DWZ16 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 547
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DWZ16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 547
File number: MLG 2740 of 2016 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 29 June 2023 Catchwords: MIGRATION – Protection (Class XA) visa – review of Administrative Appeals Tribunal – whether there was an error of law – whether Tribunal denied the applicant procedural fairness – grounds of review not particularised – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 36(2), 476
Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) sch 2, pt 2, div 1, item 3
Cases cited: BYMD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 936
Degning v Minister for Home Affairs [2019] FCAFC 67
Kopalapillai v Minister for Immigration and Multicultural Affairs (1986) 86 FCR 547
Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50
Division: Division 2 General Federal Law Number of paragraphs: 42 Date of last submissions: 15 December 2021 Date of hearing: 15 December 2021 Place: Melbourne (by videoconference) The Applicant: Appeared in person Counsel for the First Respondent: Ms K Grinberg Solicitor for the First Respondent: Australian Government Solicitor The Second Respondent: Submitted an appearance, save as for costs ORDERS
MLG 2740 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DWZ16
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
HER HONOUR JUDGE C.E.KIRTON KC
DATE OF ORDER:
29 june 2023
THE COURT ORDERS THAT:
1.The Originating Application filed 15 December 2016 is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $6,000.
3.The name of the First Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an Originating Application filed on 15 December 2016 (Application), the Applicant seeks judicial review of the Administrative Appeals Tribunal (Tribunal) decision, dated 28 November 2016 (Tribunal’s Decision).
The Tribunal affirmed a decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Protection (Class XA) visa (Visa).
The Application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act). The Applicant has one (1) ground of review in the Application, in two (2) parts, which the Court will consider in detail below.
This matter was heard on 15 December 2021 and proceeded by way of videoconference on Microsoft Teams as a result of the health protocols adopted by the Court at the time due to the ongoing COVID-19 pandemic (Final Hearing). The Applicant was assisted by an interpreter in the Pashto and English languages. The Court is satisfied that the Final Hearing provided a meaningful opportunity for the Applicant to engage with the Court.
BACKGROUND
The Court has before it a Court Book numbering 195 paginated pages. The Court notes that the Minister’s written submissions, filed on 7 November 2018 (Minister’s Submissions), at [1] to [7], accurately summarise the factual history of this matter. The Court adopts those submissions as its own, with some amendments, as follows.
The Applicant is a citizen of Pakistan, and arrived in Australia on 26 December 2014 on a Temporary Work (Short Stay Activity) (subclass 400) visa.[1]
[1] Court Book (CB) 29, 129.
On 23 January 2015, the Applicant applied for the Visa, the Visa application being dated 22 January 2015.[2] The Applicant’s claims were set out in response to questions on the Visa application ‘Form 866C’ and in a Statement of the Applicant’s brother annexed to the Visa application.[3] The Applicant claimed protection on the basis that:
(a)He left his country of origin because he was frightened of the Taliban;[4]
(b)The Taliban made threats against him and his brother, demanding money from them;[5]
(c)The Taliban is opposed to Western sports;[6] and
(d)He fears he would be killed if returned to his country of origin.[7]
[2] CB 9-45.
[3] CB 20-45; CB 46-47.
[4] CB 40.
[5] CB 47.
[6] CB 47.
[7] CB 40.
On 18 November 2015, the Delegate refused to grant the Applicant the Visa (Delegate’s Decision).[8] The Delegate was not satisfied that the Applicant is a person in respect of whom Australia has protection obligations pursuant to ss 36(2)(a) or (aa) of the Migration Act.
[8] CB 125-141.
On 25 November 2015, the Applicant applied to the Tribunal for review of the Delegate’s Decision.[9] The Applicant did not appoint a representative or authorised recipient, providing his own postal address, email address, and telephone number for the purpose of receiving correspondence from the Tribunal.
[9] CB 142-143.
On 26 September 2016, the Tribunal sent a letter to the Applicant’s nominated email address inviting him to attend a hearing scheduled for 14 November 2016.[10] On 7 November 2016, the Applicant sent to the Tribunal a ‘Response to hearing invitation’ form, indicating that he required the assistance of a Pashto interpreter, and that he intended to call one (1) witness.[11]
[10] CB 148-151.
[11] CB 155-157.
On 14 November 2016, the Applicant attended a hearing before the Tribunal and provided various documents (Tribunal Hearing).[12] The Tribunal Hearing was held contemporaneously with the Applicant’s brother’s Tribunal hearing.
[12] CB 158-172.
On 28 November 2016, the Tribunal affirmed the Delegate’s Decision to refuse to grant the Applicant the Visa.[13] On 29 November 2016, the Tribunal published a written record of its decision and reasons.[14]
[13] CB 178.
[14] CB 176-192.
TRIBUNAL’S DECISION
The Tribunal’s Decision appears pages 178 to 192 of the Court Book. The Minister’s Submissions, at [8] to [16], accurately summarise the Tribunal’s Decision. The Court adopts the summary provided in those submissions as its own, with amendments, as follows.
The Tribunal took into account a report from a psychologist dated ‘from March to June 2015’.[15] This report stated that the Applicant had received psychological assistance for a period of time and had been on sleeping tablets, though he had stopped, receiving the psychological assistance and taking the sleeping tablets, sometime earlier. The Tribunal considered the report, including with respect to the credibility of the Applicant’s evidence, and found that it did not affect the Applicant’s ability to present evidence at the Tribunal Hearing.[16]
[15] CB 183, [20].
[16] CB 183-184, [20].
The Tribunal undertook an assessment of the Applicant’s credibility and made a number of findings with respect to the Applicant’s evidence and supporting documentation. These findings include the following:
(a)It was ‘not plausible’ that the Taliban had not approached the Applicant directly, given his consistent daily routine as a squash player;[17]
(b)A letter of support dated 15 December 2014 was ‘a concoction created to support the applicants’ claims’ and therefore no weight was placed upon it;[18]
(c)A number of documents provided by the Applicant, including a purported threat letter from the Taliban, were ‘not genuine’ and therefore no weight was placed upon them. This finding was made taking account of the poor quality of the documents and the manner in which they had purportedly been obtained by the Applicant;[19] and
(d)The claim that the Applicant’s family has been forced to move for fear of the Taliban or that the Applicant’s father has been approached by the Taliban in any way, were ‘concocted by the applicants to support their overall claims’.[20]
[17] CB 186, [33].
[18] CB 186, [34].
[19] CB 185-186, [28]-[35].
[20] CB 191, [53].
The Tribunal was not satisfied that, if returned to Pakistan, there were substantial grounds for believing that there was a real risk that the Applicant would suffer significant harm.[21]
[21] CB 191-192, [57].
The Tribunal was therefore not satisfied that the Applicant was a person in respect of whom Australia owed protection obligations under ss 36(2)(a) or (aa) and consequently affirmed the Delegate’s Decision.[22]
[22] CB 192, [58]-[61].
PROCEEDINGS BEFORE THE COURT
On 15 December 2016, the Applicant filed the Application seeking judicial review, with an accompanying Affidavit affirmed by the Applicant on the same date.
The Applicant was provided with an opportunity to file an amended application by Orders of a Registrar of this Court, dated 21 June 2017.[23] The Applicant did not do so and as such these Reasons for Judgment refer to the grounds set out in the Application. The Application contained the following grounds of review:
1.The decision of the Tribunal:
(a)is affected by an error of law; and
(b)denied the applicant procedural fairness.
[23] Orders 21 June 2017, Order 3.1.
The materials before the Court include the Court Book and the Minister’s Submissions. The Court has also considered the transcript of the Final Hearing.
The Applicant appeared before the Court at the Final Hearing without legal representation and was assisted by a Pashto interpreter.
At the Final Hearing, the Applicant said: that he was very stressed;[24] that his brother had filed his documents on his behalf;[25] that he feared being killed if he returned to Pakistan;[26] that he had been away from his family for seven (7) years;[27] and that he would never return to Pakistan.[28]
[24] Transcript P3:L36; P5:L14.
[25] Transcript P4:L13.
[26] Transcript P5:L1-L2.
[27] Transcript P5:L2-L3
[28] Transcript P8:L25-L26; P8:L30; P8:L34.
The Court will now consider each Ground for review.
CONSIDERATION
Ground 1(a)
In Ground 1(a), the Applicant contends that the Tribunal’s Decision is affected by an error of law. This ground has not been particularised by the Applicant.
Counsel for the Minister submitted that the Tribunal had not made an error of law in its decision, had correctly stated the relevant law and legal principles, and had provided reasons for its findings.[29] This was said to be the case by reference to the Tribunal’s consideration of the Applicant’s evidence, the relevant country information, and documents provided by the Applicant.[30]
[29] Transcript P7:L19-L23.
[30] Transcript P7:L24-L28.
Counsel for the Minister further submitted that the Tribunal’s Decision was ‘primarily based on adverse credibility findings about the evidence provided by the [Applicant]’.[31] In circumstances where such a finding is based on rational grounds after consideration of matters ‘logically probative of the issue of credibility’, a finding of fact as to credibility is sound: Minister’s Submissions, [21]; and Kopalapillai v Minister for Immigration and Multicultural Affairs (1986) 86 FCR 547 at 552.
[31] Transcript P7:L23-L24.
The Court refers to the discussion at [15] above and considers that it is plain from the Tribunal’s Decision that the finding made with respect to the Applicant’s credibility was arrived at after careful consideration of relevant matters, including: the documentation provided by the Applicant; the Applicant’s oral evidence; and the country information as it related to the treatment of squash players in Pakistan.
Counsel for the Minister also submitted that it was open to the Tribunal to find as it did on the materials and evidence before it.[32] This latter submission, insofar as it relates to the Tribunal’s decision to give the documents provided by the Applicant no weight, relied on Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485, where North and Lander JJ said at [36]:
36When a decision-maker has conducted a hearing of the kind which is conducted by the RRT and has heard the applicant, and has reached the tentative conclusion that the applicant’s claims have been fabricated, the decision-maker is entitled in our opinion to reject evidence which would, if accepted, have corroborated the applicant’s account. That does not mean that any evidence of corroboration could be rejected. It would depend upon the nature, content and quality of the corroborative evidence before a decision-maker could determine to reject it out of hand. […]
[32] Transcript P7:L36-L37.
I agree with the submissions of Counsel for the Minister that it was open to the Tribunal to give the documents provided by Applicant no weight, in light of its findings as to the Applicant’s credibility.
In the absence of any particulars with respect to the Applicant’s contention in Ground 1(a), the Tribunal’s Decision was not affected by any apparent an error of law.
Ground 1(a) is dismissed.
Ground 1(b)
In Ground 1(b), the Applicant contends that the Tribunal’s Decision denied the Applicant procedural fairness. Similarly as with Ground 1(a), Ground 1(b) has not been particularised by the Applicant.
Counsel for the Minister submitted that there was no indication in the Tribunal’s Decision that the Applicant was denied procedural fairness, but rather the Applicant:
(a)Was invited to attend a hearing before the Tribunal; and
(b)Attended the Tribunal Hearing, where he was able to present evidence and respond to concerns held by the Tribunal.[33]
[33] Transcript P7:L41-L45; Written Submissions of the First Respondent, filed 7 November 2018, [25].
In BYMD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 936, Derrington J said, at [44], that the question as to whether procedural fairness has been afforded is:
44[…] whether, when looking at the whole of the circumstances surrounding the hearing before the Tribunal, the applicant had “his mind directed to the critical issues or facts on which the decision was likely to turn unless the recognition of the issue was, from the material with which he was provided, an obvious and natural conclusion to draw”: Degning v Minister for Home Affairs [2019] FCAFC 67; 270 FCR 451 at [12] per Allsop CJ.
I note that in addition to whether the Applicant was invited to attend a hearing before the Tribunal and present arguments and give evidence, consideration as to whether procedural fairness was afforded to the Applicant may be found in examining whether the Tribunal adequately alerted the Applicant to the key issues upon which it would ultimately make its decision.
As submitted by Counsel for the Minister, with whom I agree, the Tribunal’s Decision was primarily based on adverse credibility findings about the Applicant’s evidence.[34] It follows, therefore, that as a matter of procedural fairness, the Tribunal was required to notify the Applicant of any issues of credibility concerning his evidence and indeed of the documentation provided by the Applicant.
[34] Transcript P7:L23-L24.
I am satisfied that the Tribunal adequately put the Applicant on notice of its adverse view of the Applicant’s credibility, including:
(a)By questioning how the FIR report, log book and Taliban threat letter were created and provided to the Applicant;[35]
(b)By questioning the ‘uneven photocopy marks’ of the FIR report;[36]
(c)By noting to the Applicant the timing, the poor quality, and the Applicant’s provision of the Taliban threat letter;[37]
(d)By questioning why the Taliban had not sought out the Applicant directly, given their claimed interest in him;[38]
(e)By questioning the reasoning behind a support letter provided by the Applicant drafted by ‘an elder of the locality’ and dated 15 December 2014;[39]
(f)By discussing with the Applicant the country information regarding squash players in Pakistan;[40] and
(g)By discussing with the Applicant the country information that demonstrated that authorities in Pakistan were taking action against the Taliban, and that ‘the Taliban were not in a position to seek to threaten, extort or harm people such as the [Applicant]’.[41]
[35] CB 185, [29].
[36] CB 185, [30].
[37] CB 185, [31]-[32].
[38] CB 186, [33].
[39] CB 186, [34].
[40] CB 186, [37]-[40].
[41] CB 190, [47].
Further to my finding at [37] above, I am satisfied that the Applicant was not denied procedural fairness by the Tribunal.
Ground 1(b) is dismissed.
CONCLUSION
The Application has not identified any jurisdictional error with the Tribunal’s Decision.
The Application is dismissed.
At the Final Hearing, the Minister sought costs fixed in the sum of $6,000.[42] This amount is below the schedule rate of $7,853 allowed in pt 2, div 1, item 3 of sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), applicable at the time of the Final Hearing. Accordingly, an Order will be made that the Applicant pay the Minister’s costs fixed in the sum of $6,000.
[42] Transcript P8:L1-L2.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge C.E. Kirton KC. Associate:
Dated: 29 June 2023
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