BYP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 291
•19 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
BYP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 291
File number(s): MLG 1578 of 2016 Judgment of: JUDGE EGAN Date of judgment: 19 February 2021 Catchwords: MIGRATION – Grounds dismissed for lack of particularity – no basis for adjournment of hearing – no evidence that applicant was psychologically unable to appear at the hearing before the Tribunal – Tribunal’s reasons and findings open on the evidence before it – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth), ss 36(2)(a), 424A, Cases cited: FGG19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 270.
Abela v Minister for Home Affairs [2021] FCA 96.
NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.
Number of paragraphs: 26 Date of last submission/s: 4 February 2021 Date of hearing: 4 February 2021 Place: Brisbane Applicant: The Applicant appeared in person on his own behalf Solicitor for the First Respondent: Mr Cunynghame of Sparke Helmore Second Respondent: Submitting appearance save as to costs ORDERS
MLG 1578 of 2016 BETWEEN: BYP16
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
19 FEBRUARY 2021
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
2.The Amended Application for Review filed on 22 October 2020 be dismissed.
3.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $7,467.00.
REASONS FOR JUDGMENT
JUDGE EGAN:
Introduction
The applicant is a citizen of Pakistan who arrived in Australia as an unauthorised maritime arrival on 26 April 2013. An arrival interview was conducted with the applicant on 5 May 2013. On 5 August 2013, the applicant applied for a Protection Visa. At the time of application, the applicant provided a supporting statement setting out his claims. On 25 September 2014, the applicant supplied a second statement to the department.
On 29 September 2014, the applicant attended an interview with a delegate of the Minister. On 1 October 2014, the department sent to the applicant an invitation to comment upon information regarding his identity documents and citizenship. On 6 November 2014, the applicant provided written submissions and a further statement to the department.
On 5 December 2014, the delegate refused to grant a Protection Visa to the applicant.
On 9 December 2014, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision. On 7 April and 13 April 2016, the applicant provided written submissions and a medical report to the Tribunal. [1]
[1] Court Book (CB) p. 181-198.
On 5 May 2016, the applicant appeared with an interpreter and his representative before the Tribunal for a hearing.
On 9 May 2016, the Tribunal sent a letter to the applicant pursuant to the provisions of s. 424A of the Migration Act 1958 (Cth) (‘the Act’). That letter related to claims made by the applicant at the time of the Tribunal hearing that he was not a Pakistani citizen, but rather was a stateless Kuchi. On 23 May 2016, the applicant’s representative provided a response to the said s. 424A letter which consisted of a statement and further submissions.
On 28 June 2016, the Tribunal affirmed the delegate’s decision.
Grounds of Review
On 25 July 2016, the applicant filed an Originating Application for Review of the decision of the Tribunal. On 22 October 2020, the applicant filed an Amended Application for Review which was relied upon by him at the time of the final hearing of the matter before this Court. The Grounds of Review were as follows:
“1. The Administrative Appeals Tribunal failed to properly consider all of my claims.
2. The Administrative Appeals Tribunal misinterpreted the law.
3. The Administrative Appeals Tribunal made a decision for which there was no evidence.
4. My psychological condition meant that I was denied a real and meaningful opportunity to give evidence at the Tribunal hearing.”
The Court had earlier ordered on 4 August 2020 that the applicant was to file and serve an Amended Application for Review which was “to include detailed particulars of the ground or grounds of review sought to be relied upon by the applicant at the hearing of the application of review, by 4.00pm on 13 August 2020.”
The applicant was in default of the orders of the Court made on 4 August 2020 in that the applicant:
(a)failed to file an Amended Application for Review by 4.00pm on 13 August 2020;
(b)failed to provide detailed particulars of grounds 1, 2 and 3 as set out in the Amended Application for Review filed on 22 October 2020.
In FGG19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 270 at [35] – [45], this Court, when dealing with an un-particularised claim, said as follows:
“[35] The applicants did not comply with the order of the Court made on 2 November 2020. The applicants had been put on notice at the hearing on 2 November 2020 that if they failed to comply with such requirement their claims might be dismissed pursuant to the provisions of rule 13.03B(1)(c) of the FCC Rules.
[36] The ground of review as set out in the Amended Application for Review filed on 20 January 2021 was an un-particularised assertion that the applicants could not return to Iran because “we will be at serious harm and risk, in particular my husband who got medical condition due to being mentally under pressure. …”. As earlier found, there was no medical evidence before the Tribunal probative of any such claim.
[37] In Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2021] FCCA 92, judgment was handed down by this Court where the grounds of review in the applicant’s claim were in part un-particularised. The Court, at [17] – [21] inclusive of its judgment, found as follows:
“[17] Ground 1 of the application for review is an un-particularised claim that the Tribunal treated the applicant unfairly. It has been held that an un-particularised ground of appeal to the Federal Court of Australia is itself a sufficient basis for dismissing that ground of appeal. In the recent decision of Farrell J in SZRKF v Minister for Immigration [2020] FCA 1389 at [22] it was said:
[22] The second ground of appeal should be rejected. It is well established that the fact that an appeal ground is put with a high degree of generality and lack of specificity or any real particulars is itself a sufficient basis for dismissing that ground: see WZAVW at [35] followed in BYM16 v Minister for Immigration and Border Protection [2018] FCA 326 at [12]-[13] (Bromwich J); CHM16 v Minister for Immigration and Border Protection [2018] FCA 1132 at [27] (Perry J); BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20] and [24] (Reeves J); ANA18 v Minister for Home Affairs [2018] FCA 1854 at [59] (Derrington J); DIF17 v Minister for Immigration and Border Protection [2019] FCA 1055 at [29] (Abraham J); and GSQ18 v Minister for Home Affairs [2019] FCA 2057 at [14] (Lee J).”
[18] In CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 at [20] – [22], Gilmour J said as follows:
[20] This ground is un-particularised as to just what evidence it is alleged was not considered by the Tribunal or what relevant considerations the appellant alleges the Tribunal did not take into account, or as to what "wrong information" the Tribunal is alleged to have based its decision upon.
[21] This first ground of appeal is merely an un-particularised assertion of jurisdictional error. As was said in WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]:
(This ground is) an un-particularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is a sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.
[22] The first ground therefore fails.
[19] In CCA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 179 at [23] – [26], Farrell J said as follows:
“[23] The Court explained to the appellant that the Court cannot meaningfully engage with an appeal ground that makes a general complaint of error by the FCCA, without providing particulars of the ways in which he says that the FCCA Judge erred. The appellant did not provide any further particulars.
[24] The Minister filed written submissions. The Minister’s representative submitted that, where (as here) the appellant had been given the opportunity to provide particulars and make oral submissions, the Minister has no case to answer.
[25] In EJB17 v Minister for Immigration and Border Protection [2019] FCA 742 at [12], I said:
While the difficulty faced by a self-represented litigant cannot be minimised, this Court cannot meaningfully engage with the appellant’s ground of appeal where the ground makes a general and un-particularised complaint of error by the primary judge. As pointed out by Bromwich J in FLW17 v Minister for Immigration and Border Protection [2019] FCA 352 at [17], it is well-established and beyond doubt that an appeal, even by way of a rehearing, requires the identification of error, and is not merely a second trial hearing. It is also not for the Court to perform the function of identification of error where the appellant has not. Where no identifiable error on the part of the primary judge has been alleged, let alone established, and none is otherwise apparent, the appeal must be dismissed with costs. See also SZTOG v Minister for Immigration and Border Protection [2018] FCA 112 at [17], [24]-[26], [29]-[30] and [32] per Flick J.
[26] Those remarks are equally applicable in this case. In this case, the appellant has not identified appealable error by the FCCA Judge, nor is any apparent from the reasons that her Honour gave for dismissing the application for judicial review of the Tribunal’s decision.”
[20] Further, this Court has referred to the difficulties associated with the carrying out of its judicial functions in circumstances where grounds in a filed application for review of a decision of the Administrative Appeals Tribunal or the Immigration Assessment Authority were wholly un-particularised. In DUN16 and DUO16 v Minister for Immigration & Anor [2019] FCCA 2591 at [4] – [9] it was said:
[4] Notwithstanding, with the greatest of respect, that this Court doubted whether it was a fulfilment of its judicial role, or the performance of a judicial function, for the court to enter upon the endeavour of attempting to elicit from the applicant particulars of the applicant’s case, and then, of necessity, recording such particulars in a coherent form and for the applicant’s benefit, the Court nevertheless attempted to do so, so as to enable the matter to proceed to a final hearing. The Court, in that regard, was concerned that it could be the subject of adverse later criticism, perhaps, for:
a) erroneously appreciating the import of anything said by an applicant in response to the Court’s request for particulars;
b) failing to so formulate, in writing, what was said by the applicant in a way most advantageous to such applicant;
c) not accurately recording some of, or what the Court might have considered an irrelevant part of, the particulars orally provided to the Court by the applicant.
[5] The Court was concerned that, in effect, it was being required to become the applicant’s advocate or adviser, at the risk of assuming all of the attendant responsibilities which that entailed. The Court was also concerned that the exercise would, in a practical sense, leave the Court open to having any subsequent decision it might make in the matter overturned on any number of grounds associated with the process of the Court:
a) advising the applicant as to the inadequacy of the particulars of their grounds for review;
b) asking the applicant to explain what her complaints were concerning the adverse decision she was seeking to review;
c) recording the answers of the applicant to the Court’s questions;
d) evaluating such of the applicant's answers for the purpose of identifying what were or were not legitimate grounds of review;
e) recording, in writing, what the Court considered were the applicant’s legitimate grounds for review.
[6] In the case of Hamod v New South Wales [2011] NSWCA 375 at [309] – [316] inclusive, Beazley JA (with whom Giles and Whealy JJA agreed) said as follows:
[309] Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v The Queen [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95. In MacPherson, Mason J, at [31] 534, noted that:
A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as 'fair'.
[310] However, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19, 23; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003] SASC 37, [52]-[53].
[311] Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case: Jae Kyung Lee v Bob Chae-Sang Cha per Basten JA at [48]. See also Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd (2004) 63 IPR 54; Pezos v Police (2005) 94 SASR 154.
[312] Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised: R v Gidley (1984) 3 NSWLR 168. Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial: McPherson per Mason J at 534. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406 ; Clark v State of New South Wales (No 2) [ 2006] NSWSC 914.
[313] The touchstone at all times remains that of fairness. In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA, at 14, stated:
But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant.
[314] Thus, a trial judge is entitled to reprimand an unrepresented litigant if the judge believes that the litigant is trifling with the court: see Galea v Galea (1990) 19 NSWLR 263 at 283 per Meagher JA; Michael v Western Australia [2007] WASCA 100 at [64] per Steytler P (McLure JA and Miller AJA agreeing); Jae Kyung Lee v Bob Chae-Sang Cha at [84] per Basten JA.
[315] There may be a fine tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance. In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 446 the Full Federal Court dealt with the tension between the duty of the trial judge to ensure a fair trial and the requirement of impartiality:
A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6.
[316] The position can be stated no more clearly than reiterating that the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness.”
[7] In DEZ16 v Minister for Immigration and Border Protection [2019] FCA 240, Flick J, sitting on appeal, was there dealing with a contention that a Federal Circuit Court judge had, in that matter, failed to ensure that the hearing was fair, and that the appellant (applicant) did not “suffer a disadvantage from exercising his or her right to be self-represented”. It was further contended that the primary judge “failed to take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the Court”. The contention was that it was a requirement imposed upon the primary judge to “explain in plain terms to unrepresented litigants that they must identify why the Tribunal’s decision was not made lawfully and by a fair process” and that it is “not enough to merely say that they must demonstrate jurisdictional error”.
[8] When considering the above contentions, Flick J at [37] noted the undesirability of a judge imposing himself upon the proceedings, as an advisor or advocate for an unrepresented party, when His Honour said:
[37] Although each case must inevitably depend upon its own facts and circumstances, it is to be doubted that a primary Judge is required to explain to an unrepresented party “why the Tribunal’s decision was not made lawfully”. The task imposed upon a Judge at first instance is not to act as an advisor or advocate for the unrepresented party. That contention of the Appellant, expressed in such unqualified terms, is rejected.
[9] For a judge to not only elicit information from an applicant orally for the purpose of particularising the applicant’s grounds for review, but to then necessarily have to formulate and record the judge’s assessment of what was said orally by the applicant, goes far beyond providing advice to the applicant as to matters of practice and procedure. It blurs the lines between the judge’s duty to remain impartial, and the judge’s duty to ensure a fair hearing. It is this Court’s view that it is not in the interests of justice for a judge to be so integrally involved in the formulation of one party’s case.”
[21] This Court sees no relevant distinction between a Federal Circuit Court being unable to properly exercise jurisdiction under s. 476 of the Act when dealing with an un-particularised ground of review, and a Federal Court sitting on appeal finding that an un-particularised ground of appeal is a sufficient basis for dismissing that ground of appeal. This Court dismisses Ground 1 on that basis.”
(Footnotes omitted)
[38] The Court finds that the grounds of review as set out in both the Originating Application for Review and the Amended Application for Review were so lacking in particularity as to warrant dismissal of the applicants’ claims. It is unfair to expect the first respondent to meaningfully engage with the applicants’ claims when they are so wide and un-particularised.
[39] The Court, likewise, is at the same disadvantage. The applicants had twice been ordered to file an amended application for review which contained detailed particulars of the ground or grounds on which it was asserted that the Tribunal had erred. Having failed to do so, the only way for a possible resolution of such default would have been for the Court to order that the applicants again file and serve a properly particularised Further Amended Application for Review. That would necessarily have required the further adjournment of the hearing before this Court. This Court is not prepared to further adjourn the hearing.
[40] When discussing whether a court ought to exercise its discretion to adjourn a matter or not, Logan J in MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392 at [10] – [12] inclusive, said as follows:
“[10] Whether or not to adjourn the hearing of the appeal calls for the exercise of a discretion. It is not only the medical evidence, such as it is, which is relevant in that regard. The Full Court’s judgment in Luck at [43] – [46] offers a reminder of this in the references by the Full Court to wider considerations which attend the question of whether or not any adjournment should be granted. These are no new subjects but they are worth repeating.
[11] Any adjournment will necessarily result in an opportunity cost in terms of the public resources invested in the exercise of the judicial power of the Commonwealth in the hearing of a proceeding. By that I mean, were the case to be adjourned, it would then fall for listing on a day to the exclusion of some other case, which might otherwise have been heard on that day. That such a consideration is relevant was highlighted in Luck in the reference to Sali v SPC Limited (1993) 116 ALR 625 at 629, where Brennan, Deane and McHugh JJ observed that a court is entitled to be conscious of:
… the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court, as well as the interests of the parties.
[12] Luck also offers a reminder in the reference at [44], [45] and [46] to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 that, quite apart from having to the consumption of public resources, a costs order is not necessarily palliative.”
[41] In Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75, Collier, Griffiths and Mortimer JJ, when considering the circumstances in which an adjournment ought to be granted, said at [42] – [47] inclusive, as follows:
“[42] In considering an application for an adjournment, issues particular to the parties and the circumstances of the case must be considered. The Court must also determine how the grant or refusal of an adjournment will promote the overarching purpose of the civil practice and procedure provisions governing the exercise of its jurisdiction, here its appellate jurisdiction, including the objectives in s 37M(2) of the FCA Act, to which we have referred earlier in these reasons in summary form.
[43] These objectives set out in statutory form some of the considerations earlier expressed as conditioning a discretion to adjourn a hearing. In Sali v SPC Ltd (1993) 116 ALR 625 at 629, Brennan, Deane and McHugh JJ said the Court is entitled to be conscious of the “effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties”.
[44] In Aon Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, the plurality of the High Court recognised four matters which should, in the circumstances of that particular case, have been taken into account by the Court when exercising its discretion whether to grant an adjournment so as to allow substantial amendments to be made to the statement of claim. Those factors were: the explanation for the adjournment sought (at [108]), the parties’ choices to date in the litigation (and the consequences of those choices) (at [112]), the detriment to other parties, and the detriment to other litigants in the Court (at [114]).
[45] In Aon at [5], French CJ referred to the broader considerations at work in considering an adjournment application:
In the proper exercise of the primary judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.
[46] The plurality in Aon expressed a similar opinion at [93]:
[T]he rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants.
[47] Whether examined on the basis of factors particular to the parties in these appeals, or the basis referred to at [43]-[46] above, we do not consider an adjournment should be granted to Ms Luck.”
[42] The Federal Circuit Court currently has a backlog of almost 14,000 migration review applications awaiting hearing. The Court’s Judges are working hard to attempt to reduce that backlog. As a matter of public policy, Courts overwhelmed with workloads when exercising a particular jurisdiction ought not to continually avail to applicants the opportunity to properly particularise their claims in circumstances where, if a Court was to so order, it would only further exacerbate Court backlogs by denying other applicants the opportunity of having their applications for review expeditiously heard and determined.
[43] In the present matter, the sensational claims made by the applicants in each version of their review applications have not been the subject of any successful investigative outcome. The claims made to this Court lacked an evidentiary basis which alone justified dismissal of such claims.
[44] The Court finds that the applicants have twice failed to comply with orders of the Court requiring them to properly particularise their claims. They were in default as provided for in rule 13.03A(1)(a) of the FCC Rules.
[45] In the exercise of its discretion, and for the reasons set out above, the Court also considers that this is an appropriate matter where the applicants’ claims ought to be dismissed pursuant to the provisions of rule 13.03B(1)(a) and r. 13.03B(1)(c) of the FCC Rules. Such Rules provided as follows:
“Rule 13.03B – Orders on default
(1) If an applicant is in default, the Court may order that:
a. the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
…
c. if the applicant does not take a step in the time mentioned in paragraph (b)—the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.””
This Court is unprepared to grant an adjournment to the applicant so as to enable him to possibly provide particularised details of his grounds of review, particularly in circumstances where he was substantially in default of a Court order directed to that very requirement. [2]
[2] See also Abela v Minister for Home Affairs [2021] FCA 96.
For the same reasons as set out in FGG19, the Court dismisses each of Grounds 1, 2 and 3 of the Amended Application for Review because of the lack of particularity in such grounds.
As to Ground 4 of the Amended Application for Review, the only complaint made in such ground was that at the time of the Tribunal hearing, the applicant was psychologically unfit to appear before the Tribunal so as to, presumably, make appropriate submissions on his behalf. He claimed that he was denied a real and meaningful opportunity to give evidence. There is no merit to such ground.
There is no indication in the material before the Court that the applicant, or his migration agent, raised the question of the applicant’s capacity to appear before the Tribunal, or otherwise asked for an adjournment of the Tribunal hearing. There was no medical evidence presented to the Tribunal warranting the adjournment of the hearing. Even if a medical report had been produced, it would have had to have set out in some detail why the applicant would have been unable to appear before the Tribunal at the hearing. [3]
[3] See NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 at [3]-
There is no merit to the applicant’s claim that he was psychologically unable to appear before the Tribunal at the time of the hearing, nor to the assertion that he could not make appropriate submissions on his own behalf at such hearing.
The Tribunal considered all of the applicant’s claims at length, and in a careful and considered manner. The Tribunal had regard to the applicant’s entry interview as well as statements and submissions provided and made both to the delegate and to the Tribunal. It noted that the applicant had changed his position on the question of citizenship, and found that the applicant was a citizen of Pakistan. The Tribunal set out its approach to the applicant’s claims at [59]-[60] of its reasons as follows:
“FINDINGS AND REASONS
Assessment of the applicant's claims and evidence about past events
[59] The Tribunal's first task in determining whether the applicant is owed protection is to make findings of fact on relevant matters. The task of fact-finding often involves an assessment of an applicant's credibility. In this context, as set out in Appendix 1, the courts have made it clear that the Tribunal must be sensitive to the potential difficulties faced by asylum seekers in putting forward their claims, and that the Tribunal should adopt a reasonable approach to making its findings with regard to credibility and afford the benefit of the doubt to asylum seekers who are generally credible but unable to substantiate all of their claims. However, the Tribunal is not required to accept uncritically any and all claims made by an applicant.
[60] In assessing the applicant's claims, the Tribunal has taken into account the information in the Department's, file, including the record of his entry interview, his application for the Protection visa, his interview with the delegate, as well as the evidence he gave at his hearing before the Tribunal and in his five written statements. The Tribunal has also carefully considered the submissions from his migration agents including the information referred to in those submissions. It has also taken into account a range of information from independent sources concerning relevant matters in Pakistan, including the DFAT 'Country Information Report: Pakistan' dated 16 January 2016, as well as reports from the US State Department, the UK Home Office, UNHCR, Human Rights Watch and other relevant media reports.”
On questions of credit, the Tribunal appropriately weighed up all of the evidence before it as set out in [72] – [75] of its reasons as follows:
[72] In the context of his claims to be owed protection, his reliability as a witness was a key issue, and, in the circumstances, it is reasonable to expect him to give a truthful and honest account of his claims, and his inability to do so reflects poorly on the reliability of his evidence and the credibility of his claims. Indeed, his claimed capacity and willingness to give, maintain and defend evidence that he claimed was false in order to conceal what he claimed was the truth, in order to obtain a benefit, caused the Tribunal to have significant concerns about the reliability of his evidence and the degree of confidence which it could have in accepting any of his evidence as reliable. This is particularly the case when his claimed basis for giving false evidence (his fear of not being released from detention) had come to an end before he met with, and obtained migration advice from, his agent from RILC, who assisted him to prepare and lodge his application.
[73] In the Tribunal's view, his attempts after the hearing to blame the interpreter used at the entry interview for the fact he maintained his false evidence in his application for the Protection visa, further undermined his reliability as a witness. Indeed, the Tribunal found his claim that he somehow became confused by the interpreter's use of the word for 'nationality' instead of 'citizenship', had caused his confusion was, in the circumstances when he had admitted to having knowingly given false evidence about his nationality, difficult to understand and accept. Further, his statement in his s.424A response that he 'did not set out to deliberately mislead the Department' was contrary to his admission at the hearing that he had knowingly given false evidence at his entry interview and, in the Tribunal's view, his attempt to suggest otherwise, further undermines his reliability as a witness. Further, his claim that the reason, or part of the reason, why he did not disclose the 'truth' about his nationality at his entry interview was because he was told that, if he did not have a document to support a claim, then he should not raise it, was inconsistent with the fact that he raised a number of other claims about his business, about his brother being abducted and about him being subjected to extortion, about which he had no corroborative evidence or documents. Moreover, his claim that he 'volunteered the truth' after the 'natural justice' because the Australian government had been so good to him, and he felt that he had to tell the truth was, in the circumstances, difficult to understand and accept. In the Tribunal's view, the concerns with the reliability of his evidence invite the suspicion that the reason he 'volunteered' the information was because it had become apparent that the delegate was not going to accept his claims, and he decided to embellish his claims in an attempt to bolster the prospects of being granted a visa.
[74] In addition, his inconsistent and confused evidence about when he obtained his passport and NIC, also caused the Tribunal considerable concerns about the reliability of his evidence more generally. As noted, his evidence at the entry interview was that he obtained the passport in about March 2012 in order to travel to China for business purposes, and that he obtained his NIC at the same time. He gave the Department the NIC which he obtained at that time, which, on its face, appears to be a genuine document. He told the Department, at the entry interview, that he had that passport at the time that he engaged the agent in March 2013 to leave Pakistan and that he gave the agent that passport to arrange his visas. He did riot dispute the veracity of any of that evidence before the hearing. However, contrary to that evidence, at the hearing, he said that, at the time that he considered going to China, he did not obtain a passport or a NIC, and that he got his passport in early 2013 at the time that he was arranging to leave Pakistan. He initially told the Tribunal, at the hearing, that he never had a NIC in Pakistan. However, that statement was directly contradicted by the fact that he had given the Department the NIC which was sent to him by his family after he arrived. Relevantly, that card states that it was issued to him in March 2012 in Malir Town, Karachi, which is consistent with the evidence he gave at the entry interview.
[75] Having carefully considered the evidence and information before it, the Tribunal has considerable concerns about the reliability of his claim that what he said at the entry interview was not true. Indeed, if his claim that he fabricated his evidence at the entry interview about his nationality and identity documents was true, that would suggest that he had presented a carefully constructed account of his circumstances which he was able to consistently maintain across a number of different topics at different points in the interview, which, together, presented that he was a citizen of Pakistan and had been given a NIC and passport about a year before he left Pakistan. If the Tribunal accepted that he had created such a carefully manufactured set of responses about how, why and when he obtained his passport and NIC in March 2012, as the backstory for how he had the passport at the time that he engaged the agent in March 2013, and that he fabricated that evidence to convince the delegate he was a citizen of Pakistan so that he could be released from the detention centre, this would indicate that the applicant is a person who was able to fabricate an intricate web of lies in order to deceive the Department and achieve a desired result. Indeed, the evidence before the Tribunal indicates that that is what the applicant has in fact done; and the issue for determination is whether the Tribunal is prepared to accept his claim that he did it in the period prior to the 'natural justice' break at his interview, or whether he did it in the period after the ‘natural justice' break. On either view, his reliability as a witness and the degree of confidence the Tribunal can have in accepting his evidence is severely compromised.
The Tribunal found that the applicant did not have a well-founded fear of persecution should he be returned to Pakistan. It found that there was no real chance that the applicant would suffer serious harm for a convention reason if returned to Pakistan, either at the time of the hearing, or in the reasonably foreseeable future, and that the applicant did not fall within s. 36(2)(a) of the Act. It was entitled to make such finding on the evidence before it. [4]
[4] See [88] – [102] of reasons of the Tribunal.
The Tribunal was further entitled to find that there were no substantial grounds for believing that there was a real risk that the applicant would suffer significant harm should he be returned to Pakistan. [5]
[5] See [103] – [108] of reasons of the Tribunal.
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
Further, it cannot be said that the Authority, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] – [27], where it was said:
“[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 19 February 2021
[8] inclusive.
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