CGX16 v Minister for Immigration
[2018] FCCA 2819
•4 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CGX16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2819 |
| Catchwords: PRACTICE AND PROCEDURE – Application made orally for adjournment on day of hearing – principles in relation to consideration of adjournment applications – availability of legal representation – whether merit in substantive judicial review application. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36, 91R, 474, 476 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) |
| Cases cited: AMF15 v Minister for Immigration & Border Protection [2016] FCAFC 68; (2016) 241 FCR 30; (2016) 338 ALR 551 MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 |
| Applicant: | CGX16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 374 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 29 May 2018 |
| Date of Last Submission: | 29 May 2018 |
| Delivered at: | Perth |
| Delivered on: | 4 October 2018 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Ms E Tattersall |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 374 of 2016
| CGX16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 13 July 2016. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) affirming the Delegate’s Decision to not grant the applicant a Protection (Class XA) visa (“Protection Visa”). The Tribunal Decision appears at Court Book (“CB”) 231-260.
On the day on which the Judicial Review Application was to be heard the applicant also made, without any prior notice, an application for an adjournment of the hearing of the Judicial Review Application on the basis that he had come into funds sufficient to enable him to engage a lawyer to argue the Judicial Review Application on his behalf. The oral application for adjournment was dismissed during the course of the hearing on 29 May 2018, and the reasons for that dismissal are set out below: see [14]-[20] below.
Background
The background to the Judicial Review Application is as follows:
a)the applicant, a Pakistani citizen, arrived in Australia on a valid student visa on 19 July 2012 which was to expire on 27 August 2014;
b)the applicant departed Australia between 29 June 2013 and 23 July 2013: CB 20 and CB 59;
c)on 21 August 2013 the applicant applied for the Protection Visa (“Protection Visa Application”) making the following claims:
i)he was an active member of a Christian fellowship group and would lead discussions in comparative religions, namely the Muslim and Christian faiths, and as a result he has had to leave Pakistan because his life has been threatened by Muslim extremists affiliated to Jaamat-e-Islami (“JI”) who mistook what he said, and distorted the information: CB 78;
ii)the threats had escalated to the point where there were two attacks and attempts to kill the applicant on his return to Pakistan in July 2013, and in the second attack he was seriously injured, having been stabbed in the head and side, and he only survived as when he fell to the ground in a pool of blood, his attackers fled believing he was dead: CB 78;
iii)the first attack by JI on his life was when he was with his father walking home and four masked men stopped and threatened them, saying that they were going to either kidnap or kill them, and the applicant and his father resisted them so the attackers started to beat them, however, as the applicant and his father began to make a lot of noise, yelling and screaming, the attackers fled: CB 79;
iv)within two weeks of the first attack, the applicant was alone and walking back home after going shopping and two men on a motorbike wearing masks stopped in front of him and said he had to be punished for preaching Christianity, and as he tried to run one of the men struck him in the head with a knife and the other man stabbed him in the chest with another knife: CB 79;
v)he went to the authorities after the second attack and they took no action: CB 79;
vi)if he returns to Pakistan he will be killed by the extremists, his family is also suffering threats to their lives and it has “got so bad” his mother and two sisters have had to move to Lahore, but even there they are not safe because recently Christian homes in Lahore were attacked: CB 79; and
vii)the authorities and police cannot guarantee his safety, and because the majority are Muslim, and he is Christian, they do not care about him, while politicians who try to help are killed, like the Minister for Minority Affairs, Mr Shabaz Bhatti, who was killed by his own security guard, and so it does not matter where he lives in Pakistan, “they” have said they will always try to find and kill him: CB 79;
d)the applicant was invited to an interview with the Delegate on 8 April 2014: CB 160;
e)on 1 December 2014 the Delegate’s Decision was to refuse the applicant the Protection Visa: CB 172-192;
f)the applicant applied for review of the Delegate’s Decision by the Tribunal on 30 December 2014: CB 193-194;
g)the applicant attended a hearing before the Tribunal on 12 January 2016: CB 206, and gave evidence at the Tribunal hearing, the evidence being extensively detailed at CB 234-239 at [21]-[47];
h)the Tribunal invited the applicant to, and the applicant did, provide material to the Tribunal after the Tribunal hearing, including a statutory declaration of a former aid worker in Afghanistan and an ordained priest: CB 207-212 and 239 at [48]-[50];
i)on 18 February 2016 the Tribunal received adverse information that the applicant had provided media articles that were not authentic, and on 25 February 2016 the Tribunal wrote to the applicant inviting him to comment on this information as it would be the reason, or part of the reason, for affirming the Delegate’s Decision: CB 213-217 and 239-240 at [51];
j)the applicant wrote to the Tribunal stating the news article had not been published in metropolitan newspapers in Pakistan as it would create havoc and would be dangerous for the Christian community in the area, however he had provided a copy of the newspaper in which the article was originally published on 21 July 2013 (“Newspaper Article”) and his letter requesting the newspaper copy: CB 224-228 and 240 at [53]; and
k)on 14 July 2016 the Tribunal affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 230-260.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)summarised the applicant’s history, the claims made in his Protection Visa Application and the Delegate’s Decision, in particular noting the concerns the Delegate had and the inconsistencies the Delegate observed regarding a number of the applicant’s claims: CB 232-234 at [3]-[18]; and
b)referred to the evidence provided by the applicant at the Tribunal hearing including:
i)when asked to explain why he fears returning to Pakistan, that he said he has been accused of blasphemy in Pakistan and that normally they kill people on the spot who have been accused of blasphemy, and further claimed that members of JI or extremist Muslims have charged him with blasphemy and they will seek to harm him if he returns: CB 234 at [24];
ii)that the extremist Muslims give no basis when they make an allegation of blasphemy, and that he had not used the word “blasphemy” in his claims before the Delegate, but claimed he referred to being misunderstood by the people he claims would harm him: CB 235 at [25]-[26];
iii)that he was introduced to the Christian fellowship group by a classmate in late 2009: CB 235 at [29];
iv)that there was no fee for joining the Christian fellowship group and he simply completed a form: CB 235 at [30];
v)he did not know who the director of the Christian fellowship group was, but he was able to name the leader in his area: CB 235 at [29];
vi)the leader in his area would organise the Christian fellowship group by calling or texting the members: CB 235 at [30];
vii)the last Christian fellowship group session he was involved in occurred in early 2012 at Murray College with between three and five other members attending: CB 235 at [31];
viii)he has lost contact with the leader in his area after word got around in January or February 2012 about his blasphemy: CB 235 at [32]; and
ix)the applicant’s recounting of the first and second attacks on his life he claimed in his Protection Visa Application: CB 236 at [33]-[34].
Having provided an overview of the claims and the applicant’s evidence at the Tribunal hearing, the Tribunal then set out in considerable detail what it put to the applicant, and the findings it made. The Tribunal:
a)referred to the Delegate's Decision and pointed out inconsistencies, in particular referring the applicant to the copy of the statement made to the police, and to the medical records relating to the claimed stabbing incident on 17 July 2013. The Tribunal pointed out that the applicant:
i)had stated to the Delegate that he was stabbed at approximately 8am or 9am, and that he had become unconscious and had woken up in hospital;
ii)the medical records, however, indicated that the applicant was admitted at 7am; and
iii)the police report indicated that he made a statement to the police at 9am on that same morning when according to his evidence he was in hospital as a result of the claimed attack: CB 236 at [35];
b)put to the applicant that the documents raised very serious doubts as to the credibility of his claim that he was attacked and stabbed at 8am or 9am on the morning of 17 July 2013, or at all, to which the applicant replied by saying that:
i)he had made a statement to the police who had attended the hospital; and
ii)his father then made a further statement to the police at the police station and had taken the applicant's ID card with him at the time so that he could make such a report; and
iii)then said he was not sure what time the attack occurred: CB 236 at [35];
c)with respect to the media articles, referred to the Delegate's finding that the Newspaper Article was published on 21 July 2013 and that it referred to the applicant “leaving Pakistan and having proceeded to Australia”, however, information before the Tribunal indicated that the applicant did not leave Pakistan until the day after the Newspaper Article was published, and noted the applicant responded that:
i)he did not know how the newspaper sourced its information;
ii)he did not know how the newspaper knew that the applicant was leaving Pakistan; and
iii)suggested that there may be some inconsistency in the translation and that in Urdu it may not mean that he had actually left Pakistan: CB 236 at [36];
d)asked the applicant to comment on the delay in applying for the Protection Visa when he claimed he was considered to be blasphemous in early 2012 and that JI members commenced their threats to him around June 2012, and that though he arrived in Australia in July 2012 he did not submit a Protection Visa application until August 2013, to which the applicant responded by saying he thought that they were "just threats", but that after he returned to Pakistan and experienced the alleged incidents in July 2013 he then decided that the threats were real and he needed protection: CB 237 at [38];
e)expressed concern over the applicant's credibility, and told him it was especially doubtful of the credibility of his claim that he believed he could return to Pakistan in July 2012 (sic: 2013) because the JI would have forgotten about his claimed blasphemy, while also pointing out that the applicant had not raised “blasphemy” with the Delegate before, and in light of all the evidence and in view of the earlier opportunities he has had to raise such evidence it may conclude that the statement was not credible and one concocted to strengthen his protection application: CB 237 at [39];
f)put to the applicant country information stating that there are a significant number of Christians in the Punjab region of Pakistan, there is a low level of official, and a moderate level of societal, discrimination, and that there may be no appreciable risk of the harm the applicant claims to fear in other parts of Pakistan: CB 237-238 at [40];
g)referred to the applicant’s response to the question of internal relocation where he stated nowhere was safe in Pakistan for him because JI operates everywhere, to which the applicant responded that he was under the protection of an organisation which he called the “Organisation Of Protection For All” (“Organisation of Protection”) after his attack, but they told him that they are unable to protect him, and when asked to explain what the Organisation of Protection does he responded he does not know how the Organisation of Protection works and he was not sure how they protected him, though went on to say that the Organisation of Protection might have told the Muslim leaders that he was leaving the country: CB 239 at [43];
h)invited the applicant to make submissions on complementary protection, to which he responded that the people who are after him want to kill him and he is scared and that it was not his intention to commit blasphemy, while also providing the statutory declarations (referred to in [3(h)] above) that the Tribunal summarised: CB 239 at [49]-[50]; and
i)referred to the relevant legal principles concerning the assessment of an applicant’s credibility and considered the applicant's written statements, the documents and letters which he submitted to the Delegate, his sworn oral evidence provided at the Tribunal hearing, the relevant country information provided by the applicant, the country information cited in the Delegate's Decision record, and the country information sourced by the Tribunal itself to form the view that significant aspects of the applicant's evidence and claims were not reliable or credible: CB 240-242 at [59]-[65].
Having detailed the evidence and responses of the applicant, the Tribunal went on to make findings before affirming the Delegate’s Decision not to grant the applicant the Protection Visa: CB 250 at [107]. In affirming the Delegate’s Decision, the Tribunal:
a)accepted the applicant was a Christian of Punjab ethnicity, but on the evidence before it found there is not a real chance the applicant would suffer serious harm for reasons of his Punjabi ethnicity: CB 242 at [65]-[67];
b)was prepared to place some weight on a letter from the leader of the Christian fellowship group in his area to the extent to which it referred to the applicant's association with the Christian fellowship group, but observed that when the Tribunal asked the applicant whether he proselytised or encouraged people to convert to Christianity, his response was that he did not emphasise conversion but would just present the facts so that people could make up their own mind, and from this concluded the applicant did not have a role in evangelism or in proselytising his faith, and nor would he have been perceived to be evangelising or proselytising: CB 243 at [69];
c)having regard to the applicant's evidence in its entirety regarding his role in the Christian fellowship group did not accept the applicant had a significant role in advocating or preaching Christian religion, but accepted that there may be some truth in some of the documents, but that in other respects the contents of the documents submitted by the applicant either overstate or exaggerate the applicant's circumstances and claims, and that certain documents are otherwise unreliable: CB 243 at [69];
d)accepted the applicant was in attendance and participated in discussions at his college in early 2012, and having regard to the objects of the Christian fellowship group obtained from its website, accepted that the discussion at any sessions, included discussion on the comparative aspects of the Islamic and Christian faiths: CB 243 at [70];
e)did not accept that the applicant was subsequently targeted for harm by JI, or by anyone else, as he claimed, and was not satisfied that the police documents, and the medical examination certificate, which the applicant submitted in support of the claimed attacks were reliable: CB 243 at [71];
f)noted that the applicant gave evidence regarding “blasphemy” for the first time at the Tribunal hearing, and further noted that the applicant had not previously made statements to the effect that:
i)the Prophet Mohammed had taken a six-year-old wife; or
ii)those who drink alcohol or who charge interest will not be admitted to heaven,
and had he made a statement impugning the Prophet Mohammed in such a way as to allege the Prophet was a child molester, he would have made reference to that in his evidence to the Delegate and as he did not the Tribunal further did not accept the applicant made such statements: CB 243 at [71];
g)was not satisfied, based on the evidence before it, that the applicant's mother's condition was life threatening such that he returned to Pakistan to visit her notwithstanding his claims that he began receiving threats from Islamic extremists before first coming to Australia, and that these increased after he departed Pakistan and during the year when he was in Australia, and considered in those circumstances the applicant would not have returned to Pakistan if he held a genuine and grave fear for his safety, and found that the applicant's behaviour in this respect seriously undermines the credibility of his claims overall: CB 244 at [74];
h)reflected on the applicant's account of the alleged first attack, and in light of its assessment of the applicant's comparatively limited role in the Christian fellowship group, and in all the circumstances, did not accept this attack occurred as claimed, in particular that four men purportedly associated with the claimed threats would have abandoned their attack had the attack occurred as claimed, therefore, this finding, coupled with all the evidence in this case led to the conclusion that the first alleged attack on 9 July 2013 did not occur as claimed: CB 244 at [75];
i)considered the inconsistencies in the applicant’s claims and evidence as significant and not of a kind that can be disregarded as of minimal significance, and in light of its assessment of the role played by the applicant in the Christian fellowship group, the delays in commencement of the threats, the delay in the applicant’s departure from Pakistan, and the delay in applying for the Protection Visa, the Tribunal did not accept the alleged attacks on 9 July 2013 or on 17 July 2013 occurred as claimed: CB 245 at [77];
j)considered that the circumstances of the applicant were considerably different to, and distinguishable from, those of Pakistan’s Minister for Minority Affairs whom he referred to in his Protection Visa Application: CB 245 at [78];
k)found the applicant’s evidence that he did not make inquiries before returning to Pakistan in July 2013 about whether it was safe or not to return to Pakistan further undermined his claim that he feared returning at that time: CB 245 at [79];
l)accepted that country information indicates that Christians in Pakistan may experience lower socio-economic status, and some low-level official discrimination, and a moderate level of societal discrimination, but also noted that country information indicated that this discrimination did not rise to the level of persecution, and considering the nature of the claims made by the applicant, such as his concern that Christians are looked down on in Pakistan, it did not accept that the discrimination against the applicant as a Christian amounted to “serious harm” for the purposes of s.91R of the Migration Act, nor did the claim that he had always wanted to join the army but he could not join it because he is a Christian as, on the evidence before the Tribunal, there is no information that Christians are prevented from joining the army in Pakistan: CB 245 at [80];
m)found the blasphemy claim inconsistent with other aspects of the applicant’s evidence, and did not accept that if the applicant genuinely believed there was a real chance of being charged with blasphemy that he would have formed a view that his claimed persecutors had forgotten his actions: CB 246-247 at [88];
n)did not accept that the applicant has, either through the Christian fellowship group or otherwise, committed blasphemous acts, or is perceived to be guilty of blasphemy, and therefore rejected the applicant's claim that he will be charged with blasphemy or that he faces a real chance of serious harm by reason of being charged, prosecuted or convicted: CB 247 at [89];
o)decided to place no weight on the Newspaper Article in light of the adverse credibility findings made regarding the applicant, country information advising that people can publish false stories in newspapers for a fee and the adverse information the Tribunal had obtained: CB 247 at [91];
p)rejected the applicant's claim and reasons provided for the delay in his departing Pakistan, and the delay in applying for his Protection Visa, and formed the view that those delays were more likely to be a result of the applicant not facing a real chance of serious harm at the relevant times, and that he has subsequently applied for a Protection Visa in the absence of other visa options: CB 248 at [93];
q)considered what might be the applicant's likely future conduct in considering whether he faces a real chance of serious harm if he returns to Pakistan now or in the reasonably foreseeable future, and giving the applicant the benefit of the doubt that he may decide or choose to engage in the same level of activity with the Christian church if he returns to Pakistan now or in the reasonably foreseeable future, but not having accepted he was targeted for harm in the past based on such a level of activity, found that:
i)there is not a real chance that he would be seriously harmed if he engages in a similar nature and level of conduct as he did in the past; and
ii)he does not face a real chance of serious harm at the hands of JI, or anyone else,
now or in the reasonably foreseeable future if he returns Pakistan, and, therefore, his fear of persecution by reason of his religion is not well-founded, and the applicant does not meet the requirements prescribed in s.36(2)(a) of the Migration Act: CB 248-249 at [96]; and
r)for reasons similar to those set out in the consideration of the applicant's refugee Convention claims, found that:
i)there were not 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 death penalty will be carried out on him or that he will be arbitrarily deprived of his life: CB 349 at [99];
ii)there is not a real risk that he will suffer significant harm for any of the reasons claimed, or for any reason, if he is returned to Pakistan; and
iii)was not satisfied that substantial grounds exist for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm in accordance with Australia’s protection obligations pursuant to under s.36(2)(aa) of the Migration Act: CB 250 at [102]-[105].
Judicial Review Application
The applicant filed his Judicial Review Application on 17 August 2016 stating the following grounds, which the Court will refer to as the “Grounds” collectively, and individually as “Ground 1”, “Ground 2” and “Ground 3” respectively:
1. The statement made to police was in hospital and then registered at a police station.
2. Applicant did not apply for a protection visa on arrival because he believed that things will change and Jaamat-e-Islami will forget.
3. Relocation within pakistan is not possible as Jaamat-e-Islami operats for all over pakistan and have their member in all universities and colleges all over Pakistan.
In support of his Judicial Review Application the applicant swore an affidavit on 17 August 2016 to which he annexed a copy of the Tribunal Decision.
On 14 September 2016 a Registrar of this Court made orders (“Registrar’s Orders”) allowing the applicant to file any amended application, any supporting affidavits and a written outline of submissions prior to the hearing on 29 May 2018. The applicant did not avail himself of the opportunity provided by the Registrar’s Orders. The Minister, in accordance with the Registrar’s Orders, filed an outline of submissions and sought that the Judicial Review Application be dismissed with costs.
Upon inviting the applicant to make submissions the applicant advised the Court that he required an adjournment for the following reasons:
a)he has recently been able to acquire the funds he needed to retain a lawyer, and while he had not yet signed the papers he will be engaging the lawyer now he can pay for it, and the applicant named the lawyer he purported to engage, and referenced Counsel whom that lawyer had referred to in the conversation;
b)as a result of his being unable to work, a matter outside of his control, the applicant was unable to acquire the funds until recently, being the previous week;
c)he accepts that his Judicial Review Application has been on foot for over 12 months, however, he had been to a number of immigration lawyers to seek assistance and none were prepared to take on his case except for the lawyer he has now found and intends to retain; and
d)in respect of the Judicial Review Application the grounds he stated reflect his lack of legal understanding and what he thought about the Tribunal Decision, and was unable to recall the nature of the error the lawyer said may be open to him, but said the lawyer will be able to provide proper grounds.
The Minister opposed the application for an adjournment having noted there is no lawyer on the record, nor is there evidence that the lawyer will in fact come on the record and the fact that a lawyer may intend to come on the record is insufficient for an adjournment to be granted.
As indicated at [2] above the applicant’s oral application for adjournment was dismissed at hearing, and the reasons for that dismissal are set out below: see [14]-[20] below.
With respect to the Judicial Review Application, the Minister’s submissions were brief, namely that:
a)the grounds invite the Court to engage in impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”);
b)the Tribunal gave detailed consideration to the applicant’s claims;
c)the conclusions the Tribunal reached were reasonably and plainly open to it on the evidence it had before it; and
d)no jurisdictional error was apparent in the Tribunal Decision.
Consideration
Oral application for adjournment
The Court has a broad discretion in relation to whether or not it adjourns a hearing: Myers v Myers [1969] WAR 19 at 21 per Jackson J; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [9]-[10] per Judge Lucev. The primary consideration remains the interests of the administration of justice, which includes taking into account issues associated with case management and wastage of public resources: Aon Risk Services v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 (“Aon Risk Services”). The principles in Aon Risk Services have been adopted by this Court in migration proceedings: see, by way of example, EBB17 v Minister for Immigration & Anor [2018] FCCA 48 at [14]-[20] per Judge Lucev; BHG16 v Minister for Immigration & Anor [2017] FCCA 2745 at [27]-[28] per Judge A Kelly (“BHG16”).
The applicant provided no evidence that he has been able to retain the lawyer named to act on his behalf, either personally or from the lawyer allegedly concerned. There is simply no evidence that the applicant has retained a lawyer, will retain a lawyer, or that any lawyer will come on the record for the applicant in any event. Were the Judicial Review Application to be adjourned on the basis that a lawyer might come onto the record for the applicant, it would be very difficult to find another hearing date within a reasonable period of time, and certainly not until well into 2019 at the earliest. Further the Court notes that there would be wastage of public resources by having to have the Court reconvene and have the Minister’s lawyers reappear, all at public expense, at any reconvened hearing: see BHG16 at [28] per Judge A Kelly.
The applicant also provided no evidence as to his financial situation, including that the applicant actually has the funds to retain a lawyer, and that he could meet the costs of the proceedings if he were to be unsuccessful. Without that evidence there is not sufficient evidence for the Court to grant the adjournment sought by the applicant. As noted in Singh v Minister for Immigration & Border Protection [2018] FCCA 369 at [25] per Judge Dowdy, it is unfortunate the applicant could not attain sufficient funds in time to instruct a lawyer for the final hearing, however, he had had ample time to raise funds, and his situation is otherwise not dissimilar to many other applicants.
It is well accepted there is no right to legal representation in migration proceedings in this Court: Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20; (2000) 31 AAR 448 at [27], [32] and [36] per Sackville, Marshall and Lehane JJ; SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [4] per Gyles J; WZASY v Minister for Immigration & Anor [2017] FCCA 1623 at [20]-[21] per Judge Lucev. It is not a requirement of procedural fairness for an applicant to have publically funded legal representation, nor is it a reasonable ground for an application or proceeding to be stayed because an applicant does not have such representation: AMF15 v Minister for Immigration & Border Protection [2016] FCAFC 68, (2016) 241 FCR 30; (2016) 338 ALR 551 at [51] per Flick, Griffiths and Perry JJ. In Timu v Minister for Immigration & Border Protection [2018] FCA 214 (“Timu”) at [67] per Barker J the Federal Court stated:
While the applicant suggests that if he were to be granted an adjournment and obtained legal advice and representation, a lawyer might discover further grounds of review in order to found a jurisdictional error, that speculative approach to the grant of an adjournment is not appropriately adopted. A court will often grant an adjournment, in the interests of justice, where there is no prejudice to any party of any great note, where there appears to be some reason to think that there may be proper grounds to be identified in advancing a case. Here, the submission for an adjournment of the applicant simply amounts to a request for further time to see if he can find a lawyer in the hope and eventuality that some further ground or grounds for setting aside the Assistant Minister's decision can be articulated.
Whilst the applicant says that he has a lawyer now prepared to act for him, there is no affidavit evidence from either the applicant or the lawyer as to that fact, nor when the lawyer might, if the lawyer does, come on the record, or what the alleged jurisdictional error is that is said to affect the Tribunal Decision. Thus, the applicant is yet to secure the legal representation with his funds, and there is no assurance that the legal representative will in fact come onto the record, and the applicant does not know what jurisdictional error, if any, might affect the Tribunal Decision. Further, the Court, having read the Tribunal Decision and the other relevant papers, examined the Grounds of the Judicial Review Application and remained vigilant to any possible jurisdictional error which might arise on the face of the Tribunal Decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J (“MZAIB”) does not consider that it is sufficiently arguable that the Tribunal Decision is affected by jurisdictional error, or that there is “some reason to think that there may be proper grounds to be identified in advancing a case”: Timu at [67] per Barker J, so as to warrant any adjournment of the hearing (and the reasoning in that regard essentially follows the reasoning set out at [21]-[30] below).
The applicant having raised the application for an adjournment at the last possible moment, and without notice to the Minister, does not weigh in favour of it being in the interests of justice to grant the adjournment. Furthermore, the applicant has failed to comply with the Registrar’s Orders regarding the filing of material in support of his case, and while this is not uncommon in migration proceedings the applicant has been aware for over one year of the date that the matter was listed for final hearing and he seemingly took no other steps to advance his case, save for hoping he could obtain legal representation prior to the hearing.
The Court does not consider it in the interests of justice, or the administration of justice, to grant an adjournment particularly in circumstances where there was no assurance of future legal representation for the applicant, nor any merit, or at least sufficiently arguable merit, in the Grounds, and the adjournment application was made late, without notice, and in circumstances where the applicant had not complied with the Registrar’s Orders. For the above reasons, the application for adjournment was refused at hearing, and the Court proceeded to hear the substance of the Judicial Review Application.
Judicial Review Application
The Tribunal Decision may be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24.
The Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine the applicant’s claim for the Protection Visa: Wu Shan Liang at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. It is the Tribunal’s statutory task to make findings of fact regarding the applicant’s Protection Visa claims: Wu Shan Liang at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. The Grounds simply reflect an invitation to the Court to enter into impermissible merits review contrary to the long-standing principles that flow from Wu Shan Liang, and in that respect do not establish jurisdictional error in the Tribunal Decision.
It is for the applicant to make his case and he bears the onus of establishing jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ. The Grounds of review in the Judicial Review Application assert no basis for a finding of jurisdictional error in the Tribunal Decision. Mere disagreement with the Tribunal’s findings of fact does not support a contention or claim the Tribunal committed a jurisdictional error: SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 at [14] per Jacobson J.
Both Grounds 1 and 2 were explanations and claims the applicant advanced at the Tribunal hearing, and the Tribunal rejected these. With respect to Ground 1:
76. As discussed with the applicant at the hearing, the Tribunal notes that the applicant submitted a medical record which states that the applicant was admitted to hospital at 7 AM on the day of the claimed second attack, that is on 17 July 2013, and also shows the applicant was examined at 8 AM. The applicant also provided a Police FIR purporting to be from … Police Station, …, and which shows the applicant himself attending the police station at 9 AM on the same day of the attack to report the attack. At the hearing, the applicant claimed that the attack occurred sometime between seven or eight in the morning and that he had gone to buy bread and eggs and some sweets as it was Ramadan.
77. The Tribunal considered the applicant's response when these inconsistencies were put to him. In particular, he replied by saying that he had made a statement to the police who had attended the hospital, and that his father then made a further statement to the police at the police station and that he had taken the applicant's ID card with him at the time, The Tribunal rejects this attempted explanation as it is clear from the FIR report for that claimed incident that it was the applicant in person making the report at the police station, and not to police who attended the hospital, and not by his father.
When considering the explanation the applicant asserts in Ground 2, the Tribunal stated:
93. At the hearing, the Tribunal expressed its concern over the apparent delay in the applicant applying for the protection visa. In particular, the applicant claims that before he first arrived in Australia on 19 July 2012, he was already receiving threats from JI. Yet, he did not submit an application for a protection visa for over 12 months, specifically on 28 August 2013. The applicant sought to explain the time delay by saying the threats started some weeks or months after the claimed … [Christian fellowship group] discussion which he led. When asked why JI would wait that long, or at all, before threatening or harming him, the applicant said that members of JI began coming to his home and began observing him and threatening them. He claimed that he thought that they were not serious threats at that time. He claims that things changed after the claimed attacked upon his return in July 2013. The Tribunal finds the applicant's evidence in this respect is inconsistent and lacking credibility. On the one hand, he claims that the threats motivated him to flee Pakistan to come to Australia, yet on the other hand he has claimed he did not consider them to be serious and that this contributed to the delay in applying for protection. Having regard to all of the evidence in this case, the Tribunal rejects the applicant's claim that the delay in departing Pakistan, or the delay in applying for protection, are for the reasons he has advanced. Rather, the Tribunal formed the view that the delays are more likely to be a result of the applicant not facing a real chance of serious harm at the relevant times and that he has subsequently applied for a protection visa in the absence of other visa options.
In both Grounds 1 and 2 the applicant does no more than set out a version of the facts which is at variance with the findings of fact made by the Tribunal. Implicitly, Grounds 1 and 2 seek to have the Court make factual findings more favourable to the applicant, in circumstances where there is no evidence the Tribunal has erred in any aspect of the findings it has made. Many of the findings of fact made by the Tribunal were informed by the credibility assessment it had made, and based upon the evidence before the Tribunal it was not unreasonable for the Tribunal to make adverse credibility findings. The Tribunal adequately explained the reasons it found the applicant’s evidence not to be credible, in particular at CB 242 at [65]:
The Tribunal carefully considered the applicant's written statements, and the documents and letters which he submitted to the Department and which are held on the Department's file. It also considered his sworn oral evidence provided at the Tribunal hearing. Further, the Tribunal considered the relevant country information provided by the applicant, the country information cited in the delegate's decision record, and the country information cited in this decision record. Having carefully considered all of this information, the Tribunal formed the view that significant aspects of the applicant's evidence and claims are not reliable or credible. This is detailed and discussed below.
The Tribunal was not required to accept uncritically any and all claims made by an applicant: Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567, CLR at 596 per Kirby J. The Tribunal was entitled to accept, reject or give such weight to the evidence proffered as it thought appropriate in all the circumstances, and matters of weight are, generally speaking, for the Tribunal: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27] per French J; Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. In light of the concerns and doubts regarding the evidence provided by the applicant, it was open to the Tribunal to reject the applicant's claims regarding the claimed attack (Ground 1) and the delay in applying for his Protection Visa (Ground 2). No jurisdictional error in the Tribunal Decision is established by Grounds 1 and 2.
Ground 3 refers to the applicant’s assertion that relocation in Pakistan is not possible as he will suffer harm anywhere within Pakistan. Ground 3 cannot succeed in circumstances where the Tribunal made no finding on the applicant having to relocate in Pakistan because it was not satisfied he would face a real chance of significant harm were he to return to his home area. While the Tribunal invited the applicant to comment on relocation, the Tribunal did not need to consider the applicant’s relocation as it was ultimately not necessary. No jurisdictional error in the Tribunal Decision is established in Ground 3.
The Court notes at CB 245 at [80] of the Tribunal Decision the Tribunal refers to s.91R of the Migration Act. At the time of the Tribunal Decision on 14 July 2016, s.91R of the Migration Act had been repealed. The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) repealed s.91R of the Migration Act on 18 April 2015. The Tribunal has therefore failed to apply the actual law in force at the time of making the Tribunal Decision, and furthermore at the time at which it interviewed the applicant: Kaur v Minister for Immigration & Border Protection [2015] FCA 168; (2015) 230 FCR 229 at [36] per Perry J. While s.91R of the Migration Act was not in effect at the time of the Tribunal Decision, s.5J(4)-(6) of the Migration Act was enacted at that time and is in essentially identical terms to s.91R of the Migration Act. While the Tribunal has erred in this respect, the Court considers that it has done so in a manner immaterial to the final outcome because although it acted upon a repealed legislative provision (s.91R of the Migration Act) the law in effect at the time it acted (s.5J(4)-(6) of the Migration Act) was in the same terms: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; (2000) 75 ALJR 52; (2000) 176 ALR 219 at [4] per Gleeson CJ and [103] and [121] per McHugh J. Thus, even if the Tribunal Decision were to be affected by jurisdictional error on this basis, relief should be refused in the exercise of the Court’s discretion because there can be no difference to the applicant between his current position and the position he would be in following the grant of any relief because the Tribunal’s affirmation of the Delegate’s Decision to refuse to grant the applicant a Protection Visa must inevitably remain. This, therefore, is a case in which remittal should be refused because:
a)“no useful result could ensue”: R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400 per Latham CJ, Rich, Dixon, McTiernan and Webb JJ; or
b)it would “lack utility”: SZEEU & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1 at [232] per Allsop J; or
c)it would “be an exercise in futility”: Jiang v Minister for Immigration & Anor [2007] FMCA 215 at [31] per Lucev FM, from which an appeal by the applicant was dismissed in Jiang v Minister for Immigration & Citizenship [2007] FCA 907 at [30] per Bennett J.
Having read the Tribunal Decision as a whole, and remained vigilant to any possible jurisdictional error which might arise on the face of the Tribunal Decision: MZAIB at [100] and [112] per Mortimer J, the Court is satisfied, for the reasons set out above, that the Tribunal Decision is not affected by jurisdictional error.
Conclusion and Orders
The Court has concluded that the Tribunal Decision is not affected by jurisdictional error, and it follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 4 October 2018
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