DYI16 v Minister for Immigration
[2020] FCCA 1956
•22 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DYI16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1956 |
| Catchwords: MIGRATION – Protection visa application – where Minister refused to grant protection visa – previous visa application in United Kingdom refused – – applicant arrived in Australia under a United Nations Food and Agricultural Organisation sponsored visa – where applicant overstayed visa and sought protection – where applicant worked for United Nations – where claim to threats of harm against applicant and family made by Islamic Movement of Taliban (via telephone call and two letters) – where authenticity of letters questioned – where anonymous allegations put to the applicant were disregarded – procedural fairness – whether a constructive failure to consider claim – where relocation is available – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.420, 422B, 474, 476 |
| Cases cited: Craig v South Australia (1995) 184 CLR 163 Decision 1405982 (Refugee) [2016] AATA 3243 Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235 |
| Applicant: | DYI16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2761 of 2016 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 11 May 2020 |
| Date of Last Submission: | 11 May 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 22 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms R. Germov |
| Solicitors for the Applicant: | MP Migration Law |
| Counsel for the Respondents: | Mr C. McDermott |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
By consent, pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.
The name of the first respondent be amended to read: “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The amended application dated 21 November 2018 be dismissed.
The applicant pay the first respondent’s costs as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2761 of 2016
| DYI16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application dated 21 November 2018 the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 8 December 2016 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Protection visa (visa) pursuant to s 65 of the Migration Act 1958 (Act).
The application should be dismissed. In summary, I have concluded that there was no failure to accord the applicant procedural fairness by not advising him that a hearsay statement from his solicitor as to the contents of a telephone conversation might not been accepted. Nor was there a constructive failure to make an obvious inquiry about a critical fact from a witness upon whose statements the Tribunal placed considerable weight. Notably, it concluded that had the applicant received threats from the Taliban as claimed, the United Nations would have provided a letter confirming the fact of such threats and supported him in that way.
Background
The background is common ground but somewhat involved.
The applicant, a Pakistani citizen aged 42 years is a Sunni Muslim who is able to speak, read and write in English, Pashto and Urdu and has a number of tertiary qualifications.
The applicant first came to Australia on 16 May 2015 holding a Business Visitor visa (Subclass 600) authorising him to remain in Australia for one month. The visa was granted to enable the applicant, as a member of a delegation to visit Australia, to participate in a mission to learn and observe aspects of wool production.
Before coming to Australia, the applicant had been a resident of Quetta, Balochistan, Pakistan. He is a husband and father of four children who, with their mother, remain in Quetta, as does his widowed father and seven of his siblings. The applicant had previously been refused a visa from the United Kingdom in 2006 and in the years before applying for a visa in Australia had travelled in Malaysia, Bangkok and Sri Lanka.
Claims to protection
On 9 June 2015, the applicant applied for the visa.
The applicant’s substantive claim to meet refugee status was grounded upon his exposure to a personal risk of harm grounded upon the claims to have been the target of threats in a phone call and two emails.
On 9 September 2015, the applicant attended an interview with a delegate of the Minister. Shortly afterwards, in an unsigned, undated statement supplied to the Department by his lawyers on 24 September 2015, the applicant claimed that he had worked for non-government organisations his entire career, most recently as a team leader for the United Nations Food and Agriculture Organisation (UNFAO) in the Pishin District of Balochistan, Pakistan, bordering Afghanistan. The statement detailed the situation in Balochistan as worsening by reason of the increasing presence of the Taliban who, it was said, considered NGO’s and the UN to be working against Islam, resulting in Taliban attacks upon their aid workers. The applicant’s statement detailed such attacks as having occurred in 2011 and 2012.
Of particular relevance to the present application are the applicant’s claims in relation to a phone call which was made on 21 February 2014 and two letters dated 22 March and 24 May 2015.
The statement referred to a call, received by a member of the applicant’s team on 21 February 2014, in which the caller demanded that he speak to a superior with the result that the phone was passed to the applicant who was told that his team should stop its work. The applicant stated he reported this call to police who declined to file a report on the basis that they too were under attack from the Taliban. The applicant also reported the call to his management, doing so by email and upon the instructions of an International Project Manager, resulting in a brief closure of the office, a series of consultations between representatives of UNFAO, the United Nations Department of Safety and Security (UNDSS) and local authorities. The applicant’s work with UNFAO then resumed.
In relation to the letters dated 22 March and 24 May 2015 respectively, each were claimed to be letters addressed by the Taliban to the applicant containing a warning and in the second case, death. In the certified translations of each of the letters, the letter head was depicted as follows:
Party Emblem
Islamic Movement of Taliban
Quetta Council of Taliban Movement
Date: Serial No:
Warning letter
The translation of the first letter reads:
You; [DYI16], are working for NGO, you are working for infidels to help them, quit the job immediately, follow the Islamic religion pathway, and obey the Islamic Shari law.
The translation of the second letter reads:
Quetta Council of Taliban Movement has warned you; [DYI16] through mobile phone to stop cooperating with infidels, Jewish NGOs, as they are operating against Islam religion.
Christians are spreading their religion amongst Muslims to custom prostitution and pleasure, and aiming to bring Islamic countries under their authority, but you did not give any value to our warning that been issued to you by our mobile phone.
Taliban Movement will take further steps now to reach you and your family members; the consequence is death for all of you.
The applicant claimed that the second letter had been received by his father in Pakistan and transmitted to him by email as he was in Australia.
The applicant further claimed that the Taliban’s practice was to issue three warning letters, failing compliance with which then followed execution of the addressee. The death threat extended to his family.
The applicant further claimed that upon receiving the second letter, his blood pressure increased to the point where he was admitted to hospital.
The applicant furnished a considerable volume of material in support of his claim, including minutes of meetings of the UNDSS, Pakistan, Balochistan Region. Minutes of meetings held in February 2014 and March 2014, included, amongst other things, a security briefing, stating that the number of security incidents in the province had increased and was more for the last reported period.
A further report referred to in the UNDSS minutes stated:
Threat Incidents: FSCO informed the table that WHO, FAO and UNDP personnel received threats in Phisin district. To follow the issue DSS FSCO, NSA and SFP of FOA visited Pishin district to meet with local authorities. We had a meeting with DPO who said he is responsible for (A) area and the incident occurred in (B) area that is under Deputy Commissioner Jurisdiction. FSCO said we were unable to meet with DC but whilst meeting with additional DC’s, they confirmed the existence of such elements non-local from Afghanistan and asked to launch formal complaint/report and they will take action.
A further document supplied by the applicant was an email dated 5 January 2015 from Mr Ahmed Jan Essa (Mr Essa), the deputy chief of the UNFAO, Balochistan, to UNFAO staff. For convenience it may be noted that Ground 1 of the application is grounded upon a complaint that the Tribunal failed to inform the applicant it might not attach weight to statements given by his solicitor of a discussion held with Mr Essa.
The applicant claimed he was at risk of serious harm due to the nature of his work regardless of where in Pakistan he lived and worked and that many UN staff had been abducted and killed by the Taliban. He further claimed that the Taliban’s threats had caused the UNFAO to withdraw staff from the Pishin district.
Delegate’s decision
Having regard to the grounds of review, it is of some assistance to identify the claims which were raised and the issues arising before the delegate which were considered to be of dispositive significance to the decision to refuse the protection visa application.
On 9 September 2015, the applicant attended an interview with the delegate. Following that interview, on 24 September 2015, the applicant’s lawyer made a post interview submission.
On 10 December 2015, the delegate made a decision to refuse the visa application. Having identified the materials which were before the delegate and then provided a summary of the applicant’s claims, the delegate considered in some detail the matters which had been discussed with the applicant in relation to those claims.
In the course of his interview, the applicant had confirmed that although he had participated in the 2014 telephone conversation, the caller had not requested to speak to him personally. The decisional record confirms that the delegate had discussed with the applicant each of the first and second warning letters respectively. In the course of his interview, the applicant confirmed that following receipt of the first warning letter the UNFAO had closed their office and the applicant had not returned to field duties for some time thereafter until the offices were reopened.
The delegate discussed with the applicant the Taliban’s second warning letter. The applicant said that while he had not informed other delegates (with whom he was travelling in Australia) of the receipt of that letter, he had instead discussed it during a telephone conversation with Mr Essa, who told him that they could discuss the matter upon his return to Pakistan. The delegate variously asked the applicant whether he had any evidence of having discussed the matter with Mr Essa or having ever sent a copy of the May 2015 letter to him, it being observed that Mr Essa may have wanted to show the letter to security officials in Pakistan.
The applicant responded, telling the delegate that he had no evidence of a phone call to Mr Essa as his phone had been infected by a virus and stated he had not provided a copy of the letter to him, then adding: “that he was not going to go back and do the job anymore”.
The applicant told the delegate that he had never sent the second warning letter to Mr Essa.
The delegate put to the applicant that it appeared odd the second letter had been written after he had left Pakistan. The applicant replied he did not think the Taliban knew that he had travelled to Australia.
The applicant confirmed that he had a wife and four children who continued to reside in Quetta.
In addressing its findings, the delegate found that the harm to which the applicant claimed to fear was targeted and non-random and was therefore systematic and discriminatory conduct. The delegate accepted that the Taliban had been responsible for attacks on persons working for NGO’s including the UNFAO in Balochistan. The delegate further accepted that, having commenced work with the UNFAO in 2006, including in the Pishin district, the applicant may have been known in that area because of that work and that this may have resulted in his receiving a threatening phone call in 2014 which he may have reported to police who, it was said, had been ineffective. However, the delegate did not accept the police did not take action in such situations, citing DFAT country information as supporting a contrary conclusion.
The delegate was prepared to accept that the applicant received the Taliban’s first warning letter in March 2015, but as concerned receipt of the second warning letter in May 2015, was not satisfied that the applicant had received such letter. The delegate was not satisfied by the applicant’s explanation for not having any evidence of communicating this letter to his employer in Pakistan (i.e. Mr Essa), and regarded the claim that his phone had been infected by a virus to be self-serving.
Equally, the delegate was unconvinced by the applicant’s statement that he had not provided a copy of the letter to Ms Essa at that time. The delegate referred to communications held by the Department with the applicant’s employer and observed there had been no reference in those communications to the applicant having received any threat from the Taliban as a reason for his non-return to Pakistan. The delegate found it likely his employer would have been aware of such a threat and thus doubted the applicant had actually received the second letter.
The delegate also questioned the genuineness of the claim to receipt of the second letter on the basis that the suggestion Mr Essa would have deferred discussion about the threat until after the applicant’s return to Pakistan was considered to be unconvincing, particularly having regard to the serious nature of the alleged threat and the affect which it might pose to other UNFAO staff. The delegate considered the second letter would also have been of significant interest to the UNDSS which had responsibility for all staff. In that context, the delegate reasoned that the applicant would have been required to disseminate the existence of the second letter with such authorities (as he had done in relation to earlier threats). The delegate also concluded that the applicant would have sent the second letter to his employer and would also have informed other members of his delegation whilst in Australia.
The delegate further considered that the applicant would have pursued the matter vigorously with his employer in circumstances where his wife and children continued to live at the same residential address in Quetta, particularly where the threat extended to his family noting “I find this to be completely inconsistent with his concern for their safety. I would have expected him to have relocated his family at the very least.”
As the delegate was not convinced the applicant had received the second letter, this undermined the delegate’s satisfaction that “the Taliban had an ongoing personal interest in pursuing the applicant for reason of his employment with the FAO.” In the same vein, the delegate considered that the UNFAO would not allow the applicant to continue in his role if it was considered unsafe for him, or his family, to do so, noting that following receipt of the 2014 phone call, his employer had directed the applicant to cease work and to close the office and that the matter had also been reported to the UNDSS which had monitored and assessed the situation before allowing them to resume work.
On 10 December 2015, the delegate made a decision to refuse to grant the visa. Having found that the applicant could safely relocate in Pakistan, the delegate concluded he was not a person to whom Australia owed protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act.
Section 438 certificates
Somewhat confusingly, before any application to the Tribunal had been made and indeed the day before the delegate’s decision had been made, on 9 December 2015, a delegate of the Minister sent to the Tribunal a certificate issued pursuant to par 438 of the Act (First certificate) respecting information contained in certain folios of the departmental file, claiming that they were internal working documents relating to business affairs with persons unrelated to the applicant and which had been given to the Department in confidence such that the use and disclosure of the information was subject to s 438 of the Act. No issue was raised as to why the First certificate had been issued before the application had sought a merits review from the Tribunal.
The documents that were the subject of the First certificate were referred to by the delegate in the decisional record. In this court, the Minister expressly asserted no claim for privilege or public interest immunity would be made in respect of the documents the subject of that certificate or the information contained in them; those documents being produced in a largely un-redacted form as an exhibit to an affidavit.
Later, on 18 April 2016, a delegate of the Minister sent to the Tribunal a certificate issued pursuant to par 438 of the Act (Second certificate) respecting information provided to the Department in confidence being information and described as containing “an allegation” in an email. The Second certificate also stated that the Tribunal’s use and disclosure of the information in that email was subject to s 438 of the Act.
Application to Tribunal
On 22 December 2015, the applicant applied to the Tribunal for a review of the delegate’s decision. When lodging his application for review, the applicant supplied a copy of the delegate’s decisional record.
On 6 January 2016, the applicant’s lawyer requested that the hearing of his application be conducted on a date different to that of another client.[1]
[1] From the documents exhibited to the affidavit, the subject of the Certificate, it appears that the other client was another delegate from the wool mission.
As noted above, on 18 April 2016, the Second certificate was issued. No challenge to the validity of the Second certificate was made.
On 8 September 2016, the Tribunal invited the applicant to a hearing, scheduled for 19 October 2016, and requested he provide a written submission together with a signed declaration setting out all of his claims.
On 17 October 2016, the applicant’s lawyer transmitted a detailed submission to the Tribunal together with an itemised list of documents. In those submissions, the applicant’s claims were reiterated and supplemented by a further claim that shortly before 28 December 2015 (and while the applicant was in Australia), two men, who identified themselves as Taliban, had attended upon his home threatening to kill his wife and children. It was said that the applicant’s wife had reported the matter to police and moved and stayed with friends for a number of weeks before returning to Balochistan and stayed with her father or a sister. The applicant reported that his wife was “very stressed” and that “because she has to take care of four little children, is constantly worried about the risk and how to find food.”
The submission addressed,[2] the issue of the May 2015 letter which the applicant claimed was sent and produced mobile phone records that were said to confirm a conversation held on 25 May 2015 to a Pakistani phone number and claimed to be that of Mr Essa (the call being of about one hour’s duration). This record was relied upon as supporting a conclusion that the applicant and Mr Essa had discussed the matter as was claimed. The attached Optus phone records recorded a conversation which took place on 25 May 2015 and that was of 590 seconds duration.
[2] Submission at [7], [25].
Further, extensive submissions were made on the topic of relocation, including a recent decision addressing the principles of relocation.[3]
[3] Decision 1405982 (Refugee) [2016] AATA 3243, (Webb M).
On 19 October 2016, the applicant attended a hearing before the Tribunal where he was assisted by his lawyer and an interpreter.
Post-hearing – adverse information & response
Following that hearing, on 2 November 2016, the Tribunal invited the applicant to comment or respond to the allegations which were the subject of the Second certificate; namely, the anonymously made allegation. The Tribunal advised the applicant that the substance of the information so provided by a person (claiming to know the applicant well), was that the applicant was not in any danger in Quetta and that the applicant was claiming protection for economic advantage.
The Tribunal invited the applicant to comment on two matters. First, that a person requesting anonymity had communicated with the Department claiming that the applicant (being well known to the author) was seeking protection in Australia for reasons of economic advantage and was not in fact in any danger in Quetta. Secondly, that the delegate had been in communication with the UNFAO’s International Project Manager, Mr Marcel Stallen (Mr Stallen), who believed the applicant had not returned to Pakistan on account of medical reasons adding that he, Stallen, had placed a lot of pressure upon him to return to Pakistan so as to avoid bringing the UNFAO into disrepute. Again, for convenience it may be noted that Ground 2 rested upon a complaint of a failure to make further inquiries of Mr Stallen before reaching a decision.
In affording the applicant an opportunity to comment upon those adverse matters, the Tribunal stated that collectively they served to support a conclusion that the applicant’s claim to be at risk had been concocted, particularly when considered in combination with other issues which had been discussed in the course of the hearing.
On 16 November 2016, the applicant’s lawyer responded to that invitation providing a further itemised list of documents, being more recent country information respecting the security risk posed in Balochistan. In addition, the applicant’s lawyer addressed the invitation to address the anonymised report that the applicant did not face harm, and for this purpose employed a response received from Mr Essa which explained that he was not authorised to use FAO letterhead in providing a letter of support for the applicant and addressed the question of risk faced by UN security staff and local contractors (of which the applicant was one). The applicant’s lawyer stated that on 8 November 2016 she had spoken by telephone to Mr Essa recording the following matters:
Mr Essa stated that as a FAO officer, he is not permitted to write an official letter in relation to the UN security or in support of the Applicant, in [using] the stationary with the FAO letterhead, as any such [use of] this letter must be from his superior.
Partially based on the information Mr Essa provided, we provide the following response:
Person who has worked with the applicant stated that the applicant claim protection in Australia is for an economic advantage and he is not in any danger and that he should be returned.
Person who wrote the letter
Without the knowledge of the identity of the informer, Mr Essa advised if the person is an international consultant stationed in Pakistan, they normally stay in Pakistan for a short period of time, live in four-star hotels, and are not allowed to move around without a bullet-proof jacket. Wherever they go, they will be heavily guarded by the UN security staff and could not have been exposed to the same risks as the local contractors like the Pakistani FAO staff. While local contractors are not allowed to travel outside their territory without police escort, police and security forces are now under increasing attacks and in a recent security proposals by UNSSD, it is advised to remove the security escorts for the local contractors.
The response to the Tribunal’s invitation further advised that neither Mr Essa, nor any other of the applicant’s eight colleagues had been the author of the anonymised letter, adding that they would be prosecuted for doing so. To this end, attached to the response was: (a) a letter from Mr Essa addressed “To whom it may concern” certifying that he had not issued any statement in relation to the applicant’s immigration application and described him as an “Ex-employees (sic) of the FAO of United Nations”; (b) a statement in similar form to that given by Mr Essa above and which had been signed by seven other persons.
The lawyer’s response further advised that having regard to the high wages and other allowances paid to a UN team leader (AUD $1,700-$1,800 per month plus travel allowance and other benefits), in contrast with the per capita Pakistani annual income (AUD$1,513), the supposed economic advantage of moving to another country was unsound.
In addition, the lawyer’s response stated that Mr Essa had confirmed receiving a phone call from the applicant whilst he was in Australia “regarding the further threatening letter the Applicant received” and that, since the proper procedure was to file a written report to the UNDSS before the incident could be investigated, he had confirmed advising the applicant to wait until he returned to Pakistan before filing an official report so that UNDSS could take appropriate steps.
The submission concluded by identifying both a mass terrorist attack in August 2016 outside the Balochistan hospital in Quetta and another serious attack mounted by suicide bombers in October 2016 in Quetta, also providing UNDSS reports and noting that:
. . . the risks of UN personnels (sic) getting injured, abducted and killd (sic) are high, but despite the serious security risks, the UN contractors continue to work under these conditions in fear of losing their job security to support their family.
Mr Essa advised that local contractors sign the contract yearly or every 3, 4 years, depending on the projet (sic). If the contractor complains about the safety, it is a general consensus that their contract will not be renewed.
As noted above, the applicant was a local contractor.
Otherwise, the lawyer’s response addressed a statement which had been made by Mr Stallen that the applicant had not returned to Pakistan for medical reasons, suggesting there had been “a communication error”. In seeking to clarify the applicant’s version of events, his lawyer confirmed that while the applicant had been hospitalised with an irregular heartbeat, he had informed Mr Stallen of those developments but that, after he had applied for a protection visa, the applicant had then informed him of his wish to resign his position and that, responding to that advice, Mr Stallen had not put him under any pressure to return, instead expressing concern the applicant might have unlawful status and instead advised he could extend his airline ticket for future use.
Tribunal’s Decision
On 8 December 2016, the Tribunal made a decision affirming the delegate’s decision to refuse the visa application, providing a statement of reasons for doing so (Reasons). At the outset, I record that I consider the Reasons to be comprehensive in their consideration of the claims.
In addressing the application for review and having summarised the background to the claim, the Tribunal identified that the delegate had accepted the applicant received the first, but not the second, warning letter in 2015. The Tribunal also recognised that the delegate had been satisfied the applicant may face serious or significant harm if he returned to Pakistan but could safely relocate: [3].
The Tribunal examined in some detail the evidence which had been before the delegate, noting that the applicant had been refused a visa to the United Kingdom in 2006 and that he was both multi-lingual and held undergraduate and postgraduate qualifications: [5]-[6]. The Tribunal traced the applicant’s employment history with a UN Development Program for four years and then with UNFAO from 2006. It addressed the applicant’s account of Taliban attacks, the worsening security situation in Balochistan, the receipt of the 2014 telephone call, the ‘threat letters’ of March and May 2015 respectively and the extensive documentary evidence upon which he had relied: [7]-[19]. In its consideration of the review, the Tribunal member listened to a recording of the applicant’s interview with the delegate: [18].
In addressing the matters which had been raised before it on review, the Tribunal referred to the allegations contained in the First certificate concerning two of the UNFAO members who had absconded from the wool delegation and the assertion that the applicant was not in any danger in Pakistan “or at least no more than any other Pakistani”: [22]. It examined the submission and documents provided by the applicant’s representatives and upon the question of a well-founded fear of persecution in Pakistan: [23]-[26].
The Tribunal also examined that part of the departmental file containing an email sent by Mr Stallen to the Australian Embassy, Islamabad, noting that “lots of pressure” was said to have been placed by Mr Stallen on the applicant and another person who had absconded and that this email had been the subject of the Second certificate: [20].
In a post hearing communication, the Tribunal advised the applicant’s lawyer of the certificates, the information which they addressed and that the Tribunal considered one of the certificates to be valid and the other to be invalid: [28], [96].
It then addressed the response received from the applicant’s lawyer referred to above including the communications with Mr Essa and the attached emails from other UNFAO personnel: [29]-[35], [95].
Consideration was given to the country information and extensive other documentation supplied by the applicant’s lawyer with the post hearing submission: [36]-[40].
In addressing the applicant’s claims and evidence, the Tribunal referred to the applicable principles and identified recent DFAT country information which it considered: [41]. Relevantly, it expressly recognised the difficulties which asylum seekers may encounter in seeking to obtain corroborative documentation. However, it considered that difficulties of that kind were to be viewed both in the context that the applicant had been a United Nations employee and in light of the United Nations “considerable presence in Pakistan”[4]. For those reasons, the Tribunal did not accept supporting documentation would not be available from an organisation of that kind. Further, the Tribunal found upon “even a cursory examination” of the documentation which had been supplied, that it did not support, but was in fact contrary to, the applicant’s claim to be of interest to the Taliban, either in 2015 or upon return to Pakistan. In light of those findings, the Tribunal described certain of the submissions which had been made and respecting comments of UNFAO staff in Pakistan as “spurious and ill considered”: [42]. As appears below, the description of the submissions in those terms was a reference to a suggestion of a cover up by the UNFAO: [58], [62].
[4] Citing DFAT country information for this purpose.
The Tribunal stated at [42] as follows:
In considering the [applicant’s] claims for protection, the Tribunal has had regard to the difficulties in asylum seekers obtaining corroborative documentation. However, in the [applicant’s] case, his claims for protection have purportedly arisen in the context of his employment for a United Nations agency which has a considerable presence in Pakistan. The Tribunal does not accept that appropriate supporting documentation would be unavailable from such an organisation. Although assertions have been made as to the content and supposed corroborative nature of the documentation provided by the [applicant], even a cursory examination of this documentation indicates that it does not [in fact] support the [applicant’s] claims to be of interest to the Taliban in 2015 or his claims that he will be of any interest to the Taliban upon his return to Pakistan. The Tribunal considers that the documentation and evidence he has provided is in fact contrary to his claims to be of any interest to the Taliban, and spurious and ill-considered submissions have been made regarding comments purportedly made by [United Nations FAO] staff in Pakistan.
The Tribunal found the applicant had arrived in Australia on a UN sponsored visit with a purpose of fabricating claims for a protection visa. While accepting that in 2014 a call had been received by a UNFAO staff member, Mr Kakar, who had passed the phone to the applicant and to whom threats were then made demanding UNFAO cease work, it did not accept that he had received any other such direct threats or communications: [43], [69].
Although it recognised the differing findings of the delegate, it did not accept that the applicant had received either of the two claimed warning letters. Nor did it accept the more recent claim that his wife had been visited by two Taliban members and threatened: [43]. In doing so, the Tribunal recorded having expressly advised the applicant that it “may reach a different conclusion than the delegate” including that it may conclude the applicant may be attempting to build upon the call received by Mr Kakar so as to fabricate his claim. The Tribunal proceeded to identify the evidence and its reasons for the conclusions that it had reached in relation to each aspect of the claims: [43]-[81].
In its analysis of the evidence supporting its conclusions, the Tribunal addressed the following matters: threats to the applicant in 2014: [44]-[49]; threats to the applicant in 2015: [50]-[64]; further threats to the applicant’s family; [65]-[68]; conclusions on past harm: [69]-[71]; the applicant’s return to Pakistan: [72]-[83]; risk of harm if returned to Pakistan: [84]-[94]; conclusions: [95]-[97]; decision: [98].
In relation to its findings and acceptance of the applicant’s claim concerning the 2014 telephone call and the threat of harm which it posed, the Tribunal observed that Mr Essa’s written materials as provided by the applicant’s lawyer did not reflect the fact of confirmation by Mr Essa that threatening phone calls to the applicant and the UNFAO had been received and reported to the UNDSS: [47]. It also observed that the official documentation which had been submitted (being, the UNDSS Minutes of meetings held in February 2014 and March 2014) did not refer to the applicant personally (contrary to a statement attributed by the applicant’s lawyer to Mr Essa that an ‘official record can be found through official channels’: [47]. The Tribunal concluded that while the 2014 telephone call had occurred, it did not accept the claim that the UNFAO had not adequately responded to the threat arising from that call: [44]-[49], [69].
It is convenient to address below the detail of the Reasons insofar as they bear upon the grounds of review, in particular as involving the claims to a well-founded fear of harm arising from each of the 2015 warning letters and the further matters considered by the Tribunal.
Procedural history
On 19 December 2016, the applicant lodged an application for judicial review of the Tribunal’s decision together with an affidavit to which he exhibited a copy of the Reasons but adducing no further evidence.
On 22 December 2016, a response was filed on behalf of the Minister opposing the grant of relief on the basis that the grounds of the application did not disclose any jurisdictional error and that no arguable case for relief was demonstrated.
On 21 November 2018, an amended application was lodged by which the applicant variously abandoned, amended and/or added further particulars to his ground of review.
On 6 May 2020, an affidavit was made on behalf of the Minister to which was exhibited the documents the subject of the Certificates.
The documents so produced were largely un-redacted and the deponent affirmed that the Minister made no claim for privilege and did not seek to protect the confidentiality of those documents. When the issue was raised before me, no objection was raised to that affidavit being read.
Relevantly, the documents included a series of communications occurring in the period April-June 2015 between the Department with Mr Stallen respecting both the arrangements made to assist in the accelerated processing of visa applicants by the FAO delegates who were to participate in the wool mission, and enquiries as to whether all of the persons who had so attended in Australia had returned to Pakistan. In particular, it appears that efforts had been made in Australia to give priority to the processing of those applications at late notice and that the enquiries undertaken by Mr Stallen revealed that two of the mission delegates (one of whom being the applicant), had extended their stay and that he had “put lots of pressure on them to return to Pakistan and that they take the wrong decision and tarnish the reputation of FAO and jeopardise future mission etc, but without much effect.” He undertook to keep the Department updated on “this unfortunate situation”.
Judicial review
If the Tribunal’s decision was a privative clause decision,[5] it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[6] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[7] Whether it should do so is a separate issue.
[5] Act, s 474(2).
[6] Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[7] Act, s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[8] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[8] Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
The grant or refusal of a visa application turns upon whether an administrative decision-maker is satisfied that the criteria for the grant of the particular visa have been satisfied. A decision upon those matters is a decision upon a jurisdictional fact.[9] By s 65 of the Act, the decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[10] Conversely, where the decision-maker is satisfied that the criteria have been met, the application must be granted.
[9] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [102] (Crennan and Bell JJ).
[10] Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Consideration
The applicant’s sole ground of review, as amended, reads:
The Second Respondent (the Tribunal) failed to determine the review application according to law and hence its decision is vitiated by jurisdictional error.
The particulars to the ground were amended. Particulars (a), (b), (e)-(h) were deleted. The parties were agreed that two grounds of review were pressed by particulars (c)-(d) to the amended ground of review.
Ground 1 – procedural fairness
The first ground of review as set out in particular (c) reads:
The Tribunal denied the Applicant procedural fairness by not putting to him or his legal representative that the Tribunal did not accept the legal representative’s evidence about the contents of her telephone conversation with the Applicant’s supervisor at the United Nations Food and Agricultural Organisation (“UNFAO”), Mr Ahmed Essa, concerning the threats to the Applicant by the Taliban.
For the sake of clarity, in the course of the hearing, particular (c) above was amended so as to add the name of Mr Ahmed Essa after UNFAO.
Having regard to the matters contained in the amended particulars above, the parties framed their submissions upon ground 1 in terms of whether the Tribunal had failed to accord the applicant procedural fairness constituted by a failure, before deciding the application, to put to the applicant or his representative that it may not accept the evidence by the applicant’s representative respecting a conversation held by that representative with the applicant’s UNFAO supervisor, Mr Essa. I have set out the content of that statement at [52] above.
The applicable legal principles were not in dispute.
The applicant accepted that unless the Tribunal’s decision was affected by jurisdictional error, it was a privative clause decision, such that the court had no jurisdiction to grant relief.[11] However, it was also common ground that a breach of the Tribunal’s obligations of procedural fairness could establish jurisdictional error and so vitiate the decision.[12]
[11] Act, s 474.
[12] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [25] (Gleeson CJ).
The question of want of procedural fairness is to be considered within the statutory framework established by Pt 7 of the Act. Section 422(1) of the Act provides that Div 4 of Pt 7 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals. Relatedly, by s 424(1) the Tribunal is authorised to get any information that it considers relevant.
It was common ground that the starting point of a procedural fairness based challenge required identification of the issues that had been before the delegate: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (SZBEL)[13] As that decision holds, where a Tribunal has not taken any step to inform an applicant that some issue (other than those considered by the delegate to be dispositive), arose on review, the applicant was entitled to assume that the issues arising on review were those so identified by the delegate.
[13] (2006) 228 CLR 152 [25]-[35].
As noted above, the applicant supplied the Tribunal with a copy of the delegate’s decisional record and so must be taken to have been on notice of the issues arising on review.
Relevantly to Ground 1, the Tribunal summarised the applicant’s claims to protection as being based upon the threats which he claimed to have received: [2]. As to those claims, four issues before the delegate had been that the applicant: (1) was personally targeted during the 2014 phone call; (2) had received the March 2015 letter; (3) had received the May 2015 letter; (4) claimed his wife had been visited and threatened by two Taliban members in December 2015 (during his stay in Australia). As noted, the delegate accepted that the 2014 phone call had taken place and was inclined to accept he had been sent the March 2015 letter, but did not accept that the applicant had received the May 2015 letter. By contrast, the Tribunal accepted the 2014 phone call had been made, but did not accept the applicant had received either of the warning letters or that his wife had been visited and threatened: [43].
I have set out above, the Tribunal’s post hearing invitation that was extended to the applicant to address the question whether his claim to be at risk had been concocted and of the response made by his lawyer, on 16 November 2016, including of the information which she said had obtained from Mr Essa and which was relayed to the Tribunal.
The applicant’s lawyer stated that on 8 November 2016, Mr Essa had said he was not authorised to use FAO letterhead in providing a letter of support for the applicant and addressed the question of risk faced by UN security staff and local contractors. Mr Essa had further stated that neither he, nor any other of the applicant’s seven colleagues had been the author of the anonymised letter (and that they would be prosecuted for doing so). From the documents attached to the response, it appeared that each of Ms Essa and the applicant’s colleagues eschewed any suggestion of having sent to the Department any statement that he had sought to secure economic advantage in Australia.
Relatedly, the lawyer’s response also stated that Mr Essa had confirmed receiving a phone call from the applicant whilst he was in Australia regarding the further threatening letter which the applicant claimed to have received and that, since the proper procedure was to file a written report to the UNSSD before the incident could be investigated, Mr Essa had confirmed advising the applicant to wait until he returned to Pakistan before filing an official report to be sent on to UNSSD.
In the face of those matters, the Minister maintained that there had been no failure to accord procedural fairness to the applicant by reason of its decision to accord no weight to the statements said to have been made by Mr Essa and as recorded by his solicitor.
For the purposes of evaluating Ground 1, it is necessary to examine the Tribunal’s reasoning in respect of the applicant’s claims to having received threats by mail in 2015. That is because the applicant’s claims respecting the involvement of Mr Essa occur in this context:
a)the Tribunal examined the applicant’s evidence as given to the delegate about the two warning letters, including certain changes in his account (being the closure of UNFAO offices) and as to why he could not provide documentary evidence to show that he had informed people within UNFAO about those threats: [50];
b)the Tribunal then detailed the applicant’s evidence as given to it as to whom, within UNFAO, he had reported the two warning letters. He said that he had given the first letter to the main office, told the District Manager and Deputy Commissioner about that letter and confirmed that he did not have any document between himself and Mr Essa in relation to the second warning letter which he claimed to have received from his father while he was in Australia: [51];
c)the Tribunal recorded the applicant’s evidence concerning why his family remained in Quetta, Pakistan and in particular why he had not considered moving his wife and family from their home where the Taliban had sent him a personal written threat and in the face of clear evidence the Taliban harmed women and children: [52]. The applicant contended that the Taliban culture was not to harm women or children and for this reason he had not moved his family;
d)the Tribunal addressed the applicant’s evidence respecting Mr Stallen’s comments that he had remained in Australia for medical reasons and of Mr Stallen’s advice that he had placed pressure on him to return to Pakistan. In particular, he had been asked why Mr Stallen had made no mention of the applicant being wanted by the Taliban. To this, the applicant had replied that it ‘was a critical time and on 29 March 2012 people were killed and he provided a security report about the incident’. When he said that ‘Mr Stallen may wish to put his life in danger again’, the Tribunal responded that it had difficulty accepting Mr Stallen would wish this to occur and that the UNFAO had ‘previously shown a strong inclination to protect its staff’, propositions which the applicant contested: [53];
e)the Tribunal addressed the applicant’s pre and post hearing submissions, including that:
i)while the delegate had not accepted he had been sent the second warning letter, it acknowledged the mobile phone records of a phone call on 25 May 2015 and the statement made by Mr Essa to the applicant’s lawyer that he had received a call from the applicant in which it was said that the receipt of that letter had been discussed: [54];
ii)as to Mr Stallen’s account of his discussions with the applicant of the pressure which he had applied to secure his return to Pakistan (which he denied) and the submission that the UNFAO had not adequately assisted its staff and tried to ‘cover up situation’ and that although UNFAO may take reasonable precautions, they were inadequate: [55];
iii)without knowing the identity of the source, the applicant could not properly comment on an anonymous tip-off and noted the letters whereby several members of UNFAO, including Mr Essa, denied being that informant: [56];
iv)it acknowledged the applicant had put forward a significant amount of documentation which was said to support the claim that he had been threatened by the Taliban in 2015: [57];
The Tribunal did not accept that any of the documentation, including that which passed between the applicant and his superior officers or the mobile phone records established that he had been threatened or targeted by the Taliban in 2015: [57]-[58], [62].
The Tribunal concluded that it was not satisfied the applicant had told Mr Essa of the threats which the applicant claimed he had received. It reasoned that, had the applicant informed Mr Essa of such threats during a phone call, it was probable he would also have made a report of such threats to UNFAO, stating at [58]:
. . . The Tribunal does not accept the submission that Mr Essa informed the representative of these threats by telephone, but for some reason was unwilling to report the threats in his written correspondence. The Tribunal places no weight on statements made by the representative regarding what Mr Essa purportedly told her on the telephone. Nor does the Tribunal accept that Mr Essa has stated that anyone ‘demonstrating their support’ for the [applicant] will be prosecuted or that he has attempted to ‘cover up’ what has happened. The documentation provided from Mr Essa indicates that he was asked to state that he did not write the letter to the Department and [that] anyone producing such letters would be prosecuted. The list of names provided by a number of employees of the [United Nations FAO] also states that they did not write such letters.
Later the Tribunal concluded that it ‘gave no weight to assertions made by the representative as to what Mr Essa told her on the telephone, which is not reflected in the documentation written by Mr Essa provided to the Tribunal’: [71]. In short, the Tribunal preferred the evidence which Mr Essa had given to the Tribunal over that which was relayed via a submission from the applicant’s lawyer.
The Tribunal found the letters from Mr Essa and his colleagues to be ‘puzzling’. This was found to be the case as, on the one hand, they had been able to write letters to counter the anonymised adverse information provided by the Tribunal (that the applicant and another delegate to the Australian wool study were able to return to Pakistan) yet, at the same time, Mr Essa, the UNFAO deputy chief for Balochistan, had not been permitted to provide written support for the applicant’s claims. It concluded that the applicant had employed those letters as part of an attempt to substantiate claims of a ‘cover up’ by UNFAO that it was not adequately protecting its local contractors: [59].
Equally, the Tribunal decided to give no weight to the anonymous tipoff, accepting the applicant’s submission that he was disadvantaged in being able to meet the adverse information without knowing the informant’s identity and reasoning that it had only limited information as to the precise relationship between the informant and the applicant: [60].
Contrastingly, the Tribunal gave ‘considerable weight’ to the comments by Mr Stallen that: (a) he had asked the applicant to return to Pakistan; (b) the applicant had not been threatened in 2015; (c) the applicant did not face any harm in Pakistan in the future. The Tribunal rejected the applicant’s claim that Mr Stallen had provided false comments and that the UNFAO was more concerned about its reputation than in protecting staff. However, the Tribunal accepted that Mr Stallen was mistaken when he said that the ‘applicant stayed in Australia for medical reasons’: [61], [70]. The Tribunal “did not accept that had the applicant been threatened in 2015 in the form of two warning letters that Mr Stallen would fail to provide supporting documentation or that his comments would indicate that the applicant was in fact not facing any threats or harm in Pakistan”: [61]-[62], cf [42], [58].
In reaching those findings, the Tribunal accepted that in the usual case it may well be difficult for asylum seekers to secure documentation to support their claims but found in substance that the applicant was in a different position to other such asylum seekers inasmuch that his employer, UNFAO, would more likely have such documentation. The Tribunal reasoned that an organisation such as UNFAO was resourced to deal with and would adhere to its protocols of retaining records of threats, finding that while the 2014 phone call was corroborated by internal records neither the first nor the second warning letters were so corroborated (by UNFAO or UNDSS). It concluded that the applicant had fabricated those letters and that his stated reasons for having left his wife and four children were not credible: [63]-[64].
The Tribunal rejected the applicant’s claims about his family having been threatened while he was in Australia and it set out its conclusions on all of the applicant’s claims about ‘past harm’, again finding that the applicant had fabricated the claim as to the threats which he alleged had been made to his wife in December 2015: [65]-[69]. It made an express finding that the applicant was not of any interest to the Taliban: [69].
The Tribunal declined to make findings as to the reasons why the applicant may wish to leave behind high-income employment in Pakistan, including whether he may wish to raise his family in Australia. In addressing the risk of future harm, it confirmed that the applicant had resigned his employment with the UNFAO and examined in detail the country information bearing upon the question of risk: [70]-[78]. The Tribunal concluded that the applicant had no profile as would attract a risk of harm or would present an adverse profile: [79]-[81].
As stated above, the Tribunal also found, as had the delegate, that the applicant would be able to relocate within Pakistan: [82], [87]-[93].
The Tribunal concluded that the applicant would not face any risk of harm such as to meet a criteria for refugee status or to ‘complementary protection’: [83], [94].
I do not accept that the applicant was denied procedural fairness constituted by a failure to put to him that the Tribunal might not accept his lawyer’s evidence as to the contents of her telephone conversation with Mr Essa concerning the second warning letter or other threats said to have been received from the Taliban.
I reject the applicant’s submission that the Tribunal gave no reason as to why it disregarded the evidence given by the authorised representative as to what Mr Essa had apparently said to her.[14] In my view, the Tribunal plainly made a decision that it would prefer the evidence which had been supplied directly to the Tribunal including that from Mr Essa, over that which had been relayed to it via the applicant’s lawyer. Before the hearing, the applicant was on notice of the issues arising on review. He had supplied a copy of the delegate’s decision to the Tribunal and his lawyers had made submissions before, during and after the hearing. In the course of the hearing, the applicant was put on notice that the Tribunal may not make the same findings as had the delegate: [43].
[14] Applicant’s submissions, [5].
Quite apart from the applicant’s reference to the duties of an authorised representative,[15] it was not the function of the Tribunal to accept uncritically any evidence or submission made to it. Applicants for merits review are afforded an opportunity to adduce evidence and make submissions to the Tribunal in relation to the issues arising on review. Once that evidence and those submissions have been made, it is an inescapable part of the inquisitorial process of a merits review that some evidence and some submissions may be accepted or rejected. In the ordinary course, the Tribunal would be supplied evidence in the form of a statement from a witness. In the present case, the applicant’s lawyer, supplied a hearsay account of what Mr Essa would himself have said in relation to the issues which were relayed by that lawyer. It was not embodied in a statutory declaration from the lawyer. The complaint that the applicant’s lawyer has been the subject of the implicit finding that she was not a reliable or truthful witness,[16] misstates the effect of the Tribunal’s reasoning. No finding of the kind suggested by the applicant was made and, contrary to the applicant’s submission, it is not implicit. It was for the Tribunal to weigh all of the evidence before it. Accepting that the laws of evidence do not apply in the conduct of a merits review,[17] it was open to the Tribunal to prefer the evidence that had been supplied to it, including that given by Mr Essa, over that which was being relayed to it via the applicant’s lawyer. Equally, it was open to the Tribunal to take into account whether statements, including those attributed to Mr Essa, were supported by other independent documentary evidence.
[15] Applicant’s submission, [6].
[16] Applicant’s submission, [7].
[17] Act, ss 420(a), 422B.
Insofar as the applicant submits that Mr Essa’s evidence was crucial, this is no more than an attempt to impermissibly invite this Court to engage with a merits review of the applicant’s claims.
I do not accept that the Tribunal did not accord the applicant procedural fairness in not accepting the authorised representative’s submissions as to Mr Essa’s account without giving them an opportunity to respond’.[18] The rules of procedural fairness do not have an immutably fixed content: “What will be both sufficient and necessary to ensure a fair hearing in any given case will depend on, and vary with, the context.”[19] Procedural fairness “is flexible and adaptable to the circumstances of the particular case and must be approached on the basis of what is reasonable and necessary to avoid ‘practical injustice’”.[20]
[18] Applicant’s submission, [7].
[19] Snedden v Minister for Justice for the Commonwealth of Australia (2014) 315 ALR 352, [177] (Middleton and Wigney JJ).
[20] Ibid.
It was clear that the matters raised in the course of the hearing including in relation to Mr Essa’s evidence may not be accepted. Before reaching a decision, the Tribunal had no obligation to give a running commentary on its thought processes,[21] or to give the applicant an opportunity to comment on the identification of gaps in the evidence and the weighing up of evidence by reference to those gaps.[22] Contextually, the applicant was given and took the opportunity to make a post hearing submission.
[21] SZBEL (2006) 228 CLR 152, [48].
[22] SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190, 1196 [18] (Gleeson CJ, Gummow, Callinan, Heydon & Crennan JJ).
There were four dispositive issues grounding the applicant’s claim to fear persecution. First was the claim to the receipt of the 2014 phone call. The Tribunal accepted that this call was made but found that the call had been made to the UNFAO office and, after being answered by Mr Kakar, the phone was handed to the applicant. The Tribunal did not find that the call was directed to the applicant personally. The second and third dispositive issues in the application rested on the applicant’s claims as to the issuing and receipt of the two warning letters. Contrary to the findings of the delegate, the Tribunal was not satisfied that those threats were made. The applicant was squarely on notice of those issues as being issues arising in relation to the decision under review.[23] More than a ‘sufficient indication’[24] was given by the Tribunal to the applicant as recorded in its various questions, including those related to Mr Essa’s claimed involvement in the matter: [43], [50]-[54]. The fourth dispositive issue related to the more recent claim that the Taliban had visited the applicant’s wife and threatened her in December 2015. Although the Tribunal rejected this claim as not being credible, it does not relate to the question of procedural fairness raised by Ground 1.
[23] SZBEL (2006) 228 CLR 152, [43] (The Court).
[24] SZBEL (2006) 228 CLR 152, [47] (The Court).
I agree in the submission that the dispositive issue was not that Mr Essa’s statements as relayed by the applicant’s solicitor were not to be accepted. It was not suggested that the matters as relayed by the applicant’s solicitor of statements made to her by Mr Essa themselves constituted some clearly articulated claim or that the Tribunal failed to consider the matters attributed to Mr Essa as an integer of his claims to having been the target of a personal attack from the Taliban. To the contrary, it is clear from the Reasons, which were otherwise comprehensive in their analysis, that the Tribunal gave detailed consideration to the whole of the evidence before it including all of the matters that were attributed, directly or indirectly, to Mr Essa. The Tribunal decided to place no weight on evidence attributed to Mr Essa which was unsupported by independent documentary evidence: [42], [47], [58], [71]. It did so in circumstances where, in contrast with the more usual case, the Tribunal considered such independent evidence was of a kind that would be retained by organisations such as UNFAO and its affiliates and be more accessible to a person in the position of the applicant. In my opinion, that view was open. The rejection of Mr Essa’s evidence was but one aspect of the Tribunal’s conclusion as to why his claims were not accepted: see, eg, [63], [64]. I do not accept that the Tribunal was obliged to go back to the applicant in relation to those issues before making its decision to affirm the delegate’s decision to refuse the claim. It was not required to advise that the lawyers account may be rejected.
Ground 1 is rejected.
Ground 2 – constructive failure to consider claim
The second ground of review as set out in particular (d) reads:
In making adverse credibility findings against the Applicant, the Tribunal placed weight on correspondence from Marcell Stallen, International Project Manager at UNFAO. Mr Stallen made the comments in response to an enquiry from the First Respondent’s Delegate (“the primary decision-maker”) in relation to why the Applicant did not return to Pakistan. The comments caused the Tribunal to doubt the veracity of the Applicant’s claims because the Tribunal found that no mention was made of the threats from the Taliban. Although the Tribunal put the contents of that correspondence to the Applicant for comment, it failed to seek verification from Mr Stallen concerning Applicant’s response about the contents of his communications with Mr Stallen.
I have set out at [49] and [77] above, the content of Mr Stallen’s comments to the Tribunal as to his dealings with the applicant in seeking to persuade him to return from Australia to Pakistan. As set out at [56] above, the applicant submitted that his communications with Mr Stallen, UNFAO’s International Project Manager, had a different character. The applicant said that while he had been hospitalised, he had informed Mr Stallen of this fact and, that once he had applied for a protection visa, he had told him of his wish to resign from the UNFAO.
The applicant claimed that he had not been put under any pressure to return but that Mr Stallen had expressed concern he might have unlawful status and advised he could extend his airline ticket for future use.
The applicant submitted that a further enquiry to Mr Stallen by the Tribunal could potentially have yielded a different result having regard to the considerable weight placed upon Mr Stallen comments[25] and that it was therefore obliged to make further inquiries of him in light of the different complexion which, it was said, should be placed upon his statements and the adverse credibility findings that were made.[26]
[25] Applicant’s submission, [3].
[26] Applicant’s submission, [8].
Again, the applicable legal principles were not in dispute. Within the framework of Pt 7, a failure to make an obvious enquiry about a critical fact, the existence of which could be easily ascertained, may in some circumstances give rise to jurisdictional error constituted by constructive failure to exercise jurisdiction.[27] I accept the Minister’s submission that it is necessary to establish each of those three matters, and that error will not be made out in the absence of one or more of those requirements.[28] In light of those principles, error is likely to be demonstrated in a ‘rare and exceptional case’[29]. I also accept that the mere fact that it might have been reasonable to make an enquiry does not mean that the lack of such inquiry constitutes jurisdictional error.[30] The Tribunal is not subject to a general obligation to make inquiries, or to make out, or assist in making out, a review applicant’s case.[31]
[27] Minister for Immigration and Citizenship v SZIAI (SZIAI) (2009) 83 ALJR 1123, [19]-[25] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).
[28] SZMJM v Minister for Immigration & Citizenship [2010] FCA 309, [30]-[31] (Bennett J).
[29] MZZGB v Minister for Immigration and Citizenship [2014] FCA 1052, [63] (White J); Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235, [33] (Dowsett, Pagone & Burley JJ).
[30] Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235, [33] (Dowsett, Pagone & Burley JJ).
[31] Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594, [20] (French CJ and Kiefel J).
I do not accept that the Tribunal committed error by a suggested failure to communicate further with Mr Stallen before proceeding to make its decision on review. The Tribunal dealt with and attached weight to Mr Stallen’s evidence: see at [20], [53], [55], [61]-[62].
As particular (d) to the ground of review explicitly acknowledges, Mr Stallen’s comments were put to the applicant for comment. That opportunity to comment was taken and a different version was advanced by the applicant of his communications with Mr Stallen. No attempt was made to identify what was obvious (or critical) to be asked of Mr Stallen. The views expressed by him were stated in unambiguous terms and the applicant was afforded an opportunity to deal with them. The ultimate question for the Tribunal was whether it was satisfied of the applicant’s claims and whether they supported a conclusion that he satisfied any of the criteria for refugee status or complementary protection. In my opinion, it was not incumbent upon the Tribunal before reaching its decision to revert to Mr Stallen to enquire as to the correctness of the applicant’s view of what had been said following his admission to hospital or, upon making his visa application, the communication of his decision to resign from UNFAO.
Ground 2 is rejected.
Materiality – relocation was available
It was further submitted that the Tribunal’s independent finding, which was not challenged, was that the applicant could safely relocate within Pakistan: [82]-[83], [87]-[93]. The Tribunal recognised that the delegate had found the applicant could relocate within Pakistan: [3].
In concluding that the applicant did not meet the criterion for refugee status, the Tribunal found that he could relocate to a variety of locations in Pakistan. The Tribunal also examined the question of relocation in relation to complementary protection. The Reasons make plain that the issue was addressed during the hearing: [87]-[89]. They also make plain that the question of relocation had been addressed by the applicant’s submissions including and with reference to authority: [90]-[91].
The Tribunal found that the applicant could relocate, including having regard to his education, multi-lingual abilities and experience: [92].
The applicant’s ground of review and submissions did not seek to impugn the findings that he could safely relocate within Pakistan.
I am also satisfied that, if contrary to my primary conclusions above, Grounds 1 or 2 had been made out, the discretion to grant relief should be refused on the basis that the unchallenged finding the applicant could relocate within Pakistan provided an independent basis for the Tribunal’s decision to affirm the delegate’s decision the applicant did not meet the criteria for refugee status or complementary protection.[32]
[32] SZMCA v Minister for Immigration and Citizenship (2009) 174 FCR 415, [122] (Tracey and Foster JJ); MZYMI v Minister for Immigration and Border Protection [2012] FCA 89, [28] (Bromberg J): Special leave to appeal refused: [2012] HCASL 86.
Conclusion
For the reasons above, the application should be dismissed.
I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of Judge A. Kelly
Associate:
Date: 22 July 2020
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