GBY18 v MINISTER FOR HOME AFFAIRS & ANOR
[2020] FCCA 675
•19 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GBY18 v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 675 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – whether the Tribunal was unfair – whether the Tribunal ignored material it should have considered – whether the Tribunal made a decision where there was no supporting evidence – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s. 438 |
| Cases cited: Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 SZVDC v Minister for Immigration and Border Protection (2018) 259 FCR 154 |
| Applicant: | GBY18 |
| First Respondent: | Minister For Home Affairs |
| Second Respondent: | Administrative Appeals Tribunal |
| File Number: | CAG 85 of 2018 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 19 February 2020 |
| Date of Last Submission: | 19 February 2020 |
| Delivered at: | Canberra |
| Delivered on: | 19 February 2020 |
REPRESENTATION
| Solicitors for the Applicant: | In Person |
| Solicitors for the Respondents: | Ms Crawford, Clayton Utz |
ORDERS
The Application filed on 23 November 2018 be dismissed.
The Applicant pay the Respondent’s costs in the sum of $7,467 as per Schedule 1 Part 3 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Canberra |
CAG 85 of 2018
| GBY18 |
Applicant
And
| Minister For Home Affairs |
First Respondent
| Administrative Appeals Tribunal |
Second Respondent
REASONS FOR EX TEMPORE JUDGMENT
(Revised from Transcript)
(As Corrected)
Introduction
The applicant, who claims to be a citizen of Pakistan, first arrived in Australia on 8 December 2007, as the holder of a subclass 572 Student visa. In the subsequent years, the applicant has made a number of applications for differing visas and has departed Australia and returned on a number of occasions.
The applicant applied to the Department of Home Affairs for a Protection visa on 19 March 2015. This application was found to be invalid. On 24 March 2015, his bridging visa associated with his application for review before the Migration Review Tribunal (“the Tribunal”) ceased and the applicant became an unlawful non-citizen.
On 7 April 2015, the applicant lodged a second application for a Protection visa. A delegate of the Minister refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations. On 9 October 2015, the applicant applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 31 of July 2018. In a decision dated 31 October 2018, the Tribunal affirmed the decision not to grant the applicant a Protection visa. The applicant now seeks judicial review of the Tribunal’s decision.
The Tribunal’s Decision
The applicant’s claims for a Protection visa were summarised as follows:
· He was the victim of a loan shark in Pakistan. That person told him he was a member of Sipah-e-Sahaba, a militant organisation responsible for many attacks on Shias in Pakistan;
· If he returns to Pakistan the lenders will harm him and threaten him.
· He will suffer significant harm, if he returns to Pakistan because of his adaption to western ways and thoughts and is used to freedom of speech and life in Australia.
In what is a relatively long decision, the Tribunal sets out the evidence relied upon by the applicant. At paragraph 24, the Tribunal notes that during the hearing, it discussed with the applicant his background, his family, his education, his employment, where he lived in Pakistan, his reasons for leaving Pakistan and why he fears returning to Pakistan. The Tribunal found aspects of his evidence to be inconsistent, implausible and unconvincing. The applicant made new claims during the hearing and his conduct was not consistent with his claims. The Tribunal formed the view that he was not a witness of truth.
At paragraph 45 onwards, the Tribunal considered a report dated 15 March 2015 from Sandra Kaye, a psychologist. The Tribunal notes that the report did not set out Ms Kaye’s qualifications and does not indicate the methodology that was used to assess the applicant’s mental health status. The report relies upon history provided to her by the applicant. This was of concern to the Tribunal as the report was prepared for the purpose of obtaining evidence to support his application for a Protection visa. The Tribunal notes the applicant has not undertaken any ongoing counselling as recommended nor had further consultations with Ms Kaye or any other psychologist or psychiatrist.
The Tribunal notes that it has found that the applicant provided false information to the Department in the past to obtain Australian visas. This raised issues as to the accuracy of the history the applicant provided to Ms Kaye. The Tribunal notes that Ms Kaye’s clinical observations were that the applicant was suffering from a highly significant depressive disorder with anxious features. The clinical basis upon which Ms Kaye arrived at this conclusion was not clear. The Tribunal was concerned Ms Kaye had stepped outside her role as a psychologist in making an independent assessment of the applicant’s mental health status. The Tribunal placed little weight on the report.
Paragraphs 79 to 83 set out the Tribunal’s findings. The Tribunal concluded the applicant is not a witness of truth. The Tribunal found he fabricated his material claims for the purpose of obtaining a Protection visa.
The Tribunal accepted the applicant was born in 1980 in Pakistan. It accepted he obtained a Master of Science degree in Pakistan in 2003 and that he studied for a Master of Philosophy degree in Pakistan between 2004 and 2007 but did not complete that degree. The Tribunal accepted that the applicant was married on 3 June 2011 and has two children of this marriage. The Tribunal accepts the applicant applied for a visa to immigrate to Canada and that this application was refused in 2012.
The Tribunal accepted that the applicant’s mother passed away in November 2014 and that he travelled to Pakistan to see his mother before she passed away. The Tribunal did not accept that the applicant borrowed money from the money lender in Pakistan. It followed that the Tribunal did not accept any of the claims that flow from that claim. The Tribunal did not accept that the applicant will suffer serious harm or significant harm if he returns to Pakistan because of his adoption to Western ways and thoughts and/or because he is used to freedom of speech and life in Australia.
The Tribunal does not accept that the applicant would suffer serious harm or significant harm if he returned to Pakistan because of his mental health issues. The Tribunal accepted that the applicant simply does not wish to return to Pakistan and would prefer to live in Australia.
Grounds of Application
Three grounds of appeal are set out in the application to this Court. They are as follows (verbatim):
(1) Not adopting fair process in making the decision.
(2) Ignoring material the Tribunal was required to look at.
(3) Making decision for which there was no evidence.
No particulars were provided to support each of the above assertions.
The Applicant’s Submissions
The applicant appeared before the Court unrepresented. He was assisted by an interpreter. Notwithstanding Court orders, no written submissions were filed with the Court in support of the grounds of appeal.
The applicant told the Court that he had taken out a loan of $8000.00 and had repaid it with interest of $150.00. Notwithstanding he had repaid the loan he was still being threatened by the loan shark. The applicant’s father told the applicant that he had disowned him. The applicant denied ever having mentioned the name of a militant organisation in Pakistan as being connected to the loan shark. He was concerned that the Tribunal looked at his previous visa applications and assumed that anything he said was not true. The applicant submitted that the Tribunal failed to give proper weight to the documents he produced.
The First Respondent’s Submissions
The first respondent noted that no particulars were provided to support the assertions contained in the grounds of appeal. Accordingly, the first respondent sought to provide material which might rebut any assertion that the applicant might make under each ground.
The first respondent submitted that there was no evidence that the standard of interpretation at the hearing was inadequate. It was submitted that the onus was on the applicant to demonstrate that any departure in the standard of interpretation was such as to deny the applicant the opportunity to a fair hearing.
The applicant asserted that the Tribunal placed weight on the certificate provided under s 438 of the Migration Act 1958 (Cth) (“the Act”). However, the first respondent notes that at paragraph 78 of the decision, the Tribunal disclosed the “gist” of the information covered by the certificate and formally recorded that it placed no weight on it. In these circumstances Ground 1 cannot be made out
Ground 2 asserts that the Tribunal ignored material it is required to consider. The first respondent submits the Tribunal gave proper consideration to all relevant material including a letter from a Mr Shah at a report from Ms Kaye during the course of its decision. The Tribunal gave detailed consideration to a large amount of material and any and all claims made by the applicant. The first respondent submitted that the decision record clearly establishes the Tribunal gave careful and proper consideration to all relevant material and accordingly this ground cannot be made out.
Grounds 3 asserts that the Tribunal made a decision for which there is no evidence. In his affidavit, the applicant appears to contend that the Tribunal did not understand the evidence and made incorrect findings about the matters that were the subject of the evidence. The first respondent interprets the applicant’s particularisation of this ground to reference the findings made by the Tribunal in relation to the applicant’s credibility.
The first respondent notes the particular care with which the Tribunal dealt with each of the claims of the applicant and then made findings which it submits were open to it on the evidence. It was submitted that the assessment and cogency and weight of the evidence is a matter for the Tribunal (see SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [15] (“SBBA”)).
Consideration
The lack of particulars associated with the applicant’s grounds of application make it difficult to ascertain what the precise nature of his complaints are.
In relation to Ground 1, there must be evidence before the Court that the standard of interpretation at the Tribunal hearing was so inadequate that the applicant was prevented from giving evidence to the Tribunal or that errors made in interpretation at the Tribunal hearing were material to the conclusion being adverse to the applicant (see Appellant P119/2002 v Minister for Immigrationand Multicultural and Indigenous Affairs [2003] FCAFC 230 at [16]-[17]). There is no evidence before the Tribunal that the standard of interpretation was so deficient as to deny the applicant a fair hearing. The applicant does not suggest that he has no understanding of English
I am satisfied that the proper procedure was followed in relation to the s 438 certificate. The Tribunal gave the gist of the information to the applicant and it determined to place ‘no weight on the information”. No issue arises as a consequence of the issue of the certificate (see SZVDC v Minister for Immigration and Border Protection (2018) 259 FCR 154). Accordingly, Ground 1 must fail.
Ground 2 alleges that the Tribunal ignored material it was required to look at. In the absence of any particulars this ground must fail. A fair reading of the Tribunal’s decision indicates it gave consideration to a wide range of information including a letter from Mr Shah and a report from Sandra Kay, a psychologist. As well as submissions from the applicant as to his academic history, personal history and claims of involvement with the moneylender, submissions from his solicitor together with his application for a protection visa and the decision record of the delegate.
The Tribunal considered his academic certificates along with his claims to be at risk from a loan shark and his claims of fear in relation to being westernised. I am satisfied that the Tribunal gave careful and proper consideration to all relevant material and Ground 2 cannot be made out
Ground 3 asserts that the Tribunal made a decision for which there was no evidence. Again no particulars are provided except in the applicant’s affidavit filed on 23 November 2018. The first respondent interprets the applicant’s particularisation of this ground to reference the findings made by the Tribunal as they relate to the applicant’s credibility.
I’m satisfied that the Tribunal’s findings were open to it on the evidence and the materials before it and for the reasons it gave, including its adverse credibility findings. A credit finding is sound if it was “open to (the Tribunal) on the material, was based on rational grounds and arrived at on consideration of matters that the logically probative of the issue of credibility” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).
Further, the fact that the applicant disagrees with the findings of the Tribunal, even emphatic disagreement, does not disclose jurisdictional error. I am satisfied that there was reasonable basis upon which the Tribunal came to its conclusions based on a detailed analysis of the applicant’s migration history, the inconsistencies in the evidence he gave, together with the fact that the Tribunal could not give significant weight to the documentary evidence that was provided to it, including the report of the applicant’s psychologist. I am satisfied that the assessment of the cogency and weight of the evidence is an appropriate matter for the Tribunal (see SBBA). No jurisdictional error is made out and Ground 3 must fail.
Given that the applicant is unrepresented, I have carefully perused the decision of the Tribunal and I am satisfied that there is no other jurisdictional errors that has not been articulated by the applicant.
Conclusion
As each of the grounds fail to disclose jurisdictional error, the application is dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 25 March 2020
| TABLE OF CORRECTIONS | |
| 21 October 2022 | The Hearing date, Date of Last Submissions and Delivered On at the cover page have been amended to “19 February 2020”. |
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