DQZ19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 23
•19 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DQZ19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 23
File number(s): SYG 2465 of 2019 Judgment of: JUDGE LAING Date of judgment: 19 January 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – whether the Tribunal failed to take “proper account” of the applicant’s statutory declaration – where the applicant contended that an interpreter in another dialect had been provided – where this does not appear to have materially compromised his ability to participate in the review – non-material error regarding a non-disclosure certificate – application dismissed Legislation: Migration Act 1958 (Cth) s 438 Cases cited: ASU22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 927
BUY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1511
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of hearing: 15 December 2023 Place: Sydney Appearing for the Applicant: In person Solicitor for the First Respondent: Ms M Harradine of Mills Oakley Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2465 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DQZ19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
19 JANUARY 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
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 LAING:
The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
BACKGROUND
The applicant is a citizen of Pakistan who applied for a protection visa on 6 May 2015.
The Delegate refused the application on 23 August 2016.
The applicant applied for review by the Tribunal on 3 September 2016. The applicant attended a hearing before the Tribunal on 15 August 2019.
On 22 August 2019, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal summarised the background to the matter, the criteria in issue and the claims and evidence before it at [1]-[51] of its decision.
The Tribunal found the applicant’s account of having spoken out publicly against the Tehrik-i-Taliban (TTP) at his college mosque to be “inconsistent” and “somewhat far-fetched” (at [30]-[33]). The Tribunal considered that the applicant had also given inconsistent evidence regarding telephone calls that he claimed to have received from the Taliban after the speech (at [34]). The Tribunal observed that the applicant had nonetheless been able to finish his course without delay or interruption (at [35]). The Tribunal considered that the applicant’s explanation for this was “somewhat far-fetched” (at [36]).
The Tribunal was also troubled by various aspects of the applicant’s claims regarding the abduction of his brother and the targeting of his family (at [37]-[45]). The Tribunal had regard to country information indicating significant social-political change in Pakistan since the applicant’s departure (at [46]-[49]).
At [52]-[56], the Tribunal reasoned (footnotes omitted):
52.Whereas I accept that [the applicant] and his family supports and votes for the ANP, and whereas I accept that he joined the ANP, at least at the student wing level, whilst studying at the college in [an area (Area)], I do not accept on the evidence before me that he or anyone else in his family ever faced a genuine threat to their safety and security for reasons of supporting that party.
53.I do not accept on the contradictory and sometimes illogical claims [the applicant] has made that he was ever invited, even with the imam’s reservations, to give an anti-Taliban speech in the college mosque. Whereas [the applicant] gave disparate accounts as to when he gave the speech, and whereas this kind of lapse can sometimes be due to an understandable lapse in memory, there were many other inconsistencies and implausible elements in his story as discussed above. Overall I give more weight to the claim about the imam of the mosque in question having evidently been unaffected to any relevant degree, and to [the applicant] suffering no censure from the college, as if the event never took place. I also give weight to the inconsistencies in the evidence about the harassing telephone calls. It follows that I do not accept that the TTP or Taliban followers or anyone else kidnapped [the applicant]’s brother in 2015 in retaliation for the alleged speech. In addition, I am not satisfied on the evidence before me that the TTP or any other extremist group ever threatened or targeted [the applicant] or his family over his [brother’s] army activities and affiliations. I am also not satisfied on the evidence before me that [the applicant]’s brothers left Pakistan for Saudi Arabia out of fear of being persecuted; according to him, their activities in what he described as a predominantly ANP-supporting village were low-level and more or less isolated to getting involved during election campaigns. Even though the Taliban has been known to attack ANP activists, I do not accept that anyone in [the applicant’s] family would have been regarded by the Taliban as a target. In light of the many problems I have found in [the applicant’s] evidence overall, I give no weight to the claim about the cousin who was allegedly shot earlier this year; [the applicant]’s suggestion about the Taliban having commissioned the murder, on closer examination, turned out to be speculative at best.
54.On the evidence before me, I am satisfied that [the applicant] would be reasonably able to reintegrate back into society in his village or in [the Area] where he pursued several years of education including tertiary studies. In view of my overall findings in this matter I consider it unnecessary to make findings with regard to relocation to some other part of Pakistan. [The applicant] evidently established social links in [the Area] at a peer level and it is therefore reasonable to conclude that he would re-establish some of these or establish new social, professional and even political links on return. He obtained a degree in science in [the Area] that would conceivably help his employment prospects in that city. I find that he would not need to return to live in his home village, from which most of his family has moved, where I acknowledge that his degree might possibly be wasted and where his family evidently did not wish to tether him in any event.
55.Regarding effective state protection, I have heard evidence in this matter to the effect that the authorities in Pakistan are under-resourced and about how, in any event, they and members of their families can be targets of Taliban and other extremist violence whether on or off-duty. As far as this matter is concerned, I give more weight to the fact that during the years between around 2007, or before, when [the applicant’s brother] became a soldier, and late 2014, when [the applicant] came to Australia, there is no credible or plausible evidence of his having suffered or faced serious harm or threats of such due to having a brother who was a soldier. His late suggestion that this was a possible factor in the Taliban deciding to respond negatively to the alleged speech in the mosque was, at the very highest, bald speculation, which in fact he himself acknowledged at the hearing; it also struck me as somewhat improvisatory, and, all things considered, I give the suggestion no weight. Further to the issue of effective state protection, I give weight to the independent evidence, cited above, regarding the recent pre-emptive arrests of terror suspects in [the Area]: this shows both willingness and capacity on the part of authorities in [the Area], at least, to protect the population from Taliban and other extremist violence. Meanwhile, I acknowledge Australian courts having ruled that states (presumably including Pakistan) are not required to guarantee the safety of their citizens from harm caused by non-state persons.30 In MIMA v Respondents S152/2003 Gleeson CJ, Hayne and Heydon JJ observed that “no country can guarantee that its citizens will at all times and in all circumstances, be safe from violence”.31 Justice Kirby similarly stated that the Convention does not require or imply the elimination by the state of all risks of harm; rather it “posits a reasonable level of protection, not a perfect one”.32
56.To recap, I am not satisfied on the evidence before me that [the applicant] faces a real chance of being persecuted in Pakistan for reasons of ANP support, even active support, notwithstanding evidence of attacks on some ANP political figures and their associates from time to time in recent years. I am not satisfied that he faces a real chance of being persecuted in Pakistan owing to his [brother’s] profession or profile. I am not satisfied that he is a target for harm in the eyes of the TTP or any other entity. I am not satisfied that his brother [name redacted] was kidnapped. I find [the applicant] a generally unreliable witness in this matter.
Having regard to the above, the Tribunal concluded that the applicant was not a person to whom protection obligations were owed. Accordingly, the Tribunal affirmed the Delegate’s decision (at [57]-[71]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings through an application filed on 24 September 2019, containing the following grounds:
1. Jurisdiction and procedure fairness
2.The Tribunal failed to take proper account of the Statutory declaration dated 27 the April 2015
3.I specifically requested Pushto Pakistani Interpreter. The Tribunal confirmed my request but failed to provide Interpreter in my language which caused to damage my credibility.
(As per the original)
Ground 1
Ground 1 referred to the Tribunal’s jurisdiction and procedural fairness.
At the hearing before the Court, the applicant confirmed that this ground was directed to the matters he had raised under grounds 2 and 3. I therefore did not understand this ground to raise any independent ground of review.
Ground 2
Ground 2 contended that the Tribunal failed to take “proper account” of his statutory declaration dated 27 April 2015.
At the hearing before the Court, the applicant raised [33] of the Tribunal’s decision in relation to this ground. There, the Tribunal found it hard to believe that the applicant would have been allowed to speak in the college mosque, given his evidence that none of the students at the college or hostel were allowed to speak about politics, resulting in political discussions being conducted away from campus. The Tribunal also found it hard to believe, in these circumstances, that he would not have attracted censure from the college principal for attacking the Taliban at the mosque.
At the hearing before the Court, the applicant sought to explain further the nature of the college, why he had remained inside the college, his brother’s role and why he had been unable to join his brother inside the military camps. I explained that I needed to assess whether the Tribunal failed to consider evidence by reference to the evidence that was before the Tribunal. Evidence provided after the Tribunal’s decision could not assist with this task. The applicant was unable to identify any specific evidence in the materials that was before the Tribunal that the Tribunal failed to consider.
Having reviewed the statutory declaration and the Tribunal’s decision, I have been unable to identify any matter in the statutory declaration that was not considered by the Tribunal in a manner capable of resulting in jurisdictional error. The Tribunal considered the evidence that had been provided to the Department, including the claims made in the applicant’s statutory declaration, in some detail at [12]-[28] of its decision. The Tribunal considered the additional evidence before it in some detail at [29]-[49] before making its findings at [50]-[71]. The Tribunal’s findings appear to have been responsive to the evidence before it, even though the applicant may well disagree with the Tribunal’s reasons for decision. Such disagreement, without more, does not provide this Court with a basis for setting aside the Tribunal’s decision.
Ground 3
In relation to ground 3, the applicant complained that the Tribunal did not provide him with a Pashto interpreter in a dialect specific to Pakistan. The applicant contended that the interpreter provided was from Afghanistan.
At the hearing before the Court, I explained that interpretation errors or misunderstandings can, in some cases, provide a basis for setting aside the Tribunal’s decision: see Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6. Whether or not this is the case will depend upon the nature of the errors or misunderstanding that occurred and their significance to the Tribunal’s decision.
I explained that a difficulty in this case was that there was limited evidence before the Court of what had happened at the Tribunal hearing. I noted that no transcript of the hearing had been provided, nor any identification of what had been incorrectly translated or how this affected the applicant’s ability to present his case before the Tribunal. There also wasn’t clear evidence before the Court demonstrating that an interpreter in the wrong dialect was used, or explaining the difference between the dialects and how this affected the proceedings: cf BUY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1511 at [21]. This was so notwithstanding the difficulty in understanding that was raised generally in the applicant’s affidavit, and somewhat ambiguous references to both Pakistan and Afghanistan that appeared on the Tribunal’s hearing record.
I observed that the applicant may seek an opportunity to put forward further material and that if such a request were made, it would be considered. I observed that I would need to hear from the Minister before granting such an opportunity and that if such an opportunity were granted, it may increase the costs incurred by the Minister in defending these proceedings. I observed that if the Minister were successful, then he may seek to recover those costs from the applicant.
In response, the applicant stated that he had mentioned the difficulties in understanding the interpreter to the “officer” at the hearing before the Tribunal “[s]traight away”. He had informed them that he could proceed by himself, which he did. The applicant informed the Court that he had understood what was happening and had managed to correct his evidence before the Tribunal.
The applicant is to be commended for the clear and forthright manner in which he explained the situation to the Court. It is understandable that the applicant would object to being provided with an interpreter in a dialect other than the dialect he had requested. It is important that where a specific dialect is requested, all reasonable steps are taken to accommodate this: see ASU22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 927 at [41]-[43] (Halley J). Not doing so can result in difficulties with an applicant utilising the interpreter that has been provided and may, in some cases, compromise the ability of an applicant to participate effectively in a review.
However, this does not appear to have occurred in the present case. The applicant, from what has been said, appears to have been able to participate meaningfully in the review before the Tribunal due to his abilities in the English language and to correct any misunderstandings that may have otherwise occurred on account of the interpreter. Therefore, whilst his complaint about the interpreter may well be a valid one, it is not capable of providing this Court with a basis for setting aside the Tribunal’s decision.
Other matters
For completeness, I accept the Minister’s submission that the Tribunal’s decision does not appear to reveal any other error capable of warranting the intervention of the Court.
As was observed by the Minister, there was a non-disclosure certificate before the Tribunal that was purportedly issued under s 438 of the Migration Act 1958 (Cth) (CB 189). There is no evidence that the Tribunal disclosed the fact of the certificate to the applicant, as procedural fairness required.
However, the underlying documents concerned the applicant’s student enrolment records in Australia and an administrative document entitled “Disclosure Decision Checklist”. These documents are of no apparent material relevance to the review before the Tribunal and had no discernibly material effect upon the Tribunal’s decision. In these circumstances, I accept that they cannot demonstrate that any error on the part of the Tribunal in not disclosing the certificate to the applicant denied him of “the possibility of a successful outcome”: see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [2] per Bell J, Gageler J (as his Honour then was) and Keane J. The certificate therefore does not provide this Court with a basis for setting aside the Tribunal’s decision.
CONCLUSION
For the above reasons, the application before the Court must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Deputy Associate:
Dated: 19 January 2024
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