DZT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 308
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DZT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 308
File number: PEG 265 of 2020 Judgment of: JUDGE LADHAMS Date of judgment: 2 May 2022 Catchwords: MIGRATION – application for judicial review of Administrative Appeals Tribunal decision – refusal to grant Protection (Class XA) visas – whether Tribunal misapplied law – whether Tribunal ignored evidence from applicant – whether Tribunal decision was affected by actual or apprehended bias – whether applicant was denied procedural fairness – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 36, 425, 476, 477 Cases cited: Applicant WAEE v Minister for Immigration and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184
Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58
Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Minister for Immigration and Multicultural Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28
SZSQS v Minister for Immigration and Border Protection (2014) 142 ALD 509; [2014] FCA 219
Division: Division 2 General Federal Law Number of paragraphs: 78 Date of hearing: 5 November 2021 and 20 December 2021 Place: Perth Applicants: Appeared in person Counsel for the Respondents: Mr S Cummings Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 265 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DZT20
First Applicant
DZU20
Second Applicant
DZV20, BY HER LITIGATION GUARDIAN, DZT20
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
2 MAY 2022
THE COURT ORDERS THAT:
1.The applicants have leave to rely on the amended application filed on 30 September 2021.
2.The application, as amended, is dismissed.
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
JUDGE LADHAMS:
INTRODUCTION
Before the Court is an application filed pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act), by which the applicants seek judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). On 5 August 2020 the Tribunal affirmed an earlier decision made by a delegate of the Minister not the grant the applicants Protection (Class XA) visas (protection visas).
For the reasons explained below, I have found that there is no jurisdictional error in the Tribunal decision and I dismiss the application to the Court.
BACKGROUND
The applicants are nationals of Pakistan. The first applicant is the husband of the second applicant and the third applicant is their child. The first applicant arrived in Australia in August 2011 as the holder of a student visa. He returned to Pakistan on two occasions in 2013 and 2014 respectively. The second applicant arrived in Australia in May 2014 as a dependant on the first applicant’s student visa.
On 16 October 2014 the first and second applicants lodged an application for a protection visa. The first applicant advanced claims for protection and the second applicant claimed protection as a member of the same family unit as the first applicant. The third applicant was born in Australia after the lodgement of the protection visa application and was subsequently added to the application.
The first applicant’s claims for protection were set out in a statement that accompanied the protection visa application and the applicant’s interview before the delegate on 31 May 2016. The first applicant claimed to fear harm if he returned to Pakistan on the basis of his political affiliation with the Pakistan People’s Party (PPP). The first applicant claimed that his home area in Pakistan was a stronghold of support for the Pakistan Muslim League Nawaz (PMLN) party. He claimed that he was briefly arrested and detained during a political protest in 1999. He also claimed that he experienced harassment and intimidation from people associated with the PMLN between 2006 and 2010.
On 27 October 2016 a delegate of the Minister refused to grant the applicants protection visas.
The applicants lodged an application to the Tribunal for review of the delegate’s decision on 17 November 2016.
The applicants attended three hearings before the Tribunal, and were assisted by an interpreter in the Urdu and English languages at each of the hearings.
(a)At a hearing on 23 September 2019 the Tribunal explained the review procedure and confirmed the first applicant’s written claims. This hearing was adjourned to allow the applicants an opportunity to make a freedom of information request to the Department of Home Affairs to obtain a copy of documents on the Department file.
(b)A hearing on 31 March 2020 was adjourned after approximately 13 minutes because the Tribunal member was not satisfied that the second applicant was ready to proceed.
(c)At a hearing on 23 July 2020 the first and second applicants gave evidence in relation to the claims for protection.
On 5 August 2020 the Tribunal affirmed the decision of the delegate not to grant the applicants protection visas.
TRIBUNAL DECISION
The Tribunal considered the applicants’ claims to be ‘unreasonably vague, internally inconsistent and lacking in credibility in material respects’.
The Tribunal accepted that the first applicant was a low-level supporter of the PPP in Pakistan prior to 2008, and that during this time he experienced a low level of discrimination and harassment for the essential and significant reason of his support of the PPP. The Tribunal found that at some point between 2008 and 2011, the first applicant ceased to be involved in or engaged with Pakistan politics at any level. By the time of his departure for Australia in 2011 he feared no harm from any person for any reason in Pakistan.
The Tribunal found that the first applicant’s claims for protection were lacking in credibility and were without merit and the Tribunal was not satisfied that any of the applicants held a genuinely subjective fear of persecution in Pakistan. This finding was said to be based on the first applicant’s:
(a)multiple return visits to Pakistan;
(b)renewal of his student visa in Australia;
(c)failure to disclose any history or continuing fear of politically motivated harm in Pakistan to his dependent spouse prior to applying for a protection visa in October 2014; and
(d)lengthy delay in seeking protection and failure to offer a reasonable explanation for this delay.
The Tribunal found that the applicants did not meet the refugee criteria in s 36(2)(a) of the Migration Act or the complementary protection criteria in s 36(2)(aa) of the Migration Act. It followed that the applicants also did not satisfy the criteria in s 36(2)(b) or (c) of the Migration Act.
PROCEEDINGS IN THIS COURT
The applicants commenced proceedings in this Court by way of an application filed on
31 August 2020. The application was filed within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
On 1 October 2020 a Registrar of this Court made an Order to progress this matter to hearing. The Order required the applicants to file and serve any amended application by 26 November 2020. An amended application was filed on 30 September 2021, outside the timeframe provided in the Order.
The amended application raises the following six grounds of review, reproduced without alteration:
2.The decision of the AAT was vitiated by a constructive failure to exercise jurisdiction in misconstruing or misapplying a paragraph 36(2B)(c) of the migration ACT 1958 (cth),and ignored that applicants and family have serious life threats
2.The AAT member ignored the doctor medical certificate when applicant was suffering in anxiety and stress and need more time for hearing, but AAT member ignored, doctor certificate attached in court book.
3. AAT Member Made Judicial error while taking interview as AAT member was very strict and don't want to understand, when applicant noticed that the interpreter don't translate properly and applicant tried to stopped him and told he is not interpreting correctly AAT member get involved and get aggressive on applicant then applicant got scared and not feel comfortable as AAT member was not helpful and made harsh decision (please listen audio recording of interview its only one hour and imagine how was attitude of member toward applicants),applicants can't feel good and didn't express their full feeling.
4. AAT member made judicial error and didn't give chance or asked new interview with presence of new interpreter
5. AAT member made judicial error and ignored UN CONVENTION on refugee rights and children rights, as applicant daughter have some delays in her life and have all doctors' reports but because of AAT member aggrieve behaviour towards applicant cant discus their as applicant got very nervous and stress full after AAT member behaviour
6. AAT member ignored criteria of protection visa made judicial error that AA T must listen all of applicants claims and give applicants comfortable environment to discuss everything, but this member put a lot of pressure on us.
As the amended application was filed outside of the timeframe required by the Order, the applicants need leave to rely on the amended application.
The matter first came before me for hearing on 5 November 2021. On that occasion it became apparent that the applicants had purported to provide to the Court in the days immediately before the hearing some audio files of the hearings before the Tribunal. These audio files had not been accepted for filing. The applicants intended to rely on these audio files to demonstrate the aggressive manner in which they say the Tribunal hearings were conducted and to show an alleged interpretation error. I adjourned the hearing and made orders for the filing of further evidence, including an affidavit annexing transcripts, and further submissions.
The adjourned hearing was convened on 20 December 2021.
The evidence before the Court comprised the court book, the audio files of the Tribunal hearings and affidavits filed by the applicants on 31 August 2020 (annexing a copy of the Tribunal decision), 30 September 2021 (setting out the amended grounds of application) and
6 December 2021 (annexing transcripts of the Tribunal hearings).
LEAVE TO RELY ON AMENDED APPLICATION
The Minister opposed leave being granted to the applicants to rely on the amended application on the basis of the delay in filing the amended application, the lack of explanation for the delay, and the lack of merit in the proposed grounds.
I consider it appropriate to grant leave to the applicants to rely on the amended application and I make an order to this effect. I am satisfied that the Minister has had sufficient notice of the grounds in the amended application to be able to properly respond to them and there is no substantial prejudice to the Minister in allowing the late amendment. I take into account that the applicants are self-represented and I consider that the interests of justice lie in giving the applicants a proper opportunity to present their case to the Court.
CONSIDERATION
Need to establish jurisdictional error
In order to be entitled to relief by this Court, the applicants must establish that the Tribunal decision is affected by jurisdictional error. The Tribunal will have made a jurisdictional error if it ‘exceeded the limits of the decision-making authority conferred by the statute in making the decision’: MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 at [29].
The High Court identified a number of examples of jurisdictional error in Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 (Craig). In that case the High Court said at [14] that if the decision-maker:
…falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
The examples of jurisdictional error set out in Craig are not exhaustive: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]. Other examples that often arise in migration cases include where the Tribunal fails to afford an applicant procedural fairness, or when the Tribunal decision is affected by actual or apprehended bias: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [81] (SZMTA); Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (Jia Legeng) at [112].
Ground 1
The applicants by their first ground assert that the Tribunal:
(a)misapplied or misconstrued s 36(2B)(c) of the Migration Act; and
(b)ignored the applicants’ claims that their family faces serious life threats.
Section 36(2B)(c) of the Migration Act qualifies the complementary protection criteria in s 36(2)(aa) by providing that there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
The Tribunal in the present case did not refer to s 36(2B)(c) in its reasons. The Tribunal found that the applicants did not meet the complementary protection criteria in s 36(2)(aa) essentially because it found that the first applicant’s claims that he would face significant harm as a result of his previous political affiliation with the PPP lacked credibility. In these circumstances, it was not necessary for the Tribunal to have regard to s 36(2B)(c) and there is no basis for finding that the Tribunal misapplied or misconstrued this provision.
The applicants’ assertion that the Tribunal ‘ignored that the applicants and family have serious life threats’ does not establish jurisdictional error. The Tribunal carefully considered the first applicant’s claims to have faced discrimination and harassment in the past and that he would face harm in the future and found that he did not genuinely fear serious harm and did not face a real risk of significant harm. The applicants’ assertion in this ground essentially invites the Court to engage in merits review. This Court has no jurisdiction to consider the merits of the Tribunal decision or to decide for itself whether the applicants meet the criteria for a protection visa: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
Ground 1 is not established.
Ground 2
By ground 2 the applicants assert that the Tribunal ignored a medical certificate indicating that the first applicant was experiencing anxiety and that he requested more time for the hearing.
The evidence before the Court shows that the first applicant provided various medical documents to the Tribunal on 10 September 2019. In the covering email attaching these documents, the first applicant said:
I am seriously suffering due to on going serious health issue of my mental health. I am getting continuous anxiety attacks, which makes very hard to cool down myself because of this my blood pressure raised critically. I been taking to the Murdoch Hospital emergency on 8th of june 2019 referred by a G.P in Cannington medical Centre in Cannington because of anxiety attacked. After I released from hospital I was keep suffering due to pressure in my head so my Dr asked me to do a head scan to find out what’s going on in my brain. He found scan is ok but I have stress , anxiety/depression which makes me panic badly. At the moment my anxiety attacks make my life so hard to continue my relationship, every day life and my young family (wife & four years old daughter) also struggling badly due to my mental health. At this stage I am mentally so disturbed little things make me extremely panic therefore in this mental situation I will not be able to answers your questions properly during interview in front MR division. Because I know, I will get panic during interview then I can’t cool down myself could end up in the hospital. So am requesting for an adjournment at the moment, need good time to get my mental health better. I will appreciate if you consider my sickness and give me a chance to get healthy mentally before I present myself for interview. Please find the attached documents listed below…
The documents provided with this email were a medical certificate from the first applicant’s GP, dated 10 September 2019, indicating that the first applicant has been suffering from anxiety/depression and stress for a few months and this has impacted his daily life both at home and work; a prescription for medication; a radiology report in relation to a CT of the first applicant’s head; and an invoice from St John’s Ambulance.
On 11 September 2019 the Tribunal refused to adjourn the hearing listed on
23 September 2019. The Tribunal said in a letter to the applicants:
The Tribunal notes your request for a postponement of the hearing set down for 23 September 2019. The Tribunal appreciates that your submission discloses past incidences of anxiety/depression. The Tribunal will proceed with suitable care in addressing the applicant’s application for protection in light of this information. As nothing in the submission suggest that you will be unable to participate meaningfully in the hearing of less than an hour in the first instance, the Tribunal has decided not to grant your request for a postponement at this time. Accordingly, the hearing will proceed as previously advised.
The Tribunal considered the applicants’ request for an adjournment due to medical reasons and refused that request. It was open to the Tribunal to refuse the adjournment request for the reasons given.
The Tribunal member was clearly aware of the first applicant’s mental health issues and referred to these issues towards the end of the hearing on 23 September 2019. The transcript of the hearing on 23 September 2019 shows the following exchange:[1]
[1] The bold text indicates the Tribunal’s words and the other text indicates the first applicant’s words.
Now you also gave me some information relating to anxiety issues.
Yes.
Did you find this experience to be overly stressful?
No, I try to calm down myself.
Okay. So I'm not going to rush this. I need to make a decision as quickly as possible because you need some certainty, but I'm not going to rush this. And if you need breaks, we'll take breaks. I just need to understand your claims and your circumstances the way you do. Or as close to that as possible before I make an informed decision.
The first applicant did not provide any further evidence about his mental health to the Tribunal and did not raise any concerns about his mental health or any impact that his mental health conditions may have on his ability to participate in the subsequent hearings on 31 March 2020 and 23 July 2020.
The Tribunal did not refer to the medical evidence in its reasons and I am satisfied that there was no need for it to do so. The first applicant provided oral evidence about his claims for protection at the Tribunal hearing on 23 July 2020 and there was no suggestion before the Tribunal that he was unable to effectively participate in the hearing or give evidence about his claims on this date because of his mental health. Further, the first applicant made no claims for protection based on his mental health. In these circumstances, I infer that the Tribunal’s failure to refer to the medical certificates in its reasons is simply an indication that the Tribunal did not consider the medical evidence to be material to its decision. The Tribunal does not need to refer to every item of evidence before it: Applicant WAEEvMinister for Immigration and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46].
At the hearing before the Court, the first applicant submitted that his mental health conditions had not gone away at the time of the second and third Tribunal hearings and he did not mention his mental health after the first Tribunal hearing because his first request for an adjournment had been refused. The first applicant said that he did not feel mentally well at the subsequent Tribunal hearings and wanted to leave the hearings.
To the extent that this ground may raise a question as to whether the first applicant was afforded a real and meaningful invitation to attend a hearing, as required by s 425 of the Migration Act, it is not established. If an applicant is not in a fit state to represent himself or herself at a Tribunal hearing, there may be jurisdictional error on the part of the Tribunal for failing to comply with s 425 of the Migration Act, notwithstanding that the Tribunal was not aware that the applicant was not in a fit state to represent himself or herself at the hearing: Minister for Immigration and Multicultural Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 at [41]. However, in the present case, there is no medical evidence before the Court to establish that the first applicant was not in a fit state to represent himself at the Tribunal hearings and there is nothing that I have identified in the transcripts or in the audio recordings of the hearings that raises any doubt about the first applicant’s ability to represent himself and effectively participate in the hearings.
Ground 2 is not established.
Ground 3
Ground 3 asserts that the Tribunal was ‘strict’ and ‘aggressive’ and did not want to understand, particularly when the first applicant attempted to correct the interpreter. I interpret this ground as raising an allegation of bias.
Any allegation of bias must be distinctly raised and clearly proved: Jia Legeng at [69]. To establish that the Tribunal was biased, the onus is on the applicant to prove that the Tribunal had a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake, a proper evaluation of the matter, or that a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the review: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 at [27]; Jia Legeng at [35].
In considering this ground, I have reviewed the transcripts as a whole and I have listened to the audio recordings of the hearings in their entirety to listen to the tone of the Tribunal member: see SZSQS v Minister for Immigration and Border Protection (2014) 142 ALD 509; [2014] FCA 219 at [34] for an example of another case where a similar approach was taken.
On a fair reading of the audio recordings and the transcripts as a whole, as well as the Tribunal’s reasons, the Tribunal member was not strict or aggressive in his tone in any way that establishes apprehended or actual bias. There were perhaps times when the member might, through his tone, be perceived to have exhibited some minor frustration. Examples of this include, in the first hearing, when the applicants did not have access to their own documents setting out their claims, and at the second hearing when the Tribunal member perceived that the second applicant was not ready to proceed. On each of these occasions, the Tribunal took steps to ensure that the applicants were not disadvantaged by their lack of readiness to proceed. There were also times in the third hearing where the Tribunal’s questioning might be perceived as robust and where the member challenged the applicants about inconsistencies in their evidence. However, all of these examples, individually and collectively, fall well short of establishing bias.
The applicants have referred to an example of where they say the Tribunal member became upset with the first applicant when he corrected the interpreter. I have identified only one instance where the first applicant attempted to correct the interpreter. This took place at the Tribunal hearing on 23 July 2020 where the following exchange occurred:
If you're going to correct the interpreter’s English, it might be better if you speak in English yourself.
Yeah, I can speak in English, Member, but the thing is maybe few things I would ... wouldn't be able to express in English so that's why
Yes, well, that's fine, but I can't have you correcting the interpreter’s English if you're relying on the interpreter. That suggests to me that your English might be better than the interpreter’s.
Yeah.
Now this raises a question mark in my mind about how straightforward you're being with me about the basic facts of your life.
And this, I already said, like, I can do the interview in English, but only thing comes in my mind may be few thing while I'm doing the interview, maybe I wouldn't be able to express myself in English, so that's why I thought it would be better having an option.
I'm giving you the option, but what I'm saying to you is if you start correcting the interpreter’s English, it's not appropriate to treat an interpreter in that ...
No, no, ...
No, no, I'm just saying, hear me out, please. It is not appropriate to treat an interpreter that way. You can't ask for an interpreter and then start correcting the interpreter. That's not what the purpose of this hearing is about.
Ah, sorry.
So now I'm putting to you that given that you are correcting the interpreter’s English, it suggests to me that your English is adequate to answer basic questions about the facts of your life. Is there anything you'd like to say about that?
[Pause] Yes.
What would you like to say?
Yeah, I would like to continue the interview with the help of the interpreter, please.
So you're not going to be speaking English and you're not going to be correcting the interpreter’s English?
Yeah, not gonna correct her English, yeah.
Okay. If you have questions about the interpreter’s discharge of her role, you address them to me, please, not to the interpreter.
Yeah, I will.
The audio recording of this particular section in the transcript does not indicate that the Tribunal member was aggressive or angry when addressing the first applicant’s concerns about the alleged interpretation errors. If the first applicant ‘got scared’ or did not ‘feel comfortable’ at the Tribunal hearing after this exchange, he did not raise this with the Tribunal, and there is nothing in the audio recordings or the transcripts to suggest that he was unable to effectively participate in the remainder of the hearing.
The applicants’ assertion that the Tribunal member was strict and aggressive is unfounded. There is no evidence in the procedural history, transcripts, audio recordings or the Tribunal decision that the Tribunal had a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake, a proper evaluation of the matter, and there is no evidence before the Court from which I can conclude or infer that a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the review.
Ground 3 does not establish jurisdictional error.
Ground 4
By ground 4 the applicants assert that the Tribunal’s decision not to invite the applicant to another hearing with the assistance of a new interpreter gives rise to jurisdictional error.
The only interpretation error identified by the applicants before the Tribunal or the Court related to an error in identifying the number of children of one of the first applicant’s siblings. This error was corrected by the first applicant, as can be seen from the following exchange in the third hearing:
Living in Dubai and how many children?
[Interpreter]: Four children.
No, no, two, two.
This exchange took place just before the exchange extracted at [46] above.
There is no evidence before the Court from which I can conclude that there were any material interpretation errors at the Tribunal hearing which would give rise to jurisdictional error. As can be seen from the extract at [46], the Tribunal invited the first applicant to raise with the Tribunal member any concerns in relation to interpretation. The first applicant did not raise any other concerns about the interpretation at the third hearing. The applicants have not provided to the Court any evidence of any other alleged interpretation errors.
The Tribunal did not err by not inviting the applicants to a further hearing with a new interpreter.
At each of the three hearings before the Tribunal, the hearing records indicate that the interpreters used were National Accreditation Authority for Translators and Interpreters (NAATI) Level 3 certified.
At the first Tribunal hearing, the Tribunal asked the first applicant whether he found the interpreter arrangements acceptable. The first applicant responded ‘no problem’.
On 2 July 2020 the first applicant sent an email to the Tribunal requesting that the interpreter used at the second hearing also be used at the third hearing. In this email the first applicant said:
Can i get the same female interpreter who was available in last hearing which was on 31st March 2020 because she speaks very clear and concise Both English and my native Urdu too, am not happy with the male interpreter it’s hard to understand what he is saying and am not satisfies with his English translation of my saying in urdu either.
The hearing records indicate that the Tribunal adhered to this request as the name of the interpreter on the record of the second hearing is also on the record of the third hearing.
It is also evident from the transcript and audio recording of the 23 July 2020 hearing that the Tribunal ensured that the applicants wished to proceed with the interpreter. The following exchange occurred:
… Mr [first applicant], Mrs [second applicant], I understand you both have English, is that correct?
[Interpreter]
Yes.
Would you like to proceed entirely interpreted or to proceed in English and rely on the interpreter where you have difficulty?
[Interpreter]: I'll be more comfortable if interpreted.
The Tribunal did everything it needed to do to ensure that appropriate arrangements were made for an interpreter to assist the applicants at the hearing, and there is no evidence to demonstrate that those arrangements were not effective.
Ground 4 does not establish jurisdictional error.
Ground 5
Ground 5 alleges that Tribunal’s aggressive behaviour prevented the applicants from submitting further evidence about the third applicant and that it ignored the United Nations Convention on the Rights of the Child (UNCROC).
Having listened to the audio recordings of the hearing, I am satisfied that the Tribunal member was not aggressive toward the applicants in any of the three hearings. Although the applicants may have been ‘very nervous’ and ‘stressed’ during the hearings, I do not accept that the Tribunal’s ‘aggression’ was the reason the applicants did not submit further evidence in relation to the third applicant to support their claims. The applicants had various opportunities to submit further documents or evidence to the Tribunal. Their application was pending before the Tribunal for almost three years before the first hearing, and then they were given lengthy adjournments after the first and second hearings, during which they could have provided further evidence had they wished to do so.
The Tribunal member confirmed with both the first and second applicants at the hearing that the third applicant did not have any of her own claims for protection and relied entirely on the claims of the first applicant.
The Tribunal was only required to consider claims that were expressly raised by the applicants or which clearly emerged on the materials before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [59]. The applicants raised no claims based on the third applicant’s health and there was no obligation on the Tribunal to consider any such claims.
The issue for the Tribunal was whether the applicants met the criteria for a protection visa in s 36 of the Migration Act. This did not require the Tribunal to consider the best interests of the child or any other matter arising from UNCROC. There was no obligation on the Tribunal to consider UNCROC in reaching its decision.
Ground 5 is not established.
Ground 6
Ground 6 asserts that the Tribunal ignored the criteria for a protection visa and did not consider all of the first applicant’s claims and that the applicants were put under pressure and could not discuss everything.
Having reviewed the transcripts and listened to the audio recordings of the hearings, I am satisfied that the applicants were afforded a fair hearing before the Tribunal. The Tribunal identified the applicants’ claims with them at the hearing and invited them to clarify and elaborate on those claims. The applicants were given ample opportunity to discuss their claims, and the Tribunal member explained to the applicants the concerns that he had about the claims and gave the applicants an opportunity to address those concerns.
In his oral submissions to the Court, the first applicant complained that the Tribunal asked him a lot of questions about his family instead of asking him about his claims. The first applicant claimed that the questions about his family were irrelevant. In my view, it was not inappropriate for the Tribunal to ask the first applicant about his family. Questions about an applicant’s family can give context to claims for protection and can assist to establish an applicant’s identity. In the present case, the Tribunal made adverse credibility findings against the applicant based in part on answers he gave about his family. First, the Tribunal rejected the first applicant’s assertion that he could not provide evidence to support his claims, noting that he still had family in Pakistan who might be able to assist in obtaining evidence. Second, the Tribunal considered that it was implausible that the first applicant would not tell his wife about his fears of persecution at an earlier time if he genuinely held those fears. It was open to the Tribunal to take into account in this manner the answers that the applicant gave about his family.
The applicants have not identified which of the claims or legislative criteria they say the Tribunal ignored. I do not identify from my review of the evidence before the Tribunal any claims or integers of claims that the Tribunal overlooked.
The Tribunal considered the first applicant’s claims against the criteria in ss 36(2)(a) and 36(2)(aa) of the Migration Act.
Having considered all of the evidence before it, the Tribunal was not satisfied that the applicants had a subjective fear of persecution. Having found that there was no subjective fear, it was not necessary for the Tribunal to conduct any further analysis in relation to the criteria in s 36(2)(a). As the Full Court of the Federal Court said in Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [29], ‘[o]nce the Tribunal rejected the claim that there was such a subjective fear, it was not necessary for the Tribunal to determine whether the non-existent fear was well-founded’.
The Tribunal found that the applicants did not face a real risk of significant harm for the purposes of the complementary protection criteria in s 36(2)(aa) of the Migration Act. This conclusion flowed from the Tribunal’s findings that the only harm the first applicant had experienced was a low level of harm and discrimination as a PPP supporter prior to 2008, and that he had no intention of being involved in party politics in the future.
Having found that the first applicant, who was the only applicant to advance claims for protection, did not meet the criteria in ss 36(2)(a) or 36(2)(aa), it followed that the second and third applicants could not meet the criteria in s 36(2)(b) or (c) of the Migration Act.
I am satisfied that the Tribunal considered all claims raised by the applicants and all relevant provisions in the Migration Act.
Ground 6 is not established.
CONCLUSION
I have found that the applicants have not established jurisdictional error in the Tribunal decision. It follows that the application to this Court is dismissed.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 2 May 2022
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