CER16 v Minister for Immigration

[2017] FCCA 272

FEDERAL CIRCUIT COURT OF AUSTRALIA

CER16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 272

Catchwords:
MIGRATION – Protection (Class XA) visa – whether the Tribunal failed to comply with s.424AA – the Tribunal complied with its statutory obligations –applicant had a real and meaningful hearing before the Tribunal – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 424AA, 425, 438, 476.

Cases cited:

MZAFZ v Ministerfor Immigration and Border Protection [2016] FCA 1081

Minister for Immigration and Border Protection v Singh [2016] FCAFC 183

Applicant: CER16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2135 of 2016

Judgment of: Judge Street

Hearing date: 20 February 2017

Date of Last Submission: 20 February 2017

Delivered at: Sydney

Delivered on: 20 February 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr P Knowles

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The amended application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $6,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2135 of 2016

CER16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 10 July 2016 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Pakistan. The applicant worked in the United Arab Emirates between 2005 and 2009. It appears that the applicant travelled for tourism reasons to Bulgaria, Thailand, Malaysia, Singapore, Saudi Arabia and back to Pakistan in 2008. It appears the applicant went to South Africa on 16 February 2011 for the reasons allegedly of tourism. The applicant went to Mozambique and back to South Africa and on 14 July 2011 returned to Pakistan. The applicant was then in South Africa from 14 July 2011 until 8 August 2013, when the applicant returned to Pakistan. The applicant returned to Pakistan on 3 August 2013 and left there on 6 September 2013.  The applicant arrived in Australia on a visitor visa on 7 September 2013. The applicant applied for protection on 4 October 2013. 

The Delegate

1. The applicant is of Pashtun ethnicity and is a Sunni Muslim. The applicant fears harm by reason of he and his uncle’s involvement in a Sunni organisation and alleges that he received threats from a Shia organisation, the Imamia Student Organisation (ISO). The applicant alleged that when he returned to Pakistan from Dubai he received telephone threats in 2009 from the then president of the ISO. The applicant alleged that the then president of the ISO threatened to kill him and the applicant alleges a gun was fired at him.

2. The applicant alleged that he was the subject of telephone call harassment in South Africa, in respect of which a complaint was allegedly made to the police on 5 August 2013. The applicant provided to the Department in respect of the telephone call harassment a document entitled Affidavit purportedly witnessed by a Commissioner of oath bearing the applicant’s signature identifying it was signed at Belfast in South Africa. The witness Commissioner of oath purported to be in the same place. The applicant provided to the Tribunal an identical copy with the applicant’s signature masked out and a statement by the applicant purporting to explain that his wife attended the police station and suggested that attached was a copy of the police statement that was made with his signature masked out.

3. The delegate made adverse credit findings in relation to the applicant and did not accept the applicant had any genuine fear of returning to Pakistan and was not satisfied there was any basis for finding that the applicant fears harm for any Convention reason in Pakistan. The delegate was not satisfied that the applicant has a real chance of being persecuted for a Refugees Convention reason and was not satisfied the applicant had a well-founded fear.

4. The delegate found that the applicant did not meet the criterion under s.36(2)(a) nor s.36(2)(aa) of the Act and found the applicant was not a person in respect of whom Australia had protection obligations.

The Tribunal

1. The applicant applied for review on 16 February 2016. On 21 January 2015, a certificate was issued under s.438(1) of the Act purporting to identify information and particular folios from within the statutory provision because it would reveal internal department processes. A Freedom of Information request was made by the applicant in relation to the information the subject of the certificate. Prior to the hearing which the applicant attended on 22 June 2016, the applicant was provided with the information the subject of the certificate and the certificate itself, subject to the masking of two pieces of information.

2. The applicant attended the hearing on 22 June 2016 to give evidence and present arguments. Prior to the hearing, the applicant provided a detailed statutory declaration which included new claims and annexed a large bundle of material including the amended version of the affidavit which was otherwise identical to that signed by the applicant, omitting the applicant’s signature.

3. It was apparent from the applicant’s migration history that the applicant could not have been in Belfast at the relevant time and on the face of the original affidavit, it was false. On the face of the copy of the affidavit with the applicant’s signature blanked out, it appeared to be a doctored document created by the applicant. The Tribunal identified the applicant’s background and the applicant’s claims and evidence. The Tribunal set out the relevant law in Attachment A of the Tribunal’s reasons.

4. The Tribunal’s reasons and the transcript identify the Tribunal raising with the applicant credibility concerns in relation to the applicant’s claims. The Tribunal concluded that there were sound reasons not to accept significant parts of the applicant’s evidence. The Tribunal gave detailed reasons in respect of the adverse findings made. The adverse findings in relation to the applicant’s credibility are open on the material before the Tribunal. Those adverse findings cannot be said to lack an evident and intelligible justification.

5. The Tribunal referred to medical documentation and photographs that were produced and noted raising issues with the applicant of the credibility of documents coming from Pakistan and made reference to there being no issue with the medical documents which would lead the Tribunal to believe that they were not credible. The Tribunal however, identified that it placed greater weight on the problems identified in the applicant’s evidence, including the new incidents raised belatedly by the applicant. The Tribunal made reference to the DFAT report identifying the prevalence of fraud in Pakistan and the ability to obtain fraudulent documents. The Tribunal did accept that the applicant suffered an injury as indicated in the photographs at some time but did not accept the applicant's account of how he suffered this injury or the reasons why he suffered the injury. The Tribunal found that the applicant had invented the incident in which the applicant claimed he was shot at and injured in Pakistan on 15 August 2013.  In support of the applicant's claims, the applicant referred to the affidavit and the Tribunal did not accept that the affidavit was a genuine document.

6. The applicant's statement in reference to his wife was clearly something the Tribunal was alive to in relation to the applicant's statement, which suggested that his wife had attended the police station, given that he could not possibly have been in Belfast at the time. That statement then annexed a version of the affidavit omitting the applicant’s signature when an earlier version with his signature in identical form had already been brought into existence. It was open to the Tribunal to conclude that that document was not genuine. It would have been open to the Tribunal to hold that the applicant had created a bogus document. 

7. The Tribunal did not accept that the applicant or any member of his family have ever been threatened by the ISO or any other Shia organisation as a result of his uncle's involvement in a Sunni organisation. The Tribunal did not accept that the applicant returned from Dubai because he received a telephone call from someone threatening him, nor that someone fired shots at the applicant in a market.

8. The Tribunal did not accept that since 2009 the applicant's family have received threats, nor that the applicant’s home had been raided several times by people looking for the applicant. The Tribunal did not accept that the applicant had received threatening phone calls whilst he was in South Africa or that shots were fired at his house, as the applicant claimed. The Tribunal did not accept there was a real chance the applicant will be seriously harmed or killed or otherwise persecuted because of the involvement of the applicant’s uncle in a Sunni organisation who died in 2009, as the applicant claimed.

9. The Tribunal did not accept there is a real chance the applicant will be seriously harmed or killed or otherwise persecuted for reasons of his religion as a Sunni Muslim if he returns to Pakistan now or in the reasonably foreseeable future. The Tribunal did not accept that there is a real chance that the applicant will be persecuted because he is a Sunni who refuses to fight with extremist Sunnis against the Shia populations if he returns to Pakistan now or in the reasonably foreseeable future.  The Tribunal did not accept there was a real chance the applicant would be persecuted because he is a Pashtun or because of any perception that he is a member of a terrorist organisation for that reason. The Tribunal did not accept that the applicant has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Pakistan now or in the reasonably foreseeable future.

10. The Tribunal did not accept there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan there is a real risk that the applicant will suffer significant harm as defined under s.36(2A) of the Act. The Tribunal found that the applicant did not meet the criteria under s.36(2) of the Act and affirmed the decision of the delegate.

Before this Court

1. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal's decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained in summary that this meant the Court was considering whether the Tribunal's decision was unlawful or unfair.

2. The Court explained that if the Court was satisfied the Tribunal's decision was unlawful or unfair the decision of the Tribunal would be set aside and sent back for a further hearing. The Court explained that if the Court was not satisfied the Tribunal's decision was unlawful or unfair the applicant's application would be dismissed.

3. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from Counsel for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

4. From the bar table the applicant identified that he wished to maintain that the errors by the Tribunal were those identified in the amended application that had been filed on his behalf.

5. The grounds of the amended application is as follows:-

   1. The Tribunal erroneously construed the South African Police report dated 5 August 2013 as an affidavit of the Applicant when it was not signed by the applicant. In the circumstances, the tribunal has:-

   a. failed to comply with section 424AA or alternatively section 425 of the Migration Act; or

   b. has taken into account an irrelevant consideration; or

   c. failed to consider information (being the South African Police Report) which is relevant; or

   d. Reached a mistaken conclusion, alternatively wrongly identified that the South African

   police report was an affidavit; or

   e. Reached a mistaken conclusion, that the South African police report cannot be considered genuine.

   2. In finding that the Applicant had "invented the incident" (paragraph 76 of the decision), the Tribunal has reached a conclusion which lacks an evident and intelligible justification and is unreasonable.

   Particulars

   The tribunal accepted that there was no issue with the medical documents which would lead the Tribunal to believe that they were not credible (paragraph 76 of the decision). The medical

   documents confirmed the applicant had suffered a gun shot injury to his arm. The tribunal accepted the credibility of the hospital records.

   3. The Tribunal misconstrued the meaning of “real chance.”

   Particulars

   The Tribunal failed to apply the test of real chance in Chan v MIEA (1989) 169 CLR 379. The tribunal accepted that there was no issue with the medical documents which would lead the Tribunal to believe that they were not credible (paragraph 76 of the decision). The medical documents confirmed the applicant had suffered a gunshot injury to his arm. The Tribunal misconstrued that a real chance may be below a 50% chance which applied in this case after the tribunal accepted the credibility of the hospital records.

6. From the bar table, the applicant sought to explain that the affidavit that had been attached to his statement was one which was not signed and therefore he was not in South Africa at the time. The applicant sought to explain that it had been his wife that had provided the document and that it should have been accepted as a genuine document by the Tribunal. There is no substance whatsoever in the applicant's submissions. It is transparent that the applicant provided two different versions of the same document to the department, one with his signature on it and one without. The adverse findings by the Tribunal were clearly open. 

7. Further, this is a case where it is apparent that the applicant's credit was an issue before the delegate and also before the Tribunal from the evidence tendered, including the transcript. The Tribunal raised the applicant's credit with the applicant during the course of the hearing in respect of his claims. No information has been identified enlivening any obligation under s.424A of the Act. The adverse credibility reasoning of the Tribunal was not information that enlivens an obligation under s.424A of the Act.

Consideration

1. On the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. The applicant was invited to attend a hearing and, on the material before the Court, the applicant had a real and meaningful hearing. 

Ground 1

1. There is no substance in the contention in Ground 1 that there was a failure to comply with s.424AA of the Act. There is no substance in the contention in Ground 1 that the Tribunal failed to comply with s.425 of the Act. No relevant consideration has been identified that the Tribunal failed to take into account. It is apparent that the Tribunal did take into account the information in relation to the affidavit. The adverse findings in relation to the applicant that the affidavit was not a genuine document were open to the Tribunal. Ground 1 fails to make out any jurisdictional error.

Ground 2

1. Ground 2 is a challenge to an adverse credibility finding by the Tribunal that was open on the material before the Tribunal in finding that the applicant had invented that claim. The proposition that the Tribunal had accepted the medical evidence was genuine did not give rise to a position where the Tribunal was bound to accept the applicant's claims. There is no illogicality or unreasonableness in the Tribunal's findings in respect of the applicant having invented part of his claims. Ground 2 fails to make out any jurisdictional error. 

Ground 3

1. In relation to Ground 3, the Tribunal correctly identified the relevant law. On the face of the Tribunal's reasons, the Tribunal correctly applied the relevant law. There is no substance in the proposition that the Tribunal misapplied the real chance test in the adverse findings of fact made by the Tribunal. Ground 3 is, in substance, an invitation to this Court to engage an impermissible merits review. This Court has no power to review the merits. Ground 3 fails to make out any jurisdictional error. 

Consideration of the applicant’s claims at the hearing

1. From the bar table, the applicant sought to suggest that the Tribunal had not complied with s.424A of the Act because of the adverse findings made by the Tribunal. For the reasons already given, no information was identified enlivening any obligation under s.424A of the Act. Nothing said by the applicant from the bar table identified any jurisdictional error.

2. The first respondent drew the Court's attention to the existence of a section 438 certificate. This is a case where the applicant had obtained the s.438 certificate under the Freedom of Information Act 1982 (Cth). Accordingly, there was no denial of any opportunity for the applicant to seek to raise the validity of the certificate before the Tribunal. No such issue was raised. Further, this is a case where it is apparent that the information that was the subject of the certificate, subject to the masking of two small pieces of information had been provided to the applicant. The unredacted version of the information provided refers to the applicant travelling with his parents and family when that apparently was not correct on the referral document and refers to a referral having been completed. Neither piece of redacted information was referred to in the Tribunal's reasons. Neither piece of redacted information has any possible relevance to the adverse findings by the Tribunal.

3. I am satisfied that the applicant has not been denied procedural fairness in the conduct of the review by the Tribunal. I am satisfied that this is a matter clearly distinguishable from the decision of the Full Court in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 and from the decision in MZAFZ v Ministerfor Immigration and Border Protection [2016] FCA 1081.

Conclusion

1. No jurisdictional error is made out by the amended application.

2. The amended application is dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 2 March 2017