Dki16 v Minister for Immigration

[2018] FCCA 2246

FEDERAL CIRCUIT COURT OF AUSTRALIA

DKI16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2246

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether Administrative Appeals Tribunal’s findings and conclusions were open to it – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 474, 476

Cases cited:

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

Applicant: DKI16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3130 of 2016

Judgment of: Judge Emmett

Hearing date: 15 August 2018

Date of Last Submission: 15 August 2018

Delivered at: Sydney

Delivered on: 15 August 2018

REPRESENTATION

The Applicant appeared in person

Solicitor for the Respondents: Mr Thomas Galvin
(Minter Ellison)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3130 of 2016

DKI16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 18 October 2016 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made on 8 July 2015 refusing the applicant a Protection (Class XA) visa (“Protection Visa”).

2. The applicant was unrepresented before this Court. However, the applicant did not have any need of an interpreter. The factual background and the Tribunal decision are accurately summarised in the first respondent’s submissions from paragraphs [3]-[10], as follows:

   “B     FACTUAL BACKGROUND

   3/ The applicant is a citizen of Pakistan, who arrived in Australia on 20 May 2012 as the holder of a student visa (Court Book (CB) 3). On 1 October 2013 he travelled offshore and returned to Australia on 3 November 2013 as the holder of the same visa (CB 121).

   4. On 28 August 2014 the applicant applied for a protection visa (CB 1–40), claiming that he could not return to Pakistan due to his fears of being harmed.  He claimed that he would be harmed on return to Pakistan because it would be known that he was returning from overseas and because his father has connections to Akbar Bugti (who was the head of the Bugti tribe of the Baloch people).  He claimed that he would not be able to obtain state protection because of corruption and the unstable political situation in Pakistan.

   5. On 8 July 2015, a delegate of the Minister (the delegate) refused to grant the applicant a protection visa (CB 120–129).

   6. The applicant subsequently applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate's decision and he appeared before it on both 15 September 2016 (CB 167) and 5 October 2016 (CB 188) to give evidence and present arguments.

   7. The Tribunal affirmed the delegate's decision on 18 October 2016 (CB 229–2440.

   C  TRIBUNAL DECISION

   8. Before reaching any factual findings about the applicant's protection claims, the Tribunal made the following findings about a number of preliminary matters:

   (a) The Tribunal was satisfied, after considering the medical evidence provided by the applicant to it and to the Minister's department, that the applicant had a real opportunity to put evidence and submissions in support of his case at the hearings on 15 September and 5 October 2016 (at [7]–[9]).  In particular, the Tribunal noted that it had scheduled the second hearing after the applicant stated he was 'tired' at the first hearing after discussing the majority of the applicant's claims (at [8]) and was of the view that he was able to respond to material questions put to him at the hearings in a meaningful way (at [9]).

   (b) Despite acknowledging the delay of over two years in the applicant lodging his protection visa application after his arrival in Australia, the Tribunal did not draw any inference from that delay (at [10]–[11]).

   (c) The Tribunal found that the First Information Report (FIR) provided by the applicant relating to an incident in Karachi in January 2012 was 'fraudulent/false' (at [19]).  This was because country information before the Tribunal indicated that document fraud in Pakistan was prevalent, including in relation to FIRs, and because of the applicant's own evidence about the FIR he provided containing a number of pieces of incorrect information (at [12]–[18]).  Despite this finding, the Tribunal accepted that in January 2012 his father was a witness to an incident in Karachi that involved two men firing guns (at [20]).

   9. In respect of the applicant's protection claims, the Tribunal made the following findings:

   (a) The applicant's family was not being harmed, harassed or questioned in Pakistan (at [27]), and the applicant had not been harmed, harassed or questioned whilst in Karachi between 2009 and 2012 (at [28]).

   (b) The applicant's father had been subject to some threats in 2006 after the death of Akbar Bugti, whom he had come to know, however those threats stopped shortly thereafter (at [34]).  While the applicant's father was approached once in 2007 or 2008, nothing else has happened to his father since that time (at [36]).

   (c) While the applicant's family was asked for on five or six occasions after 2008, this was not for any reason feared by the applicant or any reason that would now give rise to protection obligations in Australia (at [36]).

   (d) The January 2012 incident that the applicant's father was a witness to did not have anything to do with the father and did not relate to him for any reason, including because of his relationship with Akbar Bugti (at [38]).

   (e) While the applicant's father's car was stolen, this was by 'miscreants' and not because he (or the applicant) was of any adverse interest to anyone in Pakistan (at [40]).  The Tribunal was also not satisfied the incident now gave rise to protection obligations in Australia for the applicant (at [40]).

   (f) Based on the country information, the Tribunal was not satisfied that all persons residing in Karachi have a real chance of suffering harm because of current political and security situation, and, based on the other findings reached by the Tribunal, the applicant does not personally have a real chance of suffering harm if he returned to Karachi because of the political and security situation (at [46]).

   (g) The applicant's prior medical and social treatment did not indicate that he had been harmed in any way because of his health, nor would he in the future on the basis of the country information and the accepted claims (at [52]).  In any event, any harm would not be for a Refugees Convention reason (at [52]) and would not amount to significant harm (at [63]–[68]).

   (h) The applicant would not be harmed as a failed asylum seeker from a Western country even if he returned to Pakistan involuntarily, based on the Tribunal's findings about the applicant's profile and country information (at [55] and [57]).

   10. In light of these findings, the Tribunal found that the applicant did not have a real chance of suffering serious harm, or a real risk of suffering significant harm, in Pakistan. The Tribunal therefore concluded that the applicant did not satisfy the criteria contained in paragraphs 36(2)(a) or 36(2)(aa) of the Act and that he was not a person in respect of whom Australia has protection obligations.”

3. At the commencement of today’s hearing, I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider the applicant’s claims and to reach different findings or conclusions. I explained that the only issue before the Court is whether or not the decision of the Tribunal is made according to law. I explained that the Court has no power to interfere with the decision of the Tribunal unless the Court is satisfied that the decision is affected by a mistake that goes to the Tribunal’s jurisdiction,  and I further explained that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.

4. The applicant had legal representation soon after the filing of his initiating application on 14 November 2016. However, by January this year, the applicant’s solicitor had withdrawn his representation.

5. On 27 March 2017, orders were made by a registrar of this Court setting the matter down for hearing on 17 July 2018 before me. Those orders also gave the applicant leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.

6. At the commencement of today’s hearing, the applicant confirmed that he has not filed any Amended Application, evidence or submissions in support of his application and that he has no further documents to present to the Court this morning in support of his application.

7. The applicant confirmed that he relied on the ground contained in the Application filed on 14 November 2016, which is as follows:

   “I disagree with the tribunal’s decision so I wanna goto court and seek justice.”

   (Errors in original)

8. I explained to the applicant that the ground of his application did not disclose any error capable of review by this Court; however, he would have an opportunity to say whatever he wished by way of explanation of the ground and in support of his application generally.

9. The applicant was concerned that he did not have a lawyer, and repeatedly said that a lawyer would assist him. I suggested that perhaps he may be assisted if the solicitor for the first respondent, Mr Galvin, made submissions on behalf of the first respondent explaining why it was that the first respondents took the view that the Tribunal’s decision was not affected by jurisdictional error. Both parties agreed to that course of action.

10. Mr Galvin then went carefully through the statement of reasons of the Tribunal, particularly in relation to its critical findings.

11. Of particular relevance was the fact that the applicant had two Tribunal hearings. At the first hearing, on 15 September 2016, which the applicant attended, he told the Tribunal he was tired, and, at the Tribunal’s suggestion, a second hearing was scheduled for 5 October 2016.  At the second hearing, the Tribunal noted that the applicant said he had taken two sleeping tablets at around 8 pm the night before.

12. The applicant had lodged numerous medical reports, both prior to the first Tribunal hearing and prior to the second hearing, about his health conditions. The Tribunal noted that one of the medical reports diagnosed the applicant with paranoid delusional disorder, and that the applicant had been prescribed expensive medication, which the applicant took for a month and then decided that the medication did not assist him, and he returned to a former doctor. The applicant then recommenced taking medication prescribed by the former doctor for obsessive compulsive disorder, depression and an anxiety disorder.

13. The Tribunal then concluded as follows:

    “9. That being said, a principal responsibility for the Tribunal (including at a hearing) is to ensure that an applicant has a real opportunity to put evidence and submissions in support of their case. In this case and after having discussed the claims at two hearings, I am satisfied the applicant was given this opportunity. That is because he was able to respond to material questions put to him at the hearings, in an apparently meaningful way.”

14. The Tribunal noted that the applicant had arrived in Australia on 19 May 2012, yet had not applied for a Protection Visa until 28 August 2015. However, the Tribunal determined not to draw any inference from the applicant’s delay in lodging his Protection Visa application. The Tribunal noted the applicant’s explanation that his obsessive compulsive disorder had prevented him from studying and possibly lodging a Protection Visa application.

15. Tribunal then considered a “First Information Report” (“FIR”) purportedly relating to an incident in Karachi around 21 January 2012. However, ultimately, having discussed that document with the applicant, and based on the applicant’s evidence and country information before it about the prevalence of document fraud in Pakistan, the Tribunal found that the FIR document was fraudulent, and had no further regard to it.

16. The Tribunal then identified preliminary findings that it had made before it proceeded to consider whether the applicant met the refugee criteria under s.36(2)(a) of the Act. Ultimately, for various reasons which are referred to in the first respondent’s summary of the Tribunal’s decision record set out above, the Tribunal concluded that the applicant did not have a real chance of suffering harm in Pakistan for any reason that he had claimed.

17. The Tribunal noted that at the first Tribunal hearing the applicant had agreed that violence, including around Karachi, had been reduced, although the applicant said that his own fear remained. The Tribunal concluded as follows:

    “46. However, based on the country information, the Tribunal is not satisfied that all persons residing in Karachi have a real chance of suffering harm. Importantly, and based on the country information and the findings herein, neither am I satisfied the present applicant has a real chance of suffering any harm should he return to reside with his family in Karachi (Pakistan), for any reason discussed herein.”

18. The Tribunal identified with particularity country information to which it had regard, and noted that it discussed that information with the applicant at the hearing. It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

19. The Tribunal then spent some time in its consideration of the applicant’s health, and noted in particular the history of the applicant’s health problems, and further discussed with the applicant the stigma which may attach to talking publicly about mental health. The Tribunal found that on the applicant’s own evidence, the applicant was not denied any available treatment in Pakistan, and was able to obtain a tertiary education in Pakistan.

20. Tribunal also noted that the applicant had been able to travel both to the United Kingdom and Australia, and that his family appeared to have access to funds necessary for these and presumably other opportunities.

21. Ultimately, the Tribunal concluded as follows:

    “52. Importantly, and based on the country information seen and the accepted claims, the Tribunal is not satisfied there is a real chance the applicant would suffer serious harm should he return to Pakistan, for any reason discussed above. Further, and even if the applicant did suffer harm for any reason discussed above, based on my findings and the country information considered, I am not satisfied that an essential and significant reason for same includes one of the Refugees Convention reasons.”

22. The Tribunal then considered whether the applicant was at risk of harm as a failed asylum seeker and concluded that he was not, finding as follows:

    “57. At any rate, based on my findings (including about the applicant’s activities in Australia), and the country information cited, I am not satisfied the applicant has a real chance of suffering any harm in Pakistan, for any reason discussed above, including if he is involuntarily returned to Pakistan as a failed asylum seeker from a western country.” 

23. The Tribunal then considered whether or not the applicant met the complementary protection criteria under s.36(2)(aa) of the Act and again concluded that, for the reasons that it had not been satisfied the applicant was at harm or met the criteria in s.36(2)(a) of the Act, neither was the applicant at risk of significant harm in Pakistan if he was to return. In considering the risk of significant harm, the Tribunal made the following conclusions:

    “69. Based on those of the applicant’s claims that I have accepted, and the country information in the sources cited herein, I do not accept the applicant has a real risk of suffering the death penalty in Pakistan. Based on the accepted facts and the country information in the sources cited herein, the Tribunal is also not satisfied the applicant has a real risk of suffering degrading treatment or punishment arising from an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, in Pakistan. Next, based on the country information and accepted facts, I am not satisfied the applicant has a real risk of suffering harm that is intentionally inflicted on him (cruel or inhuman treatment or punishment); and for the same reasons, I am not satisfied the applicant has a real risk of suffering relevant harm that is intentionally inflicted on him (torture) in Pakistan. Further, and again for the same reasons, the Tribunal is not satisfied the applicant has a real risk of suffering arbitrary deprivation of life in Pakistan.”

    (Emphasis in original)

24. The Tribunal ultimately concluded that the applicant did not satisfy the criteria either in s.36(2)(a) or s.36(2)(aa) of the Act and accordingly affirmed the decision under review.

25. Following Mr Galvin’s submissions, the applicant was given a further opportunity to say whatever he wished in response to anything that he had heard or anything further in support of his application.

26. Again, the applicant said that he felt he was at a difficulty because he did not have a lawyer and that a lawyer may have been able to put his arguments in a better light. I am not persuaded that that is the case.

27. The Tribunal’s findings were open to it on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings. The Tribunal’s credibility findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issue of credibility. The Tribunal’s findings were not tainted by any failure to afford procedural fairness or reaching a finding without a logical or probative basis, or unreasonableness and were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

28. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

29. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant, explored those claims with the applicant at a hearing and had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal identified independent country information to which it had regard and which it discussed with the applicant. The Tribunal then made findings based on the evidence and material before it which, as stated above, were open to it for the reasons given.

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law, and in the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review. 

2. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision, and accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

3. The proceeding before this Court should be dismissed with costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date:  21 August 2018