CWN16 v Minister for Immigration

[2018] FCCA 2631

FEDERAL CIRCUIT COURT OF AUSTRALIA

CWN16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2631

Catchwords:
MIGRATION – Application for judicial review – protection application – no matters of principle – application dismissed.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.88F

Migration Act 1958 (Cth), ss.36, 65, 438(1)

Migration Regulations 1994 (Cth), Sch.2

Applicant: CWN16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2149 of 2016

Judgment of: Judge Riethmuller

Hearing date: 4 September 2018

Date of Last Submission: 4 September 2018

Delivered at: Melbourne

Delivered on: 19 September 2018

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent: Mr McDermott

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,328.00.

3. Pursuant to s.88F(1)(b)(i) of the Federal Circuit Court of Australia Act 1999 (Cth) (the Circuit Court Act), until further order, the document comprising Annexure JRB-3 to the Affidavit of Jarrod Rubin Blusztein affirmed on 25 October 2017 is prohibited and/or restricted from being disclosed to any person (including by publication or by any other means) other than the parties to this proceeding (and their legal advisers).

4. The parties be notified if any person not a party to this proceeding seeks to set aside the above order.

THE COURT NOTES THAT:

1. The order is made on the grounds specified in s.88G(1)(a) and/or s.88(1)(b) of the Circuit Court Act.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2149 of 2016

CWN16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In this case, the applicant did not appear at the first hearing, and orders were made dismissing his application under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). The applicant has provided an explanation for why he did not appear, and the Minister consents to those orders being set aside. In the circumstances, I have formally set aside the orders made and proceed to hear and determine the matter.

2. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 15 September 2016 which affirmed the decision of a delegate to the Minister not to grant the applicant a protection visa under s.65 of the Migration Act 1958 (Cth) (“the Act”).

3. The relevant criteria for a protection visa is contained in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). The applicant must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on the other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

4. The applicant is from Township, Lahore in Pakistan, his ethnicity is Sunni and his religion is Islam.  He arrived in Australia on

   
   

   6 December 2013 on a visitor visa and subsequently lodged a protection visa application on 16 June 2014. 

5. The application was refused by the delegate on 24 March 2015.  The applicant appeared before the Tribunal on 30 August 2016.  He was assisted by a migration agent.  On 15 September 2016 the Tribunal affirmed the delegate’s decision not to grant the protection visa.

6. On 25 March 2015, the delegate issued a certificate in accordance with s.438(1)(a) of the Act. The certificate/notification is annexure ‘JRB-2’ to the affidavit of Mr Jarrod Rubin Blusztein dated 25 October 2018. The document underlying the certificate/notification is annexure

   
   

   “JRB-3” to that affidavit.

The Applicant’s claims

1. The Tribunal summarised the applicant’s claims at [12] to [18] of the decision:

   12. The applicant claimed in his protection visa application that he was living a good life in Lahore with his family and he owned his own shuttering business. In 2008, some criminal people pre-planned to get him to do their project for a high rise and that once the shuttering was done they would start paying but that was not the case. Instead, they actually wanted to take his entire shuttering, which they did. He reported this to the police and took the matter to court but in vain. The applicant claimed that he and his family were threatened and eventually, on 10 December 2009, he was attacked and taken to hospital unconscious. The applicant claimed he and his family have been humiliated because his entire business was snatched and they have been mentally and physically threatened and eventually attacked.

   13. In regard to the incident that occurred on 10 December 2009, the applicant claimed at 10pm he was going with his wife to the gourmet bakers for shopping when [NI] and three unknown people followed them from home. As they approached Lahore Grammar School, about 500 metres from their home, a silver Mitsubishi Lancer pulled in front of his motorbike. The applicant claimed at first they thought it was some thieves but then he saw [NI] fully armed with three other unknown people. He claimed one of them pushed his bike and he fell over and from then onwards he did not know until he was at the hospital, how they had tortured him and where they had shot him. The applicant claimed his wife came off the bike before he was pushed to the ground and they started torturing him and his wife started crying for help. She witnessed what happened, along with a neighbour, who started running towards them when he saw his wife crying. The applicant claimed they used some “fast metal” and hit him on the upper part of both legs and shot him and left him unconscious. He claimed when his family reported this incident to the nearest police station they managed to get away with it, even though he had witnesses, because of their “high end contacts with criminal organisations” and “political back-up”.

   14. The applicant claimed he had also been mentally tortured on several occasions, including at his home and at different public places. Whenever there was a hearing they threatened him directly to not come to court otherwise they would torture and kill him. They have directly threatened him and through messages to his family, that if they take the matter further they will kill him. He claimed in the latest incident, his wife who is following up his case in Pakistan, was stopped at gun point and threatened to stop following any further cases otherwise they would do to her what they did to him.

   15. The applicant claimed due to the unrest in the country and increasing poverty and unlawfulness and what he has gone through already, he strongly believes he will be tortured, perhaps killed, and nothing will happen to those responsible; only his family will suffer. Criminal people have already “ripped” him off of his savings and almost killed him and made him a “mental patience”. He is very stressed and that is why he cannot sleep and take his mind of the whole situation. He has nothing there as they have stolen everything from him, including his health, wealth, respect and freedom. The applicant claimed that if he goes back to Pakistan he will die at the hands of these criminals and he is very worried for the wellbeing of his family.

   16. In response to the question who do you think may harm/mistreat you if you go back?, the applicant claimed [NI], [SI], [WI] and [MS] and three more people who attacked him with [NI]. He claimed these criminals have many people behind the scene who they use to commit different kinds of crimes including kidnapping and killing for money. The applicant claimed about two weeks earlier, they stopped his wife at gun point and took all her jewellery and disrespected her and threatened her to leave Pakistan so she could not pursue the cases against them.

   17. The applicant claimed that these criminals have no pity for anyone and do not leave simple family people to live their lives. Wherever they find someone alone, who has money or business, they think that it is an easy target for them. Likewise, they “pin-pointed” him and made a plan to get all his business and he could not do anything against them. He claimed his cases have been running with the police and in court for over five years and whatever he had left he had spent on these cases. Nothing has happened to these criminals as they have contacts everywhere. The applicant claimed that if they see him in Pakistan they will kill him as well as his wife.

   18. The applicant claimed that he did not think the authorities in Pakistan would protect him as they have totally failed to provide any justice to him and his family or protect them from these criminals. They do whatever they like to as the Pakistan authorities work with them to perform these criminal acts. He claimed the recent attack on his wife at gun point clearly shows how unsafe he and his family are.

2. The applicant relied on his claims in his protection visa, documents submitted to the Tribunal, at his Tribunal hearing and on post-hearing submission received from the applicant’s migration agent.

The Tribunal’s findings

1. At [23] of the decision, the Tribunal held ‘serious concerns about the credibility of most aspects of the applicant’s claims for protection’.

2. In respect to the applicant’s claim that he owned a construction company in Pakistan, the Tribunal considered (at [24]) that the applicant’s evidence was ‘limited and simplistic’. 

3. The Tribunal asked the applicant ‘what exactly he did in his business and he stated that he built houses, shopping malls and some factories’: see [24]. The Tribunal went on to say:

   24.…The Tribunal noted that on [the applicant’s] business card that he submitted to the Department, it stated that he did all kinds of construction, particularly shuttering and asked the applicant what shuttering is. He explained that it was referred to as scaffolding in Australia and is a temporary structure used while making the roof. The applicant subsequently explained that when he worked on housing projects he just provided the scaffolding however when he worked on shopping malls he provided the scaffolding and built the structure. The Tribunal notes in the applicant's protection visa application he claimed that he owned a shuttering business.

4. The Tribunal notes that even if, the Tribunal accepted the evidence, it was more likely the applicant owned ‘a shuttering or scaffolding business’ than a ‘construction business’: see [25].

5. The Tribunal did not accept the evidence in respect to the applicant’s claims of the difficulties he had with his business. The applicant’s evidence in respect to the project and the alleged fraud was ‘confusing and contradictory’ and the Tribunal did ‘not accept these claims are credible’: see [29].

6. The applicant’s claims that he pursued a legal case in respect to the project was ‘vague and contradictory’.  The applicant was asked at the hearing (at [30]):

   …when he made the complaint against these people to the police, the applicant stated that his lawyer had provided everything for him and given him the statement to read before he came to the Tribunal but he was of the opinion that it was not an exam and he was also upset when he thought about the hearing and recalled what had happened to him so he did not know exact dates. As the Tribunal noted in the hearing, given that this was a central and significant part of his claim for protection, it would expect him to recall when he made this complaint, which ultimately led to him being allegedly threatened and harmed by those he had reported to the police.

7. The Tribunal did not accept the applicant’s claim in respect to the attack by NI and three unknown people, as the Tribunal found ‘the applicant has provided conflicting evidence regarding the timing and circumstances of this alleged incident’: see [31]: 

8. The Tribunal held at [35]:

   35. The Tribunal finds the applicant and his wife have provided inconsistent evidence regarding essential details of this significant event, including who was allegedly responsible ([NI] and three unknown people, as opposed to [N] and [SI]), whether the alleged assailants were in a car or on motorbikes, whether they got out of their vehicle and beat the applicant, including with steel pipes, or just shot at him from their vehicle as his wife asserted and who witnessed these events, whether it be a neighbour, as claimed in the applicant's protection visa application, the applicant's nephew as stated in the FIR or no-one because there was no-one on the road despite it being 6:30 or 7:00pm because it was winter season, as the applicant claimed in the hearing.

9. The Tribunal asked the applicant whether ‘anything else had happened to him apart from the incident when he was beaten and shot and he stated no’: see [36]. This conflicts with the applicant’s claims that he was ‘hit with ‘fast metal’’ on a separate occasion. The Tribunal did not accept that ‘the applicant did not raise this claim earlier because he did not make an FIR for this incident as he asserted in the hearing; see [36].

10. The Tribunal also considered the applicant’s claims that his wife was stopped at gunpoint and threatened. The applicant’s wife provided inconsistent evidence on the topic; that there were two incidents ‘but that she only made an FIR report for one incident’: see [38]. The Tribunal found this ‘contradicts her earlier evidence that she only reported the one incident when she was threatened’. The Tribunal did not accept the ‘applicant’s wife was threatened at gunpoint or robbed as claimed’: see [39].

11. The Tribunal also considered the applicant’s advisor post hearing submissions. However, the Tribunal did not accept that the ’applicant was confused or did not understanding properly’ the questions being asked of him’ see [40].

12. The Tribunal found the applicant to be ‘not a witness of truth’.  The Tribunal concluded:

    42. …the Tribunal does not accept that the applicant was threatened by [NI], [SI], [WI] and [MS] and that he was mentally tortured on several occasions, including at his home and at different public places. Given the Tribunal does not accept that the applicant was involved in any court case or cases against these people, it does not accept that he was threatened to not come to court whenever there was a hearing or that his family received any messages or threats that they would kill the applicant if he took the matter further. The Tribunal also does not accept that the applicant was beaten with pipes or “fast metal” and shot at when he was travelling somewhere with his wife and was allegedly intercepted by [NI] and three unknown people or [NI] and [SI] or that the applicant was grabbed by some people and kept for two days during which he was beaten and was only released after agreeing to leave the country. Nor does the Tribunal accept that since the applicant has departed the country, the applicant's wife has been targeted by [NI] et al. including being threatened at gunpoint or being robbed.

13. The Tribunal concluded (at [43]) that the applicant’s ‘fear of persecution is not well-founded.’

14. Based on the above findings, the Tribunal concluded at [46] that:

    ..there are no 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 from [NI], [SI], [WI] and [MS] or people associated with them because of this alleged fraud or due to any unrest, increasing poverty and unlawfulness.

15. At [49], the Tribunal was not satisfied ‘that the applicant is a person in respect of whom Australia has protection obligations’.

The Applicant’s grounds

1. Despite orders by Registrar Allaway made 29 March 2017, for the filing of further court material, the applicant only filed his Application and Affidavit filed 5 October 2016.

2. The applicant relies on the following grounds of application:

   1. The decision of the tribunal has taken no into account irrelevant considerations

   2. The Second Respondent erred by failing to consider any integer of the Applicant claim, namely that he would be targeted because of his situation in Pakistan.

Ground 1

1. The applicant was unable to identify any matters or considerations that he said the Tribunal did not take into account.  At best, his submissions were a complaint that he believed the Tribunal did not fully understand him because the Tribunal did not accept his version of events.

2. The applicant did attempt to make submissions as to the merits of the matter, wishing to recount his version of events as placed before the Tribunal.  However, it is not open to this court to review a Tribunal decision on the merits.

3. As the applicant was unable to identify any fact, circumstance or argument that the Tribunal had taken into account that was irrelevant, or even arguably so, I find that there is no merit in this ground.

Ground 2

1. It is difficult to understand how ground 2 could operate in the context of this case, as it complains that the Tribunal failed to consider whether the applicant would be targeted because of his situation in Pakistan:  This was the central consideration of the Tribunal’s decision.

2. At the hearing before me, the applicant made submissions on the basis of this ground complaining that the Tribunal ought to have accepted his evidence.  The applicant said that the incident that he gave evidence about was so traumatic, he could not recall dates particularly well.  The applicant also said that, when he was asked about a family business, he did not answer, as he did not want to provide further information that might lead to him being harmed. 

3. The extent of the applicant’s involvement in the business was explored by the Tribunal.  The practice of the Tribunal is to go to considerable lengths to ensure that information is not disclosed to potential perpetrators of harm in the countries that applicants come from. 

4. I am not persuaded that this is a matter that can amount to a ground for judicial review, without more.

5. Similarly, with respect to the applicant’s claim that his trauma had led to his evidence being of poorer quality, this is a matter for the Tribunal to take into account when considering the applicant’s case.  It is a common situation that those seeking protection visas will have suffered trauma, and that their evidence will not be of the same quality as a person who has not suffered trauma.  There is nothing to indicate that the Tribunal was unaware of this general proposition when assessing the quality of the evidence given by the applicant.

6. The applicant attended at the hearing before the Tribunal with a representative, who followed up from the hearing with brief written submissions.  The submission was made by the applicant’s adviser (at court book p.297) that the quality of the applicant’s evidence may have been threatened by the trauma that he suffered.  The adviser went on to make a number of other submissions, including the more dubious submission such as:

   [The applicant] is an honest man and a great leg spin cricketer, who has also hobby to prepare cricket bats and he is beneficial for Australian people for him to stay here and pass on his expertise to young Australians.

7. The Tribunal specifically notes that it has taken into account the post-hearing submissions (at [40] of the decision), stating that:

   40. …The tribunal has had regard to the submissions …regarding the applicant’s inability to fully explain his business properly.  The Tribunal does not accept that the applicant was confused or did not understand properly.  The Tribunal asked the applicant clear and simple questions about his own experience.  While the Tribunal appreciates that some of these events occurred seven or eight years ago, as pointed out by the applicant’s adviser, given the significance of these experiences, the Tribunal would expect that the applicant would have some awareness of at least the month and year in which they took place and be able to provide consistent information about the circumstances of these incidents, if in fact, they did occur.  The Tribunal does not accept the applicant’s adviser’s assertion that the applicant has lost a fair bit of his memory because of the stress, trauma and pressure he has experienced as a result of his situation.

1. These finding were open to the Tribunal on the material before it, and demonstrate that the Tribunal did consider the submissions that were made in this regard. 

2. In the circumstances, I am not persuaded that the applicant has established ground 2.

Additional Issues

1. A further issue arises in this case as a result of a certificate having been issued under s.438 of the Act. The certificate in this case does not appear to have been given to the applicant and therefore was not able to be considered by the applicant or their adviser in order to potentially challenge the certificate. In this case, the solicitors for the Minister filed an affidavit including a copy of the contents of the document covered by the certificate, which was shared with the applicant and viewed by the court.

2. The document in this case appears to have been entirely innocuous.  The document is an internal document confirming that inquiries made to confirm the identity of the applicant through fingerprint evidence, which returned showing that the applicant was the person he claimed to be. 

3. The applicant’s identity was not at issue before the Tribunal, and nor was it at issue before the delegate.  In these circumstances, it does not appear that this document has any relevance to the actual decision being made and could not have made any difference, whether it was disclosed to the applicant or not.  It was merely an internal working document showing enquiries were made that confirmed the applicant’s identify was, as he had stated when he made the application.

4. In these circumstances, I am not persuaded that this potential breach of s.438 could amount to an appropriate basis for judicial review, and, to the extent that it may be a technical breach, I would exercise my discretion not to grant relief, given that the document does not appear to be capable of having any impact on the outcome before the Tribunal in this case.

5. In the circumstances, I therefore dismiss the application for judicial review.

Costs

1. Argument with respect to costs was heard at the end of the hearing on both alternatives (the applicant succeeding and the applicant not succeeding).  In this case, costs ought to follow the event.  The Minister seeks costs in the sum of $7,328 (without additional amounts due to the circumstances in which the default order dismissing the proceedings was made). The applicant seeks the filing fee.  The Minister has been successful and should be awarded costs.

2. The Minister also seeks an order pursuant to s.88F(1)(b)(i) of the Federal Circuit Court of Australia Act 1999.

3. In this matter, the document that was covered by the certificate contains reference information with respect to a foreign country from which the department confirmed the applicant’s identity.  Counsel for the Minister asked for orders that this document not be made available for searching and copying by non-parties and not be provided to other parties, due to the nature of the administrative information concerning the process and the availability of such information from a country other than Australia.

4. It appears to me that, in circumstances where the applicant has had full access to the document for the purpose of making submissions before this court, and that the balance of the contents of the document do not appear to be relevant to the matters in issue before the court, that it is appropriate to ensure that the department can honour any formal or informal arrangements with foreign country for the exchange of information.  I therefore make the orders sought.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  19 September 2018