Bus19 v Minister for Immigration
[2019] FCCA 1672
•17 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUS19 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1672 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – whether the application has raised an arguable case for the relief claimed – no arguable case for the relief claimed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 425, 438 Federal Circuit Court Rules 2001 (Cth), r.44.12 |
| Cases cited: Minister for Immigration and Citizenship v SZQBR (2013) 210 FCR 505 |
| Applicant: | BUS19 |
| First Respondent: | MINISTER FOR MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1063 of 2019 |
| Judgment of: | Judge Emmett |
| Hearing date: | 17 June 2019 |
| Date of Last Submission: | 17 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 17 June 2019 |
REPRESENTATION
| Applicant: | Appeared in person with the assistance of an interpreter |
| Solicitors for the Respondents: | Charlotte Saunders (DLA Piper Australia) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1063 of 2019
| BUS19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
By application filed on 2 May 2019, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal dated 17 April 2019 (“the Tribunal”). That decision affirmed the decision of a delegate of the first respondent (“the Delegate”) to refuse the applicant a protection visa on the grounds that the applicant was not a person to whom Australia has protection obligations.
The background of this matter, the applicant’s claims, and the Tribunal’s decision are accurately summarised in the first respondent’s written submissions as follows:
“3. On 8 July 2015 the applicant applied for a Protection (class XA) visa. The applicant made the following claims for protection:
3.1 The applicant left Pakistan to save his life. The applicant divorced his wife and her brothers and uncles were involved in political and religious parties who threatened to kill the applicant. The applicant claimed that if he returned target killers would murder him in an honour killing. The ex-wife's family were also Shi'a Muslims.
3.2 The applicant was a Shi'a Muslim. The applicant claimed that there was a Shi’a genocide on the basis that every day in Karachi two to four Shi'as were killed. The applicant claimed that the his ex-wife's brother was killed in Karachi in the Shi'a Genocide.
3.3 In September 2014 the applicant received calls that he would be killed.
3.4 The applicant told his story to the police but the police were unhelpful, told him to write an application and said that if the applicant was harmed they would then take action. The applicant also claimed that the authorities were unable even to protect themselves.
3.5 On 30 March 2016 a delegate of the Minister refused to grant the applicant the visa. The delegate did not accept that the applicant was pursued, harmed, threatened or killed by his former wife's family and did not accept that the applicant was ever threatened or harmed because of his religion.
4. On 5 April 2016 the applicant applied to the AAT for review of the delegate's decision.
5. On 25 January 2019 the applicant's representative provided the AAT with various documents including an amended statement by the applicant, a declaration signed by the applicant, written submissions and a Shi'a membership letter. In the amended statement the applicant claimed that:
5.1 In March 2012 the applicant discovered that his ex-wife was having an affair and following this they divorced on 5 September 2013.
5.2 Following the divorce the applicant's family started receiving threatening calls. The applicant was confronted by unknown people on the street warning him that his days were limited by being a member of the Shi'a community.
5.3 The ex-wife's uncle warned the applicant in Court on the day of the divorce that he would avenge the divorce at any cost. The ex-wife's family members invited the local Sipah-e-Sahaba (SSP) to vindicate the divorce. The SSP was a religiously fanatical group operating in alliance with the Taliban. The applicant claimed that the SSP was the deadliest extremist group against the Shi'a community. The applicant claimed that members of the SSP would confront him in the street and would follow him. The applicant received anonymous threat calls that his days were numbered.
5.4 The applicant reported the incident of his being followed to the police. However as he could not provide details of the perpetrators the police could not act.
5.5 After completing his English course, the applicant applied for protection due to his fear of the SSP members.
6. On 7 March 2019 the AAT invited the applicant to attend a hearing.
7. On 3 April 2019 the applicant appeared before the AAT.
8. On 17 April 2019 the AAT affirmed the delegate's decision.
The decision of the Tribunal
9. The AAT noted that at the beginning of the hearing it raised with the applicant the existence of a non-disclosure certificate in his Department file. The AAT noted that the certificate stated that it covered a single document, which it described as 'an internal working document' and that the document was an internal Department checklist relating to the applicant's identity. The AAT found the non-disclosure certificate to be invalid and noted the applicant's identity was not in question: [4].
10. The AAT accepted that the applicant was a divorced Shi'a Muslim from Gulchan Iqbal district in Karachi who worked in that city approximately until the time when he obtained a student visa. The AAT gave some weight to the applicant's description of his neighbourhood as one that was mixed and relatively peaceful. The AAT gave some weight to his description of close family members going about their day to day lives in Karachi. The AAT gave weight to the independent evidence about a substantial decrease in sectarian violence in Karachi and other parts of Pakistan in recent years. The AAT considered it was bald speculation that the applicant might somehow or to some degree be affected by sectarian conflict in Pakistan at some time in the future. Although the SSP still operated in Pakistan, the AAT was not satisfied on the evidence that the applicant faced a real chance of being persecuted in that country in the reasonably foreseeable future separately or cumulatively for the reason of his Shi'a religion or membership of a particular social group: [44].
11. The AAT found the applicant's claims about his ex-wife's family being both illiterate and politically-connected to be somewhat incongruous. The AAT found that the applicant had given inconsistent evidence as to who left whom in his marriage. The AAT considered this inconsistency to be significant enough to leave it unsatisfied as to the applicant's version of events as to why his ex-wife's family was so homicidally inclined towards him. The AAT found it implausible that the applicant was not seriously harmed some time between separation and divorce or in the year after the divorce. The AAT noted that when it tried to encourage the applicant to speak on the issue, the applicant provided inconsistent accounts as to when the SSP was brought or allowed in to follow him and kill him: [45].
12. The AAT ultimately considered the applicant's evidence about the SSP entering into an arrangement with a Shi'a family to do its bidding in getting rid of a Shi'a in-law was so far-fetched as to be fanciful. The AAT found, on the evidence, that the whole existence of the SSP in the applicant's claims about the fallout from his separation and divorce were a recent invention. Overall the AAT did not accept that the applicant was a witness of truth. The AAT noted that in support of his claims before it, the applicant stated that he had falsified facts in his 'divorce deed'. Whether the applicant did that or not, the AAT found that he was such an unreliable witness that it could give no weight at all to the purported letter to the police. The AAT also gave no weight to the anecdote about his mother having come back home one day to an open but intact house: [46].
13. On the evidence overall, the AAT was not satisfied that the applicant faced a real chance of being persecuted in Pakistan for any reason cited in section 5J(1)(a) of the Act. The AAT found that his claimed fear of being persecuted was not well founded and found that he was not a refugee: [47].
14. With respect to complementary protection the AAT noted that the 'real risk' test imposed the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear' in the Refugee Convention definition: [51].
15. The AAT found that the harm identified in the applicant's claims appeared to include 'arbitrary deprivation of life', 'cruel or inhuman treatment or punishment', 'torture' and 'degrading treatment or punishment': [57].
16. The AAT considered the applicant's claims to complementary protection were for the most part the same as his refugee status claims. The AAT considered that since the claims about threats of revenge arising from his separation and divorce failed due to lack of credibility, and hence a failure to meet the 'real chance' test, they could not have succeeded as complementary protection claims. The AAT considered that as the remainder of the claims, being about sectarian violence disproportionately and discriminatorily affecting Pakistan's minority Shi'a, failed to meet the 'real chance' test they also failed to meet the test of a 'real risk': [58].
17. The AAT considered that on the evidence before it, it was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there was a real risk the applicant would suffer significant harm: [59].
18. The AAT affirmed the decision not to grant the applicant a protection visa: [62].”
The applicant was unrepresented before the Court this morning, although had the assistance of an interpreter.
I explained to the applicant that the role of this Court was very different to that of the Tribunal, and that the only issue before this Court was whether or not the Tribunal’s decision was affected by a mistake that went to its jurisdiction. I explained that if the Tribunal’s findings and conclusions were open to it on the evidence and material before it, then the fact that the applicant may disagree with them was not sufficient without more to demonstrate a mistake on the part of the Tribunal capable of being a jurisdictional error. I also explained the Court has no power to interfere with the Tribunal’s decision unless the Court is satisfied that the decision is affected by a jurisdictional error.
The applicant confirmed that he had attended a directions hearing on 23 May 2019. On that occasion, the applicant had been given leave to file an amended application, any further evidence, and submissions in support of his application. The applicant was also provided at that directions hearing with the contact details of legal services providers and translating and interpreting services in documents headed in the applicant’s own language.
The applicant confirmed that he had not filed any documents in accordance with those directions or otherwise, and that he has no further documents to provide to the Court this morning in support of his application.
The applicant then confirmed that he continued to rely on the grounds of his initiating application. Those grounds are as follows:
"1. Serious threat of persecution from Sipah-e-Sahaba Pakistan an anti shia religiously party working under TTP.
2. Currently in many cities of Pakistan there are protest for missing shia people."
(Errors in original)
I invited the applicant to say whatever he wished in support of his grounds, particularly including identifying the mistake that he asserts the Tribunal made. The applicant said that he could not find any mistake, that he was not a lawyer, and referred to current violence in Pakistan.
The applicant confirmed that he had read the submissions of the first respondent. The applicant confirmed that he wished to continue with his proceeding. Plainly, neither of the grounds identify any error capable of review by this Court, and the applicant has not identified any other complaint that the Court can consider.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal explored the applicant’s claims with him at a hearing and put to the applicant concerns that it had about his evidence and noted the applicant’s responses. The Tribunal also noted that it put to the applicant country information before it that there had been a significant decline in instances of sectarian violence in Pakistan in recent years, particularly in Karachi. The Tribunal noted the applicant’s response.
Ultimately, the Tribunal found the applicant gave generally inconsistent evidence in respect of some of his claims, which ultimately it found to be convoluted and far-fetched. Ultimately, the Tribunal was not satisfied on the evidence before it that the applicant faces a real chance of being persecuted in the reasonably foreseeable future, separately or cumulatively, because of his Shia religion or membership of a particular social group.
In relation to the applicant’s claims about his ex-wife’s family, the Tribunal noted that the applicant provided inconsistent accounts as to when the SSP was allowed in to follow him and kill him. The Tribunal found the applicant’s evidence about SSP entering into an arrangement with a Shia family to do its bidding in getting rid of a Shia in-law to be so far-fetched as to be fanciful.
The Tribunal did not accept the applicant was a witness of truth and found him to be such an unreliable witness that it could give no weight at all to documentary evidence provided by him in support.
The Tribunal considered whether the applicant met the complementary protection criterion and found that he did not, for the same reasons as the Tribunal rejected his refugee claims. The Tribunal concluded that since the applicant’s claims about threats of revenge arising from his separation and divorce were found not to be credible, the applicant could not meet the complementary criterion. It is well established that it is acceptable for a Tribunal to have regard to its prior findings in considering whether an applicant meets the complementary protection criterion (see Minister for Immigration and Citizenship v SZQBR (2013) 210 FCR 505 at [245] – [246] per Lander and Gordon JJ; SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26 at [32] per Robertson, Griffiths and Perry JJ; and SZUYK v Minister for Immigration and Border Protection [2016] FCA 216 at [36] per Farrell J).
The Tribunal’s findings, including its adverse credibility findings, would appear to be open to the Tribunal on the evidence and material before it, and for the reasons it gave. They appear to have a logical and probative foundation and are not without an intelligible justification (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).
It is well established that a decision maker such as the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
In the circumstances, the applicant’s complaints are more to be understood as a disagreement with the findings and conclusions of the Tribunal thereby inviting merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:
In an affidavit of the applicant, filed on 2 May 2019, in support of his judicial review application to this Court, the applicant stated that the Tribunal had not acted in the best interests of the applicant. Again, that is a bare assertion that does not demonstrate any error capable of review by this Court without any further particularisation.
There is nothing on the evidence before this Court to suggest that the Tribunal’s decision was conducted otherwise than in accordance with the statutory regime. The applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments in support of his application for review. The invitation, dated 7 March 2019, was in accordance with the statutory regime, in particular, s.425 of the Migration Act 1958 (Cth). The Tribunal properly considered whether the applicant met the criteria under s.36(2)(a) and s.36(2)(aa) of the Act, and concluded that he did not.
The first respondent referred the Court to the issuing of the s.438 certificate which the Tribunal found to be invalid. The Tribunal noted that the certificate covered a single itemised document described as an internal working document. The Tribunal described the document as an internal Department of Home Affairs checklist relevant to confirming the applicant’s identity. The Tribunal noted that the applicant’s identity was not in question in the review. Otherwise, the Tribunal found that, as stated above, that the certificate was invalid. However, that is not by itself sufficient to establish jurisdictional error on the part of the Tribunal (see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3).
There is nothing in the Tribunal’s decision record or anything provided to this Court to suggest that there was a realistic possibility that the Tribunal’s decision could have been different if the document or information had been taken into account.
Whilst I make no final decision as to whether or not the Tribunal’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the Tribunal capable of establishing jurisdictional error, and none is apparent on the face of the Tribunal’s decision record. The Tribunal made findings that would appear to be open to it and to which it applied the correct law.
In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed.
Accordingly, in the exercise of the Court’s discretion under r.44(12)(1) of the Federal Circuit Court Rules 2001 (Cth) and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application filed on 2 May 2019, should be dismissed with costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 20 June 2019
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