DXN18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 311

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DXN18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 311

File number(s):

MLG 2235 of 2018

Judgment of:

DEPUTY CHIEF JUDGE MERCURI

Date of judgment:

27 April 2023

Catchwords:

MIGRATION LAW–  application for judicial review – decision of the Administrative Appeals Tribunal –Protection (subclass 866) visa – where the applicant claims to fear harm due to his political activity in Pakistan – consideration of whether the Tribunal failed to consider evidence about the applicant’s likely continuing political involvement and misunderstood the evidence presented – where the applicant attended two hearings before the Tribunal – distinguished from Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 – where it is found that there was no inconsistency between the applicant’s evidence at both hearings – no jurisdictional error established – application dismissed with costs.

Cases cited:

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

Re-Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405

Division:

Division 2 General Federal Law

Number of paragraphs:

61

Date of last submission/s:

14 February 2023

Date of hearing:

14 February 2023

Place:

Melbourne

Counsel for the Applicant:

Mr A Aleksov

Solicitor for the Applicant:

Carina Ford Lawyers

Counsel for the First Respondent:

Mr A Solomon-Bridge

Solicitor for the First Respondent:

Australian Government Solicitor

ORDERS

MLG 2235 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DXN18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	deputy chief JUDGE MERCURI
DATE OF ORDER:	27 April 2023

THE COURT ORDERS THAT:

1.The applicant’s Amended Initiating Application filed on 17 January 2023 be dismissed.

2.The applicant pay the first respondent’s costs fixed in the sum of $6,600.

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

DEPUTY CHIEF JUDGE MERCURI:

INTRODUCTION

1. This is an application for judicial review of a decision by the Administrative Appeals Tribunal (‘the Tribunal’) made on 3 July 2018.[1]  By its decision, the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection (subclass 866) visa (‘protection visa’).

   [1] Amended Initiating Application filed on 17 January 2023.

   BACKGROUND

2. The applicant is a Pakistani citizen from Karachi who arrived in Australia on 8 October 2014, initially on a student visa.[2]

   [2] Court book at page 10.

   Application for protection visa on 22 December 2014

3. On 22 December 2014, shortly after his arrival in Australia, the applicant made an application for a protection visa.[3]

   [3] Court book at page 142.

   Statutory declaration made on 15 December 2014

4. Attached to the applicant’s application for a protection visa is a statutory declaration made on 15 December 2014, set out at pages 61 to 63 of the court book.  In this statement, the applicant claims to fears harm and persecution in Pakistan as a result of his involvement and activism with the Awami National Party (‘ANP’).[4]

   [4] Court book at page 61 and following.

5. In his statement, the applicant claims that prior to departing Pakistan, he joined the ANP on 2 May 2012 and ‘became very involved and active’ in its operations.[5]  At paragraph [4] of his statutory declaration, the applicant says that this initially included decorating flags and banners for rallies and speeches, then handing out leaflets and talking to people about the ANP.

   [5] Court book at page 61.

6. The applicant further states that he attended a rally in 2013 in Mominabad prior to the election.  He says that there was a bomb explosion, which resulted in 11 or 12 people being killed and many injured and that the Tehrik-e-Taliban Pakistan (‘TTP’) claimed responsibility for the bomb.

7. The applicant also states that following the May 2013 election, the ANP lost their seats and the province of KPK.  This, according to the applicant, led to further targeting of ANP leaders and workers by the TTP.

8. Notwithstanding this, the applicant says that he continued to work for the ANP and following the May 2013 election, he became known as a local leader.  The applicant says that he was subsequently threatened and told to cease activities against the TTP.  Although he initially did not take these threats seriously, the applicant says that after he was warned to be careful, he ultimately reported the matter to the police, who told him to change his movements.[6]

   [6] Court book at page 62.

9. The applicant says that after he began receiving these threats, he applied for a student visa to come to Australia.  He says that the only reason for making this application was to find a way to leave Pakistan with a view to then applying for protection.  He states that he was granted a student visa on 24 September 2014.  On 29 September 2014, while leaving his home, the applicant says that he was shot at and that he reported this incident to the police.[7]  After this attempt on his life, he says he suffered anxiety and sleeplessness and attended upon a doctor who suggested he seek psychiatric assistance.  He says that he did not pursue this at the time, as he was too scared, but simply made arrangements to leave Pakistan, which he did on 7 November 2014.  The applicant says that he has continued to suffer anxiety and depression even after his arrival in Australia.

   [7] Court book at page 62.

10. The applicant then outlines his fears of what he would face should he return to Pakistan, stating:

    15.I fear that if I returned to Pakistan, I will be shot and killed. The police cannot help me. They have no resources or interest in pursuing TTP. They are also afraid as so many police in our area have been killed by TTP. Their advice to me was to change my movements but they could not give me protection.

    Refusal of protection visa on 26 November 2015

11. On 26 November 2015, the applicant was notified of the refusal of his application for a protection visa.[8]

    [8] Court book at page 240.

    Application for review at Tribunal on 20 December 2015

12. On 20 December 2015, the applicant lodged an application for review of the delegate’s decision with the Tribunal.[9]

    [9] Court book at pages 265 to 266.

13. On 26 September 2016, the applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments.  The hearing was initially scheduled to be held on 3 November 2016,[10] but was ultimately adjourned to 10 November 2016.[11]

    [10] Court book at page 273 and following.

    [11] Court book at page 278 and following.

14. On 19 July 2017, the applicant was advised that there was a change in the member who would consider his review application.  In that correspondence the applicant was advised:

    All documents and other material that were previously considered by Member Hearn- McKinnon have been given to Member Packer. This material includes the Department of Immigration and Border Protection file; recordings of any hearings with us; and any submissions or other evidence provided to us. We will write to you if Member Packer requires any further information.[12]

    [12] Court book at page 291.

15. On 4 June 2018, the applicant was then invited to attend a further hearing before Member Packer.[13]  That hearing occurred on 19 June 2018.[14]

    [13] Court book at page 315.

    [14] Court book at page 324 and following.

16. On 5 July 2018, the applicant was notified of the Tribunal’s decision.  By that decision made on 3 July 2018, the Tribunal affirmed the decision not to grant the applicant a protection visa.[15]

    [15] Court book at page 340.

    TRIBUNAL DECISION

17. The Tribunal’s decision record of 3 July 2018 is at pages 341 to 353 of the court book.

18. After setting out the background in this matter, the Tribunal considered the applicant’s claims and evidence and made findings from paragraph [11] and following of its decision record.  In particular, at paragraphs [14] to [15], the Tribunal set out the applicant’s key claims for protection.

19. At paragraphs [16] to [21], the Tribunal summarises the evidence given by the applicant.  At paragraph [22], the Tribunal sets out country information provided by the applicant and his representative, as well as other country information before the Tribunal. The Tribunal then goes on at paragraph [23] and following to assess the applicant’s claims.

20. In particular, the Tribunal dealt with the applicant’s claims relating to his political activities at paragraphs [27] to [29].  At paragraph [30], the Tribunal then noted:

    30.Having considered the claims and evidence, [the Tribunal] accept[s] his claims that:

    •He had been an active Awami National Party member in Karachi and his local party activities, albeit low level, gained him a local political profile.

    •In July-August 2014 he had received two threatening phone calls from unidentified militants telling him to cease his ANP activities.

    •On 29 September 2014 he was shot at by unidentified gunmen.

21. At paragraphs [31] to [46], the Tribunal sets out its findings in relation to the applicant’s claims to satisfy the criteria as a refugee. The Tribunal concludes at paragraph [47] that the applicant ‘does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for the reasons he claims’, either when considered individually or cumulatively.

22. The Tribunal then went on at paragraphs [48] to [51] to consider whether the applicant satisfied the complementary protection provisions and concluded at paragraph [51] that he did not.

23. For these reasons, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

    GROUND OF REVIEW

24. The applicant raises only one ground of review, namely:

    The Tribunal failed to consider the evidence about the applicant’s likely continuing involvement with the ANP upon any return to Pakistan, including at the first hearing (lines 190-298) and misunderstood the evidence at the second hearing.[16]

    [16] Amended Initiating Application filed on 17 January 2023.

25. The issue before this court is therefore a relatively confined one.

26. In support of this ground, the applicant relies upon the transcript of both the first and the second Tribunal hearings annexed to the affidavit of Ms Carina Ford dated 13 January 2023.[17]  The applicant was assisted in both Tribunal hearings by an interpreter.  The Minister did not object to Ms Ford’s affidavit being accepted into evidence.

    [17] Affidavit of Ms Carina Ford sworn on 13 January 2023 and filed 17 January 2023 at Annexure CF-1.

27. The applicant submits that he gave evidence in the first Tribunal hearing that, if he were to return to Pakistan, he would continue his involvement with the ANP.[18]  The applicant further submits that the Tribunal did not consider this evidence which was fundamental to the applicant’s claim to fear harm on his return to Pakistan, and in failing to do so, the Tribunal fell into jurisdictional error.[19]

    [18] Applicant’s Outline of Submissions filed on 17 January 2023 at paragraph [4].

    [19] Applicant’s Outline of Submissions filed on 7 January 2023 at paragraph [7].

28. In support of this ground, the applicant takes issue with the Tribunal’s findings at paragraph [38] of the Tribunal decision record.[20]  Given the significance of that paragraph, it is appropriate to set it out in full.  Paragraph [38] of the Tribunal’s decision record states:

    38.I next considered what he is likely to do if he returns to Karachi. In his application he provided information and photos concerning his attendance at a few ANP events in Melbourne and a letter of support from the ANP (Australia) President dated 11 August 2015 that described him as an active member. At my hearing I queried whether he continued to have an interest in politics and the ANP and he responded that his heart is still with the ANP but in recent years he has not done any activities with the party and anyway the party is not very active here. He added that he discusses issues with friends but does not really contact anyone in Karachi, and indeed he starts shaking at the thought of the ANP in Karachi. At the hearing I put to him his evidence shows that if he returns to Karachi he would not again become involved in politics. He responded that he cannot even think of returning to Pakistan. I next put to him that it may be I would consider that if he returned, he would not again become involved in politics as he had been when he departed. He then responded that he was saying he could be targeted in the future because he had been a target in the past. In sum, based on the applicant’s evidence, I find that while he still supports the ANP and would do so in the future, he would not become involved in political activities in Karachi including for the ANP, now and in the reasonably foreseeable future.

    [20] See Applicant’s Outline of Submissions filed on 7 January 2023 at paragraph [1].

29. It is submitted for the applicant that when regard is had to the transcript, that this is not an entirely fair summary of the evidence given by the applicant and/or it is apparent from this summary that the Tribunal ignored evidence given by the applicant in the first hearing before the Tribunal differently constituted.

30. To make good this proposition, the applicant referred the court to the transcript of the second hearing, specifically, commencing at page 88 of Ms Ford’s affidavit, and in particular, the following exchange:

    [Member]:       First off, do you still have any interest in the ANP?

    …

    [Applicant]:     Yes. My heart is still with for ANP. It’s like a vision and a vision is generally something that stays for a very long time.[21]

    [21] Affidavit of Ms Carina Ford sworn on 13 January 2023 and filed 17 January 2023 at Annexure CF-1.

31. The Tribunal then goes on to ask about the applicant’s activities in Australia, with the applicant indicating that he has not been able to do much and also that the ANP division in Australia is not very active.[22]

    [22] Affidavit of Ms Carina Ford sworn on 13 January 2023 and filed 17 January 2023 at Annexure CF-1, page 88 and following.

32. The Tribunal then asks whether the applicant had been in communication with anyone in Karachi, to which the applicant replied:

    It’s not specifically one person. It’s basically all my friends who were previously part of ANP in Pakistan. I called them off and on to discuss the party matters with them.[23]

    [23] Affidavit of Ms Carina Ford sworn on 13 January 2023 and filed 17 January 2023 at Annexure CF-1, page 90.

33. The applicant then clarified that he was referring to people now in Australia.[24]  When asked again whether he had any contact with people in Karachi he replied, ‘No. I don’t contact there a lot’.[25]

    [24] Affidavit of Ms Carina Ford sworn on 13 January 2023 and filed 17 January 2023 at Annexure CF-1, page 90.

    [25] Affidavit of Ms Carina Ford sworn on 13 January 2023 and filed 17 January 2023 at Annexure CF-1, page 90.

34. In this context, the following exchange then occurred:

    [Member]:      Okay. When you do, it’s what, family?

    …

    [Applicant]:     Just party and just hearing the name of it, it just creates a lot of fear inside of me and start shaking, especially at the thought of thinking of Taliban.

    [Member]:If you did go back, or I [sic] had to go back to Pakistan, it sounds like you wouldn’t get involved in politics again?

    …

    [Applicant]:     Well, as far as my vision is concerned – I mean, I can’t go straight from it and as such, I haven’t thought about going back to Pakistan at the moment.

    [Member]:Well, based on your evidence today, it might be that I’ll consider that if you did return to Pakistan to Karachi you wouldn’t seek to get involved in politics as you had done before you left.

    …

    [Applicant]:     Regardless of my association with anybody or being involved in any political association, I have been a target. I have been attacked and my attackers are still yet unknown and it can happen to me anytime.[26]

    [26] Affidavit of Ms Carina Ford sworn on 13 January 2023 and filed 17 January 2023 at Annexure CF-1, page 90 and following.

35. The applicant concedes that the evidence given in the second Tribunal hearing in response to the direct question from the Tribunal member about whether he would get involved in politics again, or get involved in politics to the same level as he had previously done, is less than clear.

36. However, it is submitted for the applicant that he had given clear evidence that he would engage in political activities if he were to return to Pakistan in the first Tribunal hearing, and therefore the failure by the Tribunal to engage with the inconsistency in this evidence reflects a failure by the Tribunal to consider the applicant’s claim.[27]

    [27] See Applicant’s Outline of Submissions filed on 17 January 2023 at paragraph [5].

37. In particular, the applicant relies upon the following exchange in the first Tribunal hearing, at page 63 of Ms Ford’s affidavit at lines [190] to [196], as making clear his position in relation to his intention to engage or continue to engage in political activity if he were to return to Pakistan:

    [Member]:If you went back to Pakistan now, would you continue to be involved with the ANP?

    [Applicant]:     No one can leave their aim, and [the applicant] can’t see his local public uneducated, and for that, [the applicant] is already using the platform of ANP, and whenever [the applicant] will get a chance from here or from Pakistan, [the applicant] will continue his aim.

38. It is submitted for the applicant that although this is not a simple and direct ‘yes’ answer, the applicant’s position was clear in that the applicant was saying that he would continue to use the ANP platform as he had done in the past to further his aims.[28]  It is submitted that this statement makes clear that the applicant would continue to engage in political activity for the ANP, irrespective of whether he did so in Australia or in Pakistan.

    [28] See Applicant’s Outline of Submissions filed on 17 January 2023 at paragraph [6].

39. As stated, it is further submitted for the applicant that this evidence was important evidence in the review and had to be considered expressly by the Tribunal.[29]  It was conceded in submissions for the applicant that the Tribunal does not need to expressly deal with every piece of evidence before it.  However, the applicant submits that given the fundamental nature of this evidence to the applicant’s claimed fear of harm, a failure by the Tribunal to consider it in the sense of an active intellectual engagement with the evidence constitutes a jurisdictional error.

    [29] See Applicant’s Outline of Submissions filed on 17 January 2023 at paragraph [7].

40. The applicant also accepts that it was open to the Tribunal to consider this evidence and reject it, provided that the Tribunal engaged in a reasoned process in doing so.  However, it is submitted that in failing to address this evidence at all, the Tribunal should be taken to have failed to consider the applicant’s earlier evidence that he would continue to engage in political and activity if he were to return to Pakistan.

41. This is particularly so in the context of an applicant who it is accepted by the Tribunal has engaged in political activity, has been targeted as a result of that political activity and who the Tribunal accepts was threatened and shot at as a consequence of that political activity.

1. It is further submitted that given the fundamental relevance of this claim to the applicant’s fear of persecution, the failure to consider this evidence amounts to a jurisdictional error of the kind identified by Justice Robertson in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (‘SZRKT’).

2. In SZRKT, the Tribunal did not accept that the applicant had given truthful evidence about his circumstances in Pakistan and believed that the applicant had fabricated his claims to try and obtain a protection visa.  In particular, in SZRKT the applicant had given evidence that he had studied Persian at university in Pakistan.  The Tribunal did not believe the applicant in this regard, in circumstances where his evidence was that he did not recall any Persian words.  The Tribunal did not accept that someone who claimed to have studied Persian for two years would have no vocabulary in that language.

3. Relevantly, at paragraph [117] of his decision, Justice Robertson said, ‘The Tribunal believed that the applicant had been untruthful about his past experiences in Pakistan because it believed he had not been truthful about his former study in that country’.

4. It became apparent that there was an academic transcript which referred to the applicant having undertaken a course in Persian.  In this regard, his Honour Justice Robertson went on to say at paragraphs [119] and [120]:

   119.The key features of the present case therefore are, first, that the Tribunal did not consider the Punjab University transcript and, second, the matter to which that that transcript went founded the Tribunal’s rejection of the applicant’s claims, on the basis that he had been untruthful. This was not a case where the Tribunal took a nuanced approach to questions of credit by considering whether its disbelief of the applicant in one respect nevertheless did not mean that it disbelieved him generally: rather, the Tribunal’s approach was to disbelieve the applicant generally. In the former case, it may more readily be seen that such a finding on credit goes only to a matter of fact and thus is quintessentially the province of the Tribunal.

   120.The Court is not involved in traversing findings of fact about the corroborative evidence because the Tribunal did not deal with it. The unexplored possibilities include that the transcript was false, that the applicant had studied the Persian language but was a bad student or had a bad memory, and that there was an ambiguity in what studying Persian meant, whether it was language or culture and history. It is for the Tribunal to deal with the material before it and resolve any conflicts in it.

5. The error in SZRKT was therefore not whether or not the Tribunal was correct in finding that the applicant was not credible, but rather that the Tribunal had failed to consider evidence, available to it and which may have been relevant to that finding.

6. It is submitted for the applicant that a similar error occurred in this instance.  Namely, it was submitted that there was a clear inconsistency between evidence given in the first hearing and that given in the second hearing.  It was submitted for the applicant that in the first hearing, he gave direct evidence that he would engage in political activity if he were to return to Pakistan.  It was submitted that this evidence was inconsistent with the less than clear answer given in the second interview in relation to a similar question.  In those circumstances, it was incumbent upon the Tribunal to resolve that inconsistency and its failure to do so amounted to a jurisdictional error in that the Tribunal failed to consider the material relevant to the applicant’s claim.

7. For the following reasons, I do not accept this submission.

8. It is clear from the Tribunal’s reasons that it had listened to the applicant’s evidence given in the first hearing.  It is also clear from the questions asked of the applicant that it was seeking to understand whether the applicant would engage in political activity if he were to return to Pakistan.

9. The Tribunal squarely put to the applicant that it might conclude that if he were to return to Pakistan, he may not continue to be involved in the ANP’s activities to the same extent that he was prior to his departure from Pakistan.  Indeed, this was put to the applicant on a number of occasions during the second Tribunal hearing.  The applicant’s responses to those questions in the second hearing were premised on the applicant’s reluctance to contemplate any return to Pakistan.  Moreover, it is not clear that the evidence given by the applicant in the first hearing is inconsistent with the propositions put by the Tribunal at the second hearing.

10. As stated above, the applicant in the first hearing, put at its highest, said that he would continue his aim of using the platform of the ANP whenever he gets a chance, in either Australia or Pakistan.

11. A fair reading of the Tribunal’s reasons makes it clear that the Tribunal understood that a key issue before it was what the applicant was likely to do if he returns to Karachi. So much is evident from the opening words of paragraph [38] of the Tribunal’s reasoning, ‘I next considered what he is likely to do if he returns to Karachi’.

12. Having regard to the exchange with the applicant in the first Tribunal hearing, it was entirely reasonable and appropriate for the Tribunal member to put to the applicant that it had formed the view that the evidence suggested that if he returned to Pakistan, he would not continue to be as politically active as he had been prior to leaving.  The questions put to the applicant by the Tribunal member in the second hearing effectively springboard from the unclear evidence given by him in the first interview on this issue.

13. This is not a case akin to SZRKT.  In that case, there was a document which was clearly relevant to oral evidence given by the applicant.  The failure by the Tribunal to consider that evidence brought into question the validity of the credit findings made by the Tribunal.

14. By contrast, in this case, the statements made in the first hearing were not inconsistent with the evidence subsequently given.  At best, the applicant in the first interview simply stated that he continues to be motivated by the aims of the ANP and that if he were to return to Pakistan, or indeed, if he were to remain in Australia, he would continue to advocate for and support those aims.

15. There is nothing in the statement made to the first Tribunal member that suggests that the applicant would continue to engage in the same activities that he had prior to his departure from Pakistan.  This is not akin to corroborating evidence that the Tribunal failed to consider in SZRKT.

16. Moreover, it is clear from the findings of the Tribunal at paragraphs [45] and [49] that the Tribunal member accepted that the applicant would continue to be a supporter or member of the ANP, but did not accept that he would participate in party political activities as he did in the past.  That finding was reasonably open on the evidence before the Tribunal, particularly in circumstances where the Tribunal member put to the applicant on numerous occasions in the second hearing that he may form that view.  Ultimately, it is for an applicant to make their case.

17. The applicant was on notice that the Tribunal may form that view and he had an opportunity on a number of occasions to provide information contrary to that view.  The statements made in the first hearing and relied upon by the applicant in these proceedings is not, in my view, inconsistent with the conclusion reached ultimately by the Tribunal.

18. It is well-settled that the Tribunal is required to give reasons for its decision but not reasons for its acceptance or rejection of individual pieces of evidence.[30]  Nor was it up to the Tribunal to put any inconsistencies in the applicant’s evidence to the applicant for his comment.

    [30] Re-Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [67].

19. In any event, for the reasons previously discussed, in my view, the evidence given by the applicant in the first hearing with the Tribunal was not inconsistent with the ultimate findings reached.  The applicant’s evidence was that he would continue to further the aims of the ANP and the Tribunal concluded that the applicant would continue to be a supporter and member of the ANP.  There is no inconsistency in this.

    CONCLUSION

20. For each of these reasons, I find that the ground of review is not made out and order that the applicant’s application for judicial review be dismissed with costs.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.

Associate:

Dated:       27 April 2023