DJB24 v Minister for Home Affairs

[2024] FedCFamC2G 1136

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DJB24 v Minister for Home Affairs [2024] FedCFamC2G 1136   

File number:

PEG 192 of 2024

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

4 November 2024

Catchwords:

MIGRATION – Administrative Appeals Tribunal Permanent Protection (class XA) (subclass 866) visa) - grounds of judicial review invite the Court to engage in impermissible merits review – no jurisdictional error established – application dismissed.  

Legislation:

Migration Act 1958 (Cth) ss 5H (1), 5J(1),(2), (3), 36(2)(a) 36(2)(aa), 65.

Migration Regulations 1994 (Cth) Schedule 2.

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

ABT17 v Minister for Immigration and Border Protection [2020] HCA 34

DCC17 v Minister for Home Affairs [2019] FCCA 621

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

Fox v Percy [2003] HCA 22

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 WZATH v Minister for Immigration and Border Protection [2014] FCCA 612

WZATH v Minister for Immigration and Border Protection [2014] FCA 969)

Division:

Division 2 General Federal Law

Number of paragraphs:

40

Date of hearing:

30 October 2024

Place:

Perth

Solicitor for the Applicant:

Self-represented litigant

Solicitor for the First Respondent:

Mr Mayne (Sparke Helmore)

Solicitor for the Second Respondent:

Submitting appearance, save as to costs.

ORDERS

PEG 192 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DJB24

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	4 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The application filed on 4 June 2024 is dismissed.

2.The Applicant is to pay the First Respondent’s costs fixed in the sum of $6500.00.

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).

REASONS FOR JUDGMENT

JUDGE D HUMPHREYS

INTRODUCTION

1. This is an application for judicial review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”) on 1 May 2024. The Tribunal affirmed the decision of a delegate of the Minister for Home Affairs (“delegate”) not to grant the applicant a Permanent Protection (class XA) (subclass 866) visa (“protection visa”). For the reasons set out below the application must be dismissed.

   BACKGROUND

2. The applicant is a 50-year-old male citizen of Pakistan who first arrived in Australia on 04 February 2012 on a Student (subclass 572) visa, as a dependant visa holder.  Since this period, the applicant has held two Student Further Stay (subclass 572) visas, as a dependent visa holder, and a series of different bridging visas.

3. The applicant applied for the protection visa on 17 July 2017. He claimed that he had been a social activist and member of the Pakistan Muslim League-Kaaf (“PML-Q”) whilst in Pakistan. He claimed to have led many campaigns and was beaten by persons associated with the “People Party of Punjab”.

4. A request was sent to the applicant to attend an interview on 27 February 2019. During the interview, the applicant stated that his father had suffered a heart attacked and was admitted to the hospital for a few days, that he was divorced from his wife, who was still in Australia with their two children, and that he supported them financially.

5. After the interview, the applicant provided a written statement which claimed he was a “social worker” for the PML-Q, he campaigned for the party, and was attacked by members of the Pakistani People’s Party (“PPP”) due to his activities for the PML-Q.

6. The delegate refused to grant the protection visa under s 65 of the Migration Act 1958 (Cth) (“the Act”) on 21 June 2019.

7. The applicant applied on 2 July 2019 to the Tribunal to review the delegate’s decision. The applicant attended a hearing in April 2024 without his representative. His representative had informed the Tribunal’s registry the day before the hearing and after the registry had closed, that they could not attend due to their unavailability. The Tribunal had regard to the late withdrawal of the applicant’s representative and the reasons for that withdrawal. As a result, the hearing was adjourned, and the applicant was invited to provide written submissions and any further evidence within 12 days. The applicant was invited to and attended a second hearing. At that hearing, he was represented and called a witness who gave evidence via telephone.

8. On 1 May 2024, the Tribunal affirmed the decision under review and refused to grant the applicant a protection visa.

   THE ADMINISTRATIVE APPEAL’S DECISION

9. The Tribunal considered the criteria for a protection visa as set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal found the applicant was not a refugee within the meaning of section 5H(1). The applicant therefore did not meet the criterion in section 36(2)(a) of the Act. The Tribunal also found the applicant was not a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act. The decision not to grant the applicant a protection visa was therefore affirmed.

10. The Tribunal was satisfied that Pakistan was the applicant’s country of nationality and the receiving country.

    Findings

11. The Tribunal did not accept that the applicant was a social worker, social activist, or senior active member of PML-Q. The Tribunal did not accept that the applicant was ever a member of PML-Q or that the applicant had joined the Pakistan Tehreek-e-Insaf (“PTI”) either in 2008, 2009 or subsequently. The Tribunal did not accept that the applicant was involved, in any capacity, in election campaigns or politics in Pakistan for the PML-Q or any other party including the PTI. The Tribunal further rejected that the applicant has any adverse profile, either actual or imputed, in Pakistan. The Tribunal did not accept that the applicant was ever attacked at any time. The Tribunal did not accept that the applicant received threats of any kind, let alone death threats.

12. The Tribunal stated that it did not accept that the applicant will involve himself in politics or that any reluctance to do so would involve a modification of behaviour prohibited by s 5J(3) of the Act. The Tribunal found that politics is not a fundamental interest or characteristic of the applicant and that he does not have any real desire to involve himself in politics other than as a citizen, who is entitled to and does, vote in elections. The Tribunal did not accept the applicant would face a real chance of harm, let alone serious harm, as a citizen who is entitled to, and does vote in elections. 

13. The Tribunal made reference to the applicant’s written submissions which described him as “not a very high-profile political leader” and being “just a normal political party worker”. The Tribunal reiterated their rejection of the claimed attack including whether it ever occurred or that the claimed threats occurred. The Tribunal stated that the applicant’s written submission relied on circumstantial evidence. The Tribunal also had regard to country information, authored by the Department of Foreign Affairs & Trade (“DFAT”) and published in 2022, cited by the applicant, about political violence in Pakistan. This included a 2011 report about Human Rights Practices.

14. Having regard to the abovementioned findings, the applicant’s submissions and the referenced country information, the Tribunal did not accept that the applicant faced any risk of harm, let alone a real chance of harm, on account of his actual or imputed political opinion or for any other reason, either now or in the reasonably foreseeable future, if he were to be returned to Pakistan. The Tribunal noted that in the event, contrary to their conclusion, the applicant was to involve himself in politics on his return, the Tribunal was not satisfied that he would have, actually or by imputation, a profile that would lead to him being targeted for serious harm based on the country information before them. They stated his involvement would be at the “lowest of levels” and was satisfied he would not draw sufficient attention to result in him facing a real chance of serious harm. 

15. The Tribunal noted that, whilst not the subject of any express claim, the applicant had frequently referenced his desire to stay in Australia to support his former wife and his children. The Tribunal did not accept that separating the applicant from his wife and children would involve serious harm within the meaning of the Act.  

16. As to the applicant’s claims, including consideration of the claims in a cumulative manner, the Tribunal did not accept that the applicant faced a real chance of serious harm for any reason. Therefore, the Tribunal was not satisfied the applicant had a well-founded fear of persecution within the meaning of section 5J(1) of the Act. In these circumstances, the Tribunal stated that it was not necessary for them to determine whether section 5J(2) or (3) applied to the applicant.

17. The Tribunal found that the applicant was not a refugee within the meaning of section 5H(1) of the Act. On this basis, the applicant did not meet the criterion in section 36(2)(a) of the Act.

18. The Tribunal also considered the complementary protection criterion under section 36(2)(aa) of the Act. The Tribunal found that there were not 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 they will suffer significant harm. The Tribunal were also not satisfied the applicant would be exposed to significant harm for any other reason, including on a cumulative consideration of his claims. The Tribunal concluded the applicant was not owed or did not otherwise meet the complementary protection criterion. 

19. Accordingly, the Tribunal affirmed the decision not to grant the applicant a protection visa.

    GROUNDS OF JUDICIAL REVIEW

20. The grounds for judicial review are contained in the Originating Application filed on 6 June 2024 and are as follows:

    1.The applicant fears serious harm to his life and property if he goes back to Pakistan, his home country.

    2.His political opponents, the current ruling party may use their power and influence to take revenge from the applicant and the applicant will not be able to defend himself.

    3.With respect, it is submitted that section 5H(1)(a) of the Migration Act has not been correctly applied in this case. The applicant respectfully requests that the court reconsider this matter.

    THE APPLICANT’S SUBMISSIONS

21. The applicant appeared before the Court unrepresented.  He was assisted by an interpreter.  Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the respondent’s written submissions had been received by him.  The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.

22. At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review.  The Court also explained the procedure by which the hearing would be undertaken.

23. Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case. The applicant told the Court that if he is returned to Pakistan he will be killed. He stated that on ‘that day’ he got news his mother had died and was not able to answer questions that were put to him fully. Asked when ‘that day’ was he replied it was the day he went to the Departmental offices, as well as the day of the hearing at the Tribunal.

24. The applicant explained that his children were in Australia studying, the oldest was in his third year of studying medicine. His youngest was working to get grades to study medicine. Even though he was divorced he was financially supporting his children.

25. At the conclusion of the respondent’s oral submissions, the applicant was asked if he wished to state anything in reply.  He answered that if he went back, he would not be safe and will be killed. Further he forgot to say things when he needed to.

    THE FIRST RESPONDENT’S SUBMISSIONS

26. The first respondent submits that both grounds one and two invite the Court to engage in an impermissible merits review; (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, [281]-[282]). The grounds fail to identify any jurisdictional error and cannot be considered proper grounds of review; (WZATH v Minister for Immigration and Border Protection [2014] FCCA 612, [60] (“WZATH”) Judge Lucev upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969). The first respondent contends that on this basis, the grounds should be dismissed.

27. The first respondent submits that the applicant’s assertion that the Tribunal did not correctly apply s 5H(1)(a) of the Act is without merit. It lacks particularity in how it was misapplied and should be dismissed on this basis alone (WZATH).

28. The first respondent further contends that in any event, it is difficult to see how this ground could succeed in circumstances where the Tribunal considered the applicant’s evidence and concluded, after lengthy deliberation explained in a 20-page decision, that he could not be considered a refugee within the meaning of section 5H(1) of the Act. This finding was open, justified in its reasons and cannot be said to have been unreasonable (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [48]), especially in circumstances where the applicant continuously changed his evidence and defaulted to asserting a bad memory when questioned on such inconsistencies (for example at CB 195, [39], CB 196-197, [48], [49], CB 200 [69]).

29. Far from demonstrating any error, the first respondent submits that “the applicant’s application failed because he was not believed” citing DCC17 v Minister for Home Affairs [2019] FCCA 621 at [6]. The first respondent states it was hardly surprising that the Tribunal did not believe the applicant, noting the extensive inconsistencies and unimpressive delivery of oral evidence by the applicant at the hearing.

30. Further, the Tribunal did specifically accept that the applicant’s mother had passed away, but was concerned with the significant inconsistencies within his evidence.

    CONSIDERATION

31. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:

    … an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister.  The Court does not consider the merits or wisdom the decision; nor does it remake the decision.  The task of the Court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.

32. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [2] – [3], the High Court had the following to say about jurisdictional error:

    [2] Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. Though a decision affected by jurisdictional error is a decision in fact, it is "in law ... no decision at all" and is in that sense "void".

    [3] Because an express or implied condition of a statutory conferral of decision‑making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. Jurisdictional error can result from breach by a third party of a condition of a statutory process preceding a decision, but more often results from breach by a statutory decision-maker of a condition of the making of a decision. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.

33. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]. Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at [348]. It is for the applicant to satisfy the Tribunal, being the relevant decision maker, that the applicant meets the criteria for being a refugee: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].

34. Grounds one and two are not proper grounds of judicial review, rather they seek to take issue with the Tribunal’s ultimate findings and invite the Court to engage in impermissible merits review. Grounds one and two have no merit.

35. Ground three is an assertion that the Tribunal did not correctly apply s 5H(1)(a) of the Act. No particulars are provided as to how the Tribunal incorrectly applied the section. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].

36. The Tribunal decision sets out in significant detail the claims made by the applicant together with the reasons why the Tribunal was not prepared to accept the applicant’s evidence. This included significant concerns as to his credibility, based on inconsistent evidence in relation to a number of matters, for example in relation to his employment at [53]. It is well established that the Tribunal enjoys an advantage of fact to test the veracity of the evidence given orally by observing the witness: Fox v Percy [2003] HCA 22 at [41]; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [62] per Nettle J.

37. The Court is satisfied that the Tribunal’s ultimate findings were open to it on the evidence that was before it and for the reasons it gave. There is nothing illogical, irrational, or legally unreasonable in these findings. The Tribunal set out in considerable detail the inconsistencies in the applicant’s evidence and how this led it to disbelieve the applicant’s claims.

38. The Court is not satisfied there was any incorrect application by the Tribunal of s 5H(1)(a). Ground three has no merit.

1. None of the matters raised by the applicant in his oral submissions went to the question of jurisdictional error, rather they went to the merits of the matter.

   DETERMINATION

2. As the applicant is self-represented, the Court has carefully perused the Court Book and other relevant documentation in relation to the matter but is unable to ascertain any un-articulated jurisdictional error. In these circumstances, the application must be dismissed.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       4 November 2024