ERP18 v Minister for Immigration

[2020] FCCA 1474

FEDERAL CIRCUIT COURT OF AUSTRALIA

ERP18 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1474

Catchwords:
MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa).

First Applicant: ERP18

Second Applicant: ERP18 AS LITIGATION GUARDIAN FOR ERQ18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 939 of 2018

Judgment of: Judge Vasta

Hearing date: 30 April 2020

Date of Last Submission: 30 April 2020

Delivered at: Brisbane

Delivered on: 30 April 2020

REPRESENTATION

First Applicant in person

Counsel for the First Respondent: Ms Hooper

Solicitors for the First Respondent: Minter Ellison

ORDERS

1. That the Amended Application filed 21 November 2019 be dismissed.

2. That the First Applicant pay the First Respondent’s costs of and incidental to the application fixed in sum of $5,600.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 939 of 2018

ERP18

First Applicant

ERP18 AS LITIGATION GUARDIAN FOR ERQ18

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 16 August 2018, the Administrative Appeals Tribunal (“the AAT”) made a decision not to grant the Applicant, ERP18 or his son, ERQ18, protection visas.  On 11 September 2018, the Applicant, acting for himself and as litigation guardian for ERQ18, asked this Court to review that decision of the AAT.

2. The history of this matter is somewhat convoluted.  The First Applicant, it would seem, was born around 1979 in Faisalabad in Pakistan.  He is of the Islamic faith.  He is of Rajpoot ethnicity.  He speaks Urdu, Punjabi and English.  He completed primary and secondary school education in Faisalabad.  He was self-employed as a director of a company in Faisalabad until September 2008.

3. He and his son, the Second Applicant, arrived here in Australia on 7 September 2008, pursuant to a sponsored family visitor visa.  That visa had been issued in December 2004, it would seem, and expired on 27 December 2009.  The son was very young when he came to Australia, having been born, it would seem, in 2004.  The son also is of the Islamic faith, is of Rajpoot ethnicity, and he, according to the material before the AAT, speaks Urdu and English.

4. The First Applicant applied for a protection visa on 7 October 2008, which was about a month after he arrived in Australia.  That application was refused by the Delegate of the Minister in December 2008. 

5. The First Applicant appealed to the then Refugee Review Tribunal (“the RRT”).  The RRT affirmed the Delegate’s decision on 2 July 2009. 

6. The First Applicant then appealed to the Federal Court, as at that time the Federal Court was the body who dealt with the judicial reviews.  The Federal Court affirmed the decision of the RRT on 16 July 2009. 

7. The First Applicant then appealed to the Full Federal Court.  The Full Federal Court affirmed the decision of the Federal Court on 19 January 2011. 

8. The First Applicant made a number of requests to the Minister for ministerial intervention.  None of those requests were successful.

9. The First Applicant lodged an application for Australian citizenship for the Second Applicant and listed himself as a dependant.  That application was made on 30 September 2011 on the basis of “citizenship by conferral”.  That application was deemed invalid on 10 October 2011. 

10. The Second Applicant sought a review of that decision before the Tribunal, and the Tribunal affirmed the decision on 17 November 2011.  The Federal Court upheld that decision on 16 August 2012.  The Second Applicant appealed to the Full Federal Court, and the decision was again affirmed on 11 October 2012. 

11. This meant that the applicants became unlawful on 8 November 2012.

12. The Applicants applied for another protection visa on 24 December 2012.  That application was a valid application because, in between the time that the Applicants’ first visa application was finally disposed of, and the time that they made the second application, the Migration Act 1958 (Cth) had been amended to include the complimentary protection criteria under ss.36(2)(aa).

13. The Courts had ruled that an application for protection could be made again if it were for complimentary protection.  The application, technically by the First Applicant, is a complimentary protection application, whereas the Second Applicant, because of his circumstances, was entitled to ask again for protection as a refugee and complimentary protection.

14. The application itself was then decided by the Delegate on 13 June 2014.  The Delegate refused the application. 

15. The Applicants then took the matter to the AAT, which had amalgamated the RRT as at 1 July 2015.  The AAT affirmed the Delegate’s decision on 27 October 2015. 

16. The Applicants took the matter to this Court after that.  This Court remitted the decision of that Tribunal back to the AAT on 30 May 2017 for reconsideration. 

17. This Tribunal then looked at the matter and, as I have already indicated, had a hearing in February 2018.  They adjourned that hearing until March 2018, and then gave a decision in August 2018.

18. The claims that the First Applicant has made were set out by the Tribunal.  There were two statements that the First Applicant gave to the Tribunal that were the basis of this current application.  The first was a statement with the application on 24 December 2012.  The First Applicant claimed that he and his son came to Australia in 2008.  They applied for protection because they feared for their lives.  The First Applicant claimed that he is of Rajpoot descent and he married an Arain girl. 

19. The family of the First Applicant, he says, were a liberal Muslim family, but the family of his now wife, was not.  That family of the wife were fundamentalist, strict Sunni Muslims.  The wife’s family exerted pressure on him, the First Applicant, to follow strict Sunni Islam.  The First Applicant said he opposed it and told them he did not want to be an Islamic fanatic. 

20. He said that the wife’s father was a Taliban recruiter and forced him, the First Applicant, to join the Taliban.  The First Applicant said that his brother-in-law was killed.  Following that event, his wife pressured him to join with her father to fight with the Taliban. 

21. The First Applicant said that when he vehemently opposed that course, he was accused of not being a good Muslim and an infidel and that he was threatened then and warned that they, being the family, would take the children away if he did not accept. 

22. The First Applicant said he complained to police but received threats from the Taliban, from his wife and from her family, and that they had threatened to kill the children as well.

23. The First Applicant claimed that his daughter died, but he suspected that her death was the work of his wife and her family and that this was done by the Taliban to put pressure on him. 

24. He fears that if he returns, he risks torture, inhuman and cruel and degrading treatment at the hands of the family of his now former wife and her Taliban associates. 

25. The First Applicant fears his son will face significant harm for the same reasons and will be forced to join the Taliban.  He says that he cannot get state protection or relocate because the Taliban have influence and a well-established network in Pakistan. 

26. It would seem, therefore, that the claims of the son at that stage were that the son would face significant harm for those reasons that the father had listed and that he, the son, would also be forced to join the Taliban.

27. The First Applicant gave a further statement in April 2014.  In that statement, he claimed again that he came to Australia in 2008 and applied for a protection visa because of the fear of their lives. 

28. He said that when he arrived he was very scared and distressed because his daughter had been killed by his in-laws.  He said that his in-laws wanted to kill him and his son.  He said that he felt deep trauma, and when he applied for a protection visa he was not able to provide enough information at the time.  He said that he told his agent that his in-laws were radical and extremist Muslims, but did not mention this properly and only framed the application as the families being from different castes.

29. The First Applicant claimed that the marriage between him and his wife was for love, and this is why, despite their being in different castes, they still married.  He said that he did not know anything, in the beginning, about his in-laws and their radical extremist activities and connections with the Taliban. 

30. He said that his in-laws were against the marriage until he, the First Applicant, promised that he would follow their beliefs and be part of their group.  He said that after his marriage, he began to realise they belonged to the Taliban and the Mujahedeen group, and he was scared. 

31. He said that his in-laws were politically strong and he was scared to mention this to the Department of Immigration at the beginning of his claim.  He thought that the Department would not accept his application and they would send him back because of the in-laws’ power.  He said that he tried to explain that claim to the RRT, but this was not accepted.

32. He claimed that Pakistan is still not safe.  He says that he has received news from his father that his former in-laws keep searching for him and for his son.  He said that his in-laws have threatened all of the Applicant’s family.  He said that his father has lodged an FIR many times. 

33. He said that his brother-in-law was assaulted by unknown persons who threatened to kill him and that the persons were looking for the First Applicant and the son.  He said that his brother-in-law ended up moving to another house. 

34. The First Applicant said that if he and his son return, they will definitely be killed and his in-laws will cause trouble to other family members.  He said that his own family complains a lot to police, but they do not receive any support from the police or any assistance at all because his former in-laws are politically strong.

35. The First Applicant claimed that he had been living in Australia, at that stage, for six years and he and his son have now become part of the community.  He says that his son’s first language is English, that his son suffers from trauma; his son is scared to go back to Pakistan; his son is relaxed, secure and happy in Australia; and, his son thinks that Australia is his home. 

36. The First Applicant claims that he, whilst in Australia, married another woman in 2012 and that they were happily living with the son and this woman’s other son.  He said that his wife helps the son with trauma and his son is much better with a new mother.  He said that his relationship with his wife would fall apart if he has to return to Pakistan, and he cannot leave them behind and cannot take them to Pakistan. 

37. I pause to say that that claim was made in 2014 and may not be relevant for reasons that I will come to very soon.

38. The son’s claims were the same as his father’s, except that he also feared being recruited by the Taliban and that he, by blood, belonged to a family who was connected to the Taliban.  He said, in his claims, that he did not like Pakistan or Islam and he wanted to remain in Australia, having lived most of his life in Australia.

39. The AAT looked at quite a deal of material that they had before them, including all of the previous matters, all of the previous applications, and quite a deal of country information. 

40. The Tribunal said that, because the First Applicant had put two claims in in 2012 and 2014 and that the AAT was now hearing the matter in 2018, they wanted to ensure that the claims, as I have recorded them, were accurate, and the First Applicant explained that they were, except for the fact that it had now been 10 years that he had been in Australia, rather than six. 

41. He explained that his wife was an Australian citizen and they had been validly married, but they separated in 2016 and that she was living in Sydney; he is living, it would seem, at Tweed Heads.  He said even though they are separated, he had no intentions of divorcing her.

42. The First Applicant ended up telling the Tribunal that he did previously marry another woman in Australia in July 2010, but that the Department received notice on 15 August 2010 that the marriage was over as of 1 August 2010, and that the wife was seeking an annulment.  Apart from this, that seemed to be the only personal matters that had changed from those claims.

43. The First Applicant did talk about his own medical issues to the Tribunal and explained that he has an older brother and a younger brother in Australia.  His younger brother supports him, but his older brother no longer does.  The First Applicant told the Tribunal that his father still lives in Faisalabad, but his mother had died before he, the First Applicant, had come to Australia.

44. It was then that the Tribunal went through the aspect of the marriage to the woman in Pakistan, who is the mother of his son.  The First Applicant said that he had met the woman through a friend of his neighbour and that he and the woman went through a Nikkah, which he says was like an engagement. 

45. He said that his in-laws were not fully supportive, but attended the mosque for the ceremony.  He said that his in-laws insisted on the Nikkah because of their religion.  He said that his in-laws did not want their daughter having an affair with the First Applicant.  He said that the paperwork was completed, but they did not live together; they still lived separately, and in 2003 they had a wedding ceremony. 

46. After the wedding, they started living together at the family house, but by 2008, they were divorced.  He said that during the time that they were together, those five years, that his wife, when she became pregnant, went home to her parents’ house during pregnancy.

47. The Tribunal asked about the family’s involvement with the Taliban.  The First Applicant said that, in 2004, his brother-in-law was killed, and that this was when the pressure was put on him to go with the wife’s father, his own father-in-law, to preach and pray.  He said that he did not know what the group was that his father-in-law was dealing with. 

48. The Tribunal noted that the First Applicant had said that he had been with his wife since 2001, but did not know of her family connections and the connections to the Taliban, and, even when he did become aware, that he did not know what group they belonged to.  The First Applicant replied that he was scared to ask. 

49. The First Applicant, even though he went once, said that after that he found excuses not to go with his father-in-law.  He said that there were instances at the wife’s family house where he saw that there were a lot of men with beards who were carrying guns that were at the house.  He said that he started asking his wife lots of questions, especially since he did not ever see the body of his dead brother-in-law.  He said that she, the wife, finally told him that her family were members of the Taliban and that they were anti-American.  He said that she told him that her father was a preacher and that her brother was killed, but nothing more.

50. The First Applicant said that, after the wife left to stay with her parents during her pregnancy, she came home for a short while after the birth of the son.  He said that he was still trying to hide from her family, saying that he was busy.  He said that his wife still pressured him and said that her father had expectations.  He said that he continued trying to avoid the family, and he told his wife that he did not want to be part of the family group.  He said somehow, he was prevailed upon, he gave in, and he went with the father-in-law, as it were, to preach.

51. The First Applicant said that his wife became pregnant again and she again went back to her parents’ place.  He and his wife had a daughter that was born in September 2006.  He said that his wife did not return to him after that time. 

52. When asked how he managed to see his children, he said that he would call his in-laws and say that he wanted to see the children, and that the First Applicant’s own brother would go to the door of the wife’s house and collect them. The brother would then bring them to the car, and he would have them for a couple of hours.  He said that this happened every month or two, and he only saw his daughter a few times.  He saw his son a little bit more than that.  He said sometimes his wife would ring him and remind him that he had two children and a responsibility to look after them and respect her family’s beliefs.

53. The First Applicant said that he and his wife got to a stage where they were not talking at all; he refused to go with his father-in-law; he would go on business trips to other cities to avoid his father-in-law; and, that the wife told him that if he did not get involved with the family that he would not get to see the children. 

54. He said that after his daughter was born, his wife told him that her father had said that if the First Applicant was not going to be a member of the family, then they did not want that blood in their family and so threatened to kill the children.  He said that these threats were made many times, though he did not take them too seriously.

55. He said that on 29 October 2007, his daughter died and that she was at the wife’s house at the time.  He said that someone from their family rang his family to tell them that she had died.  He said that he went to the wife’s house, he saw the child, and he said that his daughter looked as though she had been suffocated. 

56. The First Applicant then talked about the fact that his family contacted the police and asked for a post-mortem. He claimed that the in-laws bribed and persuaded the police to fix a post-mortem report and that there was no report made for quite a number of months. He said that he was then told by the hospital board that the report was that suffocation could not be ruled out. 

57. He said that his son was in the house the day that his sister died.  He said that after hearing that suffocation could not be ruled out, he said that he went into hiding.  He said that he was not working in the business after that and that his partner worked the business, and that even his own father did not know where he was. 

58. The Tribunal asked how the hospital board was able to find him for the interview to tell him these things, and he said that the hospital had rung his home and that his father had put the word out by phone to family and friends; and somehow the first Applicant got the message.

59. The First Applicant claimed that people were coming around to his house all the time.  He assumed that it was from his wife and her family and that they were looking for him.  He said that his wife and family put an FIR against him and that the Deputy Inspector General intervened. 

60. He said that his father tried to put in an FIR against the wife’s family, but the police would not record it.  He said that the wife and the family kept threatening him through his family.  The wife, he claims, agreed to the First Applicant having custody of the son, but then having agreed to that, he says that his wife’s family threatened to kill the First Applicant and his son.  He says that he does not believe that his father, who has been involved in a lot of this, has told him everything that has happened.

61. The Tribunal asked the First Applicant why his wife and her family would kill their daughter, and the First Applicant replied that girls do not matter; that the family would not kill a son as he is the bloodline. The Tribunal asked why the family would have killed the daughter that particular day and the First Applicant said he did not know.

1. The Tribunal finished the hearing on that day and adjourned for six weeks.  The Tribunal, upon resumption, reiterated their concern to know as much as the First Applicant could tell them about his wife’s family, and so on. 

2. The Tribunal discussed with the First Applicant his suggestion that his fear emerged upon the death of his daughter and that he went into hiding.  The Tribunal noted the daughter died in October 2007.  The First Applicant received a visa in June 2008, but he did not get to Australia until September 2008 which was then about 11 months after the death of the daughter. 

3. The First Applicant said that the delays were caused by his visa being sent to the wrong address and that his brother was sending emails to the Immigration Department. The First Applicant also said that no one was at home to receive the visas because they were all in hiding.

4. The Tribunal discussed the First Applicant’s answer that he had given to an earlier Tribunal about this same question.  At that previous Tribunal, that Tribunal noted that the First Applicant’s evidence about this aspect was evasive; that it changed from it being sent to the wrong address, to there was no one at the house, to it was delayed. 

5. The First Applicant claimed his brother-in-law arranged and provided all the documents for his visitor visa, and he got the itinerary in advance so he could get the visa easily, but he was not aware of any documentation they provided whilst he was in hiding.  He later said to that Tribunal that he did not get the passport as his address details were wrong, and there was no one living at his house because of fear of the in-laws. He said he received the passport very late and the postage was returned many times, and his son was sick. 

6. The First Applicant responded that all of those matters, it would seem, were correct.

7. The Tribunal discussed with the First Applicant his circumstances of being in hiding and whether he attended the funeral of his daughter, and what had occurred with regard to the death of the daughter.  The Tribunal asked him a little bit more about the custody case and how his father could have handled a custody case regarding the First Applicant and his son while he was in hiding with the son.  The Tribunal put to the First Applicant previous evidence he had given to earlier Tribunals which were somewhat inconsistent with what he was now saying.

8. The First Applicant presented a death certificate of his daughter.  The Tribunal looked at the death certificate and referenced country information that showed that document fraud was rife in Pakistan.  The actual document itself had the death certificate estimating the child’s age as being one year and two to four months. The document itself was a scanned document. Parts of it were missing. It was clearly a copy and there had been a stamp put on it. The First Applicant continued to maintain that the death certificate was genuine. 

9. The First Applicant claimed that the authorities would not investigate the death of the child.  The First Applicant said that the mother’s family put an FIR out against the First Applicant claiming that he kidnapped the son and that seemed to still be ongoing until his father, that is the First Applicant’s father, met with the superintendent of police. The medical board then gave its report and that the First Applicant then was able to get custody.

10. Pursuant to its duty, the Tribunal said to the First Applicant that they had some trouble with what he had said; that is, that he had made no mention of the Taliban in his original claims.  It was only during the first hearing with the Tribunal that the Taliban was mentioned. The First Applicant claimed that he was too scared to talk about the Taliban before that. 

11. The Tribunal spoke of the trouble they had with relying upon the death certificate, and he again maintained that the death certificate was genuine.

12. Having made all of those claims and having gone through the matter thoroughly with the First Applicant, the AAT then proceeded to assess the claims. 

13. The AAT noted that the First Applicant’s claims changed significantly throughout the application process, especially regarding the Taliban.  The AAT noted that the first mention of the Taliban only occurred during the first RRT hearing.  It was not mentioned in his application for protection, nor in his interview with the Delegate.  The Tribunal noted that they discussed with the First Applicant that making a claim about the Taliban would have been important, especially given what was happening in the world at the time, and the Tribunal ended up not accepting the explanation that he failed to mention the Taliban earlier because he was scared, or stressed, or suffering trauma when he arrived in Australia in 2008. 

14. The AAT noted the First Applicant was still able to provide information about the fact that the families were from different castes.  He was able to detail fears about his in-laws because of the inter-caste marriage, and, having been able to do that, he could very well have given information about the Taliban at that stage.  The AAT noted that the First Applicant was represented at that time.

15. The Tribunal did not accept that the First Applicant was afraid to mention the Taliban connection for fear he would be refused by immigration, or that it would create trouble for his family connections in Australia because the First Applicant’s claims were that he opposed the Taliban and he refused to fight for them.  His claims were not that he fought with them or that he was involved with the Taliban, so the excuse he gave does not make sense.  The Tribunal considered that the fear of the Taliban and the family connections were very important and should have been made at the time.  The Tribunal considered that the First Applicant added the Taliban connection claims so as to enhance his protection claims.  The Tribunal considered that the claim about the Taliban was fabricated.

16. The Tribunal then looked at the evidence that the First Applicant gave about his in-laws.  The Tribunal did not find that it was plausible that the First Applicant could have been involved with the wife from 2001, marry her in 2003, and not be aware of the views of the in-laws at all. 

17. The Tribunal noted the First Applicant could not provide details or information about the name of the group the father belonged to and was giving the generic name of the Taliban.  This, the Tribunal said, is especially strange when the brother-in-law, that is his wife’s brother,  had just been killed and he, the First Applicant, was being asked to replace him, that he would at the very least want to know what group it was that he was being asked to join. 

18. The Tribunal found that the First Applicant’s lack of knowledge about the group and the reasons why he knew so little about them changed throughout the application and hearing process.  The Tribunal was of the view that the First Applicant was making up his story as he went along and adding to it to respond to Tribunal concerns. 

19. The Tribunal did not accept the First Applicant’s explanation that the wife’s family hid it from him as it is at odds with his claims that they pressured him to join their group, that he agreed to follow their beliefs and that his agreement to follow their beliefs was the reason that they did not oppose the marriage.  The Tribunal said that they did not accept the in-laws were members of an extremist group or Taliban or a strict sect of Islam or that they pressured him to join them or their group.

20. The Tribunal then looked at threats to kill the First Applicant, the son and the daughter.  The Tribunal found that the claim that the First Applicant would have been constantly threatened since 2004, but remained in a relationship with his wife and had a second child with her was inconsistent with his claims of his fear of harm, and the continued threats to kill him and the son.  The Tribunal did not accept that, in the face of continued death threats, the First Applicant would continue a relationship with the wife and have another child.

21. The Tribunal also said that, given his claims that the in-laws were Taliban and that they were making death threats, that it did not make sense that the First Applicant would ignore those threats or not take them seriously.  The Tribunal noted that the First Applicant in his first application claimed that the threats began in 2007, but his evidence during the hearing and the first Tribunal hearing was that the threats began soon after the brother-in-law’s death in 2004.

22. The claim that the First Applicant did not take the threat seriously until the daughter was killed and a sudden realisation that the family could do anything, did not sit well with the evidence of the First Applicant that he did not leave Pakistan until September 2008 and remained in Pakistan for 11 months whilst in fear of his life. 

23. The Tribunal considered that if the in-laws were extremists, as claimed, if it were that they did support and train a terrorist group, that the First Applicant would have taken such threats very seriously.  The Tribunal also considered that if they were an extremist group, they would have acted upon their threats more immediately than wait for three years to pass before killing the First Applicant’s daughter, as claimed. 

24. The Tribunal found that the threat to kill the children, particularly by the wife and in-laws, lacks credibility.  The Tribunal found that it did not make sense that they were threatening to kill children if he did not join their group.  It would make more sense that they would kill or harm the First Applicant rather than the children.  The Tribunal did not accept that the First Applicant or his son was threatened by his in-laws or his ex-wife or by unknown persons.

25. The Tribunal then looked at the allegation that the First Applicant’s daughter was killed by the in-laws.  The Tribunal found the claim that the in-laws would kill their own grandchild simply because the First Applicant would not join the Taliban lacked credibility.  The Tribunal considered that, as the First Applicant said he had been refusing to join the Taliban since 2004, why it was that they would wait three years to kill a child in retribution for a failure to join the Taliban.

26. But the major aspect about this was that the First Applicant had made an application for a sponsored visitor visa so that he could get to Australia in 2008.  That application was lodged in April 2008.  In that application, the First Applicant had said that his daughter was remaining in Pakistan with the mother.  A copy of the birth certificate, the mother’s passport and the mother’s permission to allow the son to travel to Australia, were included with this application.

27. The First Applicant claimed that the visitor visa application was done by his brother-in-law, who obtained the documents and forged the signatures of the First Applicant and the wife’s permission.  He said that the whole family was helping him to leave, and that he was in hiding after the daughter’s death.  He said that they did not want to say the daughter had died in the visa application because immigration might investigate and find out about the Taliban connection and, therefore, he would not get a visa. 

28. The First Applicant said, in the Tribunal hearing, that if he had told the truth, that he was divorced and his daughter was dead, then Australian immigration would think that he was coming to Australia to stay.  He said that he went on to say that his brother got his wife’s signature forged, and that he did not know what documents were included in his visitor visa application.  The Tribunal found the explanations were inconsistent, causing them to form the view that he was making up his account as he went along.

29. The First Applicant offered many explanations as to why he included the daughter in his visitor visa application.  The Tribunal said that it did not accept any of those explanations because, firstly, if the child had died it does not make sense that there would be any need to mention her or her death on the application.  Secondly, his explanation that immigration would have investigated the death of his daughter if he said that she was deceased on the application is fanciful.  While immigration would have assessed if the visit was a genuine visit, there would be no need or interest in investigating the death of a child on an application for a visitor visa.

30. The Tribunal considered that the more credible explanation is the daughter had not died, and that is why she was included in the application.  The Tribunal did not accept that the daughter’s death certificate was a genuine document, and went through quite thoroughly why it is that they did not accept that document. 

31. In the end, the Tribunal did not accept that the daughter was killed by the in-laws, and did not accept that the daughter was killed or has even died. The Tribunal considered that those claims, that the in-laws or anyone killed the daughter, were fabricated.

32. The Tribunal then looked at the First Applicant’s evidence that he was in hiding.  At the hearing, the First Applicant claimed he went into hiding with his son immediately after the daughter was killed in October 2007 and kept moving.  However, he said he came out of hiding to attend his daughter’s funeral, which was the day after she died.  He said that his family and friends kept him moving.  He said that he hid near his house.  As things got more serious, he hid more deeply.

33. The Tribunal noted that the First Applicant had put in his applications that he had only one previous residential address.  The First Applicant said that he had said this because he could not remember where and when he hid. 

34. The Tribunal noted that the documents for the visitor visa showed that he had obviously gone to Faisalabad seven or eight times for business between January and March 2008. The business phone bill and bank account that was annexed to his visitor visa application showed that he continued to operate the business as a sole proprietor between December 2007 and March 2008.  This was inconsistent with a claim that he was in hiding and stopped working after the death of the daughter.

35. The First Applicant said that his father was the one who handled the divorce proceedings and the custody arrangements. The Tribunal did not accept this.  The Tribunal considered that if the First Applicant was in fear and wishing to leave in a hurry and in hiding and his brother-in-law was making arrangements, it was not credible that the brother-in-law would not have ensured speedy and efficient delivery of the passport or have gone to pick up the passport from the appropriate office.  The Tribunal did not accept the First Applicant’s explanations, and considered that the First Applicant was making up his responses as he went along.

36. The Tribunal looked further again into the fraudulent documents that they believed the Applicant had given to them, and also then looked at the matter of any continued threats to his family.  The Tribunal, with regard to this aspect, also came to a similar conclusion that the Applicant was making up his evidence as he went along.

37. The Tribunal, looking at a general credibility finding, found that the First Applicant’s claims lacked credibility; that they were not genuine; and, that the documents provided were fabricated.  The Tribunal did not accept that:

    ·the First Applicant’s daughter was killed;

    ·the in-laws killed her;

    ·the in-laws or his wife threatened him or his family;

    ·the Taliban or unknown persons threatened him or his family, 

    ·the in‑laws were Taliban or from an extremist group,

    ·the in-laws pressured or threatened him to join them and that the First Applicant were in hiding;

    ·the Court proceedings or arrest were brought against him;

    ·the First Applicant initiated Court proceedings against the in-laws;

    ·complaints to the police were made;  or

    ·the Second Applicant, the son, was ever threatened.

38. The Tribunal did not accept that the Applicants face any harm from these groups, the in-laws or family or anyone, even if not a follower of Islam.  The Tribunal does not accept that the Applicants faced harm because they were against the Taliban or Islamic fundamentalists.

39. The Tribunal went through the other claims, and especially the claims of the Second Respondent, but found that they did not accept that the Second Respondent faced a real risk of serious harm from the Taliban, or of being recruited by the Taliban or extremist groups, or being connected to a Taliban family. 

40. The Tribunal was not satisfied that there was a real chance that the Second Applicant would be at risk of serious harm for reason of race, religion, nationality, membership of a particular social group or political opinion if he returned to Pakistan now or in the reasonably foreseeable future.  The Tribunal was not satisfied that the Applicants met the criteria for refugee.  The Tribunal stated that they looked at all of the claims cumulatively. 

41. The Tribunal then looked at whether or not the Applicants would fulfil the complementary protection criteria; that is, either Applicant.  Having looked at those claims, the Tribunal said that considering the Applicants’ circumstances, both individually and cumulatively and the country information, the Tribunal found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicants being removed from Australia to Pakistan, that there was a real risk that they would suffer significant harm. 

42. For those reasons, the Tribunal affirmed the decision not to grant the Applicants protection visas.

43. The Applicants filed two amended applications, and it is the application that was filed on 21 November 2019 that is the application that is before this Court.  The grounds of that application are as follows.  I will read them into the record:

    The Tribunal made a mistake that the Tribunal did not understand the claim of the applicants, circumstances of the applicants and the Tribunal did not take into account the applicant’s submission before the Tribunal. The Tribunal failed to make a decision under the relevant section of the Migration Act 1958. The Tribunal did not set out the decision with proper grounds and reasons.

44. Ground 2:

    The Tribunal made a jurisdictional error that the Tribunal used its own experience to reject the review application.  The Tribunal assessed the review application on a personal own experience and view to reject the application of the applicants which is an undue, unreasonable and unfair process.

45. Ground 3:

    The Tribunal made an error of law because under relevant section of the Migration Act 1958, the act says that the applicant may request the Tribunal to call the witnesses, but the act does not say that the Tribunal may request the Applicant to call witnesses, which is a misinterpretation and a misunderstanding of the relevant act for review applied by the Tribunal.

46. Ground 4:

    The Tribunal made a mistake and the Tribunal did not consider the claim of the review applicant it also did not consider that the applicant has been suffering for a very long time and he provided very correct and related information relevant with the decision from the Department but the Tribunal also did not understand and did not consider the obligation of the Department.

47. Ground 5:

    The Tribunal made a procedural mistake that the Tribunal did not review the review application properly and the Tribunal was engaged to find out irrelevant information which was not related with the Migration Act 1958 and with the applicants’ case.

48. Those grounds do not really speak of any true jurisdictional error for these reasons.  I asked the First Applicant, when he appeared before me today, what it was, or why was it, that he said that the Tribunal made mistakes or failed to consider matters.  It was quite obvious from his answers, which I took quite a deal of care to make sure was what he was saying, is that the Tribunal could not have considered things properly, because they did not believe him and they did not accept him.  The Tribunal would only have been acting properly, according to the First Applicant, if it found in his favour.

1. In his grounds, if I take them seriatim, Ground 1 complains that the Tribunal did not set out the decision with proper grounds and reasons.  I have just gone through the Tribunal’s reasons, which were most thorough.  It is obvious that they did set out the decision with proper grounds and reasons.  The Tribunal ensured that, before they embarked upon the hearing, that they understood each and every one of the claims that the First Applicant was making.  There is no merit in that ground.

2. As far as using its own experience to reject the review application, the First Applicant takes issue with the Tribunal saying words such as, “The Tribunal finds it does not make sense that this would happen,” or, “The Tribunal finds that this is implausible.”  That is not using the Tribunal’s own experience to reject the review application.  That is the Tribunal listening to what the claim is, looking at it, assessing it, judging it objectively, and finding that they did not accept it.  That is their function, and it is proper for them to express themselves in that way.  Again, there is no merit in Ground 2.

3. The background to Ground 3, is that the Tribunal asked the First Applicant why he did not have any witnesses prepared to speak on his behalf and in support of his claims.  It is trite to say that when the Tribunal is holding a hearing, it tells people that they are allowed to put evidence before the Tribunal and to have witnesses.  It is not for the Tribunal to go and find these witnesses, and the fact that the First Applicant did not bring any witnesses or any corroborative evidence is something upon which the Tribunal is allowed to comment.  In any event, whilst the Tribunal made that comment, this was not the reason why the Tribunal made that particular conclusion that it came to.  There is no merit in Ground 3.

4. With regard to the claim, that the First Applicant had been suffering for a long time and had provided information at the beginning of the hearing, one can see in the Tribunal’s reasons, that the Tribunal talks of the medical evidence that the First Applicant had put before the Tribunal. This material detailed his current medical condition, and the fact that he had dealt with a deal of depression. 

5. The AAT understood that those matters were matters that affected the First Applicant, but did not accept that those medical issues, such as depression, were caused by what had happened to the First Applicant in regard to his dealings with his ex-wife and her family and so on but rather, a reaction to the fact that he was here in Australia and under threat of deportation if the Tribunal did not find that he had a valid claim for protection.  There is no merit in Ground 4.

6. Ground 5 talks of the Tribunal finding out “irrelevant” information.  Whilst there has not been any particularisation of what the irrelevant information is, that is probably not surprising.  Irrelevant information is information which the Tribunal was prohibited from considering, and there was no such material that the Tribunal considered in this case.  The grounds of the application do not illustrate any jurisdictional error.

7. The First Applicant also provided the Court with six pages of submissions which had really very little, if not nothing, to do with the grounds that the First Applicant had contended for in this application. 

8. The First Applicant made submissions that the Tribunal did not in any way refer to the UNHCR Handbook or its Refugee Law Guidelines.  This may be a misapprehension on the part of the First Applicant, that whilst those matters may be of some interest, the decision has to be dealt with by reference only to the Migration Act 1958 (Cth), and that the UNHCR has nothing to do with what the Tribunal must consider.

9. When he appeared before me today, the First Applicant reiterated that the came to Australia in 2008, and he is still struggling after nearly 12 years.  He said to me that he and his son “have nothing if the Court goes against us”. 

10. He claimed to me that the decision-maker was not fully trained, which again is not anything of which he has any evidence, but really an assertion that anyone who would find against him cannot be competent.  I am sure that if he takes this matter to the Federal Court on appeal, he will tell the Federal Court exactly the same thing about me; that is, that the only people who are competent or who are doing their job and are considering matters fully, are people who find in his favour.

11. The main thrust of his submissions to me today were regarding his son.  He said that his son wants to stay in Australia; he is doing well at school; and, that his son is scared to go back to Pakistan.  The First Applicant still reiterated that there was still a criminal case against him in Pakistan and so that when he goes back, he does not know what will happen to him and therefore, what will happen to his son.  Those matters were considered by the Tribunal.

12. The First Applicant iterated a number of times that he did not feel that the Tribunal was fair, that they did not consider matters properly; that they did not look at his documents; that they were biased.  But, realistically, the First Applicant was really trying to engage the Court in an impermissible merits review.  There was no jurisdictional error to which the First Applicant could actually point.

13. It was quite obvious that the First Applicant had been acting on behalf of his son, the Second Applicant, and that he presented all the claims on his behalf.  The First Applicant did say to me that the child was around four years old when he came to Australia and that now, it would seem, the child would be close to 16. Because the son now faces an uncertain future, the son blames the First Applicant and says to the First Applicant “you have ruined my life”, “you have not protected me” and this is causing a great deal of stress for the First Applicant. 

14. That may be so, and the First Applicant certainly has the sympathy of the Court if the son is treating the father in that manner, but that does not indicate any jurisdictional error, and is not a matter to which I can have any regard.

15. Having found that there is no jurisdictional error, I dismiss the application with costs in the sum of $5,600.

I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 8 June 2020