CWB16 v Minister for Immigration

[2017] FCCA 3060

FEDERAL CIRCUIT COURT OF AUSTRALIA

CWB16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3060

Catchwords:
MIGRATION – Judicial review of decision by Administrative Appeals Tribunal affirming decision not to grant applicant a protection visa – whether Tribunal failed to give sufficient weight to applicant’s evidence – whether it was reasonably open to the Tribunal to give little weight to documents provided by the applicant on the basis of general adverse credibility finding – no jurisdictional error.

Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50
SZVHO v Minister for Immigration and Border Protection [2016] FCA 1499

Applicant: CWB16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2693 of 2016

Judgment of: Judge Manousaridis

Hearing date: 30 November 2017

Date of Last Submission: 30 November 2017

Delivered at: Sydney

Delivered on: 30 November 2017

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitor for the First Respondent:

Ms S Given of

HWL Ebsworth Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2693 of 2016

CWB16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, a citizen of Pakistan, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa). 

2. The applicant arrived in Australia on 15 January 2014 as the holder of a visitor’s visa, and, on 18 November 2014, he applied for a Protection visa. On 2 June 2015 a delegate of the Minister refused to grant the applicant a Protection visa, and on 25 June 2015, the applicant applied to the Tribunal for review of that decision.  It would be appropriate to consider this application for judicial review by, first, setting out the claims for protection the applicant made in his Protection visa application.

3. The claims are set out in a statement that forms part of the application for a Protection visa.  In that statement, the applicant claimed he was employed as an accounts manager by a travel agency in Karachi.  During the course of carrying out his duties, the applicant handled large amounts of cash and high-value cheques. On his way “up and down” to the bank on 5 November 2013, while on a routine visit to the bank, the applicant was approached by an unknown person inquiring about an “unknown address”. The person grabbed the applicant and “physically and forcibly” pushed him into a car with a driver already in position which drove away.  The applicant’s face was covered with a cloth.  The car stopped at an unknown place and the applicant was taken into a room and his face was uncovered.

4. Two people began asking the applicant questions about how much cash he usually handled.  They took the applicant’s mobile phone, called the applicant’s brother and demanded “rupees, 5 million, ransom amount in lieu of [the applicant’s] life”. The applicant’s brother did not have this amount of money. The applicant was kept in the room for four days and was subjected to threats, “bashing” and rough and abusive language. The applicant claimed that during that time, his brother and the kidnappers had a few telephone conversations, as a result of which the kidnappers agreed to release the applicant in exchange for “rupees, 1 million”.  The applicant was released after the money was given to the kidnappers.

5. The applicant further claimed that he and his family moved to a remote location because they were “constantly suffering from fear that they would be again victimised”.  The kidnappers located the applicant and his family and demanded more money and threatened that if their demand was not met the applicant and his family “would be all dead”.  The applicant later found that the gang are professional criminals with gangs all over Pakistan and have a “very close network with terrorists”.  The applicant claimed that once the gang target someone, they chase them for their whole life and can locate a person very easily because of their close networks all over Pakistan, making it impossible to hide from them. The applicant further claimed that the same criminal gang shot his father dead. The applicant and his family went into “deep depression” after the applicant’s kidnapping and the applicant arranged, with the help of his friends, a visitor visa to come to Australia.

6. The applicant claimed he fears the gang will kidnap him again and kill him if he returns to Pakistan, even if he moved to another part of Pakistan. The applicant claimed the authorities are unable to help because they too are scared of the gang. Before the Tribunal the applicant also claimed that the criminal gang had cut his throat previously, and that the applicant’s brother had received papers from the kidnappers asking about the applicant’s whereabouts.  In support of the claim, the applicant provided two documents, one of which is referred to in the Tribunal’s reasons as a “first information report”, and that is at court book page 79, which is an English translation of what is at page 81, being a document, I understand, written in Urdu. The second document is one titled “Warrant of Arrest” which is a form printed in English but with gaps, and that document is to be found in the court book at page 80. I will return to these documents later because one of the grounds of review on which the applicant relies concerns the manner in which the tribunal dealt with those two documents. 

7. I then turn to the Tribunal’s reasons for affirming the delegate’s decision. The Tribunal found the applicant’s evidence regarding his claims to lack credibility.  The Tribunal was not satisfied the applicant was an entirely reliable, credible, or truthful witness; and it found the applicant had fabricated much of his claim in order to be granted a Protection visa. The Tribunal therefore did not accept that the applicant was ever kidnapped in Pakistan, or that the applicant was tortured by any criminal gang, or that any criminal gang sought to find the applicant after he had been released, or that ransom demands had continued to be sent to the applicant’s family’s address.

8. These findings were based on a number of considerations.  First, the Tribunal found the applicant’s account of his kidnapping to be implausible and inconsistent. The Tribunal considered it was not credible that a criminal gang that had been surveilling the applicant for a long time, and therefore would know that he carried what the applicant claimed was huge amounts of cash, would seek to kidnap the applicant rather than just rob him.  The Tribunal also considered there would have been no apparent reason for the applicant to have been kidnapped on a day the applicant held only a few cheques.

9. Second, given the Tribunal did not accept the applicant was kidnapped, the Tribunal did not accept he was tortured by a criminal gang or that the gang sought to find the applicant after release or that ransom demands had continued to be sent to his family’s address. The Tribunal, however, found that the applicant’s actions that he claimed he took after the claimed kidnapping were inconsistent. In his written application, the applicant claimed that, “We all (family members) moved to another remote location,” whereas before the Tribunal the applicant claimed that only he, not his family, had to move and that he lived at his aunt’s house. Additionally, the Tribunal found there was an inconsistency between the applicant’s evidence and the evidence the applicant’s brother gave by telephone.  The applicant claimed that, after he was released, he stayed at his aunt’s house for two months, whereas the applicant’s brother said the applicant stayed at three relatives’ houses and, on one occasion, at the family home.

10. The third matter on which the Tribunal relied was that it found the applicant’s evidence about his work attendance after the claimed kidnapping to be vague and inconsistent.  At the hearing the applicant claimed he did not go to work after he had been released by the kidnappers, but then he told the Tribunal he did go to work a few times to finalise some work but he was not paid. This, the Tribunal found, was inconsistent with the applicant’s written claim where he said he worked until January 2014 and it was also inconsistent, so the Tribunal considered, with the evidence the applicant’s brother gave that the applicant went to work three or four hours a week, on average.

11. Fourth, the Tribunal found that the applicant’s having applied in Australia for protection in November 2014, some 10 months after he arrived in Australia, was “not indicative of someone fearing serious harm on return to Pakistan”. 

12. Finally, I turn to what the Tribunal said about the documents on which the applicant relies. The Tribunal said that it gave more weight to the implausibility and inconsistency of the applicant’s evidence than the two documents the applicant provided in support of his claims for protection.  In preferring to give more weight to the implausibility and inconsistency of the applicant’s evidence, the Tribunal relied on country information that document fraud is endemic in Pakistan.

13. Given the Tribunal did not accept the factual claims on which the applicant relied, the Tribunal was satisfied the applicant does not have a well-founded fear of persecution for any Convention reason. The Tribunal was also not satisfied there are any substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that the applicant will suffer significant harm. 

14. I then turn to the grounds of application set out in the application the applicant filed with the Court. It contains two grounds. The first ground is:

    The Tribunal failed to put sufficient weight on the evidence given by the applicant at the hearing, therefore the tribunal made an error. 

    PARTICULARS

    Paragraph 7 to 24 of the subject decision.

15. The applicant, who is not legally represented, did not make any submission in relation to this ground.  As framed, the ground appears to contend the Tribunal ought to have given the applicant’s evidence greater weight than it did.  

16. That contention does not raise any jurisdictional error.  The weight that should have been given to the evidence the applicant gave before the Tribunal was one for the Tribunal, not this court, to asses. From the summary of the Tribunal’s reasons which I gave, it should be apparent, and I find, that the Tribunal correctly identified the claims the applicant made before it and the evidence the applicant put forward in support of those claims, it considered the claims and the evidence, and, for reasons that were reasonably open to it, found that the applicant’s evidence not to be worthy of credit. I can well understand the applicant – and he expressed as much to me – disagreeing with that finding, but, as I informed the applicant, the role of this Court is not to determine whether the Tribunal was correct in its findings. The role of this Court is to determine on grounds advanced by the applicant whether the Tribunal reviewed the applicant’s case according to law. That is the general way of putting it. The technical expression or criterion is jurisdictional error. The question the court must consider is whether, on the grounds on which an applicant relies, the Tribunal engaged in any jurisdictional error. And a Tribunal does not engage in jurisdictional error if it makes findings of fact which are reasonably open to it, given the material that is before it and given the reasoning it has in fact adopted. 

17. I then turn to the second ground, which is as follows: 

    The Tribunal made an error by not giving sufficient weight to the documentary evidence provided by the applicant with his Protection Visa Application. 

    PARTICULARS,

    paragraph 37 of the subject decision.

18. The documents referred to in this ground are the two documents to which I have already referred.  The applicant did make submissions to me and they, in substance, reflect what is in the ground in any event.  He submitted the Tribunal did not give proper consideration to the documents. In reviewing this ground, it is necessary to look at the Tribunal’s reasoning in a little bit more detail. On analysis, the Tribunal relied on three things. One is the country information to which I have referred. The second is the nature of at least one of the documents – the arrest warrant. It was blank and written in English. The third is, in effect, the Tribunal’s adverse credibility assessment of the applicant. 

19. The permissiveness of the Tribunal to give no weight to what, on its face, would be a corroborative document, on the basis that the Tribunal has formed an adverse assessment of an applicant’s credibility, has been the subject of a decision by the Full Federal Court which held that that mode of reasoning is permissible and consistent with the Tribunal properly discharging its functions in reviewing an application for review before it.  I here, refer to the Full Federal Court’s judgment in Minister for Immigration and Citizenship v SZNSP.[1]

    [1] [2010] FCAFC 50

20. In that case, the Refugee Review Tribunal (RRT) found the applicant in that case had fabricated her claim of fear of persecution and, because of the adverse credibility findings it made against the applicant, the RRT decided not to give any weight to a witness statement that apparently corroborated the applicant’s claims. The words the RRT used were: “Given the adverse credibility finding, the tribunal does not give weight to the document”. 

21. The Full Federal Court said – and this is at paragraph 33 of the judgment of North and Lander JJ, with Katzmann J agreeing at paragraph 42: 

    Thus, consistently with Applicant S20/2002 [2003] HCA 30, it was open to the RRT to assess the credit of the first respondent and then, in the light of that assessment, consider what weight should be given to the witness statement. This was the process followed by the RRT which it described in the sentence “Given the adverse credibility finding, the Tribunal does not give weight to the document”. Although expressed in the most cryptic terms, this statement shows that the RRT made an assessment of the value of the witness statement and then considered its effect in the light of the view it had formed to that point about the credibility of the first respondent.

22. I need only add that Burley J not too long ago reviewed this and other authorities in SZVHO v Minister for Immigration and Border Protection.[2]

    [2] [2016] FCA 1499

23. Returning to the Tribunal’s decision, this is the mode of reasoning the Tribunal adopted when assessing the two documents. It was reasonably open, in my opinion, to the Tribunal to approach the question of the weight of the two documents in the way it did. That is to say, it is “open to the tribunal to assess the credit of the applicant and then in light of that assessment consider what weight should be given to the documents on which the applicant relied”. 

24. The applicant before me made another submission. He referred to his visa having expired and his applying in Australia for a new visa from the Pakistan Consulate. He said that that process took 11 months. It resulted in him being granted a passport. On the basis of that, the applicant submitted that the investigations that would have been necessary to undertake in order for him to be granted the passport would have involved a review of police records, including the first information report that was put before the Tribunal. The applicant made it clear to me, however, that his application for the new passport was made by him after the Tribunal hearing and, therefore, was not a matter that he brought to the attention of the Tribunal. Whatever appeal such submission may have had to the Tribunal, the fact that it was not put to the Tribunal because, in fact, it could not have been put, is not a reason for me finding that the Tribunal made some jurisdictional error in the manner in which it considered the applicant’s case. 

25. Finally, the applicant made some statements to the effect that what he claimed before the Tribunal occurred did occur, and that his life would be in danger if he returns in Pakistan. The applicant made these submissions acknowledging to me that he knew that there was very little that I could do in relation to those claims, it having been explained to him by me, and probably known to the applicant in any event, that the role of this Court when reviewing a decision of the Tribunal is limited to determining whether the Tribunal made any jurisdictional error. So although the applicant’s statements might engender sympathy, they are legally irrelevant to the task I have to undertake on this application for jurisdictional review. 

26. The end result of these reasons, therefore, is that neither of the two grounds on which the applicant relies is made out, and the consequence will be that I will, in a moment, make an order dismissing the application. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  8 December 2017