Edt16 v Minister for Immigration and Border Protection

[2022] FedCFamC2G 230

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EDT16 v Minister for Immigration and Border Protection [2022] FedCFamC2G 230

File number(s):

MLG 2837 of 2016

Judgment of:

JUDGE FORBES

Date of judgment:

6 April 2022

Catchwords:

MIGRATION – application for protection visa – citizen of Pakistan – claims fear of persecution relating to property dispute in Pakistan – applicant does not meet Refugee criteria under s 36(2)(a) of the Migration Act 1958 (Cth) or complementary criteria under s 36(2)(aa) – inconsistencies in applicant’s claims – allegation Tribunal biased – whether Tribunal denied request for extension of time – whether Tribunal unreasonably rejected documents – no jurisdictional error in Tribunal decision – application dismissed

Legislation:

Migration Act 1958 (Cth) s 36, 65, 427, 476

Migration Regulations 1994 (Cth) cl 866.22

Cases cited:

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Ethnic Affairs v Wu Shan Lu (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102

Division:

Division 2 General Federal Law

Number of paragraphs:

61

Date of hearing:

19 November 2021

Place:

Melbourne

Applicant:

In Person

Solicitor for the First Respondent:

Mr Cunynghame

Solicitor for the Respondents:

Sparke Helmore Lawyers

ORDERS

MLG 2837 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	EDT16 Applicant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE FORBES
DATE OF ORDER:	6 APRIL 2022

THE COURT ORDERS THAT:

1.The Application be dismissed.

2.The Applicant pay the First Respondent’s costs fixed in the amount of $5,000.

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 FORBES

INTRODUCTION

1. This proceeding concerns an application seeking judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) dated 28 November 2016. The decision of the Tribunal affirmed a decision of the Minister’s delegate not to grant the applicant a Protection (subclass 866) visa under s. 65 of the Migration Act 1958 (Cth)(Act).

2. In this proceeding, the applicant seeks an order that the decision of the Tribunal be quashed.

3. For the reasons set out below, I have decided that the Tribunal’s decision is not affected by jurisdictional error.  The application for judicial review will be dismissed.

   BACKGROUND

4. The applicant is a 39-year-old male from Rawalpindi, Punjab, Pakistan.  He is a citizen of Pakistan and is a Sunni Muslim.

5. On 29 November 2011 the applicant applied for a student visa to study in Australia. He first arrived in Australia on 18 February 2012 bearing a Pakistani passport and holding a class TU subclass 572 student visa.  He was enrolled at a private tertiary college in Perth.

6. In September 2013 the applicant discontinued his studies and moved from Perth to Melbourne.

   Application for Protection Visa

7. On 13 March 2014 the applicant lodged an application for a Protection (Class XA) visa.

8. An applicant for a protection visa must meet certain criteria at the time of their application (which are set out in paragraph 866.21 of Schedule 2 of the Migration Regulations 1994 (Cth) (the regulations)) and also criteria at the time of a decision on the protection visa application (as set out in paragraph 866.22 of Schedule 2).

9. The fundamental criterion for the grant of a protection visa is contained in s 36(2)(a) of the Act which provides that the applicant must be a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations because the person is a refugee.

10. Alternatively, a person is eligible for a protection visa where they meet the criteria contained in s 36(2)(aa), namely that the applicant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. This alternative criterion is commonly referred to as “complimentary protection”.

11. The applicant is a citizen of Pakistan and travelled to Australia on a Pakistan passport which the delegate found to be genuine.  Accordingly, as a non-citizen of Australia, Pakistan is the applicant’s country of reference for the purpose of assessing protection obligations under the Refugees Convention and Pakistan is the applicant’s “receiving country” for the purpose of assessing the complimentary protection criteria.

12. In summary, the applicant presented the following claims in his application:

    (a)He is a Sunni Muslim from Rawalpindi, Pakistan;

    (b)Before coming to Australia, he was involved in some family issues pertaining to the distribution of his grandparents’ property. He was left a 50% share of his parents’ property, a greater proportion than was to be left to his brothers.

    (c)The applicant believes that his greedy relatives did not want him to obtain any share in the property;

    (d)He believes that his life would be in danger if he was to return as a result of this dispute. The applicant claimed that his brothers made a deal with his extended relatives who were involved with an extremist political party to kill him, and he allegedly believes that he would be killed upon his return to Pakistan;

    (e)The stress and tension of this dispute caused his parents to die; and

    (f)He saved his life by coming to Australia. He fears that he cannot return to Pakistan because he will be killed over his share in the property.

13. The applicant was interviewed by a delegate of the Minister on 28 May 2015. The delegate refused to grant the applicant the Protection (Class XA) visa on 19 August 2015.

    Application for review of the delegate’s decision

14. On 10 September 2015 the applicant made an application to the Tribunal for a merits review of the delegates decision.

15. On 11 September 2015 the Tribunal wrote to the applicant acknowledging his application for review. The correspondence invited the applicant to provide material or written arguments for consideration by the Tribunal as soon as possible.

16. On 27 September the Tribunal invited the applicant to attend a hearing, to give evidence and present arguments. The hearing was set down for 17 November 2016. The notification of the hearing also attached an information sheet setting out important information about the hearing.

17. The initial hearing before the Tribunal on 17 November 2016 was adjourned upon the applicant’s request as he indicated that he was too ill to attend. On 18 November 2016, the applicant was informed that his request for a postponement of the hearing had been granted and the hearing was rescheduled to 25 November 2016.

18. The applicant attended the hearing on 25 November 2016 and was assisted by an Urdu interpreter. The Tribunal record reveals that the hearing commenced at 9.42am and concluded at 10.53am.

    TRIBUNAL DECISION

19. On 28 November 2016 the Tribunal affirmed the delegate’s decision.

20. The Tribunal said that the primary issue in its review was whether there is a real chance that, if the applicant returns to Pakistan, he will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa).[1]

    [1] Tribunal decision at [13]

21. The Tribunal did not accept the applicant’s claims regarding the property dispute and the problems he claimed to have experienced as a result of that dispute. In reaching its decision, the Tribunal found that:

    (a)There was inconsistent evidence regarding central aspects of the property dispute, including key time frames and the subject of the property in question.  There was an inconsistency in the applicant’s evidence about when the property dispute arose and there was also an inconsistency about whether the dispute solely involved a house or whether land was also involved[2];

    (b)The applicant’s evidence regarding the reason why his father would leave him one half of the estate and his four brothers the remaining half, was unconvincing.  Evidence regarding why the father would tell his brothers in 2007 about the proposed property division was also lacking[3];

    (c)There was conflicting evidence regarding when the applicant’s brothers allegedly sought the assistance of his cousins to kill him, which raised serious doubts about the credibility of his claims.  Before the delegate, the applicant had claimed that this deal to have him killed was made in 2010, but he claimed to the Tribunal that it occurred in 2007.  He also told the Tribunal that his cousins only became involved in 2012.  The Tribunal found that this conflicting evidence raised serious doubts about the credibility of the applicant’s claims[4];

    (d)The applicant claimed for the first time at the hearing that his cousins got hold of him and physically assaulted him at the end of 2010 and threatened to kill him. The Tribunal found this evidence to be confusing, and questioned why this new significant claim, if true and correct, had not been raised earlier in the visa application process. The Tribunal did not accept the applicant’s explanation that he had been too afraid to raise it earlier[5];

    (e)The Tribunal also found that the applicant’s evidence was conflicting regarding where he resided in Pakistan after the alleged dispute began. His evidence to the Tribunal that he had moved between homes conflicted with the evidence in his visa application that he had resided at one address from birth until 2012[6];

    (f)Given that the alleged dispute had been ongoing for a period of five years prior to the applicant’s departure to Australia, the Tribunal found the claim regarding his brothers and cousins intention to harm, or kill him, to be implausible and far-fetched[7];

    (g)The applicant did not apply for protection until 2014, which is over two years after his arrival in Australia. The Tribunal found that this delay in lodging a protection visa application was a legitimate matter to take into account and it raised doubts about the genuineness of his fear and the credibility of his claims[8];

    (h)Whilst the Tribunal had regard to the documents provided by the applicant, they were afforded very little weight, taking into account country information on endemic document fraud and the Tribunal’s concerns about the applicant’s credibility generally[9];

    (i)The Tribunal did not accept that the applicant faced a real chance of serious harm on his return to Pakistan[10]; and

    (j)Further, the Tribunal did not consider there were grounds for believing that as a necessary and foreseeable consequence of being returned to Pakistan, that there was a real risk that he would suffer significant harm as a result of the claimed property dispute[11].

    [2] Tribunal decision at [18]

    [3] Tribunal decision at [19]

    [4] Tribunal decision at [20]

    [5] Tribunal decision at [21]

    [6] Tribunal decision at [22]

    [7] Tribunal decision at [23]

    [8] Tribunal decision at [24]

    [9] Tribunal decision at [25]

    [10] Tribunal decision at [27]

    [11] Tribunal decision at [28]

22. The Tribunal considered the applicant’s claims individually and cumulatively in reaching its conclusion that the applicant did not face a real chance of persecution now or in the foreseeable future if he was to return to Pakistan.  Accordingly, the Tribunal found that the applicant’s fear of persecution was not well-founded[12].

    [12] Tribunal decision at [29]

23. The Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention, such that the applicant does not satisfy the criterion set out in s.36(2)(a).[13]

    [13] Tribunal decision at [31]

24. The Tribunal was also not satisfied that the applicant met the provisions in s 36(2)(aa). The Tribunal was not satisfied on the material before it that if he returned to Pakistan, the applicant’s life would be threatened or that he would be arbitrarily deprived of his life, that the death penalty would be carried out against him or that he would be subjected to torture or to cruel or inhumane treatment or punishment or to degrading treatment or punishment.[14]

    [14] Tribunal decision at [30] and [32]

    APPLICATION FOR REVIEW

25. In his application for review of the Tribunal’s decision, which was filed in this Court on
    29 December 2016, the applicant set out the grounds in support of his application for review in the following terms:

    (1)I came to Australia in 2012.

    (2)I applied for protection visa, which was refused on 19/08/2015.

    (3)I applied in AAT for the review of my application and they invited me to comment on my case on 28/11/2016.

    (4)As I was keen to know my decision and, I attended the hearing on 28/11/2016.

    (5)Tribunal and department of immigration refused my visa as according to them, the criteria to grant the protection visa is not met.

    (6)For me it was a total shock as I was fully confident for my case as that was genuine.

    (7)During the hearing, I gave all the supporting evidences in support of my case and tribunal agree that the circumstances in which the grounds for refusal arose are not the fault of the applicant and beyond our control.

    (8)I was shocked to see the behaviour of the Member as she was not listening to what I want to say and provide in support of my case.

    (9)AAT finished my hearing in 1 hour and took no evidence from me in support of my case.

    (10)I requested for extension of time but no one gives weigh to my request and gave the bias decision for my genuine case.

    (11)Tribunal did not considered my circumstances in Australia and concluded that I don't satisfy the criteria if grant of protection visa without giving time and taking any additional evidences.

    (12)I am not satisfied with the decision made by Administrative Appeals Tribunal and Department of Immigration and Border protection as there ground to refuse my visa are not appropriate and lack detail.

    (13)They did not provided any knowledge and time that can be helpful in support of my application.

    (14)So, I want to apply in federal circuit court for the right review of my application.

26. In an affidavit supporting his application sworn on 23 December 2016, the applicant explained in two paragraphs that he was not satisfied with the decisions made by the Tribunal and the delegate in his case and that was the reason he wanted to apply to the Federal Circuit Court for the right to have his application reviewed.

27. In a response to the Application filed with the Court on 17 January 2017, the Minister seeks orders that the application be dismissed and that the applicant pay the Minister’s costs. The Minister submits that there is no evidence in support of the serious allegation of bias and says that the application for judicial review does not establish any jurisdictional error in the Tribunal decision.

28. This proceeding was listed for directions before Registrar Burns on 5 July 2017. On that occasion the Registrar made procedural orders including that the Minister file and serve a bundle of relevant documents in a Court Book, that by no later than 28 days prior to the hearing the applicant file and serve any amended application, any affidavits, any supplementary court book and any written submissions in support of his application and that the Minister file and serve written submissions no later than 14 days prior to final hearing.

29. The Registrar’s orders also specified that other than Court Book documents, all evidence to be relied upon must be presented by way of affidavit.

30. Prior to the final hearing, pursuant to the orders of Registrar Burns, the Minister filed a
    Court Book on 19 July 2017 and had filed and served an outline of submissions dated
    3 November 2021.  The applicant has not filed any amended application, any affidavits, any additional documents or any written submissions.

31. The matter was heard before me 19 November 2021. The applicant was self-represented and was assisted by an Urdu interpreter. Mr Cunynghame, a solicitor, appeared on behalf of the Minister.

    Applicant’s submissions

32. The applicant submitted that when the matter was before the Tribunal, he did not feel that the Tribunal heard him out.  He said the whole hearing took place in about 45 minutes and he was told that the documents he wanted to rely on were fake.

33. When I asked the applicant to explain his allegation of bias, he submitted that the member of the Tribunal did not seem interested in his case.  He said that he asked to be heard but the Tribunal member was rude. He said that he “felt a bit of a racist element came through.”

34. I also asked the applicant to explain his allegation that he had requested an extension of time which had not been given any weight.  To this, the applicant said that he did ask the Tribunal member to be heard but she was rude and said “this is the time allocated”.  He also explained that after his application was dismissed by the Tribunal, he asked his lawyer what to say and he was told to apply to the Federal Circuit Court to put his side of the story again. 

35. When invited to make any further submissions made in support of his application, the applicant said that his mind was not currently in a thinking condition.  He said that he thought his mental condition was unstable, he did not believe he had any future and that he could not go back to Pakistan.  He said he does not know how well he will cope and that things may have changed while he has been waiting.

    Minister’s submissions and response to the applicant’s grounds of review

36. A detailed written submission was filed on behalf of the Minister and Mr Cunynghame relied upon it.

37. The Minister submitted, and I agree, that grounds 1 to 7, 12 and 14 generally outline the procedural history of the matter, indicate the applicant’s dissatisfaction with the Tribunal’s factual findings, and otherwise constitute a request for impermissible merits review.

38. It was submitted that ground 12 must also fail, at least insofar as it seeks review of the delegate’s decision. That is so because the decision of the delegate is a “primary decision” as defined in s 476(4) of the Act and pursuant to s 476(2), this Court has no jurisdiction in relation to it.

39. Addressing grounds 8 and 10, the Minister submitted that the applicant’s contention that he was denied procedural fairness on account of bias or by the Tribunal not keeping an open mind could not succeed.

40. The Minister submitted that there was no evidence to suggest that the Tribunal had a
    pre-existing state of mind which disabled the member from undertaking or being willing to undertake a proper evaluation of the material relevant to the decision to be made.  Indeed, the Minister submitted that the contrary was the case.  The Tribunal’s decision record makes plain that the Tribunal gave the applicant the opportunity to give evidence in support of his claim and that it carefully considered arguments raised by the applicant in arriving at its findings.

1. The Minister also submits that there is nothing in the evidence before the Court to support the contention of actual or apprehended bias on the part of the Tribunal. 

2. Addressing the allegation that the applicant was not provided sufficient time or opportunity to provide his evidence (see grounds 9 and 13), the Minister submits that it was for the applicant to provide to the Tribunal whatever evidence or argument he wished to advance in support of his claims.  The Minister contends that the Tribunal’s decision record makes clear that the applicant gave oral evidence in support of his application and that this evidence was taken into account in the course of the Tribunal’s deliberations.

3. Finally, grounds 10 and 11, by which the applicant contends that the Tribunal failed to allow him an extension of time, were also said to be without substance. The Minister submits that there is no evidence to suggest that the applicant sought an adjournment or postponement of the proceedings and therefore the Tribunal was not required to consider whether to exercise its discretion to do so under s 427 of the Act.

   CONSIDERATION

4. Insofar as the applicant seeks a review of the decision of the delegate, that decision falls beyond the jurisdiction of this Court[15].

   [15] Section 476(2) of the Act

5. The only decision which falls to be reviewed in this application is the decision of the Tribunal dated 28 November 2016, which affirmed the delegate’s decision not to grant the applicant a protection visa.  To obtain relief from this Court, the applicant must show jurisdictional error in the Tribunal’s decision.  The application does not present an opportunity for a merits review[16].

   [16] Minister for Immigration & Ethnic Affairs v Wu Shan Lu (1996) 185 CLR 259 at 272

6. I do not accept the applicant’s submission that he was denied procedural fairness, either because the Tribunal was biased or the Tribunal did not keep an open mind to his claims.  There is no evidence before the Court to sustain that submission.

7. As the Minister pointed out, bias is a very serious claim which must be firmly and distinctly made and clearly proven[17].  There is no evidence to suggest that the Tribunal had a pre-existing state of mind which prevented a proper evaluation of the material relevant to the application. 

   [17] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531

8. If the applicant is asserting apprehended bias, the test is well known.  He must demonstrate that there would be a reasonable apprehension on the part of a “hypothetical fair-minded layperson who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias”, that the Tribunal might not bring an impartial mind to the resolution of the question to be decided.  I see nothing in the evidence which would give rise to such an apprehension and the applicant’s subjective opinion that he “felt a bit of racist element come through” or that the Tribunal member was “rude” is not particularised.

9. I accept the Minister’s submission that no inference of bias or pre-judgement can be drawn from the mere fact of adverse findings in the Tribunal’s reasons[18]. In my view, when read fairly and as a whole, the decision of the Tribunal reveals that the member did impartially engage with each of the claims raised by the applicant and the evidence he gave at the hearing.  Grounds 8 and 10 cannot succeed.

   [18] VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [21]

10. I also reject the applicant’s submission that he was not given an adequate opportunity to be heard or to present the evidence or arguments he wished to advance in support of his claims.  A hearing was held in relation to the application.  On 27 September 2016 the applicant was sent an invitation to attend that hearing.  The correspondence sent to the applicant provided details on how to provide documentary evidence to the Tribunal and the applicant was on notice, from the delegate’s decision, about the determinative issues in the case.  That included him being on notice as to the genuineness of documents he sought to rely on in relation to the property dispute in Pakistan.

11. The applicant was given an opportunity to address these issues at the hearing.  The hearing lasted for a little over one hour.  Contrary to the applicant’s submissions, there is no evidence before the Court to support his assertion that he sought more time from the Tribunal or that he was refused more time to provide information.

12. The applicant is plainly aggrieved that the Tribunal failed to give his documents the weight he believed should have been accorded to them.  But assessment of the evidence is a matter for the Tribunal.  The Tribunal plainly had regard to the documents provided by the applicant, namely his father’s will and a police report, however with reference to country information on endemic document fraud, the Tribunal afforded the documents very little weight[19].  The documents were not rejected nor ignored and the Tribunal gave cogent reasons for why it gave them the weight it did.

    [19] Tribunal decision at [25]

13. It should also be said, that the Tribunal’s concerns about authenticity of the documents was only one element of its concerns about the genuineness of the applicant’s claims.  A much broader suite of concerns about the applicant’s claims were raised with him and he was afforded an opportunity to address those matters.  Indeed, it was that opportunity which gave rise to many of the inconsistencies between the evidence given by the applicant at the Tribunal hearing and evidence given by him previously.

14. The Tribunal’s decision record makes clear that the applicant gave oral evidence in support of his application.  This is plain from a fair reading of paragraphs 17 to 22 of the decision.  Accordingly, I dismiss grounds 9 and 13 of the application for review.

15. The allegation that the Tribunal’s failure to allow the applicant an extension of time was “unreasonable”, is based on the premise that the applicant sought an adjournment or postponement of the proceedings.  I see no evidence that that was the case.

16. The Tribunal undoubtedly has power to grant an adjournment as a matter of discretion under
    

    [20] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [23], [76]

    [21] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [41]

    s 427 of the Act. There may be circumstances where that discretion is exercised unreasonably where it “lacks an evident and intelligible justification”.[20] In order to determine whether the exercise of discretion can be considered to be unreasonable, the Court must conduct an evaluation of the evidence including any inferences which may be drawn from that evidence[21].

17. However, based on the evidence before the Court, I am not satisfied that the applicant made a request for an extension of time or sought an adjournment of the proceedings.  He certainly did make a request of that kind on 17 November 2016 due to illness and on that occasion the Tribunal agreed to postpone the hearing and invited him to attend a rescheduled hearing.  The Tribunal record of the hearing on 25 November 2016 does not indicate that the Tribunal was requested for more time or for a further adjournment.

18. Grounds 10 and 11 must fail. The Tribunal was not required to consider whether to exercise its discretion under s 427 of the Act and the premise of the applicant’s complaint is not made out.

19. As stated earlier, the remaining grounds of the application are in the nature of narration and are not proper grounds for judicial review.

    CONCLUSION

20. For the reasons set out above, the applicant has not demonstrated jurisdictional error in the Tribunal’s decision.

21. The application for judicial review filed on 29 December 2016 will be dismissed and the applicant should pay the Minister’s costs of the application which I will fix at $5,000.

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

Associate:

Dated:       6 April 2022