Dbo18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1179
•29 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DBO18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1179
File number(s): SYG 1637 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 29 November 2023 Catchwords: MIGRATION – Whether Administrative Appeals Tribunal erred by failing to give applicant additional time to provide documents – whether applicant aware of additional time – merits review
PRACTICE AND PROCEDURE – Multiple adjournment requests supported by questionable medical certificates and documentation
Legislation: Migration Act 1958 (Cth) ss 5L, 65, 116, 189, 424AA
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Federal Circuit Court Rules2001 (Cth)
Cases cited: AHE18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 257
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
EIC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1000
Minister for Immigration and Citizenship v SZLIX (2008) 100 ALD 443
Minister for Immigration v Eshetu (1999) 197 CLR 611
NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559
Okoh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1011
Re Minister for Immigration and Multicultural Affairs; Re; ex parte Applicant S20/2002 (2003) 198 ALR 59
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 93 ALD 300
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
SZFDEv Minister for Immigration and Citizenship (2007) 232 CLR 189
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511
Division: Division 2 General Federal Law Number of paragraphs: 88 Date of hearing: 29 November 2023 Place: Sydney Applicant: In person Solicitor for the First Respondent: Mr M Vethecan, Clayton Utz ORDERS
SYG 1637 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DBO18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
29 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application filed on 12 June 2018 is dismissed.
2.The applicant must pay the first respondent’s costs, of and incidental to the proceedings, fixed in the sum of $8,371.30.
3.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), orders 1 and 2 above not be entered until the date of publication of written reasons for judgment revised from transcript, which for the avoidance of doubt and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth) will also be taken to be the date upon which the judgment was pronounced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN
By an application to show cause filed in this Court on 12 June 2018, the applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 10 May 2018, affirming a decision of the Minister to refuse to grant him a Protection (Class XA-866) Visa (visa) under s 65(1)(b) of the Migration Act 1958 (Cth) (Act) (Court book (CB) 52 to 56).
The background to this application does not appear to be in dispute, and unless otherwise indicated, is derived from the first respondent’s written submissions.
BACKGROUND
The applicant initially arrived in Australia on 10 August 2015 travelling on a Student visa (Higher Education Sector subclass TU-573). That visa was cancelled on 16 November 2017 pursuant to s 116 of the Act, on the basis of the applicant’s failure to commence a term of his course of study. Subsequently, on 31 December 2017, the applicant was detained under
s 189(1) of the Act (CB) 38 to 39).
In his visa application dated 12 January 2018, the applicant identified that he was a citizen of Pakistan who claimed to fear harm of an "honour killing" if he returned to Pakistan (CB 120). The applicant’s claims can be summarised as follows (CB 38 to 39, 86 to 88):
(a)in 2011, the applicant met and fell in love with a woman (R), and in 2013 she became pregnant to him;
(b)after the relationship was discovered, R's brothers beat her, and threatened and beat the applicant twice;
(c)R subsequently disappeared;
(d)R's family had influence with the military and police and, despite the applicant relocating, they found him and threatened to kill him, leading to the applicant filing a First Information Report (FIR) with the police;
(e)the applicant went into hiding after this and feared being arrested by the police; and
(f)the applicant planned on returning to Pakistan in 2016 but was told by his family that he was not safe and feared that he would be subject to an "honour killing".
On 10 May 2018, the Tribunal affirmed the delegate's decision to not grant the applicant the visa (CB 119).
The Tribunal said it had significant concerns about the applicant's credibility on the basis that there were "marked inconsistencies in aspects of his claims", including regarding his location and activities in Pakistan, and the applicant "struggled to give meaningful detail, context or corroborative evidence" (CB 122 at [20] and [22]).
The Tribunal also noted the applicant's delayed departure from Pakistan, delay in seeking protection in Australia, and his initial comments that he did not fear persecution or significant harm in Pakistan (CB 122 at [21]). Although the Tribunal was "prepared to accept" that the applicant had a girlfriend in Pakistan, it otherwise had extensive concerns about the reliability of his claims (CB 122 at [22]).
The Tribunal considered the applicant's various claims in the following way:
(a)the Tribunal found it "plausible" that the applicant had a relationship with R (CB 123 to 124 at [27] to [28]). However, the Tribunal otherwise found that the applicant's evidence regarding this relationship was "superficial and lacking in detail". The Tribunal said that if had formed the strong impression that the applicant was improvising in much of his evidence (CB 124 at [31]);
(b)as to the claims to have faced threats and violence from R's family, the Tribunal found the applicant's evidence to be fairly limited and lacking, and was not prepared to accept the claims at face value (CB 124 to 125 at [32] to [36]). This included the claims regarding threats in early 2012 which it found were inconsistent, vague and unsubstantiated, and changeable and in late 2013 which, again, were found to have "numerous problems” causing the Tribunal to doubt whether they were actually representative of the applicant's "personal lived experiences" (CB 126 to 127 at [43] to [47]);
(c)the Tribunal found the applicant's evidence about his attempts to find R after November 2013 to be particularly problematic and there was strong evidence that he did not have a former girlfriend who disappeared completely;
(d)the Tribunal had “significant doubts” about the applicant's claim that his family's relocation in 2014 had anything to do with the alleged assaults or threats, and doubted that the applicant lived in ongoing fear during that period (CB 127 at [49]);
(e)the Tribunal placed no weight on the FIR as being independent evidence of an attack in 2014 and found it to be a document “made to order for the purpose of this application”, which raised questions not only about the document but also the applicant's credibility (CB 127 to 129 at [53] to [58]);
(f)in light of those various concerns about the applicant’s credibility and evidence, the Tribunal also found the applicant’s claim that he had been in hiding during 2014 to lack credibility. The Tribunal did not accept that the applicant was in hiding or was tracked down by R’s brothers or associates whilst in hiding (CB 129 at [59] to [63]); and
(g)the Tribunal accepted that the applicant may have wished to return to Pakistan in 2016 for various reasons, but placed no weight on the applicant's continued stay in Australia as evidence that it was dangerous to return (CB 129 to 130 at [64] to [67]).
The Tribunal otherwise noted the applicant's delay in applying for protection and the inconsistent statements made in January 2018 that he had no fear of returning (CB 122 at [16] to [17] and CB 130 to 131 at [70] to [73]). The Tribunal considered that this added to its already strong doubts about the applicant's credibility and need for protection (CB 130 to 131 at [68] to [73]). Finally, the Tribunal referred to country information and noted that although the majority of honour killings were directed to women, there were some instances involving men (CB 131 at [74] to [76]).
The Tribunal ultimately made findings that the applicant was not (anonymisation added)
the subject of any threats, violence or other adverse attention; and that he does not genuinely fear persecution or significant harm at the hands of [R's] family members, or others.
(CB 132 at [78]).
Rather, the Tribunal found that the applicant came to Australia for reasons which were unrelated to his alleged protection claims and did not accept that the applicant genuinely feared being subjected to an honour killing, but rather that he had fabricated that claim in order to seek protection, and ultimately permanent residency (CB 131 to 132 at [77] to [82]).
Accordingly, the Tribunal found that the applicant did not satisfy ss 36(2)(a) or (aa) of the Act and affirmed the decision not to grant the applicant the visa (CB 133 to 134 at [91] to [94]).
PROCEEDINGS IN THIS COURT
The applicant commenced the present proceedings by an application to show cause filed on
12 June 2018. By that application, the applicant raises the following grounds (errors in original, anonymisation added):
1.The AAT Tribunal made a mistake that it did not believe that I have genuine threat and fear and for my life from the member of [R’s] family without proper observation of my case;
2.The tribunal made jurisdictional error by finding that I have fabricated my claim for protection to obtain Permanent Residency in Australia , Paragraph 82, page number 14, of AAT decision;
3.The Tribunal made a mistake that it did not accept my relationship with [R] and my threat for my life and fear of my survive which came directly from her family, The Tribunal took irrelevant and unnecessary observation into account in Paragraph 85, page 15 of Tribunal decision;
4.The Tribunal has significant concerns about my credibility , There were mark inconsistencies in aspects of my claims in relation to my location in Pakistan and activities , Tribunal made a mistake by not to ask about my house agreement , my medical, [R] medical of pregnancy , that all document I already have with me. They should ask all of these evidences before they made a decision. Paragraph 19, 20, 21, 22, in Tribunal decision; and
5.The Tribunal made a mistake by assuming that the FIR report I managed to prepare for my claim, If I manage to prepare then how can i make wrong report then I should prepare exactly related to my case, That's the system in Pakistan that's how the police work there,we have to report where we were lived before you can check with them. Paragraph 54, 55 in Tribunal decision. Page 10.
On 5 July 2018, a Registrar of this Court made orders by consent, which included the grant of leave to the applicant to amend his application on, or by, 30 August 2018. The applicant did not do so, albeit by an Affidavit made by him on 24 August 2018 he annexed a document entitled “Grounds of Application”. I will return to that Affidavit shortly.
The matter was listed for a callover on 20 August 2019 before a Registrar of the Court, on which date it was adjourned for further callover before the Judge of the Court to whom it was initially docketed (first primary Judge). In the interim, however, the matter was placed in the central migration docket. It was called over once more on 12 December 2022, before being docketed to me on 9 August 2023, on which date I made orders listing it for hearing before me on 24 October 2023, granting the applicant further leave to file any amended application.
The applicant and the first respondent were each directed to file and serve written submissions 14 and 7 days before the hearing, respectively. Thereafter ensued a number of adjournment requests by the applicant which can be summarised as follows.
Adjournment requests
On 12 October 2023, the Court received the below correspondence from the solicitor for the Minister (anonymisation added):
…
On 4 October 2023, the applicant notified our office that due to medical conditions, he would be seeking an adjournment. Subsequently, the applicant provided us with two medical letters (copies attached) in support of his request for an adjournment. Relevantly, the letter from [a doctor] dated 5 October 2023 noted that the applicant had been referred to a chest specialist, and was "not allowed to attend his hearing" until the applicant had "certification of inactive [tuberculosis]".
In the circumstances, the parties have agreed to consent orders adjourning the hearing (attached). If her Honour is minded to make this order, we request that the matter be listed for final hearing prior to the end of the year.
Attachments to that email included a Bupa referral, and what appears to be a referral letter from a particular doctor in Seven Hills, New South Wales. The referral letter includes a number of different fonts and bears a digital signature which appears to have been cropped. While the letter is apparently addressed to the doctor to whom the applicant was being referred, it also refers to the applicant being referred to that same chest specialist as if it is intended for a different audience. It says further (errors in original):
…until I have his all test clear, he is not allowed to attend his hearing.
The tests are said to be for a suspected case of inactive tuberculosis. The purported medical certificate of 5 October 2023 also contains a number of typographic errors. The Court had regard to the attachments and my Associate responded as follows:
…
The documents provided do not properly explain why it is that the applicant would be unable to attend (including by an online hearing) or meaningfully participate in a hearing. Accordingly, and despite the consent of the Minister, her Honour is not prepared to make the proposed consent order.
In the absence of any formal adjournment application being made by the applicant, properly supported by more probative evidence, the matter remains listed for hearing at 10.15am on 24 October 2023. Her Honour will consider any adjournment application made.
On 20 October 2023, the applicant again wrote to the Court requesting an adjournment. The email attached a personal statement from the applicant, what appears to be a thoracic x-ray (but displays no details on it to whom the x-ray pertains), and another letter from the doctor in Seven Hills, dated 13 October 2023 which again says that the applicant:
…is not mentally stable, which is why I am not allowing him to attend his hearing.
The purported medical certificate again says that the applicant has been referred to a chest specialist who he will be seeing on 24 November 2023, and concludes with:
After I have all his reports I’ll advise him accordingly.
Again, the purported medical certificate bears a number of different fonts and bears a cropped digital signature. The Court had significant reservations about the purported medical certificate, however acceded to the adjournment application and relisted the matter to 29 November 2023, being a date which post-dated the appointment with the specialist (on 24 November 2023).
On 24 November 2023, the applicant again wrote to the Court in the following terms, attaching another personal statement, which said, inter alia, that the applicant was again having tests for tuberculosis and (case in original):
I AM HAVING ANXIETY NOT IN A STABLE MENTAL CONDITION AND HAVE NOT BEEN ABLE TO PREPARE FOR MY HEARING BECAUSE OF MY MEDICAL CONDITION
The Court forwarded that email to the Minister’s solicitors (who were not copied into it). Later that day, the solicitor for the Minister responded to say that he was instructed to consent to an adjournment request “if the Court was so minded”. At my direction, the Court responded later on 27 November in the following terms:
….
While on the last occasion the applicant sought an adjournment, the application was accompanied by a document which purported to be a medical certificate, the document provided has no probative value beyond the applicant’s opinion as to his circumstances and does not properly explain why it is that the applicant would be unable to attend (including by an online hearing) or meaningfully participate in a hearing. Accordingly, and despite the consent of the Minister, her Honour is not prepared to make the proposed consent order.
In the absence of any formal adjournment application being made by the applicant, properly supported by more probative evidence, the matter remains listed for hearing at 10.15am on 29 November 2023.
Later on 27 November 2023, the applicant wrote to the Court again. By that email, the applicant said he was having various appointments for sputum collection. He said, again, he was not mentally prepared and attached a doctor’s certificate. The document that was attached can be described as follows. It is on coloured letterhead of a “Respiratory and Sleep Centre”, displaying a logo but no other address, contact or provider number details. The body of the letter states (anonymisation added):
This is to confirm that [DBO18] has his sputum appointments for suspected TB (Tuberculosis) to see Dr Alan Teoh on Monday, 28th November 2023 at 9am and 5th December 2023 and for final sputum collection on Monday the 8th of January 2024, he is mentally disturbed and not stable about his hearing which is scheduled on 29th November, 2023 I suggest to postpone his hearing as he is not mentally prepared, after we have his reports, we will advise him accordingly
Kind regards,
Practice Manager
Below that signature block is the name of its purported author and some contact details. The document is not signed. There are different fonts in this document also. No qualifications are offered for the author of the document. I am unable to accept from the description of it in the applicant’s email as a “doctor’s certificate”, that the practice manager has any medical qualifications. Despite having no obvious medical qualifications, the letter says the applicant is mentally disturbed and “not stable about his hearing” and suggests that the hearing be postponed as the applicant is not “mentally prepared”. The letter from the practice manager curiously concludes with the words:
After we have his reports, we will advise him accordingly.
It will be noted that this concluding statement is relevantly identical to the manner in which the purported medical certificates conclude. It will also be noted that the practice manager’s letter refers to the applicant in the same terms in which he referred to himself as not being “mentally stable” and wanting to be so in order to prepare for his hearing. At my direction, my Associate responded by email to the parties to say that the matter remained listed for hearing.
On 28 November 2023, the Court received a further email from the applicant. It attached another purported medical certificate from the doctor in Seven Hills, in similar terms to the previous medical certificate. The certificate said that the doctor was “not allowing” the applicant to attend the hearing and concluded:
After I have all his reports, I will advise him accordingly.
The Court responded by email to say that the matter remained listed for hearing. The latest purported medical certificate also bears mixed fonts and the same cropped digital signature.
Similarities between the content of the letter purporting to be from the practice manager of the respiratory and sleep clinic and the medical certificates give the Court moment for pause, in particular, the similarity of expressions which I have already detailed. The reason that the matter continued to be listed for hearing is that the Court had significant doubts about the veracity of those documents, and those aforementioned concerns, led the Court to question whether the documents had the same author. On their face, they do not. However, it is open to infer, given the anomalies of fonts, cropped digital signatures, the lack of signature in one case and the particular expression of language used, that the applicant may be creating these documents himself.
An alternative inference, given the similarities of expression used between the documents, that the applicant might be providing his preferred text to the authors of those documents in order to advance them in support of various adjournment requests, and that those persons are simply acceding to his request and including the text. The third inference, which is somewhere in between the two, is that the content of one document, for example, the medical certificate, has been used as a template for the others.
Whichever of these explanations might be correct, and there may in fact be other explanations, I am not satisfied that the documents which were put before the Court in support of the applicant’s various adjournment requests are reliable.
In NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 (NAKX), Lindgren J stated at [6] to [8]:
[6] The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the court and participating effectively in a court hearing.
[7] I do not accept that either of the medical conditions referred to would make the sufferer ‘unable to attend court’ — apparently each was able to attend upon the medical practitioner.
[8] If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect.
Ultimately, the basis upon which I refused the adjournments is that the documents submitted in support did not assist the Court in determining whether or why the applicant could not participate in the hearing, in accordance with the principles outlined in NAKX (supra).
Taking the purported medical certificates at their highest, the applicant has a suspected case of tuberculosis for which he is having ongoing tests. Since the hearing does not clash with those appointments, and the Court has once adjourned the matter in order to accommodate the applicant seeing his specialist, there was no specific detail provided other than a bare opinion about why an ongoing testing process would undermine the ability of the applicant to participate in the hearing in a meaningful way.
To the extent that the doctor who is the author of the purported medical certificate can be taken to be forbidding the applicant from attending the hearing, that was not a matter for him. The applicant does not appear to be hospitalised, and in the absence of the aforementioned details as to why the applicant cannot attend and participate in a hearing, the doctor can offer an opinion, but is not the arbiter of whether or not the applicant is excused from attendance. On 28 November 2023, when the most recent adjournment request was refused, the applicant wrote to request, as had been offered by the Court on a number of occasions, that the hearing take place by Microsoft Teams.
By his last email, the applicant said that he had a fever and claimed that he was barely walking. To the extent that a fever is referred to in the purported medical certificate, it is referred to as a “cold fever”, which I note has been an expression used in previous versions of that certificate. The applicant appears to have been able to travel, including throughout the last month, to a number of medical appointments, including as early as yesterday. The Court granted the applicant leave to attend the hearing online today using Microsoft Teams.
HEARING
The applicant has today appeared using the Microsoft Teams platform, with the assistance of an interpreter in the Urdu language who is present in the courtroom with me. The Minister is represented by a solicitor. The connection has appeared clear throughout, albeit, when the hearing commenced, the use by the applicant of a set of headphones was interfering with the audio. After being asked to cease using those headphones, the audio has also been perfectly clear. The applicant confirmed that he could understand the interpreter. The applicant, the interpreter and the Court do not appear to have had any difficulty in understanding one another, nor interacting.
To my observation, the applicant appeared well and able to participate in the hearing. He does not appear visibly ill and has not asked at any stage today for a further adjournment.
The Court Book was tendered at hearing for the first respondent and marked as Exhibit “1R”. An Affidavit of the applicant, made on 24 August 2018, was rejected on two bases. Firstly, the Affidavit annexes documents which were not before the Tribunal to seek to make findings or deficiencies identified by the Tribunal in affirming the delegate’s decision. Those documents are fresh evidence in this Court and appear to go to the merits of the applicant’s claims in an attempt to persuade the Court to a different outcome, which is not a part of the task that this Court must undertake.
To the extent that the Affidavit annexes a document called “Grounds of Application”, I have read that annexure carefully because I initially apprehended that it might be being advanced as an amended application. However, having considered the document I am satisfied that it does not any raise fresh grounds of review. Rather, it seems to be a submission to contextualise why the documents which are otherwise annexed and were rejected, should be received despite not being before the Tribunal, including by asking this Court to take evidence from a particular witness.
Grounds 1 and 2
Each of the grounds of review was interpreted to the applicant, and he was given the chance to address them in turn. Grounds 1 and 2 make similar allegations, and it is convenient to address them together. Those grounds are as follows (anonymisation added):
1. The AAT Tribunal made a mistake that it did not believe that I have genuine threat and fear and for my life from the member of R's family without proper observation of my case.
2. The tribunal made jurisdictional error by finding that I have fabricated my claim for protection to obtain Permanent Residency in Australia , Paragraph 82, page number 14, of AAT decision.
When asked to make submissions in respect of these grounds, the applicant said that the Tribunal did not hear anything from him and did not give him enough time. I sought to clarify with the applicant what he meant by this submission. The applicant said that, after the hearing, the Tribunal did not ask him to provide anything and simply made its decision two weeks later. The applicant said that he was waiting for the Tribunal to give him a further opportunity to provide documents.
To the extent that the grounds as pleaded simply reiterate the applicant’s claims, as was explained to him at the commencement of the hearing and again, in detail, when dealing with his Affidavit, the Court is not determining whether the applicant is a person to whom Australia owes protection obligations and/or should be given a visa. As such, the Court is not assessing for itself whether the applicant’s claims are true or not.
As submitted for the Minister, the Tribunal's consideration of the applicant's claims and evidence regarding his relationship with R (and claim to fear harm as a result) was extensive and detailed (CB 123 to 132 at [24] to [82]). The applicant has not identified any claim which squarely arises which the Tribunal failed to address, nor any of his evidence which the Tribunal failed to consider: see Okoh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1011 at [18] per Middleton J and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604 per French, Sackville and Hely JJ and Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [6] to [9] per Kiefel (as her Honour then was), Nicholson and Downes JJ.
In terms of what has been said by the applicant today in Court to contextualise these grounds, I agree with the submission of the Minister that the grounds seem to have evolved into an allegation of a denial of procedural fairness. To the extent that the applicant says that he was not given the opportunity to provide documents to the Tribunal, this fails at a factual level. The applicant was represented shortly after the commencement of these proceedings. He was initially invited by the Tribunal to attend a hearing on 5 March 2018. As part of that invitation (CB 71 to 72) the applicant was told that he should bring any original documents with him to submit as evidence to the Tribunal. The applicant later retained solicitors on or about 5 April 2018, which was the date on which they wrote to the Tribunal requesting an adjournment of the hearing date because the applicant had only recently been released from immigration detention and required further time to prepare.
Following the formal appointment of the applicant’s representative (CB 78), the Tribunal wrote to the applicant (via his authorised recipient) agreeing to postpone the hearing to 23 April 2018 (CB 79 to 81). The applicant’s representative sent a pre-hearing submission to the Tribunal on 18 April 2018, including a statutory declaration made by the applicant, various documents (including translations) and a statement in support by a particular person (M) (CB 82 to 94).
A letter to the applicant from the Tribunal (which appears at CB 95) written on 27 April 2018, read as follows (original emphasis, anonymisation added):
I am writing in relation to the application for review made by [DBO18] in respect of a decision to refuse to grant a Protection visa.
The enclosed documents are given to you as the authorised recipient of the applicant. As the authorised recipient, we are required to give you, instead of the applicant, any document that we would otherwise have given to the applicant.
By providing you with these documents, we are taken to have given the documents to the applicant. You should ensure that the applicant is informed of this letter as soon as possible.
While the hearing information record is not in the Court Book to provide a corroborative record that further time was given, it is open to infer (and I do) from the content of the letter of 27 April 2018, that there had been an agreement between the Tribunal and the applicant/his representative at the conclusion of the hearing that there would be additional time to provide, in writing, material to meet matters raised by the Tribunal at hearing, and to provide material from a mobile telephone.
That inference is supported by the Tribunal’s response (CB 95 to 96) which agreed to extend that time. On 3 May 2018, the applicant’s representative sent the Tribunal a written submission (CB 98 to 99), and a number of other documents including translations of text messages and screenshots, and a translation of a marriage certificate (CB 100 to 113).
In oral submissions today, the applicant appeared to suggest some sort of misconduct on the part of his lawyer. The Court asked the applicant when he had given the above-mentioned screenshots to the lawyer, such that they could be provided as material to the Tribunal after the hearing. The applicant said that he had given those documents to the lawyer in advance of the hearing and assumed they had been provided prior. I reject that explanation. It is clear from the document that the applicant sent his lawyer these documents on 27 April 2018 by email (CB 100). That further accords and corresponds with the date on which those documents were translated (CB 100 to 113).
I find no jurisdictional error constituted by the applicant having not been given further time to provide documents. On the material before me, he was given that opportunity and he took it. Accordingly, I agree with the Minister’s contention that neither grounds 1 nor 2 establishes jurisdictional error.
Ground 3
By ground 3, the applicant alleges that the Tribunal erred by taking into account an irrelevant and “unnecessary observation” at [85] of its reasons for decision (CB 133).
When asked to speak to this ground, the applicant addressed his submissions to a matter which appears to be the subject of the allegation in ground 5, namely, that the Tribunal did not accept that the FIR was genuine. The applicant says the Tribunal did not look at the documents properly. The difficulty with those submissions is they do not correspond to the ground as raised, given that there is no reference in [85] of the Tribunal’s decision to the FIR report at all (CB 133).
It may be that, by the use of the words “unnecessary observation” in ground 3, the applicant is trying to pick up the language of a finding in [85] that:
Having found that the applicant does not face a real chance of serious harm amounting to persecution arising from any such relationship, it is unnecessary for the Tribunal to determine whether the feared harm is for one or more of the reasons set out in s.5J(1)
If that is the case, the applicant has not made clear to what alleged error that expression is said to give rise. The solicitor for the Minister notes that [85] of the Tribunal’s reasons for decision is, in fact, directly responsive to a submission put by the applicant’s representative pre-hearing, which I accept by reference to CB 84 and specifically what is said at (CB 84 at [5]).
The Minister says that it was appropriate for the Tribunal to consider this submission, and equally appropriate and open to the Tribunal to reject it. I agree. As submitted by the Minister, the Tribunal observed that having regard to s 5L of the Act, it is difficult to conceive such a claimed characteristic would amount to an innate or immutable characteristic (CB 133 at [85]). The Tribunal likewise held by reason of its anterior findings that it was unnecessary to consider whether a particular social group based on similar characteristics existed in Pakistan or whether the essential and significant reason for the claimed persecution was the applicant's membership of such a particular social group (as opposed to personal or individual circumstances).
I agree that there was no irrelevant or unnecessary consideration taken into account (or observation made) by the Tribunal (CB 133 at [85]). The Tribunal's comments were in direct response to a claim put forward by the applicant's representative that:
Our client possesses a characteristic that he dared to have a relationship with R; this is immutable and will stay with our client forever", and he falls within a defined category of social group - namely males at risk of honour killings in their country of origin
(CB 99).
In a similar fashion to ground 1, ground 3 contends Tribunal erred by failing to accept the applicant’s relationship with R and the harm the applicant said would be caused as a result. This again rises no higher than disagreement with the merits of the reasoning: see Re Minister for Immigration and Multicultural Affairs; Re; ex parte Applicant S20/2002 (2003) 198 ALR 59 at [5] per Gleeson CJ and at [114] Kirby J; Minister for Immigration v Eshetu (1999) 197 CLR 611 at 626 per Gleeson CJ and McHugh J.
Ground 3 is not made out.
Ground 4
Ground 4 contains what is really the applicant’s central complaint in this matter.
In essence, the applicant complains that the Tribunal’s reasons for decision express a number of doubts, concerns and credibility findings adverse to him, about which he says he was not given the opportunity to provide further evidence. The solicitor for the Minister submitted that it is very clear from the Tribunal’s record of decision that the applicant was at no time restrained from providing information to the Tribunal at the hearing nor, by reference to the matters already addressed above, before and after the hearing. The Minister also submits that the applicant can be taken to have been aware of the issues dispositive of the review, by reference to concerns which were very clearly expressed in the reasons of the delegate. I agree. Examples of this can be seen in the statement by the Tribunal made when dealing with the question of R’s alleged pregnancy, where, after setting out the applicant’s evidence, the delegate said (CB 58):
This also leads to doubts about the credibility of the claims and genuineness of the relationship.
The delegate also set out an array of concerns in relation to the FIR report (CB 60 to 61), including:
The dubious reliability of the FIR and differences between that and the applicant’s assertions lead me to doubt that it is reflective of his situation prior to leaving Pakistan.
and that:
Given the other concerns noted in this section that I have regarding the applicant’s credibility and noting the reliable source of the country information regarding fraudulent FIR reports I am not satisfied that the FIR he submitted is genuine or that he made a report to the police.
The concluding paragraph of that section repeats, in addition to concerns about the FIR, concerns about the pregnancy claim (CB 61). I reject the suggestion that the applicant was not aware of the matters that he needed to address, given he was represented at all relevant times throughout the Tribunal proceeding, nor do I accept that he did not have a proper opportunity to do so.
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 93 ALD 300, Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ stated at [47] to [48] (citations omitted):
[47] First, there may well be cases, perhaps many cases, where either the delegate’s decision, or the tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account, that the tribunal considers may be important to the decision and may be open to doubt, the tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
[48] Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry :
… the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.
Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ stated at [18] (citations omitted):
Thirdly and conversely, if the reason why the tribunal affirmed the decision under review was the tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1). Again, if the tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”:
… does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc …
If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
As submitted by the Minister in his written submissions, which I accept, the issues considered by the Tribunal and credibility findings drawn in this regard (including as they related to housing, medical evidence, and R's pregnancy) were all issues arising in relation to the decision under review, or otherwise raised by the applicant himself before the Tribunal. Moreover, the applicant had the opportunity to put forward further evidence and submissions before the Tribunal - and did in fact do so, both before and after the Tribunal hearing.
In this regard, the delegate made similar credibility findings as to the applicant's claimed relationship with R, including in relation to claims about her pregnancy (CB 57 to 59). Before the delegate, the applicant had also raised claims regarding his relocation (CB 60 to 61).
It appears that the question of the applicant's own medical issues was only raised for the first time before the Tribunal when the applicant made mention of being "scared and depressed" in his submissions to the Tribunal. The decision record also records that it was raised orally, although no attempt was made to provide supporting evidence (CB 122 at [22]). The applicant likewise raised claims regarding relocation and R's pregnancy in the submissions and statement given to the Tribunal.
The Minister submits that the Tribunal's decision record notes that it had put the applicant on notice that it was considering adverse credibility findings. In particular, the Tribunal put to the applicant "potentially adverse information" pursuant to s 424AA of the Act relating to the information that the applicant had provided to the Department in January 2018 suggesting he had no fear of returning (CB 122 at [16] and CB 130 to 131 at [70] to [73]). The applicant responded orally at the hearing, and also in written submissions post-hearing (CB 122 at [17]). The Tribunal, in the course of its decision, also referred to various other doubts and issues it had with the applicant's evidence, which it had raised with him during the hearing. In particular, the Tribunal noted that it had raised doubts regarding the FIR with the applicant (CB 127 to 129 at [53] to [58]). I agree.
Ground 4 is not made out.
Ground 5
The last ground in the application is somewhat difficult to understand in its terms. However, when given the opportunity to explain it at hearing, the applicant said that the Tribunal had found that the FIR report was not genuine. He asked, rhetorically:
How can they say that without verification ?
and:
They should have contacted the authorities.
The applicant also said:
It was their task to get in touch with the authorities.
The Minister submitted that, in complete contradistinction to that proposition, it was the task of the applicant to make out the matters which related to the FIR report. The Minister says it was the responsibility of the applicant to make out his case, and there is no evidence before the Court that the applicant took any steps to otherwise assuage concerns, which had clearly been raised by the delegate, in relation to the FIR report. Knowing those doubts existed, the applicant also did not ask the Tribunal to make any specific inquiries.
The Minister says that procedural fairness was clearly afforded to the applicant, referring specifically to [56] to [57] of the Tribunal’s decision (CB 128), and reiterating that the applicant had been given the opportunity to address matters before, during, and after the hearing, and that he was aware of the issues dispositive of the review. There is no general duty to inquire on the Tribunal. I am also not satisfied, in this matter, that there was a critical fact in existence that was easily ascertainable which engaged any further duty to inquire on the part of the Tribunal, particularly in circumstances where the doubts had been raised and the applicant was aware of them.
The Minister submits, and I agree, that this ground is an impermissible attempt to review the merits of the Tribunal’s assessment of the veracity of FIR, the weight to be given to it, and its credibility findings. These were all matters within the Tribunal’s purview.
The Tribunal drew adverse credibility findings based upon its conclusion that the applicant had obtained a false FIR to support his visa application (CB 127 to 129 at [53] to [58]). In this regard, the Tribunal noted that the FIR "differed sharply from his written claims and his oral evidence". These discrepancies included the applicant's circumstances at the time of the incident, where the incident occurred, and whether or not the applicant was present (CB 128 at [54]).
Accordingly, the Tribunal considered that "the discrepancies could indicate that the applicant had arranged for the FIR to be prepared, with at least some inaccurate information in it", referring also to country information concerning document fraud in Pakistan (CB 128 at [54] to [55]). The Tribunal ultimately placed no weight on the document as independent evidence that there was an attack (CB 129 at [58]).
Courts have previously held that findings of forgery or that a document is not genuine should not lightly be made, and that procedural fairness may require a decision maker to grant the applicant an opportunity to answer such an accusation: see WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at [38] to [58] per Lee, Hill and Carr JJ; EIC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1000 at [40] per Moshinsky J.
The Minister submits that the Tribunal properly examined the FIR, appropriately accorded the applicant procedural fairness, and did not err in proceeding to make credibility findings in respect of that document. The Tribunal's comments were made in circumstances where the delegate had likewise raised doubts about its authenticity and ultimately found that the document was fraudulent (CB 60 to 61). Moreover, the applicant was given (and took) the opportunity to put forward submissions on the question of the document's authenticity, and the Tribunal had regard to those submissions (CB 128 at [56] and [57]). The Minster says that it is apparent that the Tribunal's findings were ultimately based upon its assessment of the significance of the inconsistencies in the evidence and not merely on generic country information about document fraud (CB 128 at [57]). I agree.
Overall, I am not satisfied that ground 5 is made out. In submissions in reply, the applicant said that whatever happened in relation to his having been given additional time to provide documents, he was never told about it, and that “was the reason [he] wrote the ground”. I am not satisfied that the applicant was unaware that there was a further opportunity to give additional documents. Firstly, based on the inferences made earlier, it is clear that time was given at the end of the hearing. It is open to infer that the applicant was present at the conclusion of the hearing, where he was assisted by an interpreter in the Urdu language, when such an opportunity would have been discussed. Secondly, by reason of the matters that I also addressed earlier, namely, that the applicant went on to have translated and provide to his lawyer, additional documents that could be provided to the Tribunal in response to that additional opportunity. The suggestion by the applicant that, at least in that context, he was unaware that additional time had been granted to provide documents, and that he had in fact given the documents to his lawyer much earlier, is rejected and is undermined by information in the Court Book.
Other than the email at CB 82, there is no material before the Court as to what transpired between the applicant and his lawyer, nor is there information about what the applicant might have properly understood about that process. However, to the extent that there has been some attempt to suggest malfeasance on the part of the applicant’s representative, it is not a ground raised by the application, despite the fact that the applicant says that this is the reason he advanced the ground.
Aside from not being pleaded, there is no evidence before the Court of any such malfeasance on the part of the lawyer, and by reference to authorities such as SZFDEv Minister for Immigration and Citizenship (2007) 232 CLR 189 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Crennan JJ and Minister for Immigration and Citizenship v SZLIX (2008) 100 ALD 443 per Tamberlin, Finn and Dowsett JJ, the applicant would need to clearly establish, on the basis of probative evidence, that some sort of fraud had taken on part of his solicitor, and not just mere negligence. On the material presented before me, I am not even satisfied that the latter is what could be described as having taken place.
It seems that the applicant is dissatisfied with the Tribunal’s decision, and that he potentially regrets that he did not provide better evidence. His allegations in relation to not having been given proper time, or not having understood that he had additional time, appear to go to this. However, I am not satisfied that there is any aspect of the Tribunal’s decision or its processes which gives rise to jurisdictional error. Absent jurisdictional error, the decision is a privative clause decision and should be dismissed.
I will so order
COSTS
Consequent upon my dismissal of the application, the solicitor for the Minister seeks an order that the applicant pay costs fixed in the scale amount. The written submissions filed for the Minister sought the scale amount as previously prescribed by the (then) Federal Circuit Court Rules2001 (Cth). That costs application was amended orally today at hearing to be the amount sought by the current Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), in accordance with the recent judgment of the Court in AHE18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 257.
Even if I were not persuaded that it would be appropriate for the slight increase that has occurred over time to be awarded to the Minister in this case, I am satisfied that the nature and number of adjournment application requests made by the applicant with various documentation attached, are such that the Minister has, since the time of the writing of those submissions filed in October of this year, undertaken more work than had no doubt been anticipated as at the time that those submissions were prepared and that earlier, lesser amount was sought.
Accordingly, I am satisfied that costs should be awarded in this matter on the basis that costs ought follow the event. The applicant made submissions that he has not had a work permit in Australia and for the last six years he has not worked, so he says he has no money. While that is a matter which the Department may take into account in enforcing any order I might make, it is not a relevant consideration to deny the Minister some part of his costs in responding to this matter. I am also satisfied that the current scale amount is reasonable, and I will make an order to that effect.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Given. Associate:
Dated: 14 December 2023
0
14
3