BVP16 v Minister for Immigration

[2017] FCCA 2393

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVP16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2393

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision of a delegate of the first respondent not to grant applicant protection visa – whether Tribunal considered explanations given by application for inconsistent accounts of events - whether Tribunal applied the correct legal tests – whether Tribunal gave applicant fair hearing – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Applicant: BVP16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1879 of 2016

Judgment of: Judge Manousaridis

Hearing date: 14 September 2017

Date of Last Submission: 14 September 2017

Delivered at: Sydney

Delivered on: 29 September 2017

REPRESENTATION

Applicant in person assisted by an interpreter

Counsel for the First Respondent: Mr G Johnson

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1879 of 2016

BVP16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Pakistan, seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

Claims for Protection

1. The applicant, who arrived in Australia on 21 August 2013 as a holder of a business visitor visa, stated his claims for protection on a number of occasions: in a statement that accompanied his first Protection visa application dated 18 November 2013 (First Statement);[1] in a statement that accompanied his second Protection visa application dated 31 January 2014 (Second Statement); in his interview with a delegate on 12 December 2014; in written submissions to the Tribunal made by the applicant’s representative dated 11 May 2016 (Pre-Hearing Submissions); at the hearing before the Tribunal which took place on 26 May 2016 (Hearing); and in written submissions to the Tribunal made by the applicant’s representative dated 16 June 2016 (Post-Hearing  Submissions).

   [1] Which was invalid.

2. The applicant’s claims for protection in the First Statement can be summarised as follows:

   a)The applicant is a Sunni Muslim. He ran a business in Pakistan. The applicant was introduced to Shia teachings and began to “grow attached to the Shia Sect and its teachings” through associating with some of his clients who came to his shop. The applicant “felt that I have been blindly following my religion” and started to attend Shia mosques and engage in religious activities.

   b)Rumours began that the applicant had converted to Shia Islam and the applicant began to receive threatening letters and phone calls where he was told he would be killed and his business would be burned down. The applicant made a complaint to the police, who did not take it seriously and who told the applicant that they receive “such complaints every day”.

   c)One morning when the applicant was on the road, some men approached him in a car quickly and asked him to stop. The applicant wanted to run but one of the men pulled the applicant by his shirt. The applicant was beaten up and told to “stick to his original religion”. The applicant stayed on the road until someone found him and took him to hospital.

   d)After this incident the applicant continued to receive threats. The applicant’s family made a complaint to the local police, who took no action. The applicant feared going out without someone accompanying him and this impacted his ability to conduct his business properly.

   e)The applicant’s parents were scared for the applicant and asked him to leave Pakistan. As soon as the applicant was granted a business visitor visa, he came to Australia.

   f)While in Australia the applicant married an Australian resident, who had converted from Christianity to Sunni Islam. The applicant’s parents and relatives were misinformed by someone in Australia that the applicant had married a “Christian Australian” and “now not only my very close relatives, but also my parents have turned against me”.

   g)The applicant was engaged to the daughter of his uncle, who threatened to kill the applicant upon his return to Pakistan. The applicant’s relatives and parents considered the applicant to have possibly converted to Christianity and the applicant was no longer welcome in his family.

3. The Second Statement repeated the First Statement except the applicant did not make a claim for protection based on any marriage in Australia.

Tribunal’s decision

1. The Tribunal did not find the applicant to be a reliable or credible witness,[2] and found the applicant had fabricated his evidence to create a claim to be owed protection.[3] The Tribunal relied on a number of matters.

   [2] CB222, [60]

   [3] CB226, [75]

2. First, the Tribunal found the applicant’s evidence in support of his claims of having been attacked and beaten to be “confused and inconsistent”.[4] Here, the Tribunal referred to the following matters:

   a)In the Second Statement, the applicant said he was attacked when he was “going on the road” after some men came in a car and told the applicant to stop. Before the delegate, the applicant said the attack occurred when “he was walking to work”. Before the Tribunal, however, the applicant said that the attack occurred after a bike came up in front of the car the applicant was driving that forced him to stop.[5]

   b)When the Tribunal put these inconsistencies to the applicant he said that the problem had been caused by a “Sri Lankan woman who worked at his agent’s office who had written his statement for him” because his agent was in Pakistan and the Sri Lankan woman “could not understand his story well and that she had written down the incorrect details”.[6]

   c)In the Post-Hearing Submissions[7] it was claimed there were actually two incidents, the first being an attack when the applicant was “going on the road”, and the second when he was in a car.[8]

   [4] CB222, [61]

   [5] CB222, [61]

   [6] CB222-223, [62]

   [7] CB206-207

   [8] CB223, [63]

3. Second, the Tribunal found the applicant’s evidence about the manner of his contact with the extremists and the sequence of that contact to be “inconsistent and confused”.[9] In the Second Statement the applicant said he received threatening letters and phone calls from persons unknown to him. Before the delegate the applicant said he began to receive threatening phone calls in early 2013 and he was attacked on the street in late May 2013. Before the Tribunal, however, the applicant said he received two or three calls in total and had two or three face-to-face meeting with extremists in his village. He did not say he had received any written demands or threats as he had claimed in the Second Statement.[10]

   [9] CB224, [67]

   [10] CB224, [67]

4. Third, the applicant’s evidence about the time over which the claimed events on which the applicant relied occurred was confused and inconsistent.[11]

   [11] CB224, [68]

5. Fourth, the applicant gave inconsistent evidence about being threatened after the attack.  In the Second Statement the applicant said he continued to receive threats after the attack. Before the delegate, however, the applicant did not claim he was threatened again after the attack.[12]

   [12] CB225, [70]

6. Fifth, the Tribunal was concerned by the differences between the evidence contained in his first and second applications for a Protection visa. The Second Statement omitted the applicant’s having been married in Australia, or to his uncle having threatened to kill the applicant because of his marriage.[13]

   [13] CB225, [72]

7. Given the Tribunal found the applicant was an unreliable witness, it did not accept any of the applicant’s claims. Thus, the Tribunal did not accept the applicant was subjected to any adverse treatment by Sunni extremists because of his association with Shia Muslims;[14] or that the applicant has a genuine attraction to Shia Islam,[15] or that the applicant had been threatened by his uncle because of his brief marriage in Australia, or that the applicant was arranged to marry his cousin.[16]

   [14] CB226, [75]

   [15] CB226, [76]

   [16] CB226, [77]

Grounds of application

1. The applicant relies on an amended application for review which contains the following grounds of application:

   1. The Tribunal did not identify and correctly apply the relevant test as applicable to criterion in ss36(2)(a), and 36(2)(aa) of the Migration Act 1958;

   2.The Tribunal drew factual inferences which were not supported by primary facts with regard to ground 1 above. By drawing inferences in the absence of evidence, the Tribunal made an error of law;

   3.The cumulative effect of 1 and 2 above are that the applicant was not given a fair and proper hearing, and he pleads breach of rules of natural justice by the Tribunal resulting in a jurisdictional error.

2. At the hearing before me the applicant, who is not legally represented, relied on an affidavit he made 3 November 2016. In that affidavit the applicant deposes to the threats that were made to him in Pakistan. The applicant deposes to his being attacked after having been stopped by a bike while the applicant was driving his car. The applicant submitted to me that this was the correct version of the circumstances in which he was attacked in Pakistan. The applicant submitted that the version contained in the First Statement was incorrect; and that was due to the error of his lawyer. The applicant also said that this error was raised before the Tribunal in the presence of the applicant’s lawyer, and the applicant’s lawyer agreed. The applicant requested that I give him time to obtain documents to prove that the version to which he deposes in his affidavit is the correct version. I explained to the applicant that it was not within my jurisdiction to determine which version was correct. I explained that the relevant question was whether the Tribunal made any error in not accepting the explanation the applicant had given to the Tribunal for the inconsistent accounts of the circumstances in which he claims he had been attacked. I then asked the applicant why he submits the Tribunal’s decision should be set aside. The applicant said the Tribunal was confused about the applicant’s evidence.

3. I read out to the applicant the grounds of application and asked the applicant whether he wished to make any submissions. The applicant made no submissions in relation to ground 1. In relation to ground 2 the applicant said that his lawyer had made a mistake. I understood this to be a claim that the Tribunal failed to consider the applicant’s claim that the inconsistent accounts of the claimed attack on the applicant was due to an error by the applicant’s lawyer. In relation to ground 3 the applicant requested that I give the applicant time to show “which story is right”.

Jurisdictional error?

1. I first turn to the submissions the applicant made before me. The evidence before me does not support the assertions the applicant made that he had informed the Tribunal that it was due to the fault of his lawyer that he had put forward inconsistent accounts of the circumstances in which he was attacked, and the applicant’s lawyer acknowledged that was the case in the presence of the Tribunal. As the Tribunal noted in its reasons, during the Tribunal hearing the applicant said the statement that formed part of his first application for a Protection visa was written by a “Sri Lankan woman who worked at his agent’s office”; the applicant did not assert any error by any lawyer. Further, as I have already noted, after the hearing before the Tribunal the applicant submitted to the Tribunal that there had been two incidents, not one incident, in which he was attacked.

2. Given there is no evidence to suggest the applicant had given evidence to the Tribunal that the inconsistent account of the circumstances in which the applicant was assaulted was due to a mistake his lawyer had made, and that, in fact, the evidence shows the applicant had given no such evidence to the Tribunal, the Tribunal made no jurisdictional error by not considering any claim that the inconsistency was due to the error of the applicant’s lawyer. The Tribunal did consider the explanations the applicant gave for the inconsistencies and, for reasons that were reasonably open to it, the Tribunal did not accept those explanations.

3. I next turn to the grounds stated in the amended application. The first ground complains the Tribunal did not identify the “relevant test” that applied to the criteria for the granting of a Protection visa provided for by s.36(2)(a) and s.36(2)(aa) of the Migration Act 1958 (Cth) (Act). The ground does not identify the “relevant test” it claims the Tribunal did not identify or apply, or the matters on which the ground claims the Tribunal failed to identify or apply such test. For those reasons alone, the ground reveals no jurisdictional error by the Tribunal.

4. In any event, the Tribunal was aware that the issues it had to consider were whether the applicant satisfied the criteria provided for by s.36(2)(a) and s.36(2)(aa) of the Act. It was also aware of the relevant legal principles and tests it was required to apply. The Tribunal correctly identified the questions it had to consider, and identified the law that applied to the consideration of those issues.[17] There is nothing to suggest the Tribunal misunderstood the tasks it was required to perform, or the legal principles that were relevant to its completing that task.

   [17] CB212, [2]

5. Considered alone, ground 2 discloses no jurisdictional error because it does not identify the factual inferences the applicant claims the Tribunal drew and which were not supported by any primary facts. The applicant did not, at the hearing before me, identify any such inference. As I have already noted, the applicant only referred to his lawyer having made a mistake. As I also have already noted, however, the evidence before me is to the effect that the applicant did not give evidence to the Tribunal that the applicant’s lawyer made any mistake. Ground 2, therefore, also fails.

6. To the extent ground 3 relies on grounds 1 and 2, it fails for the reasons grounds 1 and 2 fail. Ground 3 also fails to the extent it relies on matters beyond those stated in grounds 1 and 2. That is so because the ground does not identify any facts on the basis of which it claims the applicant was denied procedural fairness. There is nothing to suggest the applicant was not given a fair opportunity to present his case to the Tribunal. The evidence satisfies me that the applicant was given a fair hearing. The matters on which the Tribunal ultimately relied for not accepting the applicant’s credibility were matters the Tribunal raised with the applicant during the hearing for his comment.

Disposition

1. I propose to order that the application be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  3 October 2017