CVZ19 v Minister for Immigration

[2020] FCCA 184

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVZ19 v MINISTER FOR IMMIGRATION & ANOR [2020] 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.5H, 5J, 5K-LA, 36

Cases cited:

Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24

Minister for Immigration v Eshetu (1999) 197 CLR 611

Minister for Immigration v SZGUR (2011) 241 CLR 594

Minister for Immigration v SZRKT (2013) 212 FCR 99

NAHI v Minister for Immigration [2004] FCAFC 10

WAEE v Minister for Immigration (2003) 75 ALD 630

Applicant: CVZ19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1847 of 2019

Judgment of: Judge Driver

Hearing date: 29 January 2020

Delivered at: Sydney

Delivered on: 29 January 2020

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr T Lonsdale of Clayton Utz

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 $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1847 of 2019

CVZ19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

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).  The decision was made on 27 June 2019.  The Tribunal affirmed a decision of a delegate of a Minister (delegate) not to grant the applicant a protection visa.

2. Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 22 January this year.   

3. The applicant's claims for protection can be summarised as follows. He is a 34 year old Sunni Muslim from Pakistan who claims to fear harm due to his reporting of drug smuggling activities to police in Lahore, and claims to fear harm from drug smugglers and corrupt police in Quetta and Lahore. He claims to hold grave fears for his life in Pakistan on account of his inside information about corrupt dealings between the Taliban and Lahore Police.[1]

   [1] at [4].

The decision of the Tribunal

1. The applicant appeared before the Tribunal on 9 April 2019 to give evidence and present arguments. The court book shows that the Tribunal received additional written evidence from the applicant after the delegate's decision and prior to the Tribunal hearing.[2]

   [2] Court Book (CB) 147-154.

2. At the hearing, the Tribunal discussed with the applicant the facts underlying his claims, including his family, education, employment, where he lived in Pakistan, his reasons for leaving Pakistan and why he fears returning to Pakistan. The Decision Record provides that the Tribunal found aspects of his evidence to be vague, contradictory and implausible, and that there were many inconsistencies between his written and oral evidence.[3]

   [3] at [23], CB 163-164.

3. The Tribunal expressed serious concerns in relation to the applicant's credibility and the veracity of his claims for thirteen separate reasons. These included inconsistencies in his evidence regarding where he stayed in Pakistan (and whether he was in fact in hiding),[4] and the timing of his various visa applications and movements between Australia and Pakistan.[5] The Tribunal was also not satisfied with his evidence regarding the alleged police interest in him,[6] and found the applicant's responses to be implausible in a number of respects. The Tribunal repeatedly expressed concerns regarding the veracity of his evidence during the hearing.[7]

   [4] at [24]-[31], CB 164-165.

   [5] at [34], [40]-[47], CB 165-167.

   [6] at [48]-[51], CB 167-168.

   [7] See, for example [55], [57], CB 169.

4. The Tribunal also expressed concern at the delay between the applicant arriving in Australia and the applicant lodging his application for protection.[8] The Tribunal was not satisfied that the applicant adequately explained the delay.

   [8] at [36], CB 165

5. Ultimately, the Tribunal was not satisfied that the applicant left Pakistan because he feared for his safety or that he fears returning to Pakistan for any of the reasons claimed.[9]

   [9] DR [75], CB 171.

6. These proceedings began with a show cause application filed on 23 July 2019.  The applicant continues to rely upon that application.  There are four grounds in it with particulars:

   1. The AAT failed to perform its statutory duties according to law, in that it failed to properly consider the applicant’s relevant claims and with the preconceived view to reject the applicant’s claims, relied on the applicant’s inability to understand and respond to the questions put forward by the AAT.  The AAT made a jurisdictional error.

   The applicant had mentioned in his submissions to the AAT that “I understand that the delegate formed a wrong opinion from my way of talking/answering which is slow and interrupting.  All my friends and relatives always say that I am slow in my speech and get interrupted while speaking. I am not a fluent speaker.  I take time to understand things and I found it hard to convince the delegate during the interview.”  The AAT realising the incapacity of the applicant, cross examined the applicant with confusing and complex questions, and came to an adverse decision without giving the applicant the benefit of the doubt in relation to his lack of understanding and without fully understand the serious harm or significant harm the applicant would face when returning to Pakistan.

   2. The AAT made a jurisdictional error by using excessive authority in reaching a wrong conclusion and by ignoring the critical issues that had to be taken into consideration as falling under exceptional circumstances surrounding the applicant's fear of serious harm or significant harm on his return.

   The AAT at page 6, paragraph 27, states that “The tribunal is of the view that if the applicant was fearful of being found by the Afghan men and the police he would not have stayed in the home of a relative and within a half hour drive of his family home. … …..This raises concerns in relation to his credibility and the veracity of his claims”.  This finding established the fact the Tribunal has no basic understanding of the applicant’s claims and misapprehended the claims the stated, that he was hiding inside the house of the relative and not staying over there.  The distinction between staying and hiding was not understood by the Tribunal and again within half an hour drive in a crowded city in Pakistan where the police are unable to detect drug trafficking, terrorism and bombing in order to stop the disaster, how can they find the applicant in that vicinity.  This establish the tribunal’s pattern of finding fault without any relevant reasons.

   3. The AAT made an error of fact in misunderstanding or misconstruing the claim advanced by the applicant and based its reached the conclusion using excessive authority in whole or in part upon the claim so misunderstood or misconstrued.  This error is tantamount to a failure to consider the factual claims and on that basis it constituted jurisdictional error.

   The tribunal’s following contention on the following pages and paragraphs establish the fact that the Tribunal made a jurisdictional error in misunderstand and misconstruing the claims.

   On page 6, paragraph 28 that “if he lived with relatives..he would remember the address”, and on page 6 paragraph 29, “If he was living at his family home from September 2007 to December 2009.  he was clearly not in hiding at a relative’s home from January 2009 to December 2009” and on Page 7, Paragraph 30, the Tribunal went further to contradict the applicant without understanding and realising the fact that the applicant never attempted to make any mistakes.

   Further on Page 7 in Paragraph the Tribunal states “If the applicant was in hiding at a relative’s house from January 2009 to December 2009, in fear of the police and the Afghan men, it is implausible that he would have continued to work in his father’s business until June 2009”.  This finding is absolutely arbitrary as the Tribunal failed to consider the fact that the applicant's father wanted him to take over the business that he left half way and applicant is still a part of the business.

   On page 9, Paragraph 44, the Tribunal made an error in wrongfully and arbitrarily reaching a decision in relation to the fact that it took 12 months for the applicant to obtain the student visa to Australia so it would be impossible for the applicant get a visa to UK within 12 months. This finding shows the mentality and the intention of the Tribunal in using irrelevant and unreasonable findings to reject the applicant's case.

   On page 10, paragraph 54, the Tribunal misunderstood and misunderstood the basic claims as it failed to note that the police officers who were dealing in drugs with Sohaib and Pathan men were different from the police officers who work along with the Rangers in arresting and imprisoning drug traffickers in Pakistan.

   Again on page 11 in paragraph 57, the Tribunal failed to understand that the Mullah was trying to protect Sohaib in the first place as the Mullah feared that Sohaib could identify them to the Rangers. As the Mullah was unable to release Sohaib from the Rangers after the applicant's father and his brother refused to be a witness for the release of Sohaib, the Mullah threatened the Applicant’s father and the applicant that he would implicate the applicant in drugs trafficking along with Sohaib.  The Tribunal intentionally confused the applicant knowing that the applicant would not be confused from the questions directed to him

   4. The AAT failed to give reasonable consideration to additional submissions and latest news article submitted before the interview, which contained information as to drug trafficking in Pakistan even to date.

   (errors in original)

7. I have before me as evidence a short affidavit filed with the application, and the court book filed on 4 September 2019.  The applicant objected to my receipt of the court book, but I received it into evidence over his objection. 

8. Only the Minister filed written submissions in accordance with procedural orders made by a registrar on 15 August 2019. 

9. At the outset of today’s hearing, the applicant requested an adjournment.  He referred to correspondence dated yesterday and sent to the Minister’s solicitors as well as the Court.  The letter is written by a person named S A Khan, who claims to be the CEO of an organisation called The Australian Multicultural Charity.  The letter was addressed to the Minister’s solicitors, but they had not followed up the correspondence prior to today.  In the letter, the author requests an adjournment of today’s hearing so that the charity can assist the applicant to obtain legal representation. 

10. I have some concerns about the letter.  First, a Google search of the words “Australian Multicultural Charity” produces a result for an organisation with a different address and telephone number.  Secondly, it is not possible to visit the internet address for the charity set out in the letter, which is   Access to that website is blocked.  A street view of the address given on the correspondence shows a modern apartment building with a vacant ground floor with to let signs in the window.  The applicant told me that he had visited the premises, but could not remember what they looked like.  The address of the organisation called Australian Multicultural Charity which appears on a Google search appears from a street view to be a Catholic institution of some kind.  These factors leave me to have some doubt about the veracity of the letter.  Even if the letter is genuine, I am not persuaded that the requested adjournment should be granted. 

11. I accept that the applicant has financial problems and has no work rights.  He is in the same position as a very large number of applicants in this jurisdiction.  Secondly, the requested adjournment was only sought yesterday, apparently after the applicant had read the Minister’s legal submissions.  The applicant has had approximately six months since filing his application to prepare for the hearing and to seek assistance. 

12. Thirdly, the purpose of today’s hearing is to seek to identify an arguable case of jurisdictional error.  As I explained to the applicant, if an arguable case could be identified, he would be given time to seek representation and to prepare for a final hearing.  If, on the other hand, no arguable case of error could be identified, there would be no point in further delay. 

13. I invited oral submissions from the applicant.  He initially declined to make any submissions.  I asked him about the four grounds in his application.  He said that he had prepared the application himself without any assistance.[10]  He was, however, somewhat reluctant to discuss the grounds.  When pressed in relation to Ground 1, the applicant asserted that he was ignored by the Tribunal when he asked questions and was not listened to.  He said the Tribunal accused him of lying.  This appears to be an allegation of bias. 

    [10] That assertion is contestable.  The application was filled out in English using a word processor.  The grounds in the application use quasi legal terminology and the applicant sought the assistance of a Tamil interpreter for the hearing.  The applicant speaks Urdu and was provided with an Urdu interpreter for today’s hearing.  He conceded that the request for a Tamil interpreter was a mistake.

14. I asked the applicant if he had listened to the sound recording of the Tribunal hearing.  He said that he had not.  I asked him if he had requested a copy of the sound recording.  He said that he had requested a copy after the Tribunal hearing.  The applicant asserts that the Tribunal has failed to provide him with that copy.  It appears, however, that he has made no attempt to follow up that failure with the Tribunal.  On the state of the evidence before me, there is nothing to support the allegation of bias. 

15. In relation to Ground 2, the applicant asserts that the Tribunal ignored critical issues.  He again states that he was accused of lying and the Tribunal found his documents not to be genuine.  The applicant was not sure which documents this proposition related to.  While it is true that the Tribunal made substantial adverse credibility findings, these do not appear to have been based on the rejection of documents as not genuine. 

16. In relation to Ground 3, the applicant asserts that his factual claims were rejected.  That is correct insofar as it relates to the Tribunal’s adverse credibility findings.  However, in my view, it was open to the Tribunal to make those findings on the basis of the material before it. 

17. In respect of Ground 4, the applicant asserts that the Tribunal rejected or failed to consider a news article he submitted.  This appears to be a reference to the Tribunal’s reasons at [69]:[11] 

    The Tribunal has had regard to the country information provided by the applicant.  This country information is in relation to the Taliban, Tehrik-e-Taliban Pakistan (TTP) and Islamic State.  He has also provided the Tribunal with an article that explores the interface of Islamic militancy with the drug trade in the Afghanistan-Pakistan region and the implications for US national security.

    [11] CB 171.

18. There is no substance to the applicant’s assertion. 

19. I otherwise agree with the Minister’s submissions concerning the grounds of review.   

Ground 1

1. The Tribunal identified and set out the statutory framework as it applied to the applicant's application.[12] The Tribunal referred to the s.36(2)(a) criteria for a protection visa, being that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied has protection obligations because the person is a refugee. The Tribunal stated the definition of a refugee as set out in ss.5H(1)(a) and 5H(1)(b) of the Migration Act 1958 (Cth) (Migration Act). The Tribunal identified the test as to whether a person has a well-founded fear of persecution under s.5J(1) and identified (and attached to the decision) the additional requirements and circumstances as set out in ss.5J(2)-(6) and ss.5K-LA of the Migration Act.

   [12] [10]-[14], CB 161.

2. The Tribunal correctly identified and set out the complementary protection criterion under s.36(2)(aa).[13] In accordance with Ministerial Direction No. 56, the Tribunal also had regard to relevant policy guidelines, and relevant country profile information.

   [13] [13], CB 161.

3. The decision record discloses that the Tribunal took into account all of the applicant's claims and the evidence before it, which included the applicant's further submissions.[14] The Tribunal set out the factual matters which it accepted, and detailed the factual matters of which it was not satisfied.[15]

   [14] [15]-[21], CB 161-163.

   [15] [71]-[78], CB 171-172.

4. It is apparent throughout the Tribunal’s reasons[16] that the Tribunal engaged extensively with the applicant to understand the nature and substance of his claims and to understand the facts that the applicant was asserting. The Tribunal conducted an examination of the applicant's claims in person, and ultimately found that a number of the claims were inconsistent, implausible or not supported by a credible explanation.

   [16] [23]-[69], CB 163-171.

5. The Tribunal identified thirteen issues that arose, which the Tribunal considered raised serious concerns in relation to the applicant's credibility and the veracity of his claims.[17]

   [17] [23]-[69], CB 163-171.

6. I accept that the Tribunal engaged in a comprehensive consideration of each of the applicant's claims, and did not fail to properly consider the applicant's claims as alleged.

Ground 2

1. The Tribunal’s reasons demonstrate that it had a thorough understanding of the applicant's claims, which it explored in detail in the presence of the applicant at the hearing.

2. The applicant has not provided further particulars to explain in what respect the Tribunal is alleged to have not understood his claims.  However, it is clear from reviewing the Tribunal’s reasons that the Tribunal well understood the applicant's claims as they were put before it.

Ground 3

1. The Tribunal’s reasons demonstrate that the Tribunal engaged with the facts underlying the claims, and invited the applicant on multiple occasions to respond to the issues the Tribunal raised.[18]  The applicant had the opportunity to explain the facts underlying his claims, and was indeed invited to do so by the Tribunal. At [23] the Tribunal records that:

   During the hearing, the tribunal discussed with the applicant his family, education, employment, where he lived in Pakistan, his reasons for leaving Pakistan and why he fears returning to Pakistan.

   [18] See, for example, [30], [35], [37]-[39], [46], [49], [51], [59], CB 164-169.

2. The Tribunal noted the facts underlying the claims and the applicant's further responses before the Tribunal, and sought to reconcile the underlying facts with the applicant's claims. The Tribunal summarised it's engagement with the applicant at [23] as follows:

   The Tribunal found aspects of his evidence to be vague, contradictory and implausible. There were many inconsistencies between his written and oral evidence. He made new claims throughout the process.

1. The applicant has not provided further particulars to explain what facts the Tribunal is alleged to have misunderstood. However, it is clear from its reasons that the Tribunal did address the underlying facts, that it invited further comment from the applicant, and that the Tribunal detailed why the underlying facts were unable to support the applicant's claims for protection.

Ground 4

1. The Tribunal stated at [16] that:

   The applicant has provided to the Department copies of his Pakistani passport … and country information.

2. The Tribunal further stated at [19] that:

   On 11 January 2019, the Tribunal received an undated statement from the applicant together with some country information.

3. Relevantly, the Tribunal stated at [69] that:

   The Tribunal has had regard to the country information provided by the applicant. This country information is in relation to the Taliban, Tehrik-e-Taliban Pakistan (TTP) and Islamic State. He has also provided the Tribunal with an article that explores the interface of Islamic militancy with the drug trade in the Afghanistan-Pakistan region and the implications for US national security.

4. The relative weight that the Tribunal gives to a piece of evidence is a matter for the Tribunal,[19] and, as a general principle, it is not a basis for Constitutional relief that the Tribunal gave too much or too little weight to a piece of evidence.[20] It is well established that it is for the Tribunal to identify the material it finds relevant to its reasoning and to determine the weight to be accorded to the evidence.[21]  In particular, the choice and assessment of country information is a factual matter for the Tribunal.[22]

   [19] Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 at 40-42 per Mason J; Tran v Minister for Immigration [2004] FCAFC 297 at [5]-[7] per Kiefel, Nicholson and Downs JJ; WAEE v Minister for Immigration (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ.

   [20] Minister for Immigration v Eshetu (1999) 197 CLR 611 at 626 at [39]-[40], [45] per Gleeson CJ and McHugh J.

   [21] Tran at [5]-[7] per Kiefel, RD Nicholson and Downes JJ; Peko-Wallsend Ltd at 41.

   [22] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[13].

5. The onus lies with the applicant to establish the basis for inferring that material has not been considered by the Tribunal.[23]  Given that:

   a)the Tribunal made an express reference to the material provided;

   b)the Tribunal stated that it had regard to this information; and

   c)the applicant has failed to particularise how the Tribunal's consideration of that information was unreasonable,

   the applicant has identified no basis for the contention that the Tribunal failed to consider the information.[24]

   [23] Minister for Immigration v SZGUR (2011) 241 CLR 594.

   [24] cf Minister for Immigration v SZRKT (2013) 212 FCR 99; Tran at [5]-[7].

6. In light of the above, I find that the Tribunal did not fail to give reasonable consideration to the applicant's further material.

7. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. 

8. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.

9. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant opposed an order for costs both as to the amount and because he sought another hearing opportunity.

10. 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 $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  3 February 2020