DSW16 v Minister for Immigration

[2019] FCCA 1658

FEDERAL CIRCUIT COURT OF AUSTRALIA

DSW16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1658

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal failed to comply with s.425(1) of the Migration Act 1958 (Cth) in that it failed to disclose and invite comment on aspects of the applicant’s evidence that the Tribunal considered important to the decision and open to doubt – whether the Administrative Appeals Tribunal was able to exercise its jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of unidentified “comprehensive notes” before the Administrative Appeals Tribunal – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425, 474, 476

Cases cited:

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs &

Anor (2006) 228 CLR 152

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs (2003) 236 FCR 593

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212

Applicant: DSW16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3458 of 2016

Judgment of: Judge Emmett

Hearing date:

16 October 2018, 18 February 2019,

26 March 2019

Date of Last Submission: 26 March 2019

Delivered at: Sydney

Delivered on: 18 June 2019

REPRESENTATION

Counsel for the Applicant: Mr Leonard Karp

Solicitors for the Applicant: Kinslor Prince Lawyers

Counsel for the Respondents: Mr Greg Johnson

Solicitors for the Respondents: Mills Oakley Lawyers

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3458 of 2016

DSW16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By application filed on 7 December 2016, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal dated 24 December 2016 (“the Tribunal”) which affirmed a decision of a delegate of the first respondent (“the Delegate”) to refuse the applicant a protection visa.

2. The applicant is a citizen of Pakistan and who fears harm from state and non-state actors in Pakistan due to his work as a journalist.

3. The applicant arrived in Australia on 10 December 2012 having departed legally from Pakistan on a passport issued in his own name and a Tourist (Subclass 676) visa issued on 3 November 2012.

4. On 1 March 2013, the applicant lodged an application for a protection visa with the then Department of Immigration and Citizenship (“the Department”).

5. On 11 December 2014, the Delegate refused the applicant’s application for a protection visa.

6. On 17 December 2014, the applicant lodged an application for review of the Delegate’s decision with the then Refugee Review Tribunal.

7. On 14 November 2016, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a protection visa.

8. On 7 December 2016, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

The applicant’s application for a protection visa

1. The applicant provided a statement in support of his Protection Visa application in which he stated:

   a)The applicant commenced his career as a journalist in 1990 and between 1990 and 2010 he worked as a reporter and editor for a variety of news publications.

   b)In August 2010 the applicant travelled to the United States of America (“USA”).

   c)When the applicant returned to Pakistan from the USA, he had to hide and go underground because of growing threats from powerful parties about whom he had been writing in various newspapers. These parties believed that the applicant had become an American spy because of his three month stay in the USA.

   d)The applicant came out of hiding in October 2011 and re-joined the staff of a daily newspaper he had previously worked for. As a result he was continuously persecuted by various terrorist organisations, government departments and security forces.

   e)The applicant was kidnapped and tortured psychologically.

   f)Every time the applicant received a threat, he went to the police. Sometimes the police avoided registering the applicant’s complaints against powerful people. Other times the police registered the applicant’s complaints.

   g)Defamation applications and false allegations were made against the applicant on many occasions in relation to “concocted incidents”.

   h)The applicant decided to come to Australia as soon as the threat to him was becoming unbearable, and even hiding did not stop terrorist organisations or other enemies from following him.

   i)There is no safety in Pakistan as anarchy is on the rise and the Pakistan State does not have enough resources to cope with all the problems.

   j)Important organs of the government are against the applicant and no one can protect the applicant from them.

   k)The applicant believes his life would be at risk if he returns to Pakistan.

2. The Delegate’s summary of the applicant’s written claims additionally noted the following:

   a)In February 2008 the applicant wrote an article for a daily newspaper about the abduction of the Pakistani Ambassador, Mr Tariq, which identified Mr Tariq’s abductors as the Taliban. The applicant was subsequently contacted by a Taliban representative by telephone and threatened, and later harassed on his way home.

   b)In February 2012 the applicant was kidnapped as a result of another article he wrote.

   c)The applicant does not believe he would be able to work freely in Pakistan as a journalist and fears that the State authorities would not be willing or able to assist because they oppose his freedom of expression.

The Delegate’s decision

1. On 30 August 2013, the applicant attended an interview with the Delegate. At interview, the applicant raised the following additional claims:

   a)The applicant was accused by the Taliban of working for intelligence agencies following the 2008 news article he published about the abduction of Ambassador Tariq. The applicant was informed he would be killed if he did not publish a retraction. He refused to do so. The Taliban informed the applicant that they had recorded his name, address, car details, and other identifiers.

   b)The applicant was kidnapped in 2008 by a Taliban group who accused him of being supported by organisations such as Blackwater, American authorities or Pakistan’s Inter-Services Intelligence (“ISI”). The applicant was also questioned about his travels and links to the USA. The applicant convinced his kidnappers that he was diabetic and going to be ill, so his kidnappers allowed him to sit on the window seat so he could lean out to be sick. When the car slowed to a stop at a traffic checkpoint the applicant flung himself out the window and the kidnappers drove away, as there were traffic police nearby.

   c)The applicant was targeted by another Taliban group in 2012 because he was married to a Christian woman (whom he later divorced) and because members of his wife’s family worked at embassies or for American organisations such as Blackwater. Due to the applicant’s visits to presidential and ambassadorial residences and his family ties, the Taliban assumed he was providing intelligence to the authorities and/or Blackwater. The applicant was held for one day before being released on the condition that he would write articles that were critical of Blackwater.

   d)The applicant had written many articles that were critical of the USA and its actions in Pakistan and the region, and as a result he was approached by the FBI while he was visiting family in the USA in 2010 and questioned about the purpose of his visit. The FBI cautioned the applicant not to visit Pakistani groups in the USA and not to engage in any criticism of the country during his visit. The applicant was harassed on a number of occasions during his stay in the USA and questioned regarding purported links to the Taliban.

   e)When the applicant returned to work in the media industry in October 2011, he did so because he needed to earn a living to survive, and on the proviso that he would undertake administrative work rather than field exercises and travel as a journalist. The applicant eventually returned to reporting work but purposefully avoided writing columns adverse to any fundamentalist groups.

   f)The applicant applied for his Tourist visa to Australia with the intention of returning to Pakistan via the USA and had no plans to seek asylum in Australia. However, after being in Australia for three months, the applicant’s wife informed him that anonymous individuals had attended his home in Pakistan looking for him.

2. The Delegate accepted, based on the documentation provided with the applicant’s application for the Protection Visa that the applicant had worked as a journalist in Pakistan. The Delegate did not accept, however, that the applicant has, or would likely write such articles in the future, which would cause him to be targeted by the Taliban and/or fundamentalist groups.

3. The Delegate had doubts about the applicant’s credibility due to inconsistencies in his testimony, his return travel to and from the USA, his delay in lodging a protection visa application, and his inability to provide evidence of key articles he claimed to have written.

4. The Delegate referred to a range of country information which indicated that the situation for journalists in Pakistan generally is challenging. The Delegate noted, however, that the applicant was unable to produce copies of key articles mentioned in his claims that would support his claimed fear of harm in Pakistan, which led the Delegate to doubt the general credibility of the applicant’s claims. The Delegate found that the applicant’s claimed profile and journalistic activity in Pakistan did not reasonably explain the harm feared by the applicant. The Delegate found that the applicant’s claims in respect of his risk of persecution to be vague and lacking in both detail and plausibility.

5. The Delegate found that, based on country information, it was reasonable to conclude that if the Taliban fundamentalist groups intended to actually harm the applicant, they would have done so.

6. The Delegate further found that even if the applicant’s claimed interactions with the Taliban had occurred, they did not amount to persecution and did not provide an indication of the likelihood of the applicant suffering significant harm in the reasonably foreseeable future. As such, the Delegate found that the applicant did not possess a well-founded fear of harm.

7. In respect of the applicant’s ability to access state protection, the Delegate referred to a 2013 Department of Foreign Affairs and Trade (“DFAT”) report which indicated that in practice there was an absence of effective state protection in many areas of Pakistan, particularly outside large urban centres. The Delegate noted that the applicant resided and worked within central Islamabad close to the central business district, and that that area enjoyed a reasonable level of security and regular local law enforcement presence. The Delegate was of the view that there was

   “…no doubt that [the] applicant would be able to seek Government protection within central Islamabad and the wider regions of the Punjab as a whole given his residential location, profile and reasonable influence in local society.”

8. The Delegate further noted that the applicant had submitted copies of numerous event invitations from the Pakistani Government, which firmly indicated that the applicant maintained a high profile with the Government Secretariat and would be able to seek assistance from the Pakistani Government if necessary.

9. On 11 December 2014, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

The Tribunal’s review and decision

1. On 17 December 2014, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. The applicant provided further documents in support of his review application.

3. On 15 June 2016, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 27 July 2016 to give oral evidence and present arguments.

4. On 27 July 2016, the applicant attended the Tribunal hearing and gave evidence.

5. The Tribunal explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses. The Tribunal identified with particularity the country information to which it had regard.

6. The Tribunal found that the applicant had embellished or concocted most of his claims and did not find him to be a truthful or credible witness for the following reasons: his failure to apply for protection in a timely manner; his failure to seek protection in the USA in 2010; the insufficient evidence provided to the Delegate and to the Tribunal regarding the applicant’s problems with extremists in Pakistan; the lack of credibility of the applicant’s claims to have been threatened and kidnapped; and the lack of evidence or submissions supporting the applicant’s claims to have been persecuted by government departments and security forces in Pakistan.

7. In relation to the applicant’s delay in applying for protection, the Tribunal noted that it put to the applicant at hearing that he had previously indicated that he left Pakistan both to seek protection because his life was in danger and because he intended to return to Pakistan via the USA after visiting Australia. The applicant claimed that his wife subsequently received many threatening phone calls, which she reported to the police.

8. The Tribunal did not accept that members of the Taliban or anyone else came looking for the applicant after he left Pakistan, or that his wife received threatening phone calls. The Tribunal found that the applicant had concocted the claim that someone from the Taliban came to his house looking for him about two months after he arrived in Australia to explain his delay in applying for protection and to enhance his claim for protection.

9. In respect of the applicant’s account of his visit to the USA in 2010, the Tribunal found the applicant’s evidence at hearing regarding his claimed encounters with the FBI to be far-fetched and implausible. The Tribunal put to the applicant that it had difficulty accepting that he would have been granted a US visa if the US authorities believed that the applicant was in the Taliban. The applicant responded that he was a high profile journalist and an opinion maker and perhaps the US authorities were fearful he would write more critical articles about the USA.

10. The Tribunal found that there was nothing in the evidence the applicant provided which suggested that the applicant’s criticisms of the USA were more than general comments frequently made by many journalists and commentators inside and outside the USA. The Tribunal did not accept that the FBI would have monitored the applicant’s movements as claimed merely because of this. Further, the Tribunal found that the applicant’s claim to have been of interest to the FBI in 2010 and to have left the USA early for this reason, did not sit well with the applicant’s claim that he was planning to travel to the USA after visiting Australia in 2013.

11. The Tribunal did not accept that the applicant was questioned or followed by the FBI on his visit to the USA in 2010, and found that this claim was concocted to explain to the Tribunal why he returned to Pakistan at the time despite also claiming that he was being threatened in Pakistan.

12. Accordingly, the Tribunal found the applicant’s failure to seek protection in the USA in 2010 to be a strong indication that he was not fearful that he would be seriously harmed by anyone in Pakistan at that time.

13. In relation to the evidence provided by the applicant to the Tribunal in support of his claims regarding his problems with extremists in Pakistan, the applicant stated that apart from one article in 2008, he had not written any anti-Taliban articles after 2004.

14. At hearing the applicant told the Tribunal that he had received threatening phone calls from 2004 and that his family in Pakistan continued to receive such calls. The applicant claimed that the callers identified themselves as members of various militant groups and that some of the calls related to his journalism; some to his human rights work for Christian communities; some told him not to support the government; and from 2006 extremist groups told him he should divorce his Christian wife.

15. The Tribunal noted that on 10 July 2016 the applicant provided to the Tribunal a copy of an undated death certificate which states that a one year old child had died of head injuries and names the applicant as the father. At the end of the Tribunal hearing, the applicant said that the document records the death of his first child with his Christian wife, and that his child had been attacked by Taliban when playing on the street in April 2007. The applicant claimed that an extremist group called him after his son’s death and claimed responsibility for the attack. The caller told the applicant to divorce his wife and get rid of his in-laws.

16. The Tribunal put to the applicant that he had not mentioned these claims previously. The applicant responded that he had mentioned his son’s death in his interview with the Delegate. Following the hearing the Tribunal reviewed the recording of the applicant’s interview with the Delegate and noted that the son’s death was mentioned briefly, but no details were provided.

17. The Tribunal found that if the applicant’s one year old son had been brutally murdered by extremists in 2007 as claimed, the applicant would have provided a detailed account of this in his initial protection visa application and during his interview with the Delegate. The Tribunal did not accept that the applicant’s son was murdered by extremists.

18. In respect of the applicant’s claim to have been abducted by the Taliban in 2008, the Tribunal noted that the applicant first raised that claim at the hearing with the Delegate. The Tribunal found his failure to raise the claim in his protection visa application to be a strong indication that the claim was not true, far-fetched and implausible.

19. The Tribunal also found the applicant’s claim to have been abducted by the Taliban in 2012 to be lacking in credibility. The Tribunal noted that the applicant’s evidence regarding the reasons for his kidnapping had changed a number of times. In his protection visa application, the applicant claimed the kidnapping was due to an anti-Taliban article he had written, but subsequently told the Delegate that he had not written any articles critical of the Taliban after 2008 and claimed his kidnapping was because of his marriage to a Christian, his in-laws’ employment at European embassies and US companies, his travel to the USA in 2010, his attendance at US Embassy events, and his past support of President Musharraf. At the Departmental interview, the applicant claimed that his kidnappers forced him to agree to write anti-Blackwater articles. At the Tribunal hearing, the applicant claimed his captors forced him to swear on the Koran that he would work for the Taliban, and threatened him with death if he did not cooperate. The Tribunal did not accept that the applicant would have mentioned only the demand that he write anti-Blackwater articles to the Delegate if he had also been told he must work for the Taliban after his release. The Tribunal further noted that country information did not indicate that the Taliban kidnaps journalists or anyone else in order to force them to work for the group, and that kidnapping of journalists in Islamabad is a rare occurrence.

1. The Tribunal did not accept the applicant’s claim that he and his family had been receiving telephone threats from extremists from at least 2004 because of his work as a journalist and marriage to a Christian woman. The Tribunal found that if the applicant had received the claimed threats, he would have sought protection in the USA when he visited in 2010 and found the applicant’s evidence regarding the threats to be confused and unconvincing.

2. After considering all the evidence, the Tribunal did not accept that the applicant was threatened or harmed by the Taliban or any other extremist group because of his work as a journalist, marriage to a Christian or for any other reason prior to his departure to Pakistan. The Tribunal found that the applicant concocted all of these claims in an attempt to obtain a protection visa.

3. The Tribunal noted that the applicant had written two articles while in Australia, but did not accept that the applicant would be threatened or harmed by extremists in Pakistan because of these articles if he returned to Pakistan.

4. The applicant also provided a translation of a document titled “arrest of guarantor”, purportedly issued by the First Magistrate Court in Islamabad, directing police to arrest the applicant and take him to court on 3 July 2012. The Tribunal found the claim to be far-fetched and implausible. The Tribunal found that no credible evidence had been provided that the applicant wrote articles or was involved in other activities which would have so incensed the government that they would issue a warrant for his arrest in 2012. Further, the Tribunal noted that the purported arrest warrant was a translation, and that no copy or original of the document was provided. Accordingly, the Tribunal accorded the document no weight.

5. The applicant additionally claimed to have been threatened by people affected by two decisions he made as a member of a Reconciliation Committee in Pakistan in 2007 and 2009. The Tribunal noted that this claim was not raised until the Tribunal hearing and found that if the applicant harboured a genuine fear of harm on account of his involvement in the Reconciliation Committee, he would have mentioned this fear in his earlier submissions. The Tribunal found this to be an example of the applicant misrepresenting the significance of documents relating to his work in Pakistan in order to enhance his claim for protection in Australia.

6. The Tribunal considered the applicant’s claim that he was fired in 2007 and 2008 because of articles he wrote about the Taliban, and again in 2012 because of the claimed warrant issued for his arrest. The Tribunal noted that these claims were not raised until towards the end of the Tribunal hearing. The Tribunal found that in these circumstances and in light of its adverse findings regarding the applicant’s credibility, these claims were another example of the applicant manufacturing claims to bolster his claim for protection.

7. The Tribunal also considered whether the applicant met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that he did not. The Tribunal found that the applicant was not a truthful or credible witness, there was no credible evidence before it to suggest that there was a real risk that the applicant would face significant harm from extremists, government authorities or anyone else in Pakistan as a result of his work as a journalist, or as a result of the pending defamation cases against him. Accordingly, the Tribunal found that there are no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, Applicant, there is a real risk that the applicant would suffer significant harm.

8. Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the Tribunal affirmed the decision under review.

The proceeding before this Court

1. The applicant was represented before this Court by Mr Leonard Karp, of counsel.  

2. On 5 October 2018, the applicant filed the affidavit of David John Prince, sworn on 4 October 2018, which annexed a transcript of the applicant’s interview with the Delegate on 30 August 2013 and a transcript of the applicant’s Tribunal hearing on 27 July 2016.

3. The grounds relied upon by the applicant were contained in a Further Amended Application, filed on 6 March 2019, in the following terms:

   “1. The Tribunal erred in that it failed to comply with s.425(1) of the Migration Act.

   Particulars

   (a) Failure to disclose to the applicant and invite comment on specific aspects of an applicant’s account, that the Tribunal considered important to the decision and to be open to doubt, being;

   (i) Whether the applicant's son was killed by the Taliban;

   (ii) Whether the applicant had been threatened because of his marriage to a Christian woman;

   (iii) Whether the applicant had been imputed with a political opinion opposed to that of the Taliban because of the employment of certain of his wife’s relatives by western embassies and in one case by Blackwater Corp.

   …

   3. The default of the Minister in not being able to produce what the Tribunal member described as “comprehensive notes” of the delegate’s interview with the respondent when required by Notice of Produce to do so, had the consequence that the Court is unable to exercise of the jurisdiction conferred upon it by s.476 of the Migration Act.”

Ground 1

1. Ground 1 asserts that the Tribunal failed to comply with s.425(1) of the Migration Act 1958 (Cth) (“the Act”) in failing to invite the applicant to comment on certain aspects of the applicant’s claims.

2. The first failure to invite was in relation to whether the applicant’s son was killed by the Taliban. In relation to that claim the Tribunal stated as follows:

   “51. On 10 July 2016 the applicant provided a copy of an undated death certificate which states that a one year old child had died of head injuries and names him as the father. At the hearing he said that it recorded the death of his first child with his Christian wife who had been attacked with an iron or wooden rod by Taliban when he was playing in the street in April 2007. He was not present when the attack occurred. His son was taken to hospital and died three days later. He received a telephone call from the extremist group LeJ who told him that they had killed his son and told him to divorce his wife and get rid of his in-laws. I observed that he did not appear to have mentioned these claims prior to the hearing. He said he had mentioned his son's death in his protection visa application and during his interview with the delegate. Following the hearing I reviewed the applicant and the interview recording. As noted above the applicant’s son’s death was mentioned briefly on both occasions, but no details were provided.”

3. In particular, the Tribunal stated that it raised with the applicant that he had not appeared to mention the claim that his son was killed by the Taliban prior to the hearing. The Tribunal noted the applicant’s response that he had mentioned his son’s death in his protection visa application and during his interview with the Delegate. The Tribunal then stated that it reviewed the applicant’s visa application and the interview recording and noted that the applicant’s son’s death was noted briefly on both occasions but that no details were provided.

4. Further in its reasons, the Tribunal again noted the applicant’s claim that his first child was killed by extremists, a claim which the Tribunal did not accept.

5. The Tribunal acknowledged that the applicant had mentioned his son’s death in his protection visa application and during the Department interview, but noted that he had not provided details for the reasons of the son’s death or who was responsible. The Tribunal stated that if the applicant’s one year old son had been brutally murdered by extremist in 2007 as he now claimed, the Tribunal would have expected him to provide a detailed account of this in his initial application and during his interview with the Delegate.

6. The Tribunal noted that in reaching that conclusion, it had taken into account the fact that the Delegate did not ask the applicant for details of the son’s death. However, the Tribunal noted that the applicant had not hesitated to provide details of other matters even when not asked specific questions. In those circumstances, the Tribunal did not accept that the applicant would have failed to give a full account of his son’s death to the Delegate if he had been murdered.

7. Moreover, the Tribunal noted that the applicant had indicated during his interview with the Delegate that his son was killed between the time he was kidnapped in 2008 and the applicant’s visit to the USA in 2010. The Tribunal found that evidence to be inconsistent with his later evidence that his son had died in 2007. The Tribunal also noted inconsistencies in the applicant’s claim as by whom his son had been killed, naming the Taliban and a different extremist group.

8. The Tribunal found that the applicant, being a journalist and claiming to have written about extremists groups, would not have been confused about the group responsible for his son’s death. These concerns, inter alia, led the Tribunal to find that the applicant had not provided an honest account of his son’s death.

9. Ultimately, the Tribunal found that in light of its findings regarding credibility of the applicant’s claims of being threatened by extremists because of his marriage; and, the applicant’s “demonstrated willingness to concoct claims”, the Authority did not accept that the applicant’s son was murdered by extremist because of his marriage to a Christian or for any other reason.

10. The first respondent understood the applicant’s argument to be that because the Delegate failed to address this claim and the Tribunal did not during the hearing indicate to the applicant that it would reject the claims, the applicant had been denied a real and meaningful opportunity to present his claims before the Tribunal as required by s.425(1) of the Act.

11. Counsel for the first respondent submitted that the Delegate’s decision indicated that the cause of the death of the applicant’s son was an issue that arose in relation to the decision under review.

12. In particular, similarly to the Tribunal, the Delegate rejected the applicant’s claims having regard to inconsistencies in his evidence, his return travel to and from the USA, his delay in lodging his protection visa and his inability to provide evidence of key articles.

13. Further, the transcript of the Tribunal’s hearing reveals that the Tribunal said to the applicant that it was extremely surprised that the son’s “assassination” was not mentioned in his first statement because it would be a shocking and terrible thing to lose a child to an attack by the Taliban. The Tribunal stated that it found it extremely surprising that it was not mentioned at the first statement.

14. The Tribunal clearly put to the applicant at the hearing that it found that claim by the applicant difficult to believe and stated, “I’m just letting you know that I have concerns about that claim.”

15. In the circumstances, I am satisfied that there was no breach by the Tribunal of its duty under s.425(1) of the Act regarding the manner in which it considered the applicant’s claim that his son was killed by the Taliban.

16. Moreover, following the Delegate’s decision, the applicant was aware, or should have been, that his credibility was an issue. In those circumstances, the applicant must be taken to have been on notice of that issue. Both the Delegate’s decision and the Tribunal’s exchanges with the applicant during the hearing were sufficient to indicate to the applicant that everything he said in support of his application was in issue (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 at [35] and [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).

17. I accept that the Tribunal did not deal directly with the claim of imputed political opinion because of the applicant’s claimed perceived cooperation with Blackwater and support for the Americans. However, I accept the first respondent’s submission that such a finding was unnecessary in circumstances where the Tribunal found the applicant’s claim to have been detained because of his perceived cooperation with Blackwater and perceived support for the Americans, to have been fabricated.

18. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604 the Full Court of the Federal Court (French, Sackville and Hely JJ) stated as follows:

    “[46] It is plainly not necessary for the Tribunal refer to every piece of evidence and every contention made by an applicant in its written reasons. …there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf MIMIA v Yusef (2001) 206 CLR 323; 62 ALD 225; 180 ALR at [87] to [97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a Court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. …Its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

    [47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

19. In the circumstances, the Tribunal’s findings were open to it on the evidence and material before it. The Tribunal’s 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, were logical 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) (“ARG15”).

20. Accordingly, Ground 1 is not made out.

Ground 3

1. Ground 3 asserts that failing to produce documents identified as “comprehensive notes” by the Tribunal, has the consequence that the Court is unable to exercise the jurisdiction conferred upon it by s.476 of the Act.

2. The “comprehensive notes” were not referred to by the Tribunal in its decision record. They were referred to by the Tribunal during the hearing with the applicant in circumstances were the applicant was asserting that there were claims he had made before the Delegate that the Tribunal was questioning him about on the basis that they had not been made by the applicant before.

3. The transcript of the hearing before the Tribunal discloses the following exchange:

   “Q468 Now, I’ve also - I have looked at the notes, as I say, the comprehensive notes made by the – I’ve looked at your first statement and it says nothing about the death of your child being - the result of him being killed by the Taliban. In fact, it doesn’t mention his death at all and nor is it mentioned in the notes that the delegate made of the interview. So it appears you did not mention that death previously.

   A I might mention it, if you have transcript of my interview.

   Q469 I do not have a transcript, I have copious notes.

   A Yeah.”

4. Following an exchange between the applicant and the Tribunal about those claims, the Tribunal said that it would check the tape. However, as the Tribunal pointed out, even if mentioned at the interview, the Tribunal remained “extremely surprised” that it was not mentioned in the applicant’s first statement. That reference is to the applicant’s claim that the applicant’s son was killed by the Taliban. As stated above, ultimately, that was a claim that was rejected by the Tribunal.

5. The Delegate who wrote the decision, dated 11 December 2014, was called to give evidence as to the existence or use of any notes. The Delegate, Ms Sarah Bendall-Charles, was not in fact the person who conducted the interview with the applicant. Ms Bendall-Charles gave evidence before this Court that she was unable to locate any material matching the description “delegate’s very comprehensive notes of that interview”. Ms Bendall-Charles did not recall if there were interview notes made by the interviewing officer on 30 August 2013. Ms Bendall-Charles said that as the decision maker she would have based her decision on information she extracted from the audio recording of the interview and all relevant documents on the paper and electronic files. Ms Bendall-Charles deposed that her notes or observations of the recording of the interview would have been inserted directly into the written decision record.

6. In cross-examination Ms Bendall-Charles agreed that there may have been notes on the file that she had at the time. Ms Bendall-Charles said that if that was so, she would have read them.

7. In the Applicant’s Supplementary Outline of Submissions, the applicant said the following in relation to the existence of the notes:

   “The following appears to be common ground;

   (a) The Tribunal member, at hearing, referred to “comprehensive notes” of the delegate’s interview (hearing transcript at questions 413 and 468), and frames questions on the basis of those notes.

   (b) Those notes are not in the Court Book filed in these proceedings.

   (c) Nor could the Minister produce them in response to a Notice to Produce.

   3. The following may be inferred from those facts;

   (a) Those notes did exist.

   (b) They formed part of the Department’s records of the applicant’s application for a Protection Visa.

   (c) As such they were given to the Tribunal by the Secretary, pursuant to s.418(3) of the Migration Act.”

8. The applicant submits that it cannot be known, or be inferred as to the way, if any, the Tribunal was influenced by those notes resulting in a stifling of the Court’s processes in determining whether or not the Tribunal made its decision lawfully and, in particular, whether it is affected by jurisdictional error. The applicant contends that the first respondent should not be permitted to rely on the decision.

9. The first respondent submitted that the documents described as “comprehensive notes” were no longer able to be located. As stated above, Ms Bendall-Charles gave evidence that if there were notes she would have read them and she would have reflected them insofar as they were relevant in her statement of reasons. Based on the evidence of Ms Bendall-Charles and Jason Cabarrus (by way of affidavit affirmed 23 January 2019), I accept that whatever the “comprehensive notes” were they are now no longer able to be located.

10. As stated above, the Tribunal stated that it listened to an audio recording of the applicant’s interview with the Delegate. Further, the transcript of the Delegate’s decision, as well as the Tribunal’s decision, was tendered in evidence before this Court.

11. The Delegate’s ultimate rejection of the applicant’s claims were based on reasons that included inconsistencies in his testimony, his return travel to and from the USA, his delay in lodging his protection visa and his inability to provide evidence in support of his claims.

1. There is nothing in those adverse findings to suggest that there was any material in the form of notes in the possession of Ms Bendall-Charles that could have impacted on the reasons expressed by Ms Bendall-Charles for rejecting the applicant’s claims. Her reasons did not include a failure by the applicant to mention his fear of harm because he was married to a Christian woman whose in-laws worked for Western embassies including Blackwater and that the Taliban had killed his son. Those claims appeared to develop before the Tribunal.

2. The Tribunal considered the applicant’s claims to have been threatened by extremists and noted that he had referred in general terms to those claims in all his submissions. However, the Tribunal noted that whilst the applicant provided police reports regarding those claims at the end of his interview with the Delegate, he said nothing which suggested that he had continued to receive death threats from extremists until his departure from Pakistan. The Tribunal found that he would have provided specific information about this in his protection visa application. When the Delegate questioned him about his life in Pakistan, the Tribunal found his failure to mention his family had been receiving death threats over a long period indicated that his claims were not credible.

3. In relation to his claim of his son’s death at the hands of the Taliban, as stated above, the Tribunal found that if his claims were true the applicant would have provided a detailed account in his initial application and at his interview with the Delegate. The Tribunal stated that in reaching that conclusion, the Tribunal had taken into account the fact that the Delegate did not ask the applicant for details about his son’s death. It was of concern to the Tribunal that the applicant did not hesitate to provide details of other matters when not asked specific questions. Therefore the Tribunal did not accept that he would have failed to give a full account of his son’s death to the Delegate if, indeed, his son had been murdered as claimed.

4. As stated above, the Tribunal had the audio tapes of the applicant’s interview with the Delegate and to which it said it had listened.

5. Similarly, in rejecting the applicant’s claim to have been abducted by the Taliban in 2012, the Tribunal found that the applicant provided confused and inconsistent evidence, including differing accounts of the demands made by the Taliban and his release. The Tribunal noted what the applicant told the Delegate.

6. Further, in considering the applicant’s claim to have been detained by the Taliban because of his marriage to a Christian woman or his perceived association with Blackwater or perceived support or cooperation with the USA or the Pakistani government, the Tribunal found such claims implausible based on country information before it.

7. As stated above, there is no mention in the Tribunal’s decision record of its reference to or reliance upon any “comprehensive notes”.

8. In the circumstances and based on the reasons provided by the Tribunal for its adverse credibility findings, I infer that there was nothing in the notes to which the Tribunal referred that, if they existed, had any relevance to the Tribunal’s findings and conclusions.

9. In the circumstances, I accept the submissions of counsel for the first respondent as follows:

   “The following should be noted:

   (a) There is no mention of the Delegate’s Notes in the Tribunal’s reasons for decision. The Tribunal was obliged under s.430 to include in the statement of reasons its reasons for decision and any evidence or other material on which the findings of fact were based. The absence of reference to the Delegate’s Notes permits the Court to infer that the notes were not material to the Tribunal’s decision: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [69].

   (b) The only references to the Delegate’s Notes appear in the transcript of the Tribunal hearing (Annexure DJP 2 to the affidavit of David John Prince made on 4 October 2018) at Q413 (p.85 of the affidavit) and Q468 and Q469 (p.91 of the affidavit).

   (c) All the references by the Tribunal member to the Delegate’s Notes occurred in the context of the Tribunal member discussing with the applicant its concerns regarding the applicant’s apparent failure earlier to mention particular claims in support of his protection visa application. At Q413 the Tribunal notes that the applicant’s claims that he did human rights work with Christian communities was not mentioned in his interview with the delegate as it did not appear to be mentioned in the Delegate’s Notes. At Q468 and Q469 the Tribunal put to the applicant that it could not locate in the Delegate’s Notes any mention of the applicant having claimed that his child was killed by the Taliban. (Ultimately, the Tribunal member decided to listen to the recording of the delegate’s interview with the applicant to confirm whether the applicant had mentioned the killing of his son during the interview, and the Tribunal found that the applicant had mentioned it: [83]; CB 532.)”

10. The transcript makes clear that the Tribunal member explained to the applicant why it was referring to the Delegate’s notes and gave the applicant an opportunity to comment. I accept the first respondent’s submissions that “the Court is not left to wonder the basis of the Tribunal’s findings by reference to the content of the delegate’s notes or otherwise.”

11. In my view, the applicant has not identified any basis upon which the Tribunal’s decision might have been affected by the content of any notes not otherwise referred to.

12. In short, I find that the Tribunal’s reference to “comprehensive notes” in the transcript in the course of its discussions with the applicant did not elevate those notes, in light of the Tribunal’s findings and conclusions, to any relevance to the Tribunal other than a way of putting to the applicant concerns it had about his evidence and claims.

13. There is nothing in the Tribunal’s decision record to suggest that the applicant did not have a real and fair opportunity to put whatever he wished and to participate in the hearing in a way from which it can be concluded that the hearing was fair and thus that administrative justice was done (see SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 at [24] per Allsop CJ).

14. Otherwise, as stated above, the Tribunal’s findings and conclusions were open to it on the evidence and material before it, and or 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; reaching a finding without a logical or probative basis; or unreasonableness; and, were not without an intelligible foundation (see ARG15).

15. Accordingly, Ground 3 is not made out.

Conclusion

1. 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. The Tribunal also put to the applicant independent country information before it and invited the applicant to comment upon it.

2. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. 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.

3. 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.

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

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

I certify that the preceding one-hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 18 June 2019