted by their representative and an interpreter. The tribunal received additional documents and allowed further time to enable the applicants to provide additional information or comments. The applicants provided extra documents and submissions on 4 May 2016 in support of their contention that the applicants had a genuine fear of being persecuted and that their fear in that regard was well-founded.
On 10 June 2016 the tribunal notified the applicants of its decision made on 9 June 2016 refusing to grant the visa.
The tribunal decision
In undertaking this judicial review, especially with applicants who were not legally represented, I have examined the tribunal’s decision with a view to detecting and if necessary correcting error. With that in mind, it is useful to record certain of the key matters canvassed by the tribunal.
Between paragraphs 5 and 20 of its reasons the tribunal correctly recorded the applicable legal principles.
Between paragraphs 21 and 43 of its reasons, the tribunal addressed the applicants’ claims and the evidence in support. The tribunal was critical of the applicants’ evidence generally describing it in parts as being limited, or vague or lacking in detail whereas in other paragraphs of its reasons the tribunal stated that the evidence was embellished or contrived. Illustrations of those findings appeared, for example, at paragraphs 54, 62, 71, 74, 75, 78, 81, 86, 89 and 100 of the tribunal’s reasons.
Elsewhere in its reasons the tribunal stated that it did not accept aspects of the applicants’ claims. Illustrations of the tribunal’s unwillingness to accept components of the applicant’s claims appeared in paragraphs 62, 72, 73, 75, 76, 78, 80, 81, 82, 87, 89, 91, 100 and 102 of the tribunal’s reasons. Paragraphs 82, 83 and 84 were of particular relevance. There, the tribunal found as follows –
82.The Tribunal finds that [redacted] has no interest in the applicants, and subsequently, the [redacted] family and the MQM generally have no interest in seeking to harm the applicants on his behalf. The Tribunal does not accept that the [redacted] family would seek to harm the applicants because the applicant's wife did not marry [redacted], given [redacted] left the country, married other women, including with the assistance of the [redacted] family. The Tribunal finds that the [redacted] family will not harm the applicants. Further, given that the only connection between the MQM and the applicants is the claimed enmity of [redacted] and the [redacted] family, given the findings with respect to this fear of harm the Tribunal does not accept that the applicants will be harmed by the MQM.
83.The Tribunal finds that the applicants do not have a real chance of serious harm from [redacted], the [redacted] family or the MQM, individually or cumulatively, now or in the reasonably foreseeable future. The Tribunal finds that the applicants do not have well-founded fear of persecution for this reason.
84.The Tribunal further finds, having considered the evidence above, that the applicants do not face a real risk of significant harm for these reasons.
At the hearing, the applicants raised two issues that they had not earlier raised. The tribunal addressed those newly‑raised issues between paragraphs 85 and 91 of its reasons. As to them the tribunal –
a)summarised the relevant law;
b)noted its concerns about the applicants’ credibility and found that some evidence was limited, vague and lacking in detail and other parties of the evidence was embellished or contrived;
c)did not accept other aspects of the applicants’ claims.
In this court
When this case came on for hearing before me the applicants were not represented. They communicated through an interpreter. I asked each separately, after being individually affirmed, to tell me in their own words what the tribunal did wrong in this case. The answers given by each were illuminating.
The first applicant said the interpreting conducted before the tribunal was defective. He gave no particulars of how and in what respect he said the interpreting was defective. He could have, but failed to, adduce an actual transcript of the tribunal hearing then, using the audio recording, arranged for the different version to be transcribed and translated in the manner he said ought to have been done. The first applicant adduced no such evidence. It was not possible to assess the validity of this aspect of his case in the absence of such evidence. The first applicant made no endeavour to adduce evidence by which it was possible to assess whether any errors existed in translations let alone whether those errors were so material as to cause the decision‑making process to miscarry, as has been held in such cases as Soltanyzand v Minister for Immigration and Multicultural Affairs,[12] Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs,[13] WACO vMinister for Immigration and Multicultural and Indigenous Affairs,[14] WALN v Minister for Immigration and Multicultural and Indigenous Affairs,[15] Tobasi v Minister for Immigration and Multicultural Affairs,[16] VWFY v Minister for Immigration and Multicultural and Indigenous Affairs,[17] M175 of 2002 v Minister for Immigration & Citizenship,[18] Perera v Minister for Immigration and Multicultural Affairs[19] and SZOBN v Minister for Immigration and Citizenship.[20] In SZRMQ v Minister for Immigration and Border Protection,[21] the Full Court (Allsop CJ, Flick and Robertson JJ) reviewed comprehensively the authorities on point, highlighting that an underlying feature of importance is the need for the applicant to obtain a hearing in which he or she gives evidence and presents arguments in a real and meaningful way. The authorities collected at paragraph 55 of the Full Court’s decision in SZRMQ are of critical importance.
[12] [2001] FCA 1168
[13] [2003] FCAFC 230
[14] (2003) 131 FCR 511
[15] [2006] FCAFC 131
[16] [2002] FCA 1050
[17] [2005] FCA 1723
[18] [2007] FCA 1212
[19] (1999) 92 FCR 6
[20] [2010] FCA 1280
[21] (2013) 219 FCR 212
In this case, I was unable to detect that the first applicant did not have the benefit of the hearing before the tribunal in which he gave evidence and presented arguments in a real and meaningful way. It fell to the first applicant to make good his complaint about translation complications. He failed to do so. In my view, none of his grounds of review had merit.
So far as the second applicant was concerned, when I asked her what she said the tribunal did wrong, she told me she was unable to understand what her husband was complaining about. She said she arrived in Australia on a student visa. She said her husband had no basis for seeking protection. The following was her evidence before me –
[SECOND APPLICANT]: I’m not sure about a mistake but whatever I have heard today I am quite shocked. My husband never said such thing, that, “My wife should complete the study before we file for protection,” because initially we had no intention of coming ..... protection visa. I had initially come here for studies. So I completed a two-year Diploma in Community Welfare and then I started a Children’s Services Diploma of two years, and then I got really sick. So the claims that there was a delay in filing for the protection visa – the thing is we did have a lot of issues going on in Pakistan but I wanted to complete my study and then properly, you know, apply for my – the TR and PR – permanent residency accordingly and not come out and apply for this one.
It was readily apparent that the second applicant was not complaining about any aspect of the tribunal’s decision. She expressly distanced herself from her husband’s protection claims. That seemed consistent with her overall approach in this case in not advancing any grounds for her claim for protection beyond being a family member of her husband.
In my view, in respect of the second applicant, none of her grounds succeeded.
Conclusion
None of the grounds of review were meritorious. This application for judicial review must be dismissed. The applicants must pay the minister’s costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of his Honour Judge J D Wilson QC
Associate:
Date: 4 March 2019
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