Eis18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 163

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EIS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 163

File number(s):	SYG 2350 of 2018
Judgment of:	JUDGE CAMERON
Date of judgment:	7 February 2024
Catchwords:	MIGRATION – Protection Visa – Refusal – Review of Administrative Appeals Tribunal (“Tribunal”).
Legislation:	Migration Act 1958 (Cth) ss 36, 424A, 425, 474
Cases cited:	Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Division:	General
Number of paragraphs:	20
Date of hearing:	7 February 2024
Place:	Sydney
Counsel for the Applicant:	The applicant appeared in person
Solicitor for the First Respondent:	Mills Oakley
Solicitor for the Second Respondent:	Submitting appearance save as to costs

ORDERS

SYG 2350 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EIS18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE CAMERON
DATE OF ORDER:	7 FEBRUARY 2024

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent’s costs fixed in the amount of $4,700.

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 CAMERON

INTRODUCTION

1. The applicant is a citizen of Pakistan who arrived in Australia most recently on 1 December 2011.  On 20 February 2015, he lodged an application for a protection visa with what is now the Department of Home Affairs (Department), alleging that he feared persecution in Pakistan because he was a supporter of a minority political party and the authorities had threatened to kill him for organising anti-government protests.  On 29 July 2015, the applicant’s application was refused by a delegate of the first respondent.  The applicant then applied to the second respondent (Tribunal) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for a judicial review of the Tribunal’s decision.

2. In this judicial review proceeding the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Cth)(Act); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

   LEGISLATION

4. At all relevant times s.36(2) of the Act provided as follows:

   36       Protection visas—criteria provided for by this Act

   …

   (2)       A criterion for a protection visa is that the applicant for the visa is:

   (a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or (aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) 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; or

   (aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) 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; or

   …

   BACKGROUND FACTS

5. The applicant’s claims for protection were made in his application, at an interview with the delegate on 21 July 2015, at a Tribunal hearing on 27 March 2018 and in written submissions provided before the hearing dated 23 March 2018.  The applicant relevantly made claims for protection which were summarised by the Minister in his written submissions, in the following terms which I adopt:

   4.        …

   a. The applicant arrived in Australia on a student visa; however, the purpose of his travel was to protect his life.

   b. In 2006 and 2008, the applicant had joined Mutehada Qoumi Movement (MQM), a political party which assisted and voiced the concerns of ordinary citizens in relation to government abuse and neglect.

   c. The government became aware of the expansion of the MQM and began to refuse permits for their community meetings and events. The military and police were also ordered to “lambast” their offices.

   d. During one of these instances, the applicant questioned … “security personnel” and was told that he’d be “taught a lesson.” The applicant was instantly “scared and terrified” but continued with the party as he believed in their vision.

   e. On one occasion plain clothed officers came to the applicant's home pretending to be his friend. A MQM member warned the applicant’s family not to tell the officers where the applicant was and when the officers could not find the applicant, they threatened his family.

   f. “Sometime” in March 2009, the applicant was arrested for holding an unlawful protest and causing unrest though he “strongly and firmly believed” it was lawfully held.

   g. Similarly, in July 2009 the applicant was fired upon when walking to a shopping mall at night. He was informed by reliable members of the party that the men were “government hired killers”.

   h. The applicant reported the incident to police; however, when they realised, he was a MQM member, they dismissed his case without further investigation…

   …

   5. … The applicant … had been kidnapped on three occasions, but only reported the first incident to police, his family was threatened by the authorities, … his father worked for the government.

   9.        …

   a. The applicant experienced sleepless nights and flashbacks and considered his mental stress a risk as medical treatment in Pakistan was only made available to the “wealthy” and he had previously been refused medical treatment “for no good reason.”

   b. The applicant was still being pursued by the Pakistani authorities and he was unable to relocate in Pakistan as it would place him at greater risk of being discovered.

   c. The Pakistan government was aware of the applicant’s presence in Australia and [he] would be imprisoned and interrogated upon return to Pakistan and not financially capable to pay any fine imposed. Further, the punishment would be tortious [sic] and degrading.

   d. The [applicant] had been absent for so long that he had not developed the necessary skills to gain meaningful employment. This was further compounded by the fact he would be discriminated for his MQM association.

   The Tribunal’s decision and reasons

6. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2) of the Act. The Tribunal’s findings and reasons were summarised by the Minister in his written submissions in the following terms which I also adopt:

   12. The Tribunal accepted that: the applicant was born on 4 October 1988 in Karachi, Pakistan; he was a Sunni Muslim; his parents resided in Karachi; the applicant’s father had worked a government employee with Pakistan Customs for over 25 years; he had two younger brothers and … one of those brothers [was] living and studying in Sydney; and, that the applicant was from a “middle class” family and his father supported him financially in Australia during periods where was not employed.

   13.      However, in relation to the applicant’s materials claims, the Tribunal found:

   a. The applicant at the hearing claimed to have never voted in an election in Pakistan. However, country information indicated that a general election was held in early 2008 and that the applicant was eligible to vote at that time. The Tribunal considered that if the applicant was a member of the MQM and actively involved, then he would have voted, and his failure to do, raised serious doubts about his credibility and veracity of his claims.

   b. The applicant omitted to include in his application his claim of being kidnapped and whilst, the Tribunal accepted that the applicant may have been stressed about his migration status; it expected that the applicant would put forward his best case in his application, particularly in circumstances where he was assisted by a migration agent.

   c. The Tribunal found it implausible that the applicant would be abducted or come to the attention of the authorities in circumstances where on the applicant’s own evidence he did not give speeches but rather was a “party worker” who set up the stage, chairs and catering for functions.

   d. Country information indicated the following the general election in 2008, the MQM formed a coalition government with the Pakistan People's Party (PPP). In those circumstances, it was implausible that the government would have arrested the applicant, hired assassins to kill him or that the police would not [assist] him.

   e. In relation to the applicant’s travel history, if the applicant was of the adverse interest to authorities as claimed, then they would have been able to locate him at his family home before he departed Pakistan in April 2010 and when he returned in 2011. Further, if the applicant [sic] was at risk, his parents would not have waited one month after the grant of the student visa to make arrangements for him to leave for Australia.

   f. In relation the applicant’s visa history, if the applicant's fear of harm was genuine, then he would have made some enquiries, research or obtained advice in relation to lodging a protection visa application soon after arriving in Australia. However, the applicant sought assistance from a migration agent in relation to a second student visa application. The delay of almost five years since arriving in Australia, to lodge a protection visa application, raised concerns regarding the applicant's motivation and credibility.

   g. The applicant’s voluntary return to Pakistan in 2011 was not consistent with his claims and raised further concerns about the credibility of those claims.

   h.It did not accept the applicant’s evidence that he was not stopped, questioned and arrested at the airport when he departed and arrived in Pakistan as authorities did not want to cause a controversy and would instead hire undercover agents who would do this at night in a secluded place. The Tribunal considered it implausible that the authorities would hire an undercover agent in relation to a "low level" member of the MQM.

   i. The applicant submitted a police character certificate and newspaper article from July 2009 reporting that he was a prominent MQM worker and was the victim of an assassination attempt. The Tribunal noted that the certificate did not record anything adverse against him and that it was high unlikely this would be the case if he was in fact of adverse interest to the police. Further, based on country information about the prevalence of document fraud in Pakistan, the applicant's evidence of being a low-level member, and its concerns in relation to his credibility, the Tribunal was not satisfied that the article was authentic.

   j. At the hearing, the applicant made a new claim that he went to the Pakistani embassy to renew his passport where he was asked if he was on a student visa and responded that he had applied for a protection visa. He claimed that he filled out a form and was informed that they would go to his home and check whether he wanted a new passport. The Tribunal considered it implausible that the applicant would approach the Pakistani authorities at their embassy and inform them he had applied for a protection visa, and that if it were the case, he would have included the claim in his application. Further, the Tribunal noted that he was issued with a passport in 2013 which was valid till 2015. It considered that this indicated the authorities were not concerned about issuing him with a new passport.

   k. In relation to the new claims of the applicant still being pursued by the Pakistani authorities and them being aware of his presence in Australia, the Tribunal noted that he had entered and departed Pakistan lawfully. Further based on applicant's evidence that he did not do anything unlawful in Pakistan and had not been questioned or detained on the occasions he departed and entered Pakistan, it was unlikely he would be fined if he returned to Pakistan. The new claim that he would face serious or significant harm as a failed asylum seeker was also not supported by country information.

   l. In consideration of whether the applicant could acquire meaningful employment in Pakistan and whether he would be discriminated for reason of his MQM association, the Tribunal, noting the applicant's history of work experience and studies, did not accept that he did not have the skills to obtain employment. Further, it rejected he would be discriminated as it did not accept that he was or would perceive to be a supporter, party worker or member of the MQM.

   m. In relation to claim about the applicant's health, the Tribunal noted that no independent evidence had been provided and that the applicant had given evidence that he had not sought treatment from a psychologist or psychiatrist. The Tribunal accepted that the applicant may be anxious about his pending application and attending a hearing; however, it was satisfied that he was able to participate in the hearing in a meaningful way.

   n. The Tribunal noted that the agent did not offer any explanation as to why the new claims in his submissions were not made in the visa application despite representing the applicant before the delegate and the Tribunal. The newly raised claims were also not supported by evidence and contrary to the applicant's evidence at the hearing.

   o. The Tribunal was not satisfied that the MQM identity card and newspaper article in relation to him were authentic and did not accept any of his claims in relation to the MQM.

   14. The Tribunal was not satisfied the applicant met the criteria under ss.36(2)(a) or (aa) of the Act and affirmed the decision of the delegate not to grant the applicant the visa.

   THE PROCEEDING IN THIS COURT

7. In the application commencing this proceeding the applicant alleged:

   1. The decision of the Administrative Appeals Tribunal (the Tribunal) was affected by jurisdictional error in that the decision of the Tribunal was unreasonable as the Tribunal made an error of law.

   2. The decision of the Tribunal was affected by jurisdiction error in that the decision of the Tribunal was unreasonable, illogical and lack probity.

   3. The decision of the Tribunal was affected by jurisdictional error in that the Tribunal take into account irrelevant consideration regarding the visa applicant, … genuine fears for his safety and welfare about returning to Pakistan.

   4. The decision of the Tribunal was affected by jurisdictional error in that the Tribunal failed to take into account relevant consideration regarding the visa applicant, … length of time in Australia being 8.4 years and the strong bonds and community ties he has developed in Australia.

   5. The decision of the Tribunal was affected by jurisdictional error in that the applicant was not afforded procedural fairness as the Tribunal failed to reasonable assessed the visa applicant personal circumstance in pursuant to the relevant evidence before it.

   6. The Tribunal drawn adverse inferences to the applicant inconsistence statements as the Tribunal had no evidence to support to its findings.

   7. The applicant reserves the rights to amend the grounds of the application.

   Grounds 1 and 2

8. The first two grounds of the application alleged unreasonableness and illogicality on the part of the Tribunal.  In neither ground has the applicant particularised in what way the Tribunal’s decision was unreasonable or illogical.  The Tribunal appears to have considered all the claims which the applicant made, whether made expressly or which otherwise could be said to clearly arise from available materials.  Having done so, it then reached conclusions which were reasonably open on the evidence before it.  In the circumstances, the allegations do not identify any aspect of the Tribunal’s decision record which could be said to manifest unreasonableness or illogicality in the sense in which those terms are considered in the authorities.

9. The allegation that the Tribunal’s decision lacked probity was unexplained.  Absent any explanation of that contention, it cannot be said to identify jurisdictional error on the Tribunal’s part.  In any event, it appears to me that the Tribunal approached its task carefully and with an open mind.

   Grounds 3 and 4

10. The third and the fourth grounds of the application alleged that the Tribunal considered irrelevant considerations and failed to take relevant considerations into account.  Again, the applicant has failed to particularise the allegations and, relevantly, to identify in what way the Tribunal took irrelevant considerations into account or failed to take relevant considerations into account. 

11. In relation to ground three, the Tribunal plainly considered the applicant’s claims concerning his circumstances in Pakistan and no purportedly irrelevant considerations have been identified as having been taken into account. 

12. In relation to ground four, the Tribunal expressly considered the contention that the applicant’s lengthy stay in Australia would affect his employability in Pakistan.  Whatever bonds and community ties he might have established in Australia were not relevant to whether he was entitled to a protection visa to protect him from harm in Pakistan.  This ground discloses no basis upon which the Tribunal’s decision should be set aside.

    Ground 5

13. The fifth ground of the application appears to have two parts.  One concerns procedural fairness, and the other concerns the assessment of evidence. 

14. In relation to the first part, the Tribunal’s procedural fairness obligations are set out in div 4, pt 7 of the Act. A review of the Tribunal’s decision record makes it quite clear that the applicant was invited to the hearing and given the opportunity to put before the Tribunal whatever material he wished it to consider. Moreover, the Tribunal put a number of matters to the applicant through the course of the hearing such as to discharge whatever obligations it may have had under s.424A and s.425(1) of the Act. It is not apparent that any other provisions of the division were of particular relevance in this case, and I am not persuaded that the Tribunal’s decision is affected by any want of procedural fairness.

15. As to the assessment of evidence, although the allegation refers to questions of reasonableness, no attempt was made to identify a failure to meet the test of legal unreasonableness and this allegation seems to be no more than an invitation to merits review.  It discloses no basis upon which the Tribunal’s decision should be set aside.

    Ground 6

1. The sixth ground of the application alleges that the Tribunal drew adverse inferences from the applicant’s inconsistencies without evidence to support its findings.  Absent any particularisation, this ground is no more than a further request for merits review.  The applicant has made no attempt to identify what findings were unsupported by evidence.  Absent particularisation and given the length and detailed reasons provided by the Tribunal, it is not apparent that any such error was committed.

   Ground 7

2. The seventh ground of the application does not raise an allegation of jurisdictional error.

   Other Matters

3. At the hearing of this application, the applicant addressed the Court on matters touching the merits of his visa application.  As explained to him at that time and earlier in these reasons, the Court cannot reconsider his application for a visa and cannot substitute its own view of his entitlement to a visa for that of the Tribunal.

   CONCLUSION

4. For the reasons I have given, jurisdictional error on the part of the Tribunal has not been demonstrated. 

5. Consequently, the application will be dismissed.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.

Associate:

Dated:       28 February 2024