Cja16 v Minister for Immigration

[2017] FCCA 184

FEDERAL CIRCUIT COURT OF AUSTRALIA

CJA16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 184

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

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

Cases cited:

Minister for Immigration v MZYTS (2013) 230 FCR 431
Minister for Immigration v SCAR (2003) 128 FCR 553

Minster for Immigration v SZNVW (2010) 183 FCR 575

Minister for Immigration v SZRKT (2013) 212 FCR 99; [2013] FCA 317
Minister for Immigration v SZSRS (2014) 309 ALR 67

Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407

SZBEL v Minister for Immigration (2006) 228 CLR 152

Applicant: CJA16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2298 of 2016

Judgment of: Judge Driver

Hearing date: 3 February 2017

Delivered at: Sydney

Delivered on: 3 February 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms K Garaty of HWL Ebsworth

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2298 of 2016

CJA16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 8 August 2016.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are summarised in the Minister’s outline of submissions filed on 25 January 2017.   

2. The applicant, who is a male citizen of Pakistan, arrived in Australia as the holder of a subclass 600 visitor visa on 3 September 2013[1].

   [1] Court Book (CB) 33 and [10] at CB 147

3. The applicant lodged a valid application for a protection (Class XA) visa on 1 November 2013[2] and his claims to protection were detailed in a statement attached to his application[3].  The applicant's claims related to his Shia faith and Hazara ethnicity, his alleged arrest at a political rally and subsequent torture, his involvement with the Shia political organisation TNFJ, and his fear of the Sipah-e-Sahaba and the Taliban.  Relevantly, the applicant claimed that members of the Sipah-e-Sahaba had issued a fatwa against him, and had attempted to kill him by throwing a bomb at him, which failed to detonate.

   [2] CB 1

   [3] CB 31

4. The applicant attended an interview with the delegate on 30 May 2014. At the interview, the applicant stated that he was an ethnic Kashmiri rather than an ethnic Hazara and that he had not been arrested or blindfolded or attacked as claimed in his statement[4]. He also said that he had previously travelled overseas prior to his arrival in Australia and that the statement attached to his protection visa was prepared by a friend[5]. 

   [4] CB 82

   [5] CB 82

5. The applicant submitted further documents to the delegate at, and shortly after, his interview. These included a statement by the applicant that essentially repeated the claims he had made in the document attached to the visa application form[6]. The applicant submitted a letter said to be from a General Secretary of the TNFJ, which stated that the applicant had been an active member of the organisation from 15 January 2008 until 25 August 2013[7]. The author claimed that the applicant had been attacked several times and that the applicant's life was in danger. The applicant also submitted a document, said to be a police form (both in Urdu and in English) which detailed claims the applicant's house had been attacked and he had received telephone calls threatening his life[8].

   [6] CB 60

   [7] CB 56

   [8] CB 58 and 63

6. The delegate refused the applicant's visa application on 28 November 2014[9]. The delegate did not find the applicant to be a witness of truth and considered that the information provided by the applicant at the interview to be vague and inconsistent[10]. After providing examples of the applicant's inconsistent evidence, the delegate dismissed the entirety of the applicant's material claims. While the delegate did accept that the applicant was a practising Shia Muslim of Kashmiri ethnicity, he considered that there was not more than a remote chance that the applicant would face persecution on that basis should he return to his home village[11].

   [9] CB 72

   [10] CB 83

   [11] CB 87 and 93

7. The applicant lodged an application for review of the delegate's decision with the Tribunal on 22 December 2014[12] attaching a copy of the delegate's decision to his application to the Tribunal[13]. The application for review referred to a class of bridging visa, rather than to a protection visa, however the Tribunal was unable to contact the applicant to clarify the issue. The applicant submitted a separate application for review by post on 5 January 2015[14]. That application contained no reference to the bridging visa.

   [12] CB 97

   [13] CB 99 to 121

   [14] CB 124

8. By way of email on 16 June 2016, the Tribunal invited the applicant to attend a hearing on 28 July 2016[15]. That invitation also informed the applicant that the hearing would be conducted by way of videolink, as the applicant was in North Queensland and the Tribunal member and interpreter were in Sydney[16].  The applicant attended the hearing by way of videolink on 28 July 2016 and the hearing lasted for approximately two hours[17].

   [15] CB 133

   [16] CB 134

   [17] CB 139 to 141

Tribunal decision

1. The Tribunal affirmed the delegate's decision on 8 August 2016[18]. The Tribunal did not find the applicant to be a truthful or credible witness[19]. In doing so the Tribunal referred to “numerous significant contradictions” in the applicant's written and oral submissions to the delegate and the Tribunal[20].  It considered that the applicant's evidence regarding his membership of the TNFJ to be vague and unconvincing and did not accept that the applicant belonged to the group[21].  It also found that the applicant was not Hazara and considered that the applicant claimed to be a Hazara because he believed, as Hazaras are more at risk of violence than other Shias in Pakistan, he would be more likely to obtain protection in Australia[22].

   [18] CB 145

   [19] [71] at CB 154

   [20] [73] at CB 155

   [21] [82] at CB156

   [22] [72] at CB 154

The present proceedings

1. These proceedings began with a show cause application filed on 24 August 2016.  The applicant continues to rely upon that application.  There are three grounds in the application:

   1. The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.

   Particular:

   The Tribunal did not issue any written invitation under section 424A of the Act, and made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.

   2.     The Tribunal constructively failed to exercise its jurisdiction

   Particular

   The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant's credit without first assessing whether the substance of the documents corroborated his claims. The decision of the Tribunal is the factual decisions it is the common area of the law.  The is no evidence of other material to justify the making of the decision.

   3. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.

   The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to Pakistan. (errors in original)

2. The application is supported by a short affidavit filed with it, which I received as a submission.  As the Minister notes in his submission, in that submission the applicant asserts that the Tribunal decision was unjust and was made without taking into account the full gravity of his circumstances. 

3. I have before me as evidence the court book filed on 22 November 2016. 

4. I invited oral submissions today from the applicant in relation to his grounds of review. I explained to the applicant the operation of ss.424A and 424AA of the Migration Act 1958 (Cth) (Migration Act). The applicant asserted that there were a lot of problems with the Tribunal review. He is troubled by the Tribunal’s adverse credibility conclusions and the treatment of his evidence. He said that his English is not good and that errors of fact were made in his initial claims, which he needed to correct. He considers that the Tribunal should not have used those corrections against him. The applicant was, however, unable to point to any information which required disclosure under s.424A. I otherwise agree with the Minister’s submission in relation to this ground.

5. The applicant alleges that the Tribunal failed to issue any written invitation under s.424A of the Migration Act and made no attempt to comply with the requirements as set out in s.424AA of the Migration Act.

6. The Tribunal complied with its statutory obligations pursuant to Division 4 of Part 7 of the Migration Act. There is nothing arising from the Tribunal's reasons to give rise to a suggestion to the contrary.

7. With respect to s.424A, this is not a matter in which the Tribunal's s.424A obligations were enlivened, and therefore s.424AA also had no work to do.

8. With respect to s.425, the applicant was invited to, and attended, a hearing before the Tribunal on 16 March 2016. The duration of the hearing was approximately two hours. At the hearing, the Tribunal discussed the issues that were dispositive to the review[23].  The Tribunal traversed the evidence with the applicant, including putting to the applicant matters that might cause the Tribunal to conclude that the applicant was not a person to whom Australia has protection obligations[24].  

   [23] SZBEL v Minister for Immigration (2006) 228 CLR 152 at [33]

   [24] see [30] to [54] CB 149 to 152

9. The Tribunal complied with s.425 of the Migration Act by giving the applicant a “real and meaningful” opportunity to participate in the hearing and give evidence in support of her application[25].

   [25] cf. Minister for Immigration v SCAR (2003) 128 FCR 553; Minster for Immigration v SZNVW (2010) 183 FCR 575

10. In relation to the second ground The applicant alleges that the Tribunal constructively failed to exercise its jurisdiction by failing to engage in an “active intellectual process” with the documents submitted to the Tribunal in an effort to corroborate his claims.

11. A failure to consider an item of evidence may constitute jurisdictional error where it is found both that:

    a)the evidence was overlooked; and

    b)the evidence was of some import when regard is had to its cogency and its significance to the decision-maker's reasoning[26].

    [26] see Minister for Immigration v SZSRS (2014) 309 ALR 67 at [54], [56], [58]

12. The applicant bears the onus of proving that evidence was ignored, overlooked or not considered and that this demonstrates jurisdictional error[27].

    [27] Minister for Immigration v MZYTS (2013) 230 FCR 431 at [53] and see SZSRS at [27]-[43]

13. In addressing the issue of a potential failure to consider evidence, the first question is whether the evidence was overlooked. 

14. The second question is, if the evidence was overlooked, whether the Tribunal's failure to consider it amounts to jurisdictional error.  This question turns on the importance of the evidence to the Tribunal's process of decision-making.  In Minister for Immigration v SZRKT[28], Robertson J held at [111] that the “fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error” and, at [112], that whether the Tribunal is obliged to consider evidence depends “on the circumstances of the case and the nature of the document”, including “first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims”[29].

    [28] (2013) 212 FCR 99; [2013] FCA 317

    [29] See, similarly, SZSRS at [29]

15. It is clear from the Tribunal's file that the applicant did not submit any documents to it apart from the delegate's decision which he attached to his review application. The Tribunal made reference to the documents submitted to the delegate at [28] and [29][30] of its decision, those documents being the documents the ones described at [19] above. The weight given to documents is a matter for the Tribunal.

    [30] CB 148 to 149

16. I asked the applicant to identify the corroborative evidence in issue. The applicant identified the documents reproduced in the court book at pages 56, 58, 63, 66, 67, 69 and 60 to 61. For the most part, in relation to the more significant documents, they were specifically identified in the Tribunal reasons. For example, the TNFJ letter reproduced at CB 56 was identified in the Tribunal’s reasons at [28]. The Tribunal specifically dealt with that document at [86] of its reasons. Likewise the document reproduced at CB 63 was identified at [29] of the Tribunal’s reasons and dealt with at [43]. The documents reproduced at CB 66 and 67 were not contentious.

17. The Minister concedes that the letter of support reproduced at CB 69 was not specifically referred to in the Tribunal’s reasons.  However, the issue here is not simply whether particular documents were overlooked but more particularly whether corroborative evidence was properly dealt with in the course of the Tribunal reaching adverse credibility conclusions.  This is not a case where the Tribunal made an adverse credibility finding and then refused to give any weight or to consider corroborative evidence in the light of that finding.  The Tribunal reached its conclusions based, it appears, on all of the evidence, at [88] of its reasons:

    After considering all of the evidence, and taking account of the inconsistent and implausible nature of the applicant’s claims, I do not accept any of them.  I do not accept that he is of Hazara ethnicity of that he belongs to a religion called Chia Hazara, I do not accept that he was a member of TNFJ, I do not accept that he participated in numerous processions criticising local authorities and calling for Shias to be protected between 2008 and 2013, I do not accept that he was accused of being funded by the Iranian state, I do not accept that he was beaten and injured during a demonstration in 2012 or at any other time, I do not accept that extremists fired shots at his home or broke into his factory and tied up his employees, I do not accept that he was threatened by extremists who came to his home or contacted him [by] telephone before he left Pakistan or while he has been residing in Australia and I do not accept that a fatwa of any kind was issued which named him or suggested he should be killed or that his name is on an LeJ list.  I believe that all of these claims were concocted by the applicant to support his claim for protection.

18. I find that the corroborative material relied on by the applicant in support of his claims before the Tribunal was taken into account in reaching the adverse credibility conclusions. 

19. In the course of making his submissions in relation to this ground, the applicant also asserted that he was only given one day notice of the Tribunal hearing.  The hearing invitation is reproduced at CB 134.  It was sent to the applicant at his nominated email address, which is verified by the email printout at CB 133.  The applicant denies that he received that email until the day before the Tribunal hearing, but as the email was properly sent, the applicant is taken to have received it on the day it was sent.  It follows that the applicant was given approximately 40 days notice of the Tribunal hearing.  That was more than adequate notice.  In other respects in relation to the second ground, I agree with the Minister’s submissions. 

20. There is no substance in the third ground.  It is apparent from the applicant’s oral submissions that he is concerned about the outcome before the tribunal and contests the merits of its decision.  I agree with the Minister’s submissions in relation to this ground. 

21. The applicant alleges that the Tribunal misconstrued the risk and fear of significant harm as set out in s.36(2A) of the Migration Act. This ground lacks sufficient particularisation.

22. In any event, the Tribunal did not misconstrue the risk and fear of significant harm to the applicant in circumstances where the Tribunal rejected the applicant's material claims and considered that there was no credible evidence before it to suggest that the applicant feared significant or serious harm upon his return to Pakistan.

23. I also agree with and adopt the Minister’s submissions in relation to the applicant's submission in his affidavit. 

24. The applicant alleges by his supporting affidavit that the Tribunal's decision was unjust and was made without taking into account the full gravity of the applicant's circumstances and the consequences of the claim. This allegation is not particularised and does not give rise to a claim of jurisdictional error.

25. To the extent that the application seeks to challenge the Tribunal's credibility finding, the Tribunal's credibility findings do not disclose any error, and were open on the material and evidence before the Tribunal[31].

    [31] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67]

26. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

27. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant inquired what submission I sought from him in relation to costs.  I responded that I was not seeking any particular submission but inviting one if he wished to make it.  He made no further submission. 

28. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 13 February 2017

Correction

Matter number changed from “SYG 22298 of 2016” to “SYG 2298 of 2016”