CVA17 v Minister for Immigration and Border Protection
[2017] FCCA 3208
•19 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CVA17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3208 |
| Catchwords: PRACTICE AND PROCEDURE – Adjournment – seeking to obtain medical report – medical report irrelevant to present judicial review application. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 42 Migration Act 1958 (Cth), ss.36(2) and (2A), 476 |
| Cases cited: Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 82 ALJR 951; (2009) 258 ALR 14 Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 Martinez v Minister for Immigration & Citizenship & Anor [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32; (2009) 109 ALD 260 Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314 Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181; (2001) 64 ALD 1 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 Zentai v O'Connor & Ors (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476 |
| Applicant: | CVA17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 347 of 2017 |
| Judgment of: | Judge Lucev |
| Hearing date: | 8 December 2017 |
| Date of Last Submission: | 8 December 2017 |
| Delivered at: | Perth |
| Delivered on: | 19 December 2017 |
REPRESENTATION
| Applicant: | The applicant appeared in person |
| Counsel for the First Respondent: | Ms E Tattersall |
| Second Respondent: | Submitting appearance for the second respondent save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the applicant’s oral application at hearing for an adjournment of the originating application be dismissed.
That the originating application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 347 of 2017
| CVA17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant’s originating application seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 29 May 2017 to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) not to grant the applicant a Protection (Class XA) visa (“Protection Visa”). The Tribunal Decision is at Court Book (“CB”) 182-201.
When the matter came on for hearing the applicant made an oral application to adjourn the Judicial Review Application pending receipt of a medical report, and in that regard submitted a bundle of documents which were marked as Exhibit 1. The application for adjournment of the Judicial Review Application is dealt with below: see [8]-[20] below.
Background
The background to the Judicial Review Application is as follows:
a)the applicant arrived in Australia from Pakistan on 31 July 2010 as the holder of a valid subclass TU - 572 (student) visa (“Student Visa”): CB 26 and 130;
b)save for departure from Australia from 19 August 2012 to 3 September 2012, the applicant remained in Australia as the holder of a Student Visa until its cancellation in June 2013, subsequently holding a Bridging Visa E (WE-050) and lodging an application for a Protection Visa on 7 October 2013: CB 2-45;
c)in his Protection Visa application the applicant made the following claims:
i)his life was not safe in Pakistan due to his ethnicity and membership of Shi’a social organisations he joined as a school student: CB 29;
ii)when in Pakistan he received threats to his life, including threats made by telephone and by graffiti outside his home in Pakistan, and his family are continually harassed to inform on him and say when he might be expected to return to Pakistan: CB 29-30;
iii)on his previous return to Pakistan an attempt was made on his life and he was stabbed in the face and hand and he attended the hospital: CB 29-30;
iv)he will be killed and tortured by the terrorist group Lashkar-e-Jhanvi (“LeJ”) who have already made an attempt on his life: CB 31;
v)friends and family members who were members of the same groups were murdered by LeJ for their membership of Shi’a groups the and for being vocal about Shi'a mistreatment in Pakistan: CB 31; and
vi)it is well documented that Shi'as receive no protection from the police or the Government in Pakistan and police informed him that the authorities in Pakistan are unable to protect him as the problem is so prevalent that they do not have the resources nor the political backing, and the influence of LeJ is too strong and far reaching throughout Pakistan: CB 29 and 32-33;
d)the applicant attended an interview with the Delegate on 17 June 2014 and on 16 July 2015 the Delegate’s Decision was to refuse to grant the applicant a Protection Visa: CB 110-113 and 119-122;
e)the applicant sought review by the Tribunal, and on 28 July 2015 was invited to attend a hearing before the Tribunal on 20 October 2016, however he sought an adjournment as his migration agent had left the country, and had not contacted the applicant until two days before the scheduled Tribunal hearing: CB 164-165;
f)the Tribunal hearing was rescheduled for 24 January 2017: CB 171-172, and the applicant indicated he would attend the Tribunal hearing and did not need an interpreter: CB 175, and the applicant appeared at the Tribunal hearing, and gave evidence, as did one of his brothers: CB 183 at [3];
g)on 29 May 2017 the Tribunal Decision was to affirm the Delegate’s Decision not to grant the applicant a Protection Visa: CB 178; and
h)the applicant filed the Judicial Review Application on 29 June 2017.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)provided an overview of the Tribunal hearing with the applicant, noting that the applicant raised two new claims:
i)that he was physically attacked outside his family home by an unknown group of men and when his neighbours heard his cries for help they came out to him: CB 185 at [19]; and
ii)in 2010 he was assisting during Shi’a Muhurram celebrations when he was pushed off the stage by some men and suffered concussion and a broken nose: CB 185 at [19];
b)heard from the applicant who stated:
i)he has no idea whether he is a target, but he is Shi’a and he has problems because he is Shi’a: CB 185 at [24];
ii)all his brothers now live in Australia, and he receives financial support from them and his father: CB 185 at [24];
iii)he tried to return to Pakistan in October 2013 as his father was ill and he wanted to see him, but because his Student Visa had been cancelled he could not depart the country: CB 185 at [24];
iv)he has mental health issues, and a doctor has told him to go outside and do some activities, but he does nothing and it is depressing and he cannot work and cannot study, and he has also had some issues with his older brother and now lives with his other brother: CB 186 at [25];
v)their representative told them that they should provide a police report, and his father arranged this: CB 186 at [27];
vi)the applicant fears harm because of his Shi’a religion and involvement with a particular student organisation, and active memberships of other organisations, and he therefore fears harm from Sunni extremist groups including LeJ: CB 186 at [29], and he told the Tribunal that it was not safe for him to return, that he is fearful of returning as he is a Shi’a and cannot live in Pakistan, and whilst he would rather live with his father his father has sent him to Australia to be safe: CB 186 at [30]; and
vii)because of his name he is respected as a descendent of Mohammad and he can be identified by his name as a Shi’a, but people would not speak to him with respect, would make fun of him and make rude jokes because of his name: CB 186 at [32];
c)had regard to the oral evidence given by the applicant’s brother:
i)that the applicant was fearful of returning and had sought information on other types of visas his Protection Visa application not be successful: CB 186 at [26];
ii)that he obtained the letter from the police for the purpose of the applicant’s Protection Visa application, but explained that people like him and the applicant do not lodge First Incident Reports as the police would require payment and then would not take the information: CB 186 at [26]; and
iii)the family was not active in the Shi’a community but were Shi’a Muslims: CB 186 at [30]; and
d)sought information from the applicant:
i)about his activities and membership with various groups, in relation to which the applicant said he stated he just did what others did, and what he was told to do by older members: CB 187 at [34]; and
ii)had to prompt the applicant on several occasions in seeking information about past harm he had suffered, including an attack when he returned to Pakistan in 2012 by a group of people as he was returning from the mosque with his cousin, and although they tried to run away they were injured and went to hospital, and subsequently went to the Police who said they may have been attacked because they were Shi’a: CB 187 at [36].
In the Tribunal Decision the Tribunal:
a)found the applicant was a Pakistani citizen, his home area is Rawalpindi, Punjab Province, Pakistan, and he is a Shi’a Muslim: CB 183 at [8]-[9] and 187 at [39];
b)accepted, on the basis of country information, that 50% to 70% of Shi’a students joined the social organisations that the applicant claimed to have joined: CB 187-188 at [41];
c)did not accept the applicant had developed any sort of profile with the social organisations he claimed to be a member of, and on the evidence he joined these organisations only in late 2009, and did so as others were, and that his tasks were low level and limited such that it would not warrant him being targeted by LeJ or any other opposing extremist organisation: CB 188 at [42];
d)was not satisfied the applicant or his family were of sufficient profile in the Shi’a community to warrant being targeted or informed upon on that basis, and consequently concluded neither the applicant nor his family were recipients of threats of any kind for any reason: CB 188 at [43], [45] and [52];
e)did not accept, on the basis of the applicant's own evidence, his claim that his return to Pakistan was kept secret as he indicated that he participated in family events such as weddings and continued to attend mosque with extended family members: CB 188 at [44];
f)considered that if the applicant was targeted for harm because of his membership of certain organisations or his profile as a Shi’a Muslim, then the militants would have taken greater action to harm him than they had taken, further LeJ or any Sunni extremist groups had the opportunity and means to do the applicant harm on a number of occasions during the time the applicant lived in Pakistan prior to his departure in July 2010 and his return in 2013 and had not done so : CB 188 at [47];
g)gave little weight to the letter from the Police as evidence the applicant was attacked by the LeJ in August 2012, had been threatened by militants, or is an active member of a particular student organisation, given the evidence before the Tribunal indicated the Police Report was not lodged in relation to the attack on the applicant and was obtained on the advice of their representative around the time of lodging the Protection Visa application: CB 189 at [48];
h)did not accept that a person fearing serious or significant harm on return to his home country would not take steps on his return to Australia to avail himself of Australia's protection, thus finding the applicants delay undermined the credibility of his claims to fear harm in Pakistan: CB 189 at [49];
i)took into account the country information that indicated attacks on Shi’as do occur in Pakistan and that there is a high level of generalised violence in Pakistan: CB 190 at [53];
j)considered country information concerning large scale attacks on Shi’a mosques and religious processions and enclaves, and noted that the UNHCR has said that members of the Shi’a community in urban centres who made comment depending on their individual circumstances, require protection on account of their religion or imputed political opinion, but did not say that all Shi’as in Pakistan are in need of protection, and further noted that DFAT has commented that there are no legal restrictions on freedom of religion for Shi’as in Pakistan and no laws or government policies that official discriminate against Shi’as, and that in a broad sense, there is little community prejudice, that is societal discrimination, that would limit opportunities for Shi’as in daily life, and that there are large communities of Shi’a in many part of the country who have mosques, openly worship and practise their faith, and are generally integrated and live side-by-side with others in areas throughout Pakistan: CB 190 at [54], and noted that it was satisfied that Shi’a can and do openly practise their faith in Pakistan and that their right to do so is enshrined in Pakistan’s Constitution and law: CB 190 at [55];
k)noted the applicant had not made any claim he was prevented from practicing his Shi’a faith while in Pakistan, and that country information indicates any anti-Shi’a discrimination and prejudice the applicant may suffer in the future would not impact on the applicant to the extent that he would suffer persecution amounting to serious harm in relation to his education or access to health care or employment in Pakistan: CB 191 at [57];
l)noted a DFAT assessment that many Pakistanis living abroad frequently return to visit their relatives, and that after spending time abroad (and in particular in the West) are not subject to discrimination or violence on that basis: CB 192 at [65], and set out and considered various country information, including DFAT thematic reports on Shi’as in Pakistan and a country information report on Pakistan, and the safety and security of Shi’as in Pakistan, before finding that the applicant does not face a real chance of serious harm in the reasonably foreseeable future from any Sunni extremist groups or any person associated with a Sunni extremist group, the state or any group or organisation or anyone else because he has spent time in a Western country, and was therefore not a person to whom Australia owed protection obligations, and did not meet the refugee criterion in s.36(2)(a) of the Migration Act: CB 193 at [66]-[67];
m)considered whether the applicant was owed complementary protection under the alternative criteria under s.36(2)(aa) of the Migration Act and whether there were substantial grounds for believing that as a necessary and reasonable consequence of him being removed from Australia to Pakistan there was a real risk that he would suffer significant harm as defined in s.36(2A) of the Migration Act: CB 193 at [68], referred to its conclusions in relation to the refugee criteria, and then specifically considered the level of generalised violence in Pakistan, including in the applicant’s home area in the Punjab, and found that the risk of the applicant suffering significant harm as a consequence of generalised violence due to security operations or criminal activity was remote: CB 194 at [74];
n)went on to consider whether by reason of the applicant’s Shi’a Muslim religion and name and in the context of generalised violence, including from security forces, criminal elements and because the applicant would be a returnee coming from a Western country, that there was a risk of significant harm to the applicant, but found that that risk was remote and that there was not a real risk that the applicant would suffer significant harm from Sunni extremist groups, their associates, government forces, criminal elements or anyone else if he was removed from Australia to Pakistan: CB 194 at [75]; and
o)was not satisfied that there are substantial grounds for believing, that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan there is a real risk that he will suffer significant harm: CB 194 at [76].
Judicial Review Application
The applicant lodged his Judicial Review Application on 26 June 2017 in this Court. The applicant seemingly sought review of both the Tribunal Decision and the Delegate’s Decision. The grounds of review are as follows:
1. On 1st appearance in interview I was too young to handle complex questioning.
2. The situation has changed, All of my family is now in Australia, I can’t go back.
3. I was asked about Police Report for incident, I said NO but he asked again if I can provide this report. Later on, my father & brother sent me a report from overseas. I provided translated version into English, for which they ask me to provide original report in Urdu Language. The Police System in Pakistan is not computerized at that time. I was provided only hand written information by Police which creates doubt.
4. I was enquired about attackers group who are banned and operate secretly under different names. I refused to identify any group. The Decision states that I was not clear target because I am a low profile SHIA MUSLIM. However, incidents in Pakistan shows that common people of SHIA Community are also targetted by these Groups.
[Copied without amendment].
Pursuant to an order made by a Registrar of this Court on 27 September 2017 (“Registrar’s Orders”), the applicant was provided an opportunity to make any amendments to his application, file any supporting affidavit evidence and written submissions for the Court to consider. The applicant did not avail himself of this opportunity prior to the hearing on 8 December 2017.
Application for adjournment
At the hearing of the Judicial Review Application the applicant made an oral application for adjournment of the hearing pending receipt of a medical report.
The basis for the adjournment sought by the applicant was that he was having a medical report prepared which he indicated provided “critical proof” in relation to his case. In support of the adjournment application the applicant tendered the documents marked Exhibit 1. Those documents showed that:
a)on 2 September 2017 at the Armadale Health Service the applicant:
i)had had to be physically restrained to be provided with treatment as he was not cooperative with a request to be administered medication;
ii)was experiencing delusional thoughts including believing that he was an agent of God; and
iii)did not sustain any injury during the restraint and minimal restraint was required and the period of restraint was two minutes;
b)on 21 September 2017 the applicant sought, via lawyers, a medical report from the Armadale Health Service, and the letter from his lawyers indicates that the purpose of obtaining the medical report is as follows:
the purpose of obtaining a report from you is to provide evidence to the Department of Immigration and Border Protection and the Federal Circuit Court of Australia as to whether in the opinion of a psychiatrist, … [name of applicant deleted] mental health would be affected if he was returned to Pakistan.
c)a report from the Psychiatry Registrar of the Adult Mental Health Service dated 21 September 2017 (“Psychiatry Registrar’s Report”) indicates that the applicant had been discharged from hospital on 14 September 2017 on a Community Treatment Order, and that his mental state on examination was as follows:
Appearance: casually dressed, clean, adequate self-care
Behaviour: pleasant and cooperative with interview process. Good eye contact, no psycho motor agitation or retardation
Speech: normal rate and volume
Mood: “Ok”
Affect: warm and congruent
Thought form: no formal thought disorder
Thought content: felt better & motivates. Feels safe currently. Denies any suicide or/ homicidal plans.
Perception: nil observed
Insight and judgment: good, willing to engage and comply with medication
Cognition: grossly intact.
The Psychiatry Registrar’s Report made the following recommendations:
1.Patient will be followed up by CTT … [name of clinic deleted].
2.[Applicant] … was given information about the MHERL & other crisis no’s.
3.CTT to contact … [applicant] when the next depot will be due.
The application for adjournment was opposed by the Minister.
Any adjournment application in this Court must be considered in the relevant statutory, factual and case management context. The role and mode of operation of this Court, as set out in the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), and as prescribed by the objects in ss.3 and 42 of the FCCA Act and the objects in r.1.03 of the FCC Rules, provide for the Court to operate in a manner:
a)as informal as possible in the exercise of judicial power;
b)which is not protracted in its proceedings;
c)which resolves proceedings justly, efficiently and economically;
d)which uses streamlined procedures; and
e)that avoids undue delay, expense and technicality,
see Sandeep v Minister for Immigration & Anor [2016] FCCA 3339 at [23] per Judge Lucev, and the cases there cited.
The Court must also take into account, when determining whether or not to grant leave to allow an adjournment:
a)that the paramount consideration remains the doing of justice between the parties, but that a just resolution must have regard to any relevant legislative purpose or object;
b)modern principles of case management;
c)the avoidance of undue delay; and
d)the wastage of public resources,
see Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 82 ALJR 951; (2009) 258 ALR 14 at [30] per French CJ, and [97]-[103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.
The Court also notes that whether or not an adjournment is granted is a discretionary matter for the Court, and it is a discretion under which the Court is entitled to take into account a broad range of circumstances: Myers v Myers [1969] WAR 19 at [21] per Jackson J; MZZZL v Minister for Immigration & Another [2014] FCCA 1309 at [9]-[10] per Judge Lucev.
The Court notes that the purpose of the adjournment sought was to obtain a medical report said, in oral submissions by the applicant, to be “critical proof” in relation to his case. That accords with the purported purpose of the medical report as set out in the quote above (at [9(b)] above) from the applicant’s lawyers when seeking to obtain a medical report from the Armadale Health Service concerning the applicant’s mental health.
The obtaining of the medical report does not however assist the applicant in these proceedings. The jurisdiction of this Court is to review the Tribunal Decision for jurisdictional error: see [21] below. The issue of whether or not the applicant’s mental health would be affected if he was returned to Pakistan, which is said to be the purpose of obtaining the medical report, does not appear to have been a matter in issue at hearing before the Tribunal, other than in the most general sense that making a Protection Visa application and its associated processes can be difficult and stressful for applicants: CB 186 at [25] and [28]. The Tribunal was satisfied that the applicant was able to participate in an effective and meaningful way in the Tribunal hearing: CB 186 at [28]. There is nothing in the materials before the Court, including in Exhibit 1, which would indicate that the applicant had a mental health issue which would have affected his capacity to put his case to the Tribunal when the matter was heard by the Tribunal on 29 May 2017.
It does not appear that a specific claim was made to the Tribunal that the applicant was unable to effectively and meaningfully participate in the Tribunal hearing by reason of a specific mental health issue, or, and in particular, whether the applicant’s mental health would be affected if he was returned to Pakistan. There is no jurisdictional error in the Tribunal failing to consider a claim which was not made to it or which does not clearly arise on the material before it: NABE v Minister for Immigration & Multicultural Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [60]-[61] per Black CJ, French and Selway JJ (“NABE (No 2)”).
Obtaining a medical report that the applicant’s mental health would now be affected if he returned to Pakistan is also irrelevant for the purposes for which this Court now sits, which is to determine whether or not there is jurisdictional error in Tribunal Decision, and not to make any merit findings concerning the possible affect upon the applicant if he were now to be returned to Pakistan, which would constitute impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Zentai v O'Connor & Ors (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476 at [367] per McKerracher J.
Finally, the Court observes that:
a)as a matter of case management an adjournment of this case now would cause some delay and further protract the matter by reason of it having to be re-listed for a further hearing, the delay being contrary to the objects of the FCCA Act and FCC Rules; and
b)in terms of the prospect of success of the Judicial Review Application the Court considers that that question is a factor to be considered in determining whether or not to grant an adjournment: Zubair v Minister for Immigration & Anor [2017] FCCA 2905 at [16] per Judge Lucev, and in that regard the Court notes that its consideration of the Judicial Review Application set out below: see [21]-[36], indicates that the Judicial Review Application ought to be dismissed and, therefore, is without prospects of success.
In all of the above circumstances, there is no merit in the oral application made at hearing by the applicant for an adjournment of the Judicial Review Application, and the adjournment application will be dismissed.
Consideration
The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300.
Ground 1
The claim that the applicant was “too young” to handle complex questions when first interviewed appears to relate to the process before the Delegate.
The Court’s jurisdiction is to review the Tribunal Decision, not the Delegate’s Decision which is a primary decision: Migration Act, s.476(2)(a) and (4). It is well established that if the Tribunal Decision is not flawed it cures any defect or irregularity in the Delegate’s Decision: Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314; Martinez v Minister for Immigration & Citizenship & Anor [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32; (2009) 109 ALD 260 at [20] per Rares J; AYZ16 v Minister for Immigration & Anor [2017] FCCA 1444 at [10] per Judge Lucev.
The applicant was 22 years of age at the time of his interview with the Delegate. There is no evidence to suggest that the applicant was too young to be able to actively engage in the interview process before the Delegate, or if so how any inability to do so resulted in jurisdictional error in the Tribunal Decision. The applicant was 25 years of age when interviewed by the Tribunal. The Tribunal made express reference to the very general mental health issues the applicant raised at the Tribunal hearing, but was nevertheless expressly satisfied that:
… the applicant understood the nature of the hearing and the process and was able to participate in an effective and meaningful way in the hearing: CB 186 at [28].
There is no evidence that the applicant’s age affected the IAA Decision in any way which might give rise to jurisdictional error. It follows from the above that ground 1 is not made out, and does not establish jurisdictional error in the Tribunal Decision.
Ground 2
The claim of change in family circumstances since the Tribunal Decision does not amount to jurisdictional error in the Tribunal Decision. The Tribunal has no obligation to investigate or inquire to discover if there has been a change of circumstances such that the applicant claims may be strengthened or better supported in light of this: Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 at [36] and [39] per Keane CJ; Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ.
Further, the applicant made no claim to the Tribunal that he feared harm on the basis that he no longer had any family support in Pakistan, rather he claimed “he would rather live with his father as he has a better set up than here but his father sent him to Australia to be safe”: CB 186 at [30].
The Tribunal did refer to the applicant stating his brothers all now resided in Australia: CB 185 at [24] , however the claim of fear of harm on the basis that he no longer had any family support in Pakistan was not expressly made or clearly arising on the materials before the Tribunal such that it was required to consider it: NABE (No 2) at [60]-[61] per Black CJ, French and Selway JJ, particularly in circumstances where the applicant expressed a preference to live with his father, who at the time the Tribunal was considering the issues, remained in Pakistan: CB 186 at [30]. There was no error, let alone jurisdictional error, in the Tribunal Decision as the claim was not made and did not arise on the material before the Tribunal: Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at 259 at [42] per Allsop J. In circumstances where the applicant has failed to articulate this claim the Court does not consider the Tribunal has committed a jurisdictional error in failing to consider an integer of a claim, and ground 2 of the Judicial Review Application is not made out.
Ground 3
The Tribunal referred to:
a)a copy of the letter from police and an English translation (“Police Report”) : CB 184 at [15]-[16];
b)the Delegate having credibility concerns over the claims the subject of the Police Report: CB 185 at [20];
c)the applicant telling the Tribunal his representative told him to get a Police Report for evidence: CB 185 at [27] and CB 186 at [37]; and
d)expressly raising concerns with the applicant at the hearing about the credibility of the Police Report: CB 189 at [48].
The Court notes that there is currently no evidence before the Court, such as a recording or transcript of the Tribunal hearing, which would suggest that the applicant was not given a real and meaningful hearing before the Tribunal. The Court also notes that the applicant did not avail himself of the opportunity to file such further evidence in these proceedings, notwithstanding the Registrar’s Orders allowing him to do so. In the absence of such evidence, or evidence on the face of the Tribunal record making out the claim, any allegation that the Tribunal did not allow the applicant to properly deal with these matters cannot succeed: NAOA vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21] per Beaumont, Merkel and Hely JJ; Brar v Minister for Immigration & Border Protection & Anor (No 2) [2017] FCCA 1538; (2017) 322 FLR 81 at [15] per Judge Lucev.
In any event, it was not the case that the Tribunal simply disregarded the content of the Police Report because it was “handwritten”. Had it done so it would possibly have revealed a jurisdictional error in basing a finding of credit on an objectively minor fact which was used as the basis for rejecting the entirety of the applicant’s evidence or claim: SZSHV v Minister for Immigration & Border Protection [2014] FCA 253 at [41] per Flick J. Rather, the Tribunal chose to give the Police Report little weight based upon a number of factors:
The Tribunal has concerns as to the letter provided by the applicant from the police in relation to his attack in August 2012. The Tribunal was told that their representative told them he could easily prove he had been attacked if he has evidence so he spoke to his father who obtained the evidence provided… The applicant's evidence was also that when they went to the police after the incident the police told them it was because he was Shia. The Tribunal also notes that the letter refers to the applicant receiving threats via cellular phone and graffiti over the outside wall of his house a week earlier to the incident. The letter also refers to the applicant being an active member of ISO yet he had been absent from Pakistan for over two years at the time of the August 2012 incident and not involved in any activities with the ISO, MSA and TNFJ. When asked about whether an FIR had been lodged at the time of the incident, the Tribunal was told that the police don't take FIRs from Shia people unless a bribe is paid. The Tribunal gives little weight to the letter as evidence the applicant was attacked by the LeJ in August 2012 or has been threatened by militants or is an active member of the ISO. The evidence before the Tribunal is that a FIR was not lodged in relation to the attack on the applicant and the letter was obtained on the advice of their representative around the time of lodging the application for protection, yet is dated the date of the alleged attack and not the date it was obtained. The evidence before the Tribunal is also that the applicant did not know who attacked him and the Tribunal does not accept the claim that as the police know these things better, they put down it was the LeJ as the attackers: CB 189 at [48].
The Court notes that at no time did the Tribunal refer to the handwritten nature of the Police Report. The Tribunal only refers to the handwritten medical notes from Accident and Emergency regarding the incident the subject of the Police Report.
The Tribunal clearly did not decide to afford the Police Report little weight based solely on its allegedly being handwritten. Rather, a number of other adverse findings and concerns contributed to the Police Report being given little weight. Such a conclusion was not unreasonable on the evidence before the Tribunal: Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ; Applicant WAEE v Minister for Immigration & Multicultural & IndigenousAffairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ, and no jurisdictional error in the Tribunal Decision as alleged by ground 3 has been established.
Ground 4
To the extent that ground 4 seeks to quarrel with the Tribunal’s findings of fact in light of the country information before it, it is well established that the consideration of, and weight attributed to, country information is a matter for the Tribunal and that the Court will generally not interfere with factual findings based on country information: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ; Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27] per French J; Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181; (2001) 64 ALD 1 at [32] per Sundberg, Emmett and Conti JJ.
The Tribunal referred to the country information submitted by the applicant: CB 184 at [14], as well as other recent country information: CB 190-193 and [53]-[66] and CB 199-201. While the applicant may disagree with the country information, or dispute the factual findings drawn from it by the Tribunal, disagreement with a finding does not support a contention the Tribunal failed to consider evidence properly or fairly: SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 at [14] per Jacobson J.
It follows that ground 4 establishes no jurisdictional error.
Conclusion and Orders
The Court has concluded that:
a)the oral application for adjournment of the hearing of the Judicial Review Application by the applicant is to be dismissed; and
b)none of the grounds of the Judicial Review Application establish jurisdictional error in Tribunal Decision.
It follows from there being no jurisdictional error in the Tribunal Decision, that the Judicial Review Application must be dismissed, and there will be an order accordingly.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 19 December 2017
9
34
4