Dvi18 v Minister for Immigration
[2020] FCCA 2698
•27 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DVI18 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2698 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – principal applicant claiming a fear of harm in Pakistan – applicant not believed – whether the Tribunal actively engaged intellectually with the applicant’s evidence and submissions or whether the Tribunal made a finding that was irrational, illogical or unreasonable, without any probative foundation considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.424AA, 501CA |
| Cases cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 AXT19 v Minister for Home Affairs [2020] FCAFC 32 BIL17 v Minister for Immigration [2019] FCAFC 6 Carrascalao v Minister for Immigration (2017) 252 FCR 352 DQM18 v Minister for Home Affairs [2020] FCAFC 110 Dranichnikov v Minister for Immigration (2003) 197 ALR 389 GBV18 v Minister for Home Affairs [2020] FCAFC 17 Malek Fahd Islamic School Limited v Minister for Education and Training (No 2) [2017] FCA 1377 Minister for Home Affairs v Omar [2019] FCAFC 188 Muggeridge v Minister for Immigration (2017) 255 FCR 81 Nguyen v Minister for Immigration [2020] FCA 985 Re Minister for Immigration; Ex parte S20/2002 (2003) 198 ALR 59 SZLGP v Minister for Immigration [2008] FCA 1198 Tickner v Chapman (1995) 57 FCR 451 Tran v Minister for Immigration [2019] FCAFC 126 WAIJ v Minister for Immigration (2004) 80 ALD 568 |
| First Applicant: | DVI18 |
| Second Applicant | DVJ18 |
| Third Applicant: | DVK18 |
| Fourth Applicant: | DVL18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2059 of 2018 |
| Judgment of: | Judge Driver |
| Hearing dates: | 27 July, 15 September 2020 |
| Delivered at: | Sydney |
| Delivered on: | 27 October 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms T Baw |
| Solicitors for the Applicant: | Craddock Murray Neumann |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The amended application filed on 4 September 2020 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2059 of 2018
| DVI18 |
First Applicant
| DVJ18 |
Second Applicant
| DVK18 |
Third Applicant
| DVL18 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicants seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 2 July 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas.
The following statement of background facts is derived from initial written submissions filed on behalf of the Minister on 20 July 2020.
The first applicant (applicant) is the husband of the second applicant, and the third and fourth applicants are their minor children.
The applicant is a citizen of Pakistan. He came to Australia in March 2011 with the second and third applicants. They applied for protection visas on 5 February 2013. The fourth applicant was born in Australia in 2014 and was added to the application on 31 July 2014. The applicant claimed in the protection visa application to fear harm if returned to Pakistan on the grounds that he was a Shia Muslim. He claimed to have been a famous child reciter in Shia imambarghas (places of worship) in the Rawalpindi area in the holy month of Muharram, and that he continued his religious singing when he was a student. He claimed to have been beaten by Sunni groups when at Punjab College when he was the President of the Imamia Student Organisation. He claimed that after 2000 he was a member of various Shia organisations and became a famous reciter across Pakistan. The applicant feared he would be killed if he returned to Pakistan as friends and relatives of his had been killed by terrorist groups between 2011 and 2013, in particular the “SSP”[1] and the “LEJ”.[2] He had continued to participate in Shia activities in Australia.
[1] Sipah-e-Sahaba
[2] Lashkar-e-Jhangvi
On 29 May 2013 the delegate invited the applicant to attend an interview.[3] On 19 June 2013 the applicant was interviewed.
[3] Court Book (CB) 324
Following the interview, the applicant supplied various documents to the Minister’s Department including a statement, signed 21 June 2013, in which the applicant admitted to having given untruthful answers at the interview, in particular by saying that he had never lived in the UK and Dubai.[4] The applicant in the statement explained that the reason for the untruthful response was that he was advised by his migration adviser from Pakistan, “Mr H”, not to reveal these details to the Minister’s Department as he had been arrested and gaoled in Dubai for a money scam. He claimed that Mr H later came to live with his family in Australia, and had threatened and blackmailed him.
[4] CB 346
On 10 September 2014 the applicant submitted further documents to the Minister’s Department concerning the security situation for Shias in Pakistan and referring to an attack against his brother by the SSP in November 2013.[5]
[5] CB 402
On 15 September 2015 the delegate refused to grant the applicants a visa.[6] The applicant applied to the Tribunal for review of the delegate’s decision. The Tribunal invited the applicant to a hearing, which he attended (following a reschedule).[7] The applicant was assisted at the hearing by his migration agent.
[6] CB 478
[7] CB 543, CB 554
Tribunal’s decision
On 2 July 2018 the Tribunal affirmed the decision under review.[8] The Tribunal accepted at [23] the applicant was a Shia Muslim and a religious reciter in Pakistan. However, the Tribunal found at [26] the applicant’s claims to be implausible. It found at [26] that his claim to have been a famous religious reciter who performed in various cities around Pakistan was undermined by the fact that he lived in the UK and Dubai for most of the six years before he came to Australia. In any event, it noted his evidence that he was not a high profile reciter. It did not accept that groups would have targeted the applicant in 2013, when he had been absent from Pakistan for so long. It did not accept at [27] that the applicant was on a “hit list” as there was no evidence of this.
[8] CB 600
The Tribunal considered at [28] documents submitted by the applicant in support of his claims, but did not give them weight due to the concerns with the applicant’s credibility, and the prevalence of document fraud in Pakistan. The Tribunal also referred to country information at [29] concerning the improving situation for Shias in Pakistan, and DFAT’s[9] assessment in particular that the risk of generalised and sectarian violence for most Shias was low. It found at [30] that there was no persuasive evidence to suggest that the applicant was personally at risk of sectarian violence.
[9] Department of Foreign Affairs and Trade
In respect of its concerns with the applicant’s credibility, the Tribunal referred at [32] to the applicant’s inconsistent evidence about his employment in Pakistan. The applicant explained to the Tribunal that his former migration agent, Mr H, had told him not to mention in his protection visa application his employment at NIB Bank, which the applicant had mentioned at the Tribunal hearing. However, the Tribunal confirmed with the applicant that Mr H had not assisted the applicant with his protection visa application. The applicant’s response to the inconsistencies in his evidence was that he did not know at the time of his protection visa application that Mr H was going to tip off the Minister’s Department, causing the Tribunal to express at [32] that the applicant appeared to have no reservations about giving untruthful evidence.
The Tribunal also referred at [33] to the provision by the applicant of a false document about his employment in connection with his wife’s student visa application. The Tribunal put its concern about the document, a letter dated 20 December 2010 from MZM Links, to the applicant under s.424AA of the Migration Act 1958 (Cth) (Migration Act). The applicant’s response was again to state that the document was obtained on the advice of Mr H. The Tribunal found at [34] that in light of the country information about the prevalence of document fraud in Pakistan, and the parties’ readiness to submit false documents in support of visa applications, it decided not to give any weight to the documents provided by the applicants in support of their application. The Tribunal did not accept at [36] the applicants’ unsubstantiated assertions about the role that Mr H played in the preparation of their visa applications, or the claim that Mr H had threatened the applicant.
The Tribunal, on the basis of its adverse credibility assessment of the applicant, rejected at [37]-[38] and [42] the applicant’s claims, and was not satisfied he had a real chance of serious harm or a real risk of significant harm if he returned to Pakistan.
The current proceedings
These proceedings began with a show cause application filed on 25 July 2018. The applicant was originally legally represented but his solicitors withdrew from the record on 11 December 2019. The applicants appointed new lawyers on 20 December 2019 but that firm also withdrew from the record on 31 March 2020.
The applicant appeared self represented when the matter came before me for hearing on 27 July 2020. At that time the applicant complained about the absence of an Urdu interpreter (although in his application he had stated that no interpreter was required). He sought an adjournment in part for that reason but principally because he was in the course of seeking Legal Aid. I granted an adjournment until 15 September 2020.
The applicant subsequently obtained new legal representation and an amended application was filed on 4 September 2020. The Minister consented to the applicant filing and relying upon that amended application. There are two particularised grounds in it:
Ground 1
1. The Second Respondent (the Tribunal) erred by failing to meet its requirement to give genuine consideration to, and to intellectually engage with the evidence and submissions advanced by the Applicant.
Particulars
a. The Applicant claimed that family members and fellow colleagues in the same position as him – being Shia Muslim religious reciters – have recently been killed in Pakistan.
b. The Applicant provided the names, photographs, dates of death and circumstances of the 5 men that were killed.
c. The Applicant feared that he would be killed for the same reason as those 5 men if he returned to Pakistan.
d. The Tribunal:
i. did not refute that those 5 men had been killed;
ii. however, it did not accept that the 5 men were killed for being religious reciters and merely found: “there may be a range of circumstances in which a person might be targeted or killed by extremists” at CB605[27]; and
iii. failed to disclose any active intellectual engagement with the evidence and submissions in its reasons.
e. The Applicant claimed that it was the mid-level category of religious reciters that were targeted and most at risk of being killed because the top-level category and most famous religious reciters could get security from the government or afford their own security. The top level religious reciters were also leaving the country so he was more vulnerable to attack.
f. The Tribunal stated that the Applicant’s claim was that he was a famous religious reciter. The Tribunal found that the Applicant: did not have a sufficiently high profile to be targeted; and had been away from Pakistan for 6 out of the 8 years before fleeing Pakistan.
g. The Tribunal failed to give meaning consideration to all the integers of the claim and/or evidence, including that the Applicant:
i. feared being in the mid-level category of religious reciters (not the most famous/top-category);
ii. was known as a religious reciter since childhood;
iii. had been in Pakistan for the last two years preceding him leaving Pakistan; and
iv. had continued to perform as a religious reciter in Australia.
Ground 2
2. The Tribunal’s finding was irrational, illegal or without any probative foundation and/or was legally unreasonable.
Particulars
a. Repeats Particulars a. to d. in Ground 1 above.
a. Repeats Particulars e. to g. in Ground 1 above.
b. In the circumstances the Tribunal’s findings: lack any connection between the evidence and the inferences or conclusions drawn; are without any basis in probative material and is mere speculation; or is otherwise without intelligible justification.
I have before me as evidence:
a)the original court book filed on 30 October 2018;
b)an amended court book filed on 21 January 2019; and
c)a supplementary court book filed on 14 August 2020.
While other issues had been raised either by the applicant or the Minister early in the proceedings, it was agreed between the parties at the trial on 15 September 2020 that the only issues to resolve were those raised in the amended application.
Counsel for the applicants and the Minister provided an outline of written submissions in advance of the hearing and made oral submissions at the hearing. I have been assisted by those submissions.
Consideration
Ground 1 – did the Tribunal fail to meet its requirement to give genuine consideration to and to intellectually engage with the evidence and submissions advanced by the applicant?
Applicants’ contentions
The Full Federal Court in Minister for Home Affairs v Omar[10] at [29] found that a decision-maker had made a jurisdictional error by failing to consider matters raised by the respondent in representations made as being a reason for revoking the visa cancellation decision under s.501CA(3) of the Migration Act. In reaching its conclusion the Full Federal Court held at [36]-[37] that the decision-maker had an obligation to engage in an active intellectual process with significant and clearly expressed representations made by the applicant.
[10] [2019] FCAFC 188
The Full Federal Court stated at [39] that meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm requires more than the decision-maker simply acknowledging or noting that the representations have been made. The Full Federal Court explained that the decision-maker was required to “consider” those submissions by “having regard to what is said in the representations, to bring [its] mind to bear upon the facts stated in them and the argument or opinions put forward and to appreciate who is making them”.[11]
[11] Tickner v Chapman (1995) 57 FCR 451 and Omar at [36(c)]
The Full Federal Court referred to a discussion on what is meant by the obligation of a decision-maker to “consider” a matter in the judicial review context in Carrascalao v Minister for Immigration.[12] What is called for, in this regard, is an “active intellectual engagement” with matters raised on behalf of an applicant Carrascalao at [45]-47]. The finding in Carrascalao, was applied by Griffiths J in Malek Fahd Islamic School Limited v Minister for Education and Training (No 2)[13] at [48]:
[o]ther authorities have indicated that, merely because a matter has been “touched upon” by a decision-maker, does not necessarily mean that it has been taken into account or considered in the relevant sense.
[12] (2017) 252 FCR 352
[13] [2017] FCA 1377
Findings at a high level of generality may be incapable of establishing that a decision-maker has “meaningfully engaged” with a given claim to fear harm upon removal to their country of nationality.[14] Depending on the nature and content of the representations, a decision-maker:[15]
may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law.
[14] GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [39] and [45]
[15] Omar at [39]; GBV18 at [32](e)
Given the serious consequences and centrality of the representations the decision-maker had an obligation to “identify and then confront the objective reality of the circumstances to which the person is being compelled to return”; and where those representations made by the applicant were sufficiently cogent, regardless of the apparent paucity of evidence, the decision-maker was required to “evaluate the information available to [it] about the circumstances in [the applicant’s] place of return”, “to determine what, as a matter of fact, those circumstances meant for [the applicant] on his return” and then to incorporate those findings into its reasoning.[16]
[16] DQM18 v Minister for Home Affairs [2020] FCAFC 110 at [81] and [91]-[92]
In the present case, in a statement dated 1 February 2013 at [36], the applicant stated that: “[m]ost of my friends who were reciting with me in Pakistan got brutally killed by the Taliban and Sipaha Sahaba in the last two years”[17] and “[a]fter witnessing [the] fate of my other colleagues and friends I have a fear that I will be killed upon returning to Pakistan” at [39].[18] The applicant also detailed the killing of those five friends and relatives together with photographs of each individual, with some photos also showing the person’s injuries, as follows:[19]
a)my cousin and active member of our team [redacted] was brutally killed when he was on the way home after reciting Majalis late night in last [Muharram] (7 November 2012);
b)my friend [redacted], a reciter, was killed;
c)my friends and reciters who were brutally killed in a blast by Sipah Sahaba:
i)[redacted] killed in a blast in Rawalpindi on 22 November 2012;
ii)[redacted] our team member; and
iii)my cousin and also my lawyer [redacted] was brutally killed by Sipah Sahaba.
[17] Amended Court Book (ACB) 255
[18] ACB 256
[19] at ACB 255-257
Then in a later statement to the Tribunal dated 14 June 2018, the applicant repeats his fear of harm based on the killings of his fellow reciters and which also led to his decision to apply for a protection visa notwithstanding that he would have stayed in Pakistan if it was safe, at [1.iv.]:[20]
As a married couple, both of us (me and my wife) were working in Pakistan on reasonably decent jobs. We had all the relatives and family members and in an ideal world that would have been the place to stay and live. Being a Shia coupled with being a reciter however, made it increasingly difficult. My close-circle of friends have been killed at different times.
[20] Supplementary Court Book (SCB) 4
In its decision, the Tribunal gives a summary of the applicant’s claims including at [4.f.]:[21]
[f]riends and relatives, with whom he recited in Pakistan, have been killed by Sunni extremist groups, including the Pakistan Taliban, Lashkar-e-Jhangvi (LEJ), Sipah-e-Sahaba (SSP), between 2011 and 2013. Because of this, he fears that he will be killed if he returns to Pakistan.
[21] ACB 601
The Tribunal made the following conclusion under the heading “Analysis, Reasons and Findings” at [27]:[22]
As discussed with the applicants, there may be a range of circumstances in which a person might be targeted or killed by extremists or leave their country. The Tribunal does not accept the conclusion drawn by the applicant that, because some people who happened to be Shia reciters were killed in Pakistan, he would be killed because he was a Shia reciter; nor that reciters who left Pakistan, necessarily did so to escape such a fate.
[22] ACB 605
For the following reasons, the applicants submit that the Tribunal failed to meaningfully consider and give an active intellectual engagement to the applicant’s claim that he was at risk of being killed if returned to Pakistan, having regard to the murders of five friends and family who were also religious reciters by extremist groups within the last two years of making his application.
The Tribunal appears to have accepted the evidence that five men named by the applicant were recently killed in Pakistan; it did not dispute the evidence that they were religious reciters; it did not reject the evidence that they were brutally killed by extremist groups, the Taliban or Sipaha Sahaba; and it did not dismiss the evidence that the applicant knew them as fellow reciters and knew of their death because they were his friends or family. There is also nothing in the decision to suggest the Tribunal questioned the contention that Shia religious reciters may be subject to attack by extremist groups. Accordingly, in the preceding paragraph at [26],[23] the Tribunal is said to have impliedly accepted that being a famous Shia religious reciter may make a person be targeted by Sunni extremists, however, the Tribunal was “not satisfied that the applicant had a high profile as a reciter” to make him such a target.
[23] ACB 605
The applicants contend that, in the face of all of these circumstances which it accepted, the Tribunal failed to grapple with the circumstances and reason for the killings of those men. The Tribunal disclosed no engagement with the relevant submissions or evidence in support of the claim. The applicant was unrepresented at the Tribunal hearing. The Tribunal had an opportunity to explore thoroughly the circumstances of each attack on the men by questioning the applicant at the Tribunal hearing, however it is said to have failed to reveal that there was a genuine examination of the evidence in its decision.
The applicants contend that, to satisfy its duty to meaningfully consider in the legal sense the matters raised, as established by the authorities, the Tribunal should have engaged with the evidence by identifying and confronting the circumstances in which each of the five men were killed; to determine what as a matter of fact those circumstances meant for the applicant on his return; and to evaluate the information available to it about the likelihood and severity of the harm that he would face on his return.
It is said not to have been sufficient to simply advert to the possibility that those men could have been killed for “a range of circumstances” without any analysis or referral to material in support of that supposition. The range of circumstances may also have included being a religious reciter. There was nothing in the Tribunal’s reasoning which ruled out being a religious reciter as a possible reason for the killing of those men. Proper consideration required some explanation for why the applicant’s claim should either be accepted or not accepted that was based on more than the Tribunal’s mere speculation.
The applicants contend that the conclusion for the claim was made in the context of sheer conjecture devoid of any analysis, and it effectively meant that the resolution of the claim had in fact been side-stepped.
Further, an integer of the applicant’s claim was that he was in a particular category of religious reciters that was vulnerable to attack by extremist groups. That nuance of the claim was not considered by the Tribunal, it is said simply to have failed to make any finding in relation to it.
The Tribunal acknowledged the submission when it summarised key submissions of the applicant provided in a statement on 15 June 2018. The Tribunal stated at [12.b.]:[24]
As a reciter in Pakistan, he falls into the mid-average category: those who do not get security from the government or cannot afford to get their own security, like those reciters in the top/best category. He does not fall into category of low grade reciters, who generally remained unnoticed and were thus ignored by target killers. Given that the top category [of] reciters (who had security) were leaving the country, what future did he have in Pakistan?
[24] ACB 603
The Tribunal does not dismiss the applicant’s evidence that it was the top-level or famous religious reciters that had their own security or got it from the government. Therefore it is said to have impliedly accepted that religious reciters needed security protection if they were famous enough. This is consistent with the Tribunal impliedly accepting that famous religious reciters may be the target of extremists, as discussed above.
However, the applicants contend that the applicant was left to guess the Tribunal’s resolution of this integer of his claim. The reference to religious reciters leaving Pakistan was bundled up in the same speculative conclusion that the Tribunal made at [27].[25] That is, the Tribunal did not accept that “reciters who left Pakistan, necessarily did so to escape such a fate”, that being killed by extremists. Yet, again, it did not rule out that that reason may be one of the possible reasons for religious reciters leaving the country.
[25] ACB 605
There is also said to have been a complete failure to confront and examine the integer of the claim and/or the evidence. At [26],[26] the Tribunal was not satisfied that the applicant was famous enough as a religious reciter to be targeted by extremists. However, the applicants complain that the Tribunal did not meaningfully consider the distinction made by the applicant. He claimed that as he was not a top level reciter but a mid-level reciter and it was that peculiarity which made him vulnerable to attack. Merely noting that the integer of the claim was made is said not to satisfy the Tribunal’s duty to a give a real and genuine consideration which would require some degree of analysis of the circumstances. Again, the Tribunal had the opportunity to examine the circumstances of the claim by questioning the applicant at the hearing to address the distinction being made by the claim. The Tribunal explained its reasons for why it did not consider the applicant sufficiently famous, however, the applicants contend that the resolution of this integer was left unstated by the Tribunal.
[26] ACB 605
For the sake of completeness, the following tangential issue is noted by the applicants. In light of the Tribunal’s acceptance of the applicant’s evidence discussed above, they submit that the present case does not fall within those rare category of cases in which it is not necessary to pay due regard to corroborative evidence because an applicant’s credibility has been so weakened through cross-examination that the corroborative evidence is of no weight because “the well has been poisoned beyond redemption”.[27] It is clear that the Tribunal never found that the applicant was fabricating that the five religious reciters were killed by extremists and it did not consider their killings were inherently implausible.
[27] Re Minister for Immigration; Ex parte S20/2002 (2003) 198 ALR 59 at [49] per McHugh and Gummow JJ
Furthermore, to say that the Tribunal had the opportunity to examine the circumstances of the killings of the five men by questioning the applicant at the Tribunal hearing is not to impose an impermissible “duty to inquire”. That was not how Omar and the line authorities following Omar viewed the requirement to engage in an active intellectual process with the evidence and submissions. This distinction was succinctly explained in Nguyen v Minister for Immigration,[28] Mortimer J stated at [53]:
in order to engage with a factual representation clearly and repeatedly made, the Tribunal may have needed to make some inquiries. To say as much is not to impose some forbidden “duty to inquire”. Rather, it is to recognise the inquisitorial features of the review process, the Tribunal’s superior access to country information (including an ability to ask specific questions about specific countries, through DFAT) and to recognise the reality that some engagements with factual matters may require some activity on the part of the Tribunal, rather than it simply being a passive receptacle of what an unrepresented person does, or does not, put before it. Otherwise, it is not truly deciding what the correct or preferable decision on the review is; it is placing an impermissible onus of proof on an applicant: cf McDonald v Director General of Social Security [1984] FCA 59; 1 FCR 354 at 356-357 (per Woodward J), 366 (per Northrop J) and 369 (per Jenkinson J).
[28] [2020] FCA 985
To further illustrate the distinction explained in Nguyen in applying the Omar line of authorities, AXT19 v Minister for Home Affairs[29] provides a contrast between the Tribunal’s engagement in that case, particularly by reference to the Tribunal hearing, and the inadequacy of the engagement in the present case. As the Full Federal Court described in AXT19 at [52]-[53], the Tribunal’s decision was characterised by a detailed examination of the relevant evidence, by reference to the applicant’s testimony at the Tribunal hearing; whereas the reasoning in the present case is said to be sparse and without any reference to the oral evidence of the applicant. Where the decision in AXT19 demonstrated an evaluative exercise as to the circumstances giving rise to the applicant’s fear of harm, here the Tribunal’s “vague and general finding” that that killings may be for a “range of circumstances” and those killed “happened to be Shia reciters” was not of the same character. This extensive, clear and cogent reasoning was sufficient to satisfy the Full Federal Court in AXT19 at [53] that the Tribunal had “meaningfully engage[d]” with the applicant’s representations. The applicants submit that the decision of the Tribunal in the present case, by contrast, does not exhibit these features.
[29] [2020] FCAFC 32
Minister’s contentions
The Minister notes that the applicants submit that the Tribunal failed to “grapple” with the circumstances and reasons for the killing of the fellow reciters that the applicant had advanced as part of the reason he feared being killed if returned to Pakistan. The applicant submits that the Tribunal fell into error in failing to “explore” these claims with the applicant. That is, in order to have properly exercised its jurisdiction, the applicants appear to contend that the Tribunal needed to have obtained further information from the applicant about this part of his claims. The applicants rely upon authorities in the Federal Court concerned with a different statutory scheme, being s.501CA of the Migration Act. Those cases, including Omar, are said not to be on point. The Tribunal, in this case, was not required under the Migration Act to consider “representations” advanced by the applicant. It did, however, need to consider, in the sense of engage actively with, the applicant’s claims as advanced.[30]
[30] Dranichnikov v Minister for Immigration (2003) 197 ALR 389
The Minister submits, however, to the extent that the applicant’s reliance on s.501CA authorities are intended no more than to emphasise the nature of the Tribunal’s task in a Part 7 review to properly consider claims advanced by an applicant, caution must be employed in a court acceding to this form of argument. For instance in BIL17 v Minister for Immigration[31] the Full Federal Court stated at [59]-[60]:
Some cases have referred to a failure by the Tribunal to give proper, genuine and realistic consideration to the evidence advanced to support a protection claim as constituting jurisdictional error. However, a formulation of that kind is best avoided because it tends to distract from the proper inquiry and invite a descent into merits review: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [30], Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 at [24] and Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [42][45].
Also, it must be accepted that a finding that the decision-maker has not engaged in the active intellectual process required to constitute the required statutory review is a finding that will not be lightly made and must be supported by clear evidence: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [48] (a case concerned with a decision by the Minister, not the Tribunal). Further, the Tribunal may act on any probative material. It need not reason from that material in the way a court would reason. As to these matters, see: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 282.
[31] [2019] FCAFC 6
Further, in Tran v Minister for Immigration[32] the Full Federal Court stated at [116]:
Many of the descriptive phrases thought to give explanatory content to the text of a statutory duty or obligation can unhelpfully cause the statutory text to slip its moorings and enter upon the high seas where the forensic search for a “proper, genuine and realistic consideration” of a particular subject matter, or consideration of just how “actively and intellectually engaged” the decision‑maker really was, improperly and impermissibly puts a Ch III Court into the stormy waters of the merits of decision‑making. As to these dangers, see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 at 421 [51] Gageler J; Attorney‑General (NSW) v Quin (1990) 170 CLR 1 at 35‑37, Brennan J; Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [30], French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Swift v SAS Trustee Corporation (2010) 6 ASTLR 339, Basten JA (Allsop P agreeing) at [45]; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352, Griffiths, White and Bromwich JJ at [32]‑[36].
[32] [2019] FCAFC 126
In the present case the Tribunal set out at [4] in some detail the applicant’s claims as advanced. In particular, at (f), it noted the claim that the applicant’s friends and relatives, with whom he recited in Pakistan, had been killed by Sunni extremist groups. Whilst acknowledgment of a claim is not the same as consideration of a claim, acknowledgment of a claim should not be overlooked in this case as insignificant. The Tribunal was plainly cognisant of the centrality of this aspect of the applicant’s claims in that it referred again to the claim in its reasons at [25].
The Minister contends that the applicants’ submission that the Tribunal did not meaningfully consider the applicant’s claim about the deaths of his friends and relatives cannot be accepted. The Tribunal was not required to set aside the delegate’s decision simply because it did not reject, as a fact, that the applicant’s friends and relatives had been killed, or that there may be a range of circumstances in which a person might be targeted or killed by extremists in Pakistan. To this end, the Minister submits that the Tribunal addressed the applicant’s claim to fear harm in a logical and rational way, in that it:
a)noted at [25] that the applicant introduced a new claim in his interview in June 2013 with a Departmental delegate about his brother receiving an anonymous telephone threat;
b)noted the applicant made a further claim after the interview that his brother was attacked during a Shia procession in 2013 and that his whole family was on a hit list;
c)found at [26] the applicant’s claims to be implausible, including the claim that the applicant was an active reciter in Pakistan before he came to Australia having regard to his evidence that he had lived in the UK and Dubai for most of the six years before he came to Australia;
d)considered at [26] the applicant not to have a high profile as a reciter;
e)did not consider it plausible at [26] that the applicant would be targeted when he had been absent from Pakistan for most of the eight years before he came to Australia; and
f)did not accept at [27] the applicant’s claim that his family was on a hit list in that no one had seen such a list and was based on assumption.
These concerns with the applicant’s claims were in addition to separate concerns the Tribunal had about the applicant’s credibility at [31]-[38], and in addition to the Tribunal’s rejection of the documentary evidence adduced by the applicant at [28], and the Tribunal’s consideration at [29] of country information that pointed to a low risk of generalised and sectarian violence for Shias in Pakistan. The Minister submits that in circumstances where the applicant was required to satisfy the Tribunal of his claims, it was open to the Tribunal to have formed these views about the applicant’s claims on the material before it. Further, the Minister contends that the Tribunal was not required to descend into further consideration of a part of the applicant’s claims concerning the deaths of his friends and relatives, in that those matters did not, on their face, establish any risk of harm in the applicant personally.
The Minister further submits that the applicant’s submission that the Tribunal failed to adequately consider the distinction the applicant sought to draw between reciters in the “top/best” category and the “mid-average” category cannot be accepted. The Tribunal noted the submission advanced by the applicant at [12(b)]. It then rejected, at a higher level, the applicant’s claim to fear harm as someone who had been, or would in the future be, targeted by extremists at [26]. Whilst the applicant’s claim might have been an effort to present himself as a person in a position of acute risk in that he was famous enough to attract adverse attention, but not famous enough to enjoy security, the question for the Tribunal was whether it considered the applicant was himself at risk of harm. The Tribunal considered that question by reference to the evidence.
The authorities emphasise the importance of caution in finding error in the Tribunal’s “genuine” consideration of claims or material in that the Court’s role on judicial review is strictly supervisory. In the present case the Tribunal’s reasons demonstrate its awareness of the applicant’s claims as presented, and logical and cogent reasons for its decision. No error is said to have been made out.
Resolution
A difficulty in dealing with this ground is a lack of clarity around the applicant’s claim to be at risk because he was a reciter. The claim was made to the Tribunal in a statement by the applicant dated 14 June 2018 accompanying his response to the Tribunal’s hearing invitation.[33]
[33] SCB 4
In an earlier statement accompanying his visa application, the applicant claimed to be from a family of religious reciters[34] and also claimed to have been a religious singer.[35] The applicant furnished numerous photographs of himself speaking, or possibly singing or chanting into a microphone, sometimes standing, sometimes sitting and sometimes kneeling. Some of the representations appear to be religious in character and others may be social or secular. For example, a photograph shows the applicant on a stage in front of a curtain.
[34] ACB 250
[35] ACB 251
A critical element of recitation is the reliance on memory. The applicant appears to have claimed to have been a reciter (from memory) of the Koran but a number of the photographs he furnished showed him reading from written material or holding a piece of paper (apparently containing notes) in one hand. He could in such instances have been making a speech. In several of the pictures there appears to be a musical accompaniment which might be suggestive of a social occasion.
There does not appear to have been any attempt to explain what it was about being a reciter that put the applicant or other reciters at risk of harm from Sunni extremists. It is hard to imagine how reciting the Koran from memory would be objectionable, although reciting specifically Shia texts, or chanting or singing in a religious service might be. A further possibility is that Shia religious reciters are at risk simply because of their prominent role in Shia communities, reflective of the more general religious conflict between Sunni and Shia communities.
It is apparent that the applicant’s claims were explored at the hearing conducted by the Tribunal. At [14] of its reasons, the Tribunal stated:[36]
The applicants appeared before the Tribunal on 19 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence in support of the applicant from two witnesses from Shia Islamic community organisations in Sydney, who spoke about his participation in community events, including as a reciter and the prevalence of anti-Shia sectarian violence in Pakistan. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi (Indian/Pakistani), Urdu and English languages.
[36] ACB 603
It has not been possible for this Court to explore the discussion of the applicant’s claims at the hearing in more detail because a transcript of the hearing has not been provided.
While the Tribunal was prepared to accept that the applicant was a religious reciter (whatever that might mean) the Tribunal was not persuaded that his performance of that role put him at a real risk or real chance of significant or serious harm in Pakistan.
The Tribunal’s reasoning is set out in its reasons at [22]-[27]:[37]
[37] ACB 605
The applicant's central claim is that, if he returns to Pakistan, he will be harmed or killed by Sunni extremists from SSP and LEJ on the grounds of his religion because he is a famous Shia religious reciter and his name is on their "hit list". At hearing, the applicant also introduced the claim that he fears Mr H might kill him if he returns to Pakistan, although he has not seen or heard from him since 2012 and is not aware of his whereabouts.
The Tribunal accepts that the applicant is a Pakistani national of Shia Muslim religion and has been a religious reciter in Pakistan and Australia. However, for reasons outlined below the Tribunal did not find the applicant to be a credible or truthful witness and has concluded that the decision under review should be affirmed. In reaching this conclusion, the Tribunal has had regard to various inconsistencies in his evidence throughout the process, his admission that he gave untruthful evidence to the Department and the Tribunal, the implausibility of key aspects of his claims and other reasons detailed below.
Shia religion and religious reciter
The applicant gave consistent evidence that the only harm he experienced in Pakistan was from students from Sunni organisations while organising Shia activities at college in 1996. He had no encounters with SSP or LEJ while in Pakistan.
However, the applicant's claims to fear harm evolved significantly over the course of the Protection visa process. In his initial application, his fear of harm was premised on his claim that he was a famous religious Shia reciter in Pakistan and many of his fellow reciters and relatives had allegedly been killed around 2011 and 2012. However, in his Department interview in June 2013 as recorded in the delegate's decision, the applicant introduced a new claim that, a few months earlier, his brother in Rawalpindi had received an anonymous telephone threat against the applicant should he return to Pakistan. In a statement submitted after the interview, the applicant further claimed that, after his brother was attacked during a Shia procession in November 2013, he found a death threat from the LEJ and that his whole family was on a SSP "hit list". In support of his claim, the applicant submitted various documents relating to the threats and attacks on his brother, including a FIR (as detailed at paragraph 13).
The Tribunal finds these claims implausible. To start with, the applicant's claim that he was a famous religious reciter, performing in various cities around Pakistan and active in the Shia community is seriously undermined by his revelation (paragraph 6.a and 6.c) that he had, in fact, lived in the UK and Dubai for most of the six years before he left for Australia. Even if it were to accept that the applicant was a religious reciter from childhood and recited until he left Pakistan for the UK in 2005, the Tribunal is not satisfied that the applicant had a high profile as a reciter or Shia religious activist in Pakistan, a point he himself made in his submission to the Tribunal (paragraph 12.b). Nor does the Tribunal find credible that in 2013 or 2014, Sunni extremists, like the SSP or LEJ, would be targeting the applicant, who had been absent from Pakistan for most of the previous eight years, for reciting activities in Pakistan a decade earlier and in Australia since 2011; or for any other reason.
Neither does the Tribunal accept that the applicant's name is on a SSP or LEJ "hit list", noting his evidence at hearing that no one had seen such a hit list and that this was merely his assumption, based on his brother telling him about other reciters being killed or leaving Pakistan. As discussed with the applicants, there may be a range of circumstances in which a person might be targeted or killed by extremists or leave their country. The Tribunal does not accept the conclusion drawn by the applicant that, because some people who happened to be Shia reciters were killed in Pakistan, he would be killed because he was a Shia reciter; nor that reciters who left Pakistan, necessarily did so to escape such a fate.
The Tribunal went on to make other adverse credibility findings about aspects of the applicant’s claims. For present purposes, however, it is sufficient to note that in considering the reciter claim, the Tribunal was unwilling or unable to separate that claim from general claims based on enmity towards the Shia community in Pakistan by Sunni extremists.
The Tribunal dealt with that claim. There was, in my view, an active intellectual involvement by the Tribunal in dealing with the submissions and evidence put forward by the applicant. That was voluminous but most of it related to general issues of religious conflict. The applicant’s effort to link himself to the asserted deaths of five men who he described as “fellow reciters in Pakistan” was given scant regard by the Tribunal. That does not, in my view, amount to a jurisdictional error. The applicant’s claim that these five men were killed because they were Shia reciters was a bald claim. As the Tribunal pointed out, there may be many explanations for their deaths. They might have been prominent in the Shia community because they were reciters or for some other reason and that prominence may have put them at greater risk. They may have been high profile advocates and supporters of Shia causes (one of the men was apparently a lawyer). The reality was that the applicant’s attempt to associate himself with the deaths of five others in order to create a perception of risk was not persuasive to the Tribunal.
I see no error in the Tribunal’s approach and I agree with the Minister that the first ground does not establish any jurisdictional error.
Ground 2 – did the Tribunal make a finding which was irrational or without any probative foundation or was legally unreasonable?
Applicants’ contentions
Ground 2 relies on the same claim, evidence and/or submissions relied on in Ground 1 and re-frames the failing of the Tribunal into an alternative jurisdictional error. The Tribunal’s findings and conclusions, referred to in Ground 1 are based on inferences drawn from a lack of rational, logical or probative basis or connection to the material.
WAIJ v Minister for Immigration[38] involved findings on the credibility of an applicant, Lee and Moore JJ after referring to High Court authorities found that the Tribunal may only make findings or inferences of fact grounded upon probative material and logical grounds, stating that (citations excluded):
[22]...A determination based on illogical or irrational findings or inferences of fact will be shown to be a decision not supported by reason and to have no better foundation than an arbitrary selection of a result. It is because it is based upon such findings that the determination is an unreasoned decision. …
[40] As noted above matters the Tribunal described as implausible were not claims disproved by proved facts nor events so contradicted by commonsense as to be able to be dismissed as possible occurrences. The Tribunal engaged in speculation as to what it thought would have been a more likely course of events but it had no basis on which it could say that the events described by the appellant, and corroborated in the documents, could not have occurred. The Tribunal may not have been persuaded that the events had occurred but the Tribunal had no material on which it could convert such a doubt into a positive finding that the events had not taken place.
[38] (2004) 80 ALD 568
WAIJ was referred to in SZLGP v Minister for Immigration,[39] a case in which the Tribunal repeatedly stated that it was “not convinced” about parts of the appellant’s evidence. Gordan J (as she then was) stated (citations excluded) at [24]-[25]:
I am of the view that those findings or inferences of fact are not grounded upon probative material and logical grounds. ….
Notwithstanding the breadth of the Tribunal’s discretion to make weight and credibility determinations, the requirement described in WAIJ to make those determinations “judicially” imposes limits that credibility and weight determinations be made rationally and logically, and be articulated properly. …[F]or a migration Tribunal’s adverse credibility finding to survive appellate scrutiny, there must be a “legitimate articulable basis” for the Tribunal’s finding and the Tribunal “must offer a specific, cogent reason for any stated disbelief”
[39] [2008] FCA 1198
Similarly, in Muggeridge v Minister for Immigration,[40] Charlesworth J, with whom Flick and Perry JJ agreed, referred to Deane J Australian Broadcasting Tribunal v Bond,[41] to find at [35](5):
When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact.
[40] (2017) 255 FCR 81
[41] (1990) 170 CLR 321 at 367–8
In the present case, the applicants submit that the Tribunal’s conclusion at [27][42] that the five men may have been attacked and killed by extremist for “a range of circumstances” and they were “people who happened to be Shia reciters killed in Pakistan” was based on its own speculation, there was no logical connection to the evidence. There was no evidence that those men were known to the extremists for any other reason, and the inference by no means necessarily follows from the evidence.
[42] ACB 605
The applicants contend that the Tribunal disbelieved the applicant on the basis of mere conjecture. Relying on utter coincidence to found its conclusion lacked any logical or rational reasoning. The Tribunal’s reasoning was also irrational or illogical because:
a)it impliedly accepted that famous religious reciters had security protection and famous religious reciters needed it as they may be targeted by extremist groups; and
b)it failed to rule out that being a religious reciter may be a reason for their killings, and to offer an alternative cogent and articulable reason for why they were killed.
A similar defect in reasoning is said to have been made in respect of the Tribunal’s finding on people leaving Pakistan who happened to be religious reciters.
In the circumstances, the applicants submit that the findings of the Tribunal were not rationally made and not based upon evidence having a logical and probative weight.
The applicants submit that the Tribunal’s failure to address the integer of the claim described in Ground 1 above can also be reframed into an alternative jurisdictional error. The Tribunal’s finding at [26][43] that it was “not satisfied that the applicant had a high profile as a reciter or Shia religious activist in Pakistan, a point he himself made in his submission to the Tribunal [12.b]” is said to have been irrational and illogical. The reason is said to be because the Tribunal used the very distinction made by the applicant to disbelieve the claim. Paradoxically, he claimed that it was the very fact that he was not famous and in the next category down (mid-level), which made him vulnerable to attack because it meant he was without security; and the famous reciters were leaving Pakistan increasing the likelihood of him being targeted. The Tribunal erred by failing to appreciate and consider this distinction.
[43] ACB 605
Resolution
I agree with and adopt the Minister’s submissions on the second ground.
In the second ground the applicants submit that the Tribunal disbelieved the applicant about his risk of harm in connection to the five friends and relatives who were killed, on the basis of mere conjecture and coincidence. That misrepresents the Tribunal’s findings. The Tribunal was not required to form a conclusive view about the reasons why the five men died. Even if it was, the applicant did not present any evidence about these men, but simply asserted that they were reciters, like him, and had been killed by the identified groups. The Tribunal had no duty to make enquiries, or to investigate the applicant’s claims in order to make out his claims for him. The Tribunal’s observation that there may be a range of circumstances in which a person might be targeted or killed by extremists, or might choose to leave Pakistan, was a logical one. It remained for the applicant to persuade the Tribunal that he was at risk of harm because of his status as a reciter.
As noted above, there was nothing illogical in this reasoning process. The applicant’s arguments avoid the Tribunal’s reasoning exposed at [25]-[30] and at [32]-[38]. The Tribunal had sufficient reason to doubt the veracity of the applicant’s claims to fear harm. Read in proper context, there was no illogicality in the reasoning process.
Conclusion
The applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 27 October 2020
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