CHT17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 455
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CHT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 455
File number(s): MLG 1134 of 2017 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 1 June 2023 Catchwords: MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – Protection (subclass 866) visa – where applicant claims to fear harm from the Taliban in Pakistan due to religious beliefs and involvement in polio vaccination program – where applicant brought additional claim in Tribunal hearing not raised in protection visa application – claim that Tribunal’s findings were based on no evidence or were reached illogically or irrationally – finding that Tribunal’s findings were reasonably open on the evidence before it – claim that Tribunal failed to make obvious, critical and easy inquiries – finding that Tribunal’s failure to make relative easy enquiries did not give rise to jurisdictional error in this case – claim that applicant was denied procedural fairness as he was not put on notice of Tribunal’s concerns relating to authenticity of documents – finding that Tribunal made finding of fraud in relation to applicant’s supporting documents and failed to put applicant on notice of this – jurisdictional error established – writ of certiorari issued – writ of mandamus issued – order for costs. Legislation: MigrationAct1958 (Cth), ss 65, 424, 425 Cases cited: CRU18 v Minister for Home Affairs (2020) 277 FCR 493
DBX16 v Minister for Immigration and Border Protection & Anor [2021] FCA 238
DCP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 290
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
EIC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1000
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Minister for Home Affairs v DUA16 [2020] HCA 46
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123
Division: Division 2 General Federal Law Number of paragraphs: 145 Date of last submission/s: 21 March 2023 Date of hearing: 21 March 2023 Place: Melbourne Counsel for the Applicant: Mr M Kenneally Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondents: Mr J Barrington Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 1134 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHT17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
1 June 2023
THE COURT ORDERS THAT:
1.A writ of certiorari be issued directed to the second respondent quashing the decision dated 12 May 2017.
2.A writ of mandamus be issued directed to the second respondent requiring it to reconsider and determine the applicant’s application according to law.
3.The first respondent pay the applicant’s costs in a sum to be fixed if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 12 May 2017. By that decision, the Tribunal affirmed a decision of the delegate of the Minister to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa (‘protection visa’) under section 65 of the Migration Act 1958 (Cth) (‘the Act’).
BACKGROUND
The applicant is a citizen of Pakistan.[1] He initially arrived in Australia on 25 January 2013 on a student visa.[2]
[1] Court book at page 25.
[2] Court book at page 80.
Application for protection visa on 25 November 2013
On 25 November 2013, the applicant applied for a protection visa.[3]
[3] Court book at page 80.
Applicant’s claims for protection
The applicant claims to fear harm from the Taliban due to his opposition to Islam, as well as his involvement in the polio vaccination program in the Federally Administered Tribal Areas (‘FATA’).[4] It is common ground that in his initial application for a protection visa, the applicant only relied upon the first of these claims.[5]
[4] Court book at page 16 and following; Court book at page 126 and following.
[5] Court book at page 16 and following; Court book at page 154.
In his application for a protection visa, the applicant said:
I left my country because my life was in danger due to my liberal, secular and atheistic views and thoughts. I believe in freedom of speech and equal rights of human being whatever their religion and gender, therefore I got several threats from extremists and terrorists.[6] …
[6] Court book at page 16.
The applicant further stated that although he had not experienced any harm prior to leaving Pakistan, he believed that he would do so in the future if he returned to Pakistan.[7] In response to a question as to what harm he feared, the applicant further stated that he feared for his life ‘under [the] government blasphemy law’.[8]
[7] Court book at page 17.
[8] Court book at page 17.
Relevantly, in his application and in response to the question, ‘Give details of all employment including periods of unemployment’,[9] the applicant stated that from January 2010 to December 2012, he worked for MIEC Engineering Services as an ‘Account Assistant’.
[9] Court book at page 33 (emphasis in original).
Interview with delegate on 11 February 2015
On 20 January 2015, a delegate of the Minister invited the applicant to attend an interview scheduled for 11 February 2015 to discuss his application.[10] It is common ground that in this interview, the applicant did not raise any claim to fear harm due to his involvement in the polio vaccination program.[11]
[10] Court book at page 71 and following.
[11] See Court book at page 154.
Refusal of protection visa application on 11 March 2015
By letter dated 11 March 2015, the delegate notified the applicant of the refusal of his protection visa application.[12] In the delegate’s decision record, the delegate notes that at the protection visa interview before the delegate:
… the applicant raised the following additional claim. The applicant claims that he would face problems from Mullahs and Imams because he has spent time in Australia which is considered to be a non-Muslim country. The applicant stated that his brother is still asked by the Imam when he will come back to Pakistan.[13]
[12] Court book at page 75.
[13] Court book at page 83.
The delegate’s decision record also refers to the information provided by the applicant as to what prompted him specifically to leave Pakistan, in which the applicant stated that:
… he and his brother received different calls threatening the applicant to do the right thing or prepare for death. The applicant stated that he had received three to four calls but his brother is still receiving calls in Pakistan. … The applicant stated the calls began in early 2011.[14]
[14] Court book at page 87.
Application for review in the Tribunal on 24 March 2015
On 24 March 2015, the applicant lodged an application for a review of the delegate’s decision with the then Refugee Review Tribunal.[15] Whilst the applicant represented himself before the delegate,[16] he appointed a legal representative on 11 April 2016 to act for him in the Tribunal proceedings.[17]
[15] Court book at page 97.
[16] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [49].
[17] Court book at page 102.
By letter dated 3 August 2016, the Tribunal invited the applicant to attend a hearing and make written submissions, due by 1 September 2016.[18] The Tribunal hearing, initially scheduled to occur on 8 September 2016,[19] was ultimately rescheduled at the applicant’s request,[20] and took place on 10 October 2016.[21]
[18] Court book at page 116.
[19] Court book at page 118.
[20] Court book at page 120.
[21] Court book at page 123.
Applicant’s statutory declaration dated 27 September 2016
The applicant provided a statutory declaration dated 27 September 2016,[22] a copy of which is set out at pages 126 to 140 of the court book. In that statutory declaration, the applicant stated:
(a)at the time he made his protection visa application he was representing himself and therefore he did not fully disclose the nature of his claims for protection;[23] and
(b)he therefore wished to provide further information relevant to his application.[24]
[22] Court book at pages 126 to 140; Court book at page 125.
[23] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [2].
[24] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [3].
In addition, and consistent with his protection visa application, the applicant stated that on completing his studies, he obtained employment as an ‘accountant assistant in Nowshera at Miec Engineering Services’.[25] He said that he worked in this role from 2010 until he left Pakistan in early 2013.[26]
[25] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [9].
[26] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [9].
The applicant also provided the following additional information in his statutory declaration, not initially included in his protection visa application:
·as he was only working two to three days a week in his accountant assistant role, he looked for other work;[27]
·he had a friend, Rafiq (also referred to as Rafique) Khan, whom he knew from the hostel he lived in whilst undertaking his studies in Peshawar, and who was working as a polio vaccinator;[28]
·Mr Khan suggested that the applicant might wish to do some of that work and facilitated him obtaining a job with the polio vaccination program;[29]
·relevantly, the applicant said that the polio vaccination program was administered by the Department of Health and funded by the World Health Organisation;[30]
·the applicant says that he was offered a three year contract at the end of 2011 and that in December 2011, he undertook two days of training and commenced paid work in January 2012;[31]
·the applicant was employed as a ‘social mobiliser in Khyber Agency’, he worked in a team of three which included Rafiq Khan as well as another female employee;[32]
·the applicant’s role was to speak to the head of the household about the polio program and encourage vaccination;[33] and
·the applicant undertook this work in towns and villages, although:
The central office of the program was in Hayatabad near Peshewar which was where we worked when we were not in Khyber Agency. We would start every day from the office before going to the Agency, and then come back at the end of the day, as we often needed pens and pamphlets.[34]
[27] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [10].
[28] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [10].
[29] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [10].
[30] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [11].
[31] Applicant’s statutory declaration declared on 27 September 2016 at paragraphs [12] to [14].
[32] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [14].
[33] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [15].
[34] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [20].
The applicant further stated that in May 2012, whilst doing this work, he received a letter from the Taliban stating that polio vaccinations were against Islam and warning him to cease.[35] The applicant says that after discussing this letter with Rafiq and his supervisor, he ultimately decided to ignore it.[36]
[35] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [22].
[36] Applicant’s statutory declaration declared on 27 September 2016 at paragraphs [23] to [24].
The applicant goes on to say that in early August 2012, he and Rafiq then received another similar letter warning him to cease working in the program.[37] Again, after discussing this letter with Rafiq and their supervisor, he decided to ignore it.[38]
[37] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [25].
[38] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [26].
The applicant then claims to have received a third letter in September 2012.[39] He says that on the same day that he received this third threatening letter, he was waiting for a bus when he received a call from his supervisor telling him not to come to work as Rafiq had been shot in the Khyber Agency.[40]
[39] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [27].
[40] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [27].
The applicant goes on to say that the following week, his brother went to the applicant’s office and was told about the third letter from the Taliban, which said that the Taliban had decided that he and Rafiq had to be executed.[41] The applicant says that his supervisor also told his brother that it was too dangerous for the applicant, and that he therefore did not return to this job after that.[42]
[41] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [28].
[42] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [29].
Relevant at paragraph [30] of his statutory declaration, the applicant said:
30.I fear that even though I have quit my job in the polio vaccination program, and even if I did avoid this work if I were to return to Pakistan, the Taliban would still seek to carry out the orders of the Taliban Emir to execute me. This is because the third letter was not a threat for me to stop the work, but a declaration of the Taliban’s intention to kill me because of my work in helping the infidels. It means that they would target me no matter where I was living in Pakistan. …
The applicant further states that in preparing for the hearing before the Tribunal, he sought further information from his brother, who told him that:
31.… around 20 to 30 days after [sic] left Pakistan several Taliban militants came to our house in the middle of the night. They beat my brother and demanded to know where I was. He told them that he didn’t know but I was somewhere in Pakistan. They threatened my brother that if they tell the police they would harm him and the family … [43]
[43] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [31].
The applicant said that his brother had not previously told him about this encounter so as not to stress him out as his family were worried about the fact that he was in Australia on his own.[44]
[44] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [32].
In relation to his departure from Pakistan, the applicant stated that initially, he had only intended to come to Australia for about two years until the situation improved.[45] The applicant said that the decision to leave Pakistan was a difficult one in circumstances where he had post-graduate qualifications, two jobs and was earning a good income.[46]
[45] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [34].
[46] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [34].
Further, the applicant said that although his agent had obtained a visa for him in December 2012, the applicant was unable to leave Pakistan until late January 2013, as he had to obtain the funds to pay the agent’s fees in full.[47]
[47] Applicant’s statutory declaration declared on 27 September 2016 at paragraphs [36] to [37].
The applicant acknowledges that there was a delay between his initial arrival in Australia in January 2013 and his application for protection in November 2013.[48] He explains that when he initially arrived in Australia, he was living for some eight months in Adelaide where he was undertaking his course.[49]
[48] Applicant’s statutory declaration declared on 27 September 2016 at paragraphs [38] to [39].
[49] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [38].
Although, as stated, the applicant initially intended to remain in Australia for two years or so, by which time he hoped it would be safe for him to return to Pakistan, in March 2013 his brother told him that it was not safe for him to return to Pakistan.[50] His brother told the applicant that he had received some threats directed at the applicant and that the applicant would be harmed if he were to return to Pakistan.[51]
[50] Applicant’s statutory declaration declared on 27 September 2016 at paragraphs [39] to [40].
[51] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [40].
The applicant relevantly said at paragraph [40] of his statutory declaration that ‘[w]e discussed the situation and it was clear that I was at risk both because of my work as polio vaccinator and because I was known to be an infidel’.
The applicant concedes that he did not make mention of his concerns arising from his work as a polio vaccinator in his initial protection visa application.[52] In his statutory declaration, the applicant explains the reason for this under the subheading, ‘Why I did not disclose this information previously’. He says that he discussed his situation with various people in his circle and did some research online, and ultimately decided to move to Melbourne where he hoped he could access assistance from the Asylum Seeker Resource Centre in Melbourne.[53]
[52] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [47].
[53] Applicant’s statutory declaration declared on 27 September 2016 at paragraphs [42] to [44].
He also says that he was very stressed at this time and was therefore not able to concentrate on his studies and failed all his subjects in his first semester.[54] Consequently, he decided to move to Melbourne and undertake a ‘Certificate IV [course] in Automotive’, which was due to commence in September 2013.[55]
[54] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [45].
[55] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [45].
The applicant says that he then discussed his situation with a housemate who provided him with advice about how to apply for a protection visa.[56] The applicant says his housemate told him that his stronger claim was the claim based on his fear of harm due to his atheism.[57] He says that based on this advice, the applicant limited his application to this issue alone and did not refer to his fear of harm arising from his work as a polio vaccinator.[58]
[56] Applicant’s statutory declaration declared on 27 September 2016 at paragraphs [46] to [47].
[57] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [47].
[58] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [47].
The applicant says that he sought legal assistance but could not afford private assistance and therefore he proceeded with his application on his own.[59] This is the reason why the applicant says that he did not refer to his fear of harm arising from his work as a polio vaccinator until the matter proceeded to the Tribunal stage.[60]
[59] Applicant’s statutory declaration declared on 27 September 2016 at paragraphs [48] to [49].
[60] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [52].
In his statutory declaration, the applicant goes on to take issue with various aspects of the delegate’s decision.[61]
[61] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [55] and following.
The applicant also states that in March 2016, his brother emailed him to say that the police had come to his home in February 2014 about a reported incident of blasphemy against him,[62] and his brother told the police that he was in Australia and therefore ‘they did not pursue the matter anymore’.[63]
[62] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [76].
[63] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [76].
Applicant’s written submission dated 3 October 2016
The applicant’s representative also filed a written submission on the applicant’s behalf dated 3 October 2016.[64] The submission refers to the applicant’s vulnerability, including his history of poor mental health.[65]
[64] Court book at pages 144 to 158.
[65] Court book at pages 145 to 146.
It also specifically addresses the applicant’s fear of harm based on his religious views and his membership of a particular social group, namely as a polio vaccination worker.[66] In particular, in relation to the latter, the applicant’s representative refers to a variety of country information, which it is submitted evidences the risks faced by people involved in the polio vaccination program at or about the time that the applicant was engaged in that program.[67]
[66] Court book at page 146 and following.
[67] Court book at pages 147 to 154.
Relevantly, the applicant’s submissions specifically address the fact that he did not raise this as a ground upon which he feared harm in his initial application or in his interview with the delegate.[68] It is submitted, however, that the applicant has provided a plausible explanation for this failure in his statutory declaration, as outlined above.[69]
[68] Court book at page 154.
[69] Court book at page 154.
The applicant’s representative further submits that:
… the applicant’s explanation indicates that his decision not to provide these claims to the Department was primarily due to the fact that he did not have any legal advice or assistance during the primary stage. He was clearly naive in accepting without question the advice given to him by his housemate, though this decision was clearly influenced by the fact that this housemate was a refugee himself who had experienced their refugee determination process and was able to demonstrate an understanding of how this process operated. … We submit that the Tribunal should provide the applicant with the benefit of the doubt due to the circumstances in which he made his decision not to submit the information to the Department.[70]
[70] Court book at page 154.
In addition, in relation to the applicant’s delay in seeking protection, the applicant’s representative similarly submitted that the applicant has provided a reasonable explanation for the delay.[71] The applicant says that he initially intended to remain in Australia to undertake his studies for a couple of years and it was only after he moved to Melbourne that he took steps to obtain some assistance and advice and lodge his protection visa application.[72]
[71] Court book at page 155.
[72] Court book at page 155.
Tribunal hearing on 28 October 2016
As stated, the applicant attended a hearing before the Tribunal on 28 October 2016.
The applicant was assisted at that hearing, both by his representative and an interpreter in the Hindi and English languages.[73] The interpreter was late to that hearing and ultimately, the hearing was adjourned to 11 November 2016.[74]
[73] Court book at page 173.
[74] Court book at pages 173 to 175; Court book at page 191.
At the initial October Tribunal hearing, the applicant provided various documents in support of his claims arising from his work in the polio eradication program.[75]
[75] Court book at page 173; Court book at pages 178 to 186.
At the conclusion of the October Tribunal hearing, the applicant’s representative also provided an English translation of an article produced to the Tribunal from the Urdu newspaper ‘Daily Mashriq Peshawar’, which relevantly contained the following:
ATTACK UPON POLIO TEAM IN KHYBER AGENCY; A POLIO WORKER WAS KILLED
UNKNOWN ASSAILANTS OPENED FIRE UPON THE POLIO TEAM; A POLIO WORKER WAS KILLED ON THE SPOT
… Some unknown assailants opened fire upon RAFIQUE KHAN, a polio eradication worker at Shah Kas, a locality in Khyber Agency. Consequently, RAFIQUE KHAN, died on the spot. As per details, RAFIQUE KHAN and [the applicant], polio eradication workers, received letters containing threats by Taliban who demanded their separation from the polio team. RAFIQUE KHAN was hit by unknown assailants when he was going to office last morning. [The applicant], another colleague of RAFIQUE KHAN, received intimation on mobile that Taliban had killed him. And he was urged to escape. Therefore, he escaped and went back to Nowshera and was saved by any untoward accident. Political administration has started investigation of the incident.[76]
[76] Court book at pages 187 to 188.
The applicant was again assisted at the adjourned hearing by his representative and by an interpreter in the Hindi and English languages.[77]
[77] Court book at page 193.
On 17 May 2017, the applicant was notified, via letter addressed to his legal representative, that the Tribunal had determined to affirm the delegate’s decision to refuse his application for a protection visa.
TRIBUNAL DECISION
The Tribunal’s decision of 12 May 2017 is set out at pages 200 to 213 of the court book.
After setting out the legislative criteria to which it must have regard when determining the applicant’s application for review, at paragraph [11] of its decision record, the Tribunal accepted that the applicant is a Pakistani national.
At paragraphs [12] to [15], the Tribunal then set out the applicant’s background.
Relevantly, at paragraph [16], the Tribunal noted that the applicant had requested a Hindi interpreter and when asked ‘why he requested a Hindi interpreter instead of a Pashto or Urdu interpreter, he said he has watched a lot of Hindi films and Urdu and Hindi are very similar’.
At paragraphs [17] to [19], the Tribunal then addressed the applicant’s evidence regarding his mental health issues. Relevantly, at paragraph [19], the Tribunal said:
19.… the severity of the applicant’s condition as described by the psychologist appears to be at odds with the limited psychological intervention of “intermittently scheduled” counselling sessions and one anti-depressant a day. The Tribunal is satisfied the applicant was able to fully participate in the hearing and that he had a meaningful opportunity to present his claims. …
At paragraphs [20] to [78], the Tribunal then set out the applicant’s claims and the evidence given in support of them.
Questioning Islam and threatening phone calls
Relevantly, at paragraph [43], the Tribunal did not accept the applicant was accused of abandoning Islam or that he was threatened, or that his brother received any threatening calls in relation to the applicant, either whilst the applicant was in Pakistan or after he left. Likewise, the Tribunal did not accept that the applicant’s brother told him in 2013 that he could not return home.
Religious beliefs, blasphemy accusation and liberal views
Whilst the Tribunal accepted that blasphemy laws apply in Pakistan,[78] it did not accept that the police or elders visited the applicant’s family in 2014 in relation to a complaint that he had committed blasphemy.[79] The Tribunal did not, for the reasons given, accept that the applicant had conducted himself in a manner which might have been perceived as blasphemous.
[78] Tribunal decision record dated 12 May 2017 at paragraph [54].
[79] Tribunal decision record dated 12 May 2017 at paragraph [56].
In this regard, the Tribunal went on to say:
56.… it is implausible that a complaint would have been lodged more than four years after the applicant last asked any questions about Islam and a year after he left Pakistan; and that the applicant’s brother would have waited two years before telling the applicant about the complaint. The Tribunal does not accept the applicant could not contact his brother during this time or that the applicant’s family stopped responding to him in February 2014 because they were scared. Further, if a complaint had been made, which the Tribunal does not accept, the Tribunal considers the applicant would have been able to provide details.
Relevantly, at paragraph [57], the Tribunal made the following critical finding:
57.The Tribunal has found the applicant not to be a witness of credit in relation to his claims of having been threatened in the past because of his religious views and his polio work. … Given the extent of the Tribunal’s concerns about the applicant’s credibility, the Tribunal does not accept the applicant has rejected Islam as he claims and does not accept the applicant is an atheist. Further, the applicant’s evidence that he only realised the non-scientific aspects of Islam in 2009 when he bought an Urdu Koran is implausible given that Islamic studies is part of the school curriculum in Pakistan indicating that the applicant would have been aware of the non-scientific aspects of Islam before 2009 (and noting that any belief in a supernatural god is in itself unscientific). Further, the applicant has changed his evidence as to his beliefs following the delegate’s decision at which time he had indicated he believed in a God even though he had concerns about Islam. His evidence indicates he did further research after the delegate’s decision to better understand atheism in order to present himself as an atheist.
At paragraph [58], the Tribunal ultimately concluded that even if the applicant was not a practising or devout Muslim, this was not likely to cause him harm if he were to return to Pakistan. In coming to this view, the Tribunal had regard to the fact that the applicant had not regularly attended mosque whilst he was growing up and this did not result in any harm.[80]
[80] Tribunal decision record dated 12 May 2017 at paragraph [58].
Moreover, whilst accepting that the applicant held liberal views in relation to women’s rights, gay rights and animal rights, it had regard to the fact that Pakistan is a country of 180 million people, which includes people who hold a wide range of views on such issues.[81] Ultimately, the Tribunal was of the view that it did not accept that ‘merely holding or expressing views in favour of human rights or animal rights will cause the applicant any harm in Pakistan’.[82]
[81] Tribunal decision record dated 12 May 2017 at paragraph [59].
[82] Tribunal decision record dated 12 May 2017 at paragraph [59].
Based on these findings, at paragraph [60], the Tribunal did not accept that the applicant faced a real chance of serious harm or real risk of significant harm because he may not accept all aspects of Islamic teachings or because he may hold liberal views.
Polio vaccinator
At paragraph [61] and following, the Tribunal then went on to consider the applicant’s new claims arising from his role as in the polio vaccination program.
At paragraph [62], the Tribunal noted that it had asked the applicant why he had not included his employment as in the polio vaccination program in his initial application for a student visa. In response, the applicant said that he had provided all of his details to the agent and that ‘the agent told him he would not get the visa if he mentioned this employment. The agent did not say why’. The applicant went on to say that not having mentioned this employment in his student visa, he then also did not mention it in his application for a protection visa.[83]
[83] Tribunal decision record dated 12 May 2017 at paragraph [62].
At paragraphs [64] to [66], the Tribunal discussed the documentary evidence produced by the applicant. At paragraphs [67] to [69], the Tribunal then summarises the applicant’s evidence in relation to the threats he says he and Rafique received. At paragraphs [70] to [72], the Tribunal refers to the report from the Daily Mashriq Peshawar that related to this incident.
At paragraphs [75] to [76], the Tribunal then considered the issue of the Taliban’s targeting of polio workers and relevant country information on this issue. At paragraph [77], the Tribunal notes that it raised its credibility concerns arising from the applicant’s late presentation of the claims relating to his work as a polio vaccinator and the applicant’s explanation for this.
At paragraph [79], the Tribunal did not ‘accept the applicant worked on the polio vaccination program during 2012 for the reasons set out below’. Relevantly, the Tribunal based this finding on the fact that:
(a)the applicant had made no mention of this claim in his protection visa application or his interview before the delegate;[84] and
(b)various inconsistencies existed between the applicant’s oral evidence and the documents he provided.[85]
[84] Tribunal decision record dated 12 May 2017 at paragraph [80].
[85] Tribunal decision record dated 12 May 2017 at paragraph [81].
At paragraphs [82] to [84], the Tribunal then sets out the various conclusions reached about the applicant’s claims arising from his claimed work as a polio vaccinator.
Consequently, the Tribunal did not accept that the applicant met the criteria for a protection visa, nor was it satisfied that Australia’s protection obligations were engaged under the complementary protection provisions.[86]
[86] Tribunal decision record dated 12 May 2017 at paragraphs [86] to [89].
GROUNDS OF REVIEW
In his Amended Originating Application filed on 10 March 2023, the applicant raises three grounds of review. At the commencement of the hearing, counsel for the applicant indicated that the applicant abandoned one aspect of ground 3, namely ground 3(b)(iii).[87]
[87] Court transcript at page 2.
For the reasons which follow, I find that whilst grounds 1 and 2 are not made out, ground 3 is. I therefore make the orders set out at the commencement of these reasons.
Ground 1
Ground 1 is set out in the applicant’s amended application as follows:
1.The Tribunal’s decision is legally unreasonable, irrational and illogical, or based on findings that are irrational and illogical or for which there was no evidence.
Particulars
a.The applicant claimed to face a real chance of serious harm or real risk of significant harm as a result of his involvement in the polio vaccination program in FATA in Pakistan and his religious beliefs.
b.The applicant produced documents to prove he worked in the polio vaccination program in 2012 (see Court Book 179 - 186).
c. The Tribunal found at [81] that the documents were fraudulent.
d. The Tribunal’s finding at [81] was based on two findings:
i.that the Governor of Khyber Pakhtunkhwa had no authority in FATA.
ii.that the applicant’s oral evidence that he was employed by the Department of Health was inconsistent with the documents which indicated he was employed by the Agency Surgeon in Jamrud.
e.There was no evidence or rational or logical and probative basis for concluding that the Governor of Khyber Pakhtunkhwa had no authority in FATA or no authority in relation to the polio vaccination program in FATA.
f.The Tribunal’s reasons provided no rational basis for concluding the applicant’s oral evidence was inconsistent with him being employed by the Agency Surgeon in Jamrud.
g.Alternatively to particular (f), if the Tribunal implicitly found the Applicant could not plausibly be employed in the polio vaccination program by the Agency Surgeon in Jamrud on behalf of or as part of the Department of Health and supervised through an office in Peshawar there was no evidence or rational basis for that finding.
h.The Tribunal fell into jurisdictional error due to the errors at particular (e), (f), or (g).
In support of this ground, the applicant also relies upon a transcript of the proceedings before the Tribunal annexed to the affidavit of Natalie Young affirmed on 6 March 2023 and filed on 10 March 2023 at Annexure NY-1.
This ground relates to the Tribunal’s findings at paragraph [81] of its decision record that:
·there were inconsistencies between the applicant’s oral evidence and the documents he supplied regarding his employment in the polio eradication program; and
·that the Governor of Khyber Pakhtunkhwa (‘KP’) had no jurisdiction in relation to FATA.
Ground 1 asserts that these findings either were based on no evidence or they were reached by a process of reasoning which was illogical or irrational.
Employment inconsistency
In order to consider this aspect of ground 1, it is necessary to set out in some detail the evidence given by the applicant before the Tribunal which included that:
(a)he was employed for a polio vaccination program administered by the Department of Health and the World Health Organisation;[88]
(b)he was employed as a ‘social mobiliser’ in Khyber Agency;[89] and
(c)the central office was in Hayatabad.[90]
[88] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [11].
[89] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [14].
[90] Applicant’s statutory declaration declared on 27 September 2016 at paragraph [20].
The applicant also produced various documents which indicate that:
(a)he was paid his wage by the Office of the Agency Surgeon at Jamrud, Khyber Agency FATA;[91]
(b)he was employed by the Office of the Agency Surgeon at Jamrud, Khyber Agency;[92] and
(c)his office address was the Civil Hospital in Jamrud.[93]
[91] Court book at page 185.
[92] Court book at page 186.
[93] Court book at pages 179 to 180.
The applicant submits that there was no inconsistency between his evidence that he was employed by the Department of Health and has supervisors in Peshawar on the one hand, and the documents he produced which suggest that he was employed by Jamrud Hospital on the other.[94] Rather, the applicant says that the letter of appointment itself makes reference to the Health Department.[95] Moreover, the applicant says that his oral evidence to the Tribunal was that he was employed by the Department of Health but that the program he administered was in Jamrud Hospital.[96] The applicant therefore submits that there is no rational basis for the Tribunal to have rejected the applicant’s explanation for any discrepancy.
[94] Applicant’s Outline of Submissions filed on 10 March 2023 at paragraph [18].
[95] Applicant’s Outline of Submissions filed on 10 March 2023 at paragraph [18]; Court book at page 186.
[96] Applicant’s Outline of Submissions filed on 10 March 2023 at paragraph [18].
In response to questions from the Tribunal about who his employer was, the applicant said that he was employed by the World Health Organisation and the Department of Health.[97]
[97] See Affidavit of Natalie Young affirmed on 6 March 2023 and filed on 10 March 2023 at Annexure NY-1, pages 39 to 40.
It is clear from the transcripts of the Tribunal hearings that the Tribunal member was seeking to reconcile the information contained in the employment documents provided by the applicant and his oral evidence. The applicant’s evidence in this regard was somewhat confusing, however, the applicant consistently maintained in his oral evidence that he was employed by the Department of Health, that he worked in Khyber Agency in FATA, that the central office was in Hayatabad and that he had a supervisor in Hayatabad.
On the face of the documents, there were apparent inconsistencies compared to his oral evidence. In particular, his letter of appointment was by the Office of the Agency Surgeon, not the Department of Health. This was consistent with his pay slip that also referred to the Office of the Agency Surgeon at Jamrud.[98] In addition, he produced an identity card that listed the office address as the Civil Hospital Jamrud, Khyber Agency, not Hayatabad.[99]
[98] Court book at page 185.
[99] Court book at pages 179 to 180.
There is therefore an apparent inconsistency between the documents and the oral evidence given by the applicant. As such, I am satisfied that there was a logical and probative basis to the Tribunal’s findings in this regard.
This aspect of ground 1 is therefore not made out.
Certificate of Commendation
One of the documents the applicant provided to the Tribunal was a Certificate of Commendation for his work in the polio vaccination program, signed by the Governor of KP.[100] In its decision record, in referring to this document, the Tribunal noted that the Governor ‘has no jurisdiction in relation to FATA’.[101]
[100] Court book at page 181.
[101] Tribunal decision record dated 12 May 2017 at paragraph [81].
The applicant submits that this statement by the Tribunal is, in effect, a finding by the Tribunal that that certificate was fraudulent[102] and that there was no rational basis and no evidence upon which such a finding could be made.[103] In making this finding, the applicant submits that the Tribunal fell into the same jurisdictional error discussed in DBX16 v Minister for Immigration and Border Protection & Anor [2021] FCA 238 (‘DBX16’).[104]
[102] Court transcript at page 4.
[103] Applicant’s Outline of Submissions filed on 10 March 2023 at paragraph [16].
[104] Applicant’s Outline of Submissions filed on 10 March 2023 at paragraph [17].
In DBX16, the Immigration Assessment Authority (‘Authority’) had before it various arrest warrants which the applicant said he had obtained by his family after the delegate’s decision. The applicant in that case maintained that the warrants were given to his family when the Criminal Investigation Department (‘CID’) of the Sri Lankan Army had come to his home to arrest him.
In considering these documents, the Authority said at paragraph [6] of its decision:
6.In considering whether these documents contain credible personal information I have had regard to the authenticity of these documents. I have considered the applicant's statement that the CID gave these to his family. I consider it unlikely that the applicant would have access to arrest warrants and I do not accept his account that these documents were given to his family by the CID. I am not satisfied that these documents are genuinely issued arrest warrants. Therefore, I find that these documents do not contain credible personal information about the applicant. Nor am I satisfied that any exceptional circumstances exist that justify considering the new information. I have not had regard to this information.
The Federal Court found that there was no plausible evidence upon which the Authority could properly have concluded that it was implausible that the CID gave the arrest warrants to the applicant’s family.[105]
[105] DBX16 v Minister for Immigration and Border Protection & Anor [2021] FCA 238 at [101].
At paragraph [101] of DBX16, Justice Kenny noted:
101.… The Minister defended the finding on the only basis that was open to him in the circumstances of the case: that is, on the basis of “popular perception and everyday experience” or “ordinary human experience”. The law and practice with respect to arrest warrants in Sri Lanka, including in the region where the warrants in question purported to be issued, are not, however, matters that can be determined by the Authority by reference to anything resembling everyday experience. These are not matters of common, everyday knowledge. … The Authority's finding that the warrants were not capable of being seen as credible because the appellant's account of the provenance was implausible was based on mere speculation and conjecture. There was no logical or rational connection between this finding and the evidence before the Authority because there was no such relevant evidence. There was no logical or rational connection between this finding and “popular perception and everyday experience” or “ordinary human experience” because there was no relevant “everyday experience” or “ordinary human experience” about the practice and procedure regarding arrest warrants in Sri Lanka. The result was an illogical or irrational finding along the way to the Authority's ultimate decision.
Her Honour then went on to find that this finding was material to the ultimate conclusions reached in the sense explained at paragraph [31] of the High Court’s decision in Hossain v Minister for Immigration and Border Protection [2018] HCA 34.[106]
[106] DBX16 v Minister for Immigration and Border Protection & Anor [2021] FCA 238 at [102].
As noted, the applicant submits that similar reasoning applies in this case. Notwithstanding this, the applicant does concede that there was some information in the country information about the governor arrangements in Pakistan and in the FATA but says that there was:
… simply no evidence to support a positive finding that the Governor of KP had no authority, either broadly in FATA or specifically in relation to the polio vaccination program. And it’s not a matter that the tribunal could simply infer from its knowledge or common sense.[107]
[107] Court transcript at page 6.
In support of this submission, counsel for the applicant pointed to the ‘DFAT Country Information Report – Pakistan’ annexed to the affidavit of Tareena Martin affirmed and filed on 14 March 2023 at Annexure TM1.[108]
[108] Court transcript at page 6.
In particular under the heading ‘Political System’, the report contains the following:
2.19.Pakistan is a Federal Islamic Republic comprising four provinces (Balochistan, Punjab, Sindh and Khyber Pakhtunkhwa), the Federally Administered Tribal Areas (FATA), and two autonomous regions: Gilgit-Baltistan, and Azad Jammu and Kashmir (AJK).
…
2.22.Pakistan’s Constitution divides powers between the federal and provincial governments. All four provinces have their own elected assemblies. Members of provincial legislatures elect a Chief Minister to lead the provincial government. The president appoints provincial governors on the recommendation of the Prime Minister.
2.23.The Federal Government governs the FATA under a set of customary laws and regulations. These include the Frontier Crimes Regulations (FCR), a set of British-era laws enacted in 1901. The FATA is represented in the national legislature. The Federal Government has had limited influence in the FATA since partition in 1947. Prior to 2002, for example, local paramilitary forces rather than the Pakistani Army provided security in the FATA. The government continues to appoint ‘Political Agents’ to oversee governance in these areas.
The applicant says that on the basis of this information, there was nothing to say who the ‘Political Agents’ were or how they are selected or appointed.[109] On the basis of this material, the applicant says all that the Tribunal could do was conclude that there was a lacuna of evidence about the authority that the Governor of KP had in the FATA.[110] The applicant further submits that there was no evidence upon which a positive finding could be made that the Governor of KP had no authority in FATA.[111]
[109] Court transcript at page 6.
[110] Court transcript at page 6 and following.
[111] Court transcript at page 6 and following.
Applying the same logic and reasoning of the court in DBX16, it was said for the applicant that there was simply no logical or rational basis on which to conclude that the Governor of KP had no authority in FATA generally, or specifically, that he had no authority in relation to the polio vaccination program.[112] Alternatively, as noted above, the applicant says that the Tribunal’s conclusion was not based on any evidence.[113]
[112] Court transcript at page 7.
[113] Court transcript at page 7.
For the following reasons, I do not accept the applicant’s submission in regard to this aspect of ground 1.
The facts in this case are distinguishable from the decision in DBX16. In DBX16, as her Honour Justice Kenny pointed out at paragraph [101], there was no evidence to support the conclusion reached.[114] Indeed, the Minister effectively conceded as much in that case by submitting that the conclusions reached were based on ‘popular perceptions and everyday experience’.
[114] DBX16 v Minister for Immigration and Border Protection & Anor [2021] FCA 238 at [101].
By comparison, in the present case there was some evidence about the governance structures in Pakistan, which, on its face, could lead to an inference that the Governor of KP did not have a governing role in the administration of the FATA region. As outlined above, the country information before the Tribunal stated that the FATA region was governed by the Federal Government through ‘Political Agents’ appointed to oversee these jurisdictions, whereas the other provinces had their own elected assemblies with a Chief Minister and Governor.
The Tribunal’s reasoning was open to it on the basis of the available country information. Whilst the DFAT report did not expressly state that the Governor of KP did not have jurisdiction in FATA, it was reasonable to infer that his jurisdiction was limited to his or her own province. Unlike in DBX16, the conclusions reached were not based on mere speculation or some common perception of how things are.
It is common ground that ultimately, this inference drawn by the Tribunal was incorrect and, in fact, the Governor of KP did have a governing role in the FATA region.[115] That factual error however, is not determinative of the existence of jurisdictional error.
[115] See, for example, Court transcript at page 16.
A factual error made in the course of a determination by the Tribunal will only amount to a jurisdictional error if it related to a jurisdictional fact. In CRU18 v Minister for Home Affairs (2020) 277 FCR 493, the court said at paragraphs [29] to [31]:
29.An erroneous finding of fact will typically not suffice, in and of itself, to stigmatise a discretionary administrative decision as the product of jurisdictional error … In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 … this court observed (at [53]) that:
“ … mere factual error by [a decision maker] will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision … ”
…
31.A discretionary administrative decision that is materially premised upon an error of fact will rarely be beyond the jurisdictional authority of its maker simply because of that error. More needs to be established. It is neither necessary nor prudent to attempt an exhaustive statement of what more would need to be shown but typical circumstances spring readily to mind: for example, that the error gave rise to the consideration of irrelevant material, that it bespoke a failure to take account of a mandatory consideration, that it involved unreasonableness, irrationality or illogicality … that it revealed an impermissible denial of procedural fairness or that it otherwise reflected a failure to discharge the relevant statutory function. Additionally, it would need to be shown that the error was material, in the sense explained in Hossain v Minister for Immigration and Border Protection …
As noted, it was also argued by the applicant that the inference drawn was irrational or illogical and therefore the resulting error constituted an error about a jurisdictional fact. Respectfully, I do not agree with this submission.
The Full Court of the Federal Court recently considered the scope and compass of the characterisation of a decision as legally unreasonable because of illogicality or irrationality in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21. The court noted that such a claim is not easily made,[116] and then went on to say at paragraphs [34] and [35] that:
34.The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case” … It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. …
35.Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds … such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary, or capricious.
[116] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [33].
Applying this reasoning to the present facts, as stated, it was open to the Tribunal to draw the inference it did about the powers of the Governor of KP in FATA. That inference, although ultimately incorrect, was not so illogical or irrational that no decision maker would have come to it. Accordingly, the ultimate decision made by the Tribunal could not be said to be one which no other rational or logical decision maker would have come to.
For each of these reasons, ground 1 is not made out.
Ground 2
Ground 2 is set out in the applicant’s application as follows:
2.The Tribunal failed to complete its statutory task or unreasonably failed to exercise its power under s 424 or its decision was unreasonable as it failed to make obvious, critical and easy inquiries.
Particulars
a. The applicant relies on particulars (a) - (c) and (d)(i) of ground 1.
b.The Tribunal failed to make the following obvious, critical and easy inquiries:
i.of the applicant as to why the Governor of Khyber Pakhtunkhwa had signed his certificate of commendation;
ii.of the applicant as to what authority the Governor of Khyber Pakhtunkhwa had in FATA; or
iii.to obtain country information to determine what authority the Governor of Khyber Pakhtunkhwa has in FATA.
It is common ground that a failure by a decision maker to make inquiries which were critical, obvious and easy can give rise to a jurisdictional error.[117]
[117]Minister for Home Affairs v DUA16 (2020) CLR 550 at [28].
It is submitted for the applicant that the veracity of the documents submitted by the applicant in support of his claims regarding his work in the polio vaccination program was critical to the Tribunal’s review.[118] In assessing this issue, as stated above, the Tribunal formed the view that the Governor of KP had no authority in FATA. As stated above in relation to ground 1, it is said for the applicant that in coming to this view, there was a lacuna in the country information.
[118] Applicant’s Outline of Submissions filed on 10 March 2023 at paragraph [21].
The applicant submits that to the extent that the Tribunal was troubled by the Certificate of Commendation having been signed by the Governor of KP in circumstances where there was no evidence as to the jurisdiction that the Governor of KP had in FATA, the Tribunal could have, and indeed should have, made inquiries to find out those matters.[119] It is submitted that such inquiries were critical, obvious and easy.[120]
[119] Applicant’s Outline of Submissions filed on 10 March 2023 at paragraph [22].
[120] Applicant’s Outline of Submissions filed on 10 March 2023 at paragraph [20]; Minister for Home Affairs v DUA16 (2020) CLR 550.
The applicant says that the Tribunal could have either asked the applicant about the Governor of KP’s authority in FATA or sought further country information.[121] In either case, the Tribunal would then have had the benefit of knowing that the Governor of KP in fact was, at the relevant time, the appointed Political Agent in FATA.
[121] Applicant’s Outline of Submissions filed on 10 March 2023 at paragraph [22].
For the following reasons, I find that whilst it may have been relatively easy to make further inquiries, the failure by the Tribunal to do so did not constitute a jurisdictional error.
First, I do not accept that the inquiry was a critical one, in circumstances where the Tribunal’s view about the commendation certificate was that it was but one of a number of inconsistencies in the applicant’s evidence. In any event, the primary and critical issue of concern to the Tribunal in this regard related to the fact that:
(a)the applicant had not made any reference to that claim in his initial protection visa application; and
(b)he had not referred to his employment in the polio vaccination program either in his initial student visa application (in circumstances where he disclosed his other employment) or in his protection visa application.
The Tribunal’s finding in relation to the powers of the Governor of KP, when viewed in context, were not critical to the ultimate rejection of the applicant’s claim regarding his work in the polio vaccination program.
Moreover, in circumstances where, for the reasons set out in relation to ground 1, there was country information which supported the inference drawn by the Tribunal about the powers of the Governor of KP in FATA, an inquiry into that matter was not ‘obvious’.
Moreover, unlike the situation in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, it cannot be said that the failure to make further inquiries on this issue rendered the Tribunal’s decision legally unreasonable.
For each of these reasons, ground 2 is not made out.
Ground 3
The applicant sets out ground 3 in his amended application as follows:
3.The Tribunal failed to comply with s 425 of the Act or denied the applicant procedural fairness.
Particulars
a. The Applicant repeats and relies on particulars (a) - (d) of ground 1.
b.The Tribunal failed to put the applicant on notice of issues in the review or adverse conclusions not obviously open as it failed to:
i.put the applicant on notice the documents may be found to be fraudulent;
ii.put the applicant on notice that the Governor of Khyber Pakhtunkhwa’s authority in FATA was in issue; or
iii.[No longer pressed]
There are two aspects to this ground.
First, implicit in the Tribunal’s decision is a finding that the employment documents provided by the applicant in support of his polio vaccination program claims were fraudulent. In failing to squarely put this concern to the applicant, the Tribunal failed to comply with section 425 of the Act or otherwise failed to afford him procedural fairness.
The second and related aspect is that in concluding that the Governor of KP did not have jurisdiction in FATA, in effect, the Tribunal was making a finding that the letter of commendation signed by the Governor was fraudulent. Again, in failing to put the applicant on notice of this potential finding, it is submitted that the Tribunal failed to comply with section 425 or failed to afford the applicant procedural fairness.
In support of this ground, the applicant relies upon the decision of Justice Moshinsky in EIC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1000 (‘EIC20’).[122]
[122] Applicant’s Outline of Submissions filed on 10 March 2023 at paragraph [24].
In response, counsel for the Minister seeks to distinguish EIC20.[123] The Minister submits that, unlike EIC20 in which the Tribunal specifically found that the relevant letters were ‘written by the applicant or at his instructions for the purpose of supporting his claim for protection’, no such similar finding was made in this case.[124] Rather, the Minister submits that in the present case, the Tribunal simply identified inconsistencies between the applicant’s oral evidence and what the letters and other documents he provided purported to say.[125]
[123] Minister’s Outline of Submissions filed on 14 March 2023 at paragraph [40].
[124] Minister’s Outline of Submissions filed on 14 March 2023 at [41].
[125] Minister’s Outline of Submissions filed on 14 March 2023 at [41].
Section 425 of the Act relevantly requires the Tribunal to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. It is submitted for the applicant that in order to comply with this obligation, it was incumbent upon the Tribunal to put to the applicant that:
(a)the documents that he had produced in support of his claims to have been employed in the polio vaccination program, might be held to be fraudulent; and/or
(b)whether the Governor of KP had authority in FATA was a fact in issue.[126]
[126] Applicant’s Outline of Submissions filed on 10 March 2023 at paragraph [23].
In EIC20, his Honour Justice Moshinsky considered the various authorities in relation to the obligation on a decision maker to put to the applicant concerns relating to the authenticity of documents put forward to support an applicant’s claim.
The issue in EIC20 was essentially whether the Tribunal had failed to afford the applicant procedural fairness, or comply with section 425 of the Act, by ‘failing to alert [the applicant] to the genuineness of the Support Letters, before making a finding that they were fraudulent or forgeries’.[127] In that case, it was conceded that the Tribunal had implicitly, if not expressly, found the Support Letters to be fraudulent.[128]
[127] EIC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1000 at [42].
[128] EIC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1000 at [14].
At paragraph [45], Justice Moshinsky said:
45.In my view, once the appellant submitted the Support Letters to the Tribunal, and the Tribunal had concerns that the letters may have been fraudulently created by the appellant (as indicated by its later finding at [80] of its reasons), an issue arose as to the genuineness of the letters. Further, in my view, it was incumbent on the Tribunal to raise this issue with the appellant before making a finding that the letters had been fraudulently created by the appellant. This can be analysed in one of two ways … On one view, the issue of the genuineness of the Support Letters became an ‘[issue] arising in relation to the decision under review’ within the meaning of s 425(1); the Tribunal was therefore required by s 425(1) to invite the appellant to appear before the Tribunal to give evidence and present arguments relating to the issue. On another view, the issue raised by this case is not dealt with in s 425 or in any other provision of Div 4 of Pt 7; therefore the exhaustiveness referred to in s 422B(1) does not apply; the natural justice hearing rule therefore operates; and this required the Tribunal to raise the issue of the genuineness of the Support Letters with the appellant before making a finding that the appellant fraudulently created the letters. It is not necessary for present purposes to decide between these alternatives, as they both yield the same result.
His Honour went on at paragraph [46] to consider whether the Tribunal had sufficiently put the applicant on notice that it had concerns about the genuineness of all documents provided by the applicant (or to be provided in future). It should be noted that the transcript of the Tribunal hearing was not before the court in EIC20.[129]
[129] EIC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1000 at [46].
By contrast, in the present case, the court has the benefit of the transcript of the Tribunal hearings. It is submitted for the applicant that whilst the Tribunal did raise concerns about the late notice of the polio vaccination program claim, and expressed some confusion about the employment structure that applied to the applicant, there is nothing in the transcript which could be said to have put the applicant on notice that the Tribunal doubted the authenticity of the supporting documents provided.[130] This applies both to the employment documents provided by the applicant, as well as the letter of commendation signed by the Governor of KP.
[130] Applicant’s Outline of Submissions filed on 10 March 2023 at paragraph [26].
Two issues arise in the present case:
(a)the first is whether the Tribunal made a finding of fraud in relation to the supporting documents produced by the applicant;
(b)if it did, the second issue arises as to whether the applicant was put on notice that such a finding might be made so as to comply with the Tribunal’s procedural fairness obligations.
Whether the Tribunal made a finding of fraud
The applicant says that he was aware that the claim that he feared harm because he had worked in the polio vaccination program was doubted by the Tribunal, but he was not on notice that the specific documents he provided as evidence that he in fact did work in the program were concocted.[131]
[131] Court transcript at page 12.
The applicant submits that the reasoning in EIC20 is directly on point here and that it is not enough to say that, in circumstances where the applicant’s credibility in relation to his protection claims is in issue; that the applicant was also on notice that the validity of any documents provided in support of that claim was also at issue.
In this regard, the applicant’s representative stated in oral submissions:
… it was quite possible for the tribunal to simply find, yes, you’ve worked in that program. You didn’t raise it, but you face no harm and that’s why you didn’t put it in your protection visa application. It’s a second leap to find that the documents which on their face appear genuine, are fraudulent. And that’s an … important issue to be put to the applicant because it has a grievous effect of his credibility generally.
It doesn’t merely affect the finding about whether he’s at risk of harm from the polio program. … it affects whether his claims about his religious beliefs, his liberal political beliefs, both in the past and going forward, would be accepted if he has provided fraudulent documents.[132]
[132] Court transcript at page 12.
In the alternative, the applicant submits that if fraudulent documents were not in issue, then any assumptions made about how FATA was governed were matters that ought to have been put to the applicant but were not.[133] This failure also amounted to a breach of the obligations under section 425.[134]
[133] Court transcript at page 12 and following.
[134] Court transcript at page 12; DCP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 290.
As stated, the Minister submits that unlike EIC20, the Tribunal in this case did not make a finding that the polio vaccination program documents were not genuine.[135] Rather, all the Tribunal did was to find inconsistencies in the documents such that those inconsistencies added to and reinforced the credibility concerns that the Tribunal had, and which led to the findings made at paragraph [80] of its reasons.[136]
[135] Minister’s Outline of Submissions filed on 14 March 2023 at paragraphs [40] to [41].
[136] Minister’s Outline of Submissions filed on 14 March 2023 at paragraph [41].
The difficulty with this submission, with respect, is that it does not sit with the finding made by the Tribunal that the applicant was not employed in the polio vaccination program during 2012. In the face of that finding, the only conclusion that could be reached about the genuineness or otherwise of the documents provided by the applicant is that they are not genuine.
Whilst it might be said, for example, that the service card at pages 179 to 180 of the court book could be said to be a legitimate form of identification but not related to the applicant’s claim to have been employed in the polio vaccination program, and that the pay slip equally does not expressly refer to the polio vaccination program,[137] the same cannot be said of the other documents provided by the applicant.
[137] See Court book at page 185.
The Certificate of Commendation, for example, clearly refers to the applicant having provided service to the ‘Polio Eradication Programme in FATA during June 2012 Campaign’.[138] Similarly, the Experience Certificate refers to the ‘Polio Eradication Program at Jamrud Khyber Agency (FATA)’ from January 2012 to October 2012.[139]
[138] Court book at page 181.
[139] Court book at page 182.
Moreover, the certificate at page 183 of the court book refers to completion of polio training and is dated 8 December 2011. The appointment letter at page 186 of the court book is dated January 05, 2012 and also expressly refers to the ‘Polio Eradication Initiative Program’.
These documents on their face are consistent with the applicant’s claim to have been employed in the polio vaccination program in some capacity during 2012. They relate expressly and only to that employment. At paragraph [79] of its reasons, the Tribunal did not accept that the applicant worked in the polio vaccination program. If the applicant was not employed in the polio vaccination program, the only conclusion open to the Tribunal was that those documents were not genuine.
It is therefore implicit in the Tribunal’s finding at paragraph [79] that the Tribunal found the polio vaccination program documents not to be genuine.
Whether the applicant was put on notice
The Minister submits that even if the Tribunal’s reasons are read as an implied finding that the polio documents were not genuine, as I have found above, there is no ‘general rule that the Tribunal cannot make a finding that a document is not genuine without specifically referring to its concerns about the documents’.[140]
[140] Minister’s Outline of Submissions filed on 14 March 2023 at paragraph [42].
I accept that the applicant was put on notice that the Tribunal had concerns about the credibility of his claims to have been threatened by the Taliban because of his work on the polio vaccination program. This however, is different from putting the applicant on notice that it had concerns about whether he had been employed in the polio vaccination program at all.
A finding that the applicant had not only made claims which the Tribunal did not accept, but moreover, had produced documents inconsistent with the facts, namely documents which evidence his work in the polio vaccination program in circumstances where he did not work there at all, is a more serious finding which had the potential to impact the Tribunal’s overall findings about the applicant’s credibility.
As the applicant submitted, it was open to the Tribunal to conclude that, on the evidence, there was some confusion about the applicant’s employment relationship as part of the polio vaccination program, but that in any event, the Tribunal did not believe that he had been threatened whilst undertaking that work, or indeed, that he would be at risk as a result of that work if he were to return to Pakistan.
However, once the Tribunal decided to go further than that and make a positive finding that the applicant had not been employed in the program at all, with an implicit finding that the documents the applicant provided were not genuine, that became an issue arising in relation to the decision under review and the Tribunal was required to invite the applicant to give evidence and present arguments in relation to that matter.
In failing to do so, the Tribunal erred by failing to comply with its obligations under section 425 of the Act.
Having come to this view, it is not necessary for me to consider the alternative argument put in relation to ground 3 by the applicant.
For each of these reasons, ground 3 is made out.
CONCLUSION
I therefore make the orders sought by the applicant, quashing the Tribunal’s decision and issuing a writ of mandamus directing the Tribunal to determine the applicant’s application according to law.
The applicant seeks costs. There is no apparent reason why costs should not follow the event and I therefore order that the first respondent pay the applicant’s costs in a sum to be fixed if not agreed.
I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 1 June 2023
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