DPC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 386
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DPC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 386
File number(s): MLG 2549 of 2016 Judgment of: JUDGE DAVIS Date of judgment: 9 December 2021 Catchwords: MIGRATION – application for judicial review – protection – where grounds are not particularised – application dismissed Legislation: Migration Act 1958 (Cth), ss 45AA, 36
Migration Regulations1994 (Cth) 2.08F
Cases cited: CNN15 v the Minister for Immigration and Border Protection [2017] FCA 579
Minister for Immigration and Multicultural Affairs v Ex Parte Durairajasingham [2000] HCA 1
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC
SZRKF v the Minister for Immigration [2020] FCA 1389
WZATH v the Minister for Immigration and Border Protection [2014] FCA 969
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 73 Date of last submission/s: 9 December 2021 Date of hearing: 9 December 2021 Place: Melbourne Solicitor for the Applicant: Mr Warraich Solicitor for the Respondents: Ms McInnes Table of Corrections 10 May 2022 In the ‘date of hearing’, ‘date of orders’ and ‘date of judgment’ rows, the date has been changed from 24 November 2021 to 9 December 2021. ORDERS
MLG 2549 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DPC16
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRATION SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DAVIS
DATE OF ORDER:
9 DECEMBER 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant is to pay the first respondent’s costs fixed in the sum of $6,000.00.
3.The name of the first respondent be amended in the Court record to the ‘Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs’.
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
JUDGE DAVIS
I have before me an application for judicial review commenced 24 November 2016 (Substantive Application).
ADJOURNMENT APPLICATION
The applicant applies to adjourn the hearing of that application. The Court received no notice of the application to adjourn. The application was made orally, by Mr Warraich of the solicitors, who represent the applicant in the review application. Those solicitors have been on the record in this matter since 12 October 2021.When precisely they commenced acting for the application I do not know.
Ms McInnes, a solicitor from the Australian Government Solicitor’s Office, appeared on behalf of the Minister.
There was no appearance on behalf of the second respondent, the Tribunal. The Tribunal has taken no active role in the proceeding.
The context of the application for the adjournment ought be understood. In addition to the fact that the application for review was commenced over five years ago, on 24 November 2016, that application contains two grounds.
The first of those grounds simply says the decision of the Tribunal:
(a)is affected by an error of law; and
(b)it denied the applicant procedural fairness.
There are no particulars whatsoever of that ground. Without such particulars, it is impossible for the Court to discern what the applicant’s complaint is.
The applicant’s grounds were described by Ms McInnes, the solicitor who appears on behalf of the Minister before me today, as placeholder grounds. Ms McInnes submitted to me that, in this area, they are commonly referred to as the placeholder grounds produced by the Asylum Seeker Resource Centre.
Also, as submitted by Ms McInnes, the second putative ground of review tellingly says:
I am seeking legal advice and assistance in relation to my application.
Plainly, that is not in the nature of a ground. However, it does constitute an acknowledgment by the applicant that, some five years ago, he recognised that he required legal assistance in this matter.
Ms McInnes asked me to infer that such recognition was also implicit from the fact that the Asylum Seeker Resource Centre appears to have assisted – in some way, at least – in the preparation of the affidavit in support of the application. In a sense, I need not draw that inference, because it is clear on the face of the application that the applicant was aware that he required legal assistance.
The applicant gives no explanation for his delay in this matter at all.
The periods of delay can be viewed in two tranches.
First, the applicant does not explain why he delayed for a period of nigh on five years from the commencement of his application to appoint solicitors or, at least, to instruct them to go on the record.
Secondly, the applicant gives no explanation of any substance for his delay between the date of those solicitors going on the record and today in promoting grounds for a review in amended form and providing written submissions, as he was ordered to do.
Also, it must be remembered that this matter has been set down for hearing for a period in excess of three months. The applicant has not filed any affidavit material whatsoever with the Court explaining any of the matters referred to above.
Be that as it may, taking Mr Warraich’s explanations at their highest, they leave the applicant bereft of an explanation for his delay in obtaining legal representation, as well as in taking steps to promote his application, between the commencement of his application and when his solicitors went on the record on 12 October 2021.
The applicant has not satisfactorily explained his delay after 12 October 2021. Mr Warraich submitted to me this afternoon that he required further documentation in order to prepare an amended application for judicial review and submissions in support.
When I asked Mr Warraich what that documentation was, he simply said that he did not know. Accordingly a reason given for the delay between 12 October and the present was that Mr Warraich did not have the advantage of unspecified information that he was not able to describe or identify in any way.
Likewise, when challenged by Ms McInnes, Mr Warraich was unable to identify a ground of review to which the unspecified information may relate, or articulate any such ground in any form. Indeed, Mr Warraich candidly submitted to me that he did not know whether the information, whatever might be, would assist him to promote the applicant’s case for judicial review.
That means that the Court is being asked to adjourn this matter on the basis of an unexplained delay with an unidentified purpose. That is, although the stated purpose is for the applicant to have more time to explore the prospect of there being information to support an application, he has not made submission which would allow me to find that the unspecified information might be directed to any viable ground of review.
A curiosity of the delay between 12 October 2021 and now is that I am informed by Ms McInnes that, on 12 November 2021, the applicant directly contacted her office and requested that it provide recordings or documents in connection with the applicant’s interview as an unlawful maritime entrant to this country as well as his visa interview by the delegate. Ms McInnes informs me that those documents were supplied to the applicant on 12 November 2021; that is, the day on which they were requested. Ms McInnes told me that she was concerned by the fact that the applicant had contacted her office directly, in circumstances where he was represented. She explained that no notice of that representation had been given to the office of the Australian Government Solicitor.
Amplifying the curiosity yet further, when I squarely asked Mr Warraich whether he had been given copies of these documents by the applicant, he responded that he had not. If I accept that submission, as I must, that means that not only has the applicant not satisfactorily explained his delay between 12 October 2021 and the present, but that he was responsible for the consequences of at least some of that delay.
Having regard to all of the circumstances and the reasons that I have given so far, I propose to refuse the application for the adjournment.
In doing so, I note that Mr Warraich initially referred to the fact that COVID restrictions had made things difficult for the Applicant. However, almost immediately after making that submission, he accepted that there were no relevant restrictions in place in this State, at least from about a week after he was appointed.
Also, I reiterate that the high order considerations for my refusal of the adjournment application include the very long periods of unexplained delay by the applicant in the prosecution of his application, including delay which appears to be as a result of his choice. Further, despite seeking an adjournment in order to seek documents, Mr Warraich has not identified those documents nor a ground or purpose to which those documents would be used.
SUBSTANTIVE APPLICATION
By his Substantive Application, the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 11 November 2016. By his application the applicant seeks the following relief:
(a)an order that the decision of the Tribunal be quashed;
(b)a writ of mandamus directed to the Tribunal, requiring it to determine the applicant’s application according to law;
(c)a declaration that the decision of the Tribunal was not made in accordance with law by reason of the grounds of this application, and is void and of no effect;
(d)an injunction restraining the Minister, by himself or by his department, officers, delegates or agents, from making the future decision or taking the other action the subject of the proceedings.
PROCEDURAL HISTORY
Before the delegate
The applicant is a 27 year old male Pakistani national. He arrived in Australia on 9 July 2012 as an unauthorised maritime arrival.
The delegate’s file records that the applicant applied for the visa on 18 December 2012. That application was signed by him on 10 December 2012. The application was for a protection class XA subclass 866 visa.
From December 2014 the application was converted into an application for a temporary protection class XD subclass 785 visa (Visa) by operation of section 45AA of the Migration Act 1958 Commonwealth and regulation 2.08F of the Migration Regulations 1994 Commonwealth.
On 4 June 2015 the delegate refused to grant the Visa. In support of the Visa application, the applicant made a statutory declaration on 10 December 2012. By that declaration the Applicant claimed that the Taliban had obtained his home telephone number in Pakistan and made threats to kidnap and kill him.
The applicant is a Turi of Pashtun ethnicity and Shia Muslim religion. In his declaration he said that these threats were based on his religious identification as a Shia. He also claimed that the threats had continued by way of telephone calls to his father after he had fled Pakistan and, if he returned, his life would be in danger.
Before the Tribunal
On 17 June 2015 the applicant lodged an application for merits review of the delegate’s decision at what was then known as the Refugee Review Tribunal.
On 11 November 2016 the Tribunal affirmed the decision of the delegate to refuse the visa to the applicant. Amongst other things, the Tribunal’s decision records the following, under a heading ‘Overall Findings on Future Harm’:
(a)Having considered all of the applicant’s claims separately and cumulatively, the tribunal does not accept that he faces a real chance of serious harm for reasons of his ethnicity, religion, imputed political opinion, membership of any particular social group or any other Convention-ground if he were to return to Pakistan. The tribunal therefore does not accept that the applicant faces a well-founded fear of persecution. (At [64].)
(b)For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a). (At [66]).
(c)Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa). (At [67]).
In this Court
Again, on 24 November 2016, the Applicant applied to this Court seeking review on the following grounds:
(1)The decision of the tribunal:
a.is affected by an error of law; and
b.denied the applicant procedural fairness.
(2)I am seeking legal advice and assistance in relation to my application.
On 24 May 2017 Registrar Allaway made orders for the setting down of the proceeding. Such orders included directions for the time by which the applicant was to file any amended application with proper particulars as well as any written submissions.
A court bundle was filed by the Minister on 7 June 2017.
No submissions have been filed by the applicant, nor has he filed any amended grounds with proper particulars. Likewise he has not filed any particulars of his existing grounds.
On 23 November 2021, the Minister filed an outline of submissions.
APPLICANT’S SUBMISSIONS
As I have set out above, at the commencement of the hearing Mr Warraich, on behalf of the applicant, made an application for an adjournment. I declined that application for reasons identified above, which I gave orally a short time ago. Having declined the applicant’s application for an adjournment Mr Warraich proceeded to make submissions in support of the Substantive Application.
Mr Warraich informed the Court that he had the first respondent’s written submissions.
I characterise Mr Warraich’s submissions as falling into four categories.
The first was that there was an error of law on the basis that, as Mr Warraich said, not all of the personal circumstances of the applicant were considered by the Tribunal. Putting that same proposition slightly differently, Mr Warraich said that the Tribunal only engaged in a generic assessment of the facts in relation to the applicant’s case.
The second category of submission made by Mr Warraich was that the country information relied upon was not specific to the applicant’s circumstances and personal fears, but again, it was generic.
The third category of submission made by Mr Warraich was that, in similar cases, visas had been granted and/or that tribunals had reviewed decisions of delegates to refuse visas favourably to the applicant.
The fourth category of submissions made by Mr Warraich was that if I were to remit the matter to the Tribunal, then there was a prospect of a better outcome having been obtained by the applicant.
FIRST RESPONDENT’S SUBMISSIONS
Ms McInnes then made her submissions in chief. Ms McInnes relied on the Minister’s extensive written submissions and, in addition, made submissions, in broad terms, that:
(a)the Tribunal had provided detailed reasons that ran to some 15 pages;
(b)the applicant’s personal circumstances were taken into account by the Tribunal;
(c)the weight to be put on country information was, classically, a matter for the Tribunal; and
(d)finally, the suggestion that if I were to remit the matter to the Tribunal there may be a better outcome for the applicant was not a recognised ground of review.
Amongst other things, by [12] to [21] of the Minister’s written submissions the Minister made various observations on the Tribunal’s decision. I extract those observations as follows.
12. The Tribunal identified that the issue in the case was whether the applicant would face a real chance of serious harm, or a real risk of significant harm if he returned to Pakistan because of his Turi tribe, Pashtun ethnicity, Shia Muslim religion, imputed anti-Taliban political opinion arising as a Shia from Upper Kurram and as a member of the particular social group of students: CB 215 [25].
13. The Tribunal considered the applicant’s claim to have received threatening phone calls from the Taliban. The Tribunal found the applicant’s evidence to be vague and generalised. It noted that his evidence was inconsistent regarding when the phone calls commenced. It also noted that the applicant did not mention the phone calls in his original entry interview. The Tribunal did not accept that the applicant or his family received threatening phone calls at any time from the Taliban: CB 215 [27]-[30].
14. The Tribunal accepted that the Taliban may have publicly distributed propaganda pamphlets, and that the applicant may have seen such a pamphlet. However, based on the limited information available, the Tribunal did not accept that the applicant or his father had personally received a warning letter: CB 216 [31].
15. The Tribunal accepted that the general situation in Parachinar led the applicant to leave Pakistan: CB 216 [32].
16. The Tribunal considered the applicant’s claims as a Turi Shia and imputed anti-Taliban political opinion: CB 216-222 [33]-[55]. The Tribunal considered that the weight of country information showed a significant improvement in the situation in Kurram Agency since 2014: CB 220[47]. While some violence continues to occur, the Tribunal concluded that the applicant did not face a real chance of serious harm or real risk of significant harm due to his Turi ethnicity, Shia Muslim faith or imputed anti-Taliban opinion: CB 221 [51].
17. The Tribunal noted that at the hearing the applicant resiled from any claim arising out of his Pashtun ethnicity: CB 222 [54].
18. The Tribunal accepted that there is a level of generalised violence in Kurram Agency; however, the level was not such that the applicant faced a real risk of significant harm: CB 222 [55].
19. The Tribunal considered the applicant’s claim to fear harm as a Shia student and/or educated Shia: CB 222-223 [56]-[58]. The Tribunal noted that the applicant was no longer a student and had not been for four years: CB 222 [57]. The Tribunal considered country information and found that the applicant faced no more than a remote chance of serious or significant harm as a student, Shia student or an educated Shia: CB 223 [58].
20. The Tribunal considered a claim raised at the hearing to fear harm based on his presence in Australia: CB 223-224 [59]-[63]. The Tribunal found it far-fetched and speculative that the Taliban would come to know about the applicant’s presence in Australia or his asylum request: CB 223 [61]. The Tribunal also found that the applicant had left Pakistan legally on his own passport: CB 224 [62]. While the applicant may be questioned by authorities on his return to Pakistan, country information does not suggest that individuals are harmed during such questioning. The Tribunal found that such questioning does not amount to either serious or significant harm: CB 224 [63].
21. For these reasons, the Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (the Act) and affirmed the decision under review: CB 224-225 [64]-[69].
By [25] to [28] of the Minister’s written submissions the Minister submitted, in staccato form, why he did not consider that the applicant had established jurisdictional error.
I extract those submissions and the heading which precedes them below:
The applicant was not denied procedural fairness
25. Section 422B of the Act provides that Div 4 of Pt 7 of the Act is an exhaustive statement of the requirements of natural justice in a matter such as this.
25.1. On 3 August 2016, the applicant was sent an invitation to attend a hearing before the Tribunal for the purpose of s 425 of the Act.
25.2. As required by s 425A of the Act, an invitation providing notice of the day, time and place of the hearing was sent via a method prescribed by reg 5.02 of the Regulations to the applicant's migration agent. The migration agent was a person who was authorised to receive the documents on behalf of the applicant under s 441G of the Act.
25.3. The applicant's migration agent was deemed by s 441C of the Act to have received the notice at least 7 days before the hearing as required by r 4.35D of the Regulations.
26. The applicant appeared before the Tribunal at a hearing, and was given a real and meaningful opportunity to be heard. There was no breach of the requirements of procedural fairness set out in Div 4 of Pt 7 of the Act.
The Tribunal did not make any error of law 27. The Tribunal considered the multiple bases upon which the applicant claimed to fear harm if he returned to Pakistan. The Tribunal did not accept that there was a real chance of serious harm or a real risk of significant harm having taken into account relevant country information.
28. To the extent that the Tribunal’s findings relied on country information, the weight to be given to that information is a matter for the Tribunal itself as part of its fact finding function: NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11].
CONSIDERATION
I now consider the various submissions.
Mr Warraich put no flesh put on the bones of his submission that the Tribunal did not take the applicant’s personal circumstances into account, but rather made a generic assessment of them. That is, it is not possible for the Court to understand the thrust of the first category of submission because it does not identify which personal circumstances the Applicant submits were not taken into account.
That position is exacerbated in the context of generic grounds, one of which simply says that the decision of the Tribunal is affected by an error of law and denied the applicant procedural fairness and the other of which says “I am seeking legal advice and assistance in relation to my application”.
Accordingly, I reject the first category of submissions made on behalf of the applicant as meaningless.
Moreover, it is to be remembered that the solicitors in this matter have been on the record since 12 October 2021 and yet have not been able to foreshadow a viable basis for a ground for review or a specific particularised ground for review. That is, as well as not having promoted any such ground as part of an application or a draft application, the applicant’s representative was simply unable to identify any viable basis for a ground when I invited him to do so.
The second category of submission made by the applicant’s representative relates to country information. As submitted by the Minister the weight to be given to country information is a matter for the Tribunal itself as part of its fact-finding function. The Minister referred to NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11] as authority or that proposition. That paragraph states:
There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function … It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
The third category of submission made by the representative for the applicant was that, in similar cases, either visas were granted or merits review applications were allowed. This submission is nude of any particularity whatsoever. No such case was identified. More fundamentally, the similarity in circumstances which might be said to breathe life into such a submission were likewise not identified.
The fourth category of submission made by the applicant’s representative in support of his application for review is that if I were to remit the matter, then the applicant might have the opportunity of a better outcome. Quite plainly, that is not an available ground of review; if it were, it would set the bar very low for review applications of decisions of the Tribunal. That submission is, with respect, misconceived.
The arguments which I have just identified and rejected were the only arguments raised by the applicant in support of his application for review. Given that I have rejected each of those arguments, this is a sufficient basis to dismiss the application for review.
The grounds could be dismissed on the basis that they were unparticularised and devoid of any meaning.
In support of that conclusion I refer, merely by way of example, to SZRKF v the Minister for Immigration [2020] FCA 1389 where Farrell J said at paragraph 22:
The second ground of appeal should be rejected. It is well established that the fact that an appeal ground is put with a high degree of generality and lack of specificity or any real particulars is itself a sufficient basis for dismissing that ground.
There are many authorities that support that proposition. Again by way of example only, in CNN15 v the Minister for Immigration and Border Protection [2017] FCA 579, Gilmour J, quoting WZATH v the Minister for Immigration and Border Protection [2014] FCA 969, noted at [21]:
This first ground of appeal is merely an unparticularised assertion of jurisdictional error. As was said in WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at 35:
(This ground is) an unparticularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is a sufficient basis for it to be dismissed.
There are authorities which say that there is some leniency in this regard where unparticularised grounds are promoted by unrepresented litigants. However, I do no treat this case on that basis for the following reasons.
First, the applicant today was represented.
Secondly, he has been represented since 12 October 2021.
Thirdly, he has not provided a proper explanation given as to why, if there was a ground for review which could have been particularised, such particularisation has not occurred.
Finally, I invited the applicant’s representative to foreshadow a ground for review which was meaningful and he was unable to do so.
It is the applicant’s onus to establish that there is jurisdictional error. In the present circumstances it is difficult for the Minister to demonstrate that there was no jurisdictional error – which is not a burden thrust upon him.
Be all that as it may, Ms McInnes on behalf of the Minister sought to argue in writing and orally that there had been no jurisdictional error. I agree with the submissions made by the Minister at [25] and [26]. In particular, I accept that the applicant was properly invited to the Tribunal and that the applicant’s migration agent was deemed to have received relevant documents.
I also accept the Minister’s submission that the applicant appeared before the Tribunal at the hearing and was given a real and meaningful opportunity to be heard as well as an opportunity to present evidence.
In all of the circumstances the critical evidence given by the applicant related to the threatening phone calls, to which I have referred above. That evidence was rejected. To make credit findings is the function of the primary decision-maker par excellence: Minister for Immigration and Multicultural Affairs v Ex Parte Durairajasingham [2000] HCA 1, particularly at [67] per McHugh J. Accordingly, any endeavour to seek to revisit the credit findings is an impermissible attempt at merits review, particularly in circumstances where there has been no suggestion at any stage that those findings were unreasonable.
Again, despite the submissions made by Ms McInnis above, it is not the Minister’s onus to prove the absence of jurisdictional error. Given that the applicant has not articulated viable grounds or submissions to support a finding of jurisdictional error, the Substantive Application must fail. In any event, as Ms McInnis submits, in all of the circumstances, it appears that the applicant was given a meaningful opportunity to be heard, he was heard, that he gave evidence and the Tribunal found some of that evidence to be unconvincing.
I make the following orders:
(1)The application be dismissed.
(2)The applicant is to pay the first respondent’s costs fixed in the sum of $6,000.00.
(3)The name of the first respondent be amended in the Court record to the ‘Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs’.
I certify that the preceding 73 numbered paragraphs are a true copy of the Reasons for Judgment of Judge Davis. Associate:
Dated: 28 April 2022
1
5
0