DGJ16 v Minister for Immigration

[2017] FCCA 2732

FEDERAL CIRCUIT COURT OF AUSTRALIA

DGJ16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2732

Catchwords:
MIGRATION –Protection Visa – whether tribunal’s decision affected by jurisdictional error – where no error established in tribunal’s decision – allegation of bias using statistics – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.430(1)(d)

Cases cited:

ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30

Applicant: DGJ16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1017 of 2016

Judgment of: Judge Vasta

Hearing date: 6 November 2017

Date of Last Submission: 6 November 2017

Delivered at: Brisbane

Delivered on: 9 November 2017

REPRESENTATION

The Applicant appearing on his own behalf with the assistance of an interpreter

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Application filed on 1 November 2016 as amended on 13 February 2017 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1017 of 2016

DGJ16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application dated 1 November 2016 and by amended application dated 13 February 2017, the Applicant, DGJ16, has asked this court to review a decision of the Administrative Appeals Tribunal (“the AAT”) that affirmed an earlier decision of a delegate of the Minister not to grant the Applicant a protection Visa.

2. The Applicant is a citizen of Pakistan. He has family living in Australia including a brother. The brother appeared before me and spoke on the Applicant’s behalf.

3. The Applicant has travelled to Australia in 2003 on a visitor Visa. He returned to Pakistan after that 3 month visit. In November 2007 he was granted another Visa however did not take up the opportunity to travel to Australia before the Visa expired.

4. On 15 July 2013, he was granted another visitor Visa. The Applicant claims that within months of that time he started receiving threats from the Taliban. These threats intensified over the ensuing months. On 19 January 2014, the Applicant left Pakistan and arrived in Australia.

5. The Applicant then made two requests for a “8503 (no further stay) waiver”; the first on 3 March 2014 and the second on 17 March 2014. Both these requests were refused.

6. On 15 April 2014 (which was 4 days before his visitor Visa expired), the Applicant applied for a protection Visa.

7. On 30 April 2015, the Applicant attended his interview with the delegate in relation to his application. On 24 July 2015, the delegate refused the Visa application. The Applicant applied to the AAT to review this decision. The AAT held a hearing on 19 October 2016. On 25 October 2016, the AAT affirmed the decision of the delegate.

The Claims before the Tribunal

1. What the Applicant claimed before the Tribunal was that the Taliban and the local political parties were threatening to kidnap and kill him. The Applicant said that this is because those entities have attempted to extort $100,000.00 out of him. He claimed that if he did not give them any money, they would cut off his legs and hands. He said that if he returns to Pakistan he will be found and kill because “they have a very strong network”.

2. The Applicant claims that the police will not be able to protect him and he cited the example of Benazir Bhutto who was killed “but the police and government did not find the killer”. He claimed that the Taliban and political parties have killed thousands of innocent citizens of Pakistan and the police and government have not done anything. He said that because he is a “very common citizen” he cannot approach the authorities to let them know about his problems.

3. The AAT assessed whether the Applicant had a well-founded fear of persecution for reasons of his actual or imputed political opinion, his ethnicity as a Muhajir, his membership of a particular social group or for any other reason. The AAT looked very carefully at the Applicant’s claims that he was extorted by the Taliban.

4. The Applicant claimed that the demands for money first occurred in October 2013. Members of the Taliban knocked on his door and told him that the Taliban knew everything about him. He claimed he was told that the Taliban knew all his family was outside Pakistan and so said that he had to give them money. He claimed that he was told that they would come back to collect the money in a week or two but, in the meantime, they would be watching over him.

5. The Applicant said that, from October 2013, he was moving around and living with relatives and sometimes friends. He said that he was asked for money by the Taliban between “10 to 15 times”. He claimed that in the first week of December 2013, he went out to get milk for his children and he was attacked and fired upon.

6. The Applicant did not provide much more detail and claimed that, because he was now suffering a depressive illness, he could not recall much detail. The Applicant did say that it was his “wealthy profession and family prosperity” which made him a target for the Taliban and because he was a “very common citizen”, the Pakistani authorities would not consider his protection as an important obligation. He said that unless he paid a significant bribe to the police, he would not be assisted by them.

7. The Applicant said he was shocked by the request for $100,000.00 and could not come up with this amount. Still, the Taliban continued to come and see him throughout October and November between 10 and 15 times. He said that in October he ceased working because he was frightened and moved his family. He told the AAT that it was very difficult to move a family to different places.

8. The Applicant told the AAT that, in June 2013, he was told that his mother was ill. He said that he thought that he should visit her and so obtained a Visa to come to Australia but had not yet made any plans to actually come to Australia. He likened this situation to the situation that occurred in 2007 where he obtained a Visa to visit Australia but did not use it.

9. The Applicant said that after the last visit by the Taliban in January 2014, he panicked because he could not produce the money and he hid his wife and daughter as best he could, fearing retribution and death for non-compliance with the wishes of the Taliban. Because the threat was that he would be killed in two weeks, the Applicant decided to flee to Australia on the visitor Visa that he already had.

10. The AAT questioned the Applicant as to why he did not apply for a visitor Visa for his wife and children and he indicated that because of the threats that “his mind was not working well”.

11. The Applicant told the AAT that the local political party, MQM, had been extorting small amounts of money from him for over 20 years. He said that this extorted money was known as “political donations”. It was now, that such a large amount of money was being asked for, that he was filled with fear.

The Decision of the AAT

1. The AAT did not accept the claims of the Applicant. The AAT found that the tale that was told by the Applicant did not make sense. The AAT found that it was inherently incredible that an organisation like the Taliban would have the extraordinary patience to request the money from the Applicant up to 20 times without acting. Notwithstanding that the Applicant claims that he was fired upon, there was no actual harm done to the Applicant even though he was defying the Taliban for as long as he said he had been doing.

2. The AAT did not accept that, if the Applicant were truly fearful for his family, he would not have made visitor Visa applications for his wife and children between October and January.

3. The AAT also queried why the Applicant had not used his visitor Visa to leave Pakistan at any time before January 2014. This was especially pertinent as the Applicant claimed to have been shot at in the first week of December 2013 and yet did not flee Pakistan for at least another month.

4. The AAT also raised suspicion as to why these threats came about at the time that they did; it was shortly after the Applicant had obtained his visitor Visa. The Applicant had given “political donations” for 20 years and yet, soon after he obtained a visitor Visa, the threats were made for no apparent reason. There was no change in the circumstances of the Applicant that would have caused the sudden interest in him by these groups.

5. The AAT also wondered why the Applicant did not make a claim for protection as soon as he arrived in Australia. Instead, the Applicant made to applications to extend his Visa. It was 4 days before that Visa was to expire that the Applicant made his protection claim.

6. Having made all of those findings, it is not surprising that the AAT did not accept the story of the Applicant. Once the AAT made that finding, the AAT was entitled to make the decision that it did.

This Application

1. The Applicant brings this application to the Court on four grounds. These grounds were expanded upon in the affidavit of the Applicant filed on 13 February 2017.

2. During the hearing of this matter, the Applicant was assisted by an interpreter and also by his brother. I allowed the brother to also speak on behalf of the Applicant. I attempted to explain to the Applicant the nature of a jurisdictional error and that this hearing was not an appeal on the merits of the application.

Ground One

1. The first ground relied upon by the Applicant was that the AAT had committed a jurisdictional error. The Applicant argued that the AAT had erred in not accepting that the Applicant had a well-founded fear of persecution; by not accepting that there was a real chance of serious harm; and, by not accepting the substantial grounds that the applicant would suffer a real chance of significant harm if he was returned to Pakistan.

2. The Applicant further expanded upon this ground and referred, quite extensively, to the law on this matter. The problem for the Applicant is that the provisions, to which he has taken the Court, applied when there is an acceptance, or a non-rejection, of the evidence of the Applicant.

3. In other words, if the AAT had accepted the tale of the Applicant, or had not outrightly rejected that tale, then the AAT should have found that there was a “well-founded fear of persecution” and that the Applicant would suffer “serious harm” if returned to Pakistan.

4. But the AAT did reject the tale of the Applicant outright. It did not accept the evidence that he had given to the AAT and therefore there was no evidence that could have satisfied the AAT that the Applicant met the appropriate criteria.

5. It seems to me that this ground really descends into an application for merits review and that is impermissible. This ground, therefore, fails.

Ground Two

1. The Applicant claimed that the AAT, in finding that the Applicant had fabricated his claims, made a finding that was so unreasonable that no decision maker could have come to such a finding.

2. The Applicant has referred to the AAT guidelines for assessing credibility. The Applicant has also referred to other cases where Courts, in assessing the matters before them, have commented that, in their particular circumstances, a finding of “fabrication” or “manufacture” was going too far, and therefore unreasonable.

3. The claim is made that the AAT member has not approached their task with “honesty and integrity”. This claim are really is part of a number ground and I will comment upon that later in these reasons.

4. On the facts as found by the AAT, the conclusion that the Applicant had fabricated his tale was a conclusion that was open on the evidence. If the conclusion was open, then it cannot be said to be unreasonable.

5. This ground also fails.

Ground Three

1. The Applicant claims that there was a failure to take into account a relevant matter. It is necessary for the AAT to consider country information. This is especially so if the country information originates from the Department of Foreign Affairs and Trade (DFAT).

2. The Applicant claims that there was other material, in the form of “country information”, which the AAT failed to take into account. The Applicant has attached this material to the affidavit filed on 13 February 2017. This material is quite voluminous and, if it had been before the AAT, would have mandatorily been considered by the AAT.

3. However, this material was not before the AAT. I have gone through the “Green Book” which was filed in these proceedings and contains all relevant documents.

4. The material that the Applicant put before the AAT consisted of media reports about the killing of a singer in Pakistan and commentary on the position of the High Court. None of the material exhibited to the affidavit of the Applicant was before the AAT.

5. There has been no explanation as to why this material was not put before the AAT. It was material that was clearly available at the time.

6. The criticism is then made that the AAT relied on the DFAT material. The Applicant then criticises that material.

7. The Applicant then makes the following claim at page 22 of his affidavit:-

   “All documents aforesaid (referenced in and with the applicants filed statutory declaration) were filed with the FCCA registry on 01/11/16. Thus, the tribunal had actual (not merely constructive) knowledge of such documents and their respective submission.”

8. Such a submission does not make sense. If the documents were filed after the AAT made their decision, how could the AAT have had knowledge (whether actual or constructive) of these documents.

9. If the documents were not before the AAT, the AAT could never have considered them. It is trite to say that the AAT can only consider the material that is before them. The AAT did consider all of the material that was before them and did not fail to consider a relevant matter.

10. This ground also fails.

Ground Four

1. This ground alleges that procedural fairness was not afforded to the Applicant.

2. The first part of this ground alleges that the AAT did not comply with s.430(1)(d) of the Migration Act 1958 (Cth) (“the Act”). That section reads as follows:

   “ (1) Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:

   …

   (d) refers to the evidence or any other material on which the findings of fact were based; and…”

3. The AAT did produce written reasons and those reasons have been referred to extensively in the hearing. The complaint is that the reasons did not contain “the evidence or any other material on which the findings of fact were based”. The Applicant argues that the AAT did not refer to such matters as common law rulings, journal articles or NGO reports that would have been relevant to forming the decision that it made.

4. On my reading of the AAT reasons, the AAT has identified what they considered to be the relevant evidence.  The AAT has footnoted that it consulted a website (xe.com) regarding currency exchange, another website (Wikipedia) about the definition of a “lakh” and, on 3 occasions, a DFAT report.

5. It is not necessary for the AAT to go through “chapter and verse” everything that an Applicant had put before it and make comment on each and every aspect of that material. I cannot see how there has been procedural unfairness afforded to the Applicant such that would amount to a jurisdictional error.

6. The second part of this ground is an allegation of bias. The Applicant says this at page 23 of his affidavit :-

   “As a reasonable member of the public, a lay observer, with specific knowledge of the relevant case, the applicant does not believe the tribunal maintained, nor could be seen to have had an open, unbiased mind when conducting the hearing”.

7. That statement by the Applicant summarises the test for “apprehended bias”. That test is always referenced by “the independent lay observer at the back of the Court”. This is because of the adage that “justice must not only be done but must be seen to be done”.

8. However, this is not appropriate in matters in which there is a closed Court. There is no reason in a closed Court for there to be concern as to what “the independent lay observer at the back of the Court” may apprehend because that independent lay observer would not be permitted to be there.

9. It follows then, that in matters where there is a closed Court, the question is one of actual bias as opposed to apprehended bias. If there is no actual bias, then there will be no unfairness to any litigant. While the AAT is not a Court, the prohibition against bias is very much the same as if it were a Court.

10. Therefore, the Applicant must show that there has been actual bias by the AAT member before there could be a finding of procedural unfairness amounting to a jurisdictional error on that basis.

11. The Applicant has referred to the matter of ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30. In that matter, there had been an allegation of bias against a Judge. In that case, it was submitted that there were statistics demonstrating that approximately 99% of matters before that Judge were dismissed. The submission was that those statistics proved bias.

12. The absurdity of such a proposition is self-evident but the Full Court enumerated four reasons why that proposition was rejected. What the Applicant in this case has done is to look at those four reasons and to distinguish them from the present circumstances. The Applicant contends that having distinguished those 4 reasons to reject the proposition, the conclusion inevitably reached is that the AAT member was biased.

13. Such a proposition is quite illogical and I reject it.

14. The Applicant contends that the decision history of the AAT member indicates a pattern of discretionary prejudgement. The Applicant has appended a list of decisions made by that AAT member. It has not been shown to me that these are all the “refugee reviews” that the AAT member has conducted and thus it cannot be shown that the statistics do have any value.

15. Nevertheless, if it is assumed that this list is complete, the Applicant contends that the AAT member rejected 96.51% of all protection Visa application cases heard and in 80.72% of those cases, the rejection was because the AAT member found that the Applicant had been untruthful or had fabricated evidence. The Applicant submitted that these figures alone demonstrated bias.

16. Such a submission has no foundation. There is no context to those numbers and without context, those numbers are meaningless.

17. The Applicant further submitted that “given the unusually high number of protection Visa application rejections enforced” by the AAT member, this indicates an absence of honesty and integrity in the exercise of the duties as an AAT member. This is a scurrilous accusation to make and is completely without foundation.

18. There has been no evidence put before this Court that would show that in any of the “rejected” matters that the decision of the AAT member was wrong. There has been no evidence put before the Court that would show that any of the matters in which the AAT member found that the Applicant had been untruthful or had fabricated evidence, the AAT member had made a finding that was inconsistent with the evidence.

19. There has been no evidence put before this Court that the figures attributed to this particular AAT member demonstrates that this AAT member has an “unusually high number of protection Visa applications rejected”.

20. These “statistics” have absolutely no context to them. To use such statistics in this way to smear the reputation of a member of the AAT is absolutely abhorrent.

21. The Applicant has sought to distinguish the decision in ALA15 (supra). In doing so, the Applicant has applied the “independent observer” test which, for the reasons previously given, is not the applicable test in the present circumstances.

1. The facts in ALA15 (supra) can be distinguished because the hearings before a Court occur in “open court” and any member of the public can attend if they so desired. But a hearing before the AAT is a closed door process. Nevertheless, the observations are still somewhat applicable to this matter and the Applicant has failed to distinguish those observations.

2. There is insufficient evidence to show to me that the AAT member was biased; in fact, a reading of the reasons illustrates that the AAT member was fair, measured and considerate in her handling of this matter.

3. Therefore this ground also fails.

Conclusion

1. I have looked at all the material that the Applicant put before the Court. I listened carefully to everything he said to me.

2. I listened carefully to what the brother of the Applicant said to me.

3. It was not possible to not feel some sympathy for the Applicant and the brother. But decisions made by this Court must be made on principle and not on sympathy and emotion.

4. The conclusions made by the AAT were logical and in accordance with the evidence before it.

5. Obviously, the Applicant disagrees with those conclusions but they were conclusions reached after a proper examination of all the evidence before the AAT. As aggrieved as the Applicant may feel, this was a process that was conducted according to law.

6. I have concluded that there is no jurisdictional error on the part of the AAT established. Therefore this application is dismissed with costs fixed in the sum of $5.600.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 9 November 2017