Mzabq v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 953
•30 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
MZABQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 953
File number(s): MLG 1496 of 2017 Judgment of: JUDGE TAGLIERI Date of judgment: 30 October 2023 Catchwords: MIGRATION – protection visa application – application for judicial review – whether the Tribunal’s approach to credit findings was illogical and/or unreasonable such that it shows a misunderstanding or mistake about the applicant’s claims for protection – jurisdictional error established – application for review allowed Legislation: Migration Act 1958 (Cth) div 4 pt 7, ss 424, 424(2A), 424(3), 476 Cases cited: Abebe v The Commonwealth [1999] HCA 14
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALR 630
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
CFC16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1003
EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802
Maan v Minister for Immigration and Border Protection [2017] FCA 906
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) 144 FCR 1
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265
SAAZ v Minister for Immigration [2002] FCA 791
SCAA v Minister for Immigration [2002] FCA 668
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZNXA v Minister for Immigration and Citizenship [2010] FCA 775
SZOAF v Minister for Immigration and Citizenship [2010] FCA 431
VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102
WABC of 2002 v Minister for Immigration [2002] FCAFC 286
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 126 Date of hearing: 11 May 2023 Place: Hobart For the Applicant: In person Counsel for the First Respondent: Ms McInnes Solicitor for the Respondents: Clayton Utz ORDERS
MLG 1496 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MZABQ
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
30 OCTOBER 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the second respondent dated 27 June 2017.
2.A writ of mandamus issue directed to the second respondent as constituted by a different member to reconsider and determine the applicant’s application for review according to law.
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 Taglieri
This application for judicial review, filed 12 July 2017, concerns a decision of the Migration and Refugee division of the Administrative Appeals Tribunal (“the Tribunal”). The decision under review was made on 27 June 2017 (“the reviewable decision”) and affirmed the First Respondent’s decision not to grant a Protection Visa to the Applicant.
Prior to the reviewable decision being made, the Applicant’s claim for protection had been subject of earlier Tribunal proceedings in which the Tribunal affirmed the decision to refuse the grant of a protection visa, but that decision was set aside and remitted for redetermination by order of the Federal Circuit Court of 4 February 2015.
It is the decision of the Tribunal on remittal that is now before this Court for review.
The application for judicial review to the Court enlivens the jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) and came before the Court for hearing on 11 May 2023.
In order for the Applicant to succeed and obtain the relief sought he needs to demonstrate jurisdictional error by the Tribunal. What constitutes jurisdictional error is usefully described in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
APPLICANT’S CASE
The Applicant relied on the application for review filed 12 July 2017 and his affidavit filed the same date, which annexes a copy of the Tribunal decision to be reviewed.
Although orders had been made by the Court on 21 March 2018 and 11 January 2023 for the Applicant to file written submissions on which he relied, the only other document he filed and relied on was an additional document lodged with the Court on 20 January 2023. The additional document merely repeats the substance of some of the widespread and extensive grounds contained in the application for review and, strictly speaking, lacks the usual characteristics of a written submission. However, given that the Applicant is not legally qualified and is self-represented, I have had regard to the additional document to the extent that it is relevant in giving further context or understanding to the oral submissions made about the purported grounds for review.
There are thirty one grounds set out in the application for review. However, as became evident during submissions by the parties, the grounds are overlapping and repetitive. The Applicant was given the option of making his submissions first or in response after hearing those on behalf of the First Respondent, and said he preferred the latter option.
The Applicant was assisted by a Punjabi interpreter, and I confirmed with the Applicant that he was satisfied with their mutual comprehension. The Applicant also indicated that he preferred to conduct the hearing in English, only asking for translation when he indicated it was desirable and needed.
The parties agreed that the Court should receive the Court Book filed 4 April 2018[1] and supplementary Court Book filed 15 February 2023 as evidence on the review hearing.[2]
[1] Exhibit R-1.
[2] Exhibit R-2.
RESPONDENT’S CASE AND SUBMISSIONS
The First Respondent (“FR”) contends that there is no demonstrated jurisdictional error in the Tribunal’s decision and the application for review should be dismissed.
Counsel for the FR relied on written submissions dated 9 February 2023, which the Applicant confirmed he had received and read.
Addressing the structure and content of the written reasons of the Tribunal, Counsel for the FR submitted that the reasons of the Tribunal were of a high level and that it:
·Had provided a correct summary of the applicable law it had to apply in determining the merits review;[3]
·Considered the claims for protection made by the Applicant. The Applicant made three broad claims. First, a claim of harm due to his Pakistan Tehreek-E-Insaaf (“PTI”) Party involvement and an alleged attack in March 2012, which was summarised in the Tribunal reasons at [24] to [26]. Second, a claim based on ethnicity or caste as a Gujjar, summarised by the Tribunal at [47] of its reasons. Third, a claim based on being a Punjabi person, which the Tribunal summarised at [51] of its reasons. The claims as made in the Applicant’s personal statement were also set out in the written reasons;[4]
·Assessed those claims, but concluded that they did not meet the statutory requirements for grant of a protection visa;[5] and
·Considered and rejected the alternative that the Applicant may have qualified the requirements for complementary protection.[6]
[3] Tribunal decision at [5] to [19].
[4] Tribunal’s reasons at [27].
[5] Tribunal’s reasons at [31] to [43], [47] to [50], and [51] to [52].
[6] Tribunal’s reasons at [53].
Counsel referred to the Tribunal’s reasons at [28], submitting that the Applicant had refused to answer certain questions at the hearing before the Tribunal. It was argued that the reasons demonstrated that by asking questions as it did, the member afforded procedural fairness, which demonstrated an absence of bias despite what the Applicant asserted in Ground 6.
The FR also submitted that no complaint is made in the grounds of review that the Tribunal failed to consider some particular aspect of the claims for protection and, in essence, the Applicant challenges the findings of the Tribunal as the merit decision maker, which is not the province of this Court nor capable of establishing jurisdictional error.
Counsel for the FR then addressed each ground of review predominantly in accordance with the written submissions filed by the FR dated 9 February 2023, referring to relevant authorities.
APPLICANT’S OPENING SUBMISSION AT HEARING
The Applicant opened by making an overarching submission that the Tribunal had a fundamental misunderstanding about the documents he relied upon concerning his claim about being attacked in March 2012 after he had attended a PTI meeting at Gujrat and consequential fear of harm.
In essence he submitted that, by misunderstanding documents before it relevant to the claim, the Tribunal had formed an unfavourable view about his credibility based on what it categorised as “inconsistencies”, which then infected the entirety of the Tribunal’s consideration of his claims for protection.
He submitted that the misunderstanding is demonstrated in the Tribunal’s reasons at [35] to [37]. The Tribunal states relevantly in its reasons:
The Tribunal notes that in contrast to the applicants claim that officer Reza took no action but instead told him to go away or he would put him in jail, the applicant submitted a document to the Department dated 17 March 2012 titled “report number 25” which suggests that an [First Information Report (“FIR”)] was registered. The document specifically states that the written application for an FIR was received and registered in the daily diary and was sent through to Sayed Ali Reza.
In respect of these reasons, the Applicant submitted that the document ending at page 109 of the Court Book is the translated version of the document at page 110 of the Court Book. The document represents the recording of his original complaint to police, which was registered, but that this was distinct from a FIR, which he claimed Sayed Ali Reza “refused to accept”.
The Applicant expanded on this submission, explaining that he had always maintained that the police would not act on his original complaint and that he was threatened with being jailed because he wanted the attackers prosecuted. The Applicant further stated that he had brought civil action to compel police to prosecute those who had attacked him, but still no legal action was taken against the alleged attackers. This submission appears consistent with the documents appearing at pages 112 to 125 of the Court Book.
At this juncture, the Applicant invited the FR to reconsider their opposition to his application for review. Counsel for the FR maintained that the Tribunal had not misunderstood or mistaken the documents before it or his claims. Accordingly, the Applicant then proceeded to address all other grounds of review.
The Applicant’s opening oral submissions engage with a number of the regrettably poorly formulated grounds of review, and I discern that they are relevant to Grounds 5, 13, 14, 15, 20 and 26 of the application for review which all in some manner concern a core grievance about the Tribunal’s approach to the March 2012 attack.
Accordingly, I propose to address the opening submissions collectively with Grounds 5, 13, 14, 15, 20 and 26 at the outset.
The FR was given opportunity to reply to the Applicant’s submissions made during the hearing and I directly raised with counsel what I interpreted to be the basis upon which the Applicant was asserting jurisdictional error concerning the Tribunal’s approach to the claims relating to the 13 March 2012 attack.
The FR’s counsel submitted that the Applicant’s original claim as put to the Tribunal was that he was attacked by gangsters associated with the Wajahat Force after the publication of media articles reporting his political views.[7] When the Tribunal assessed this claim, it rejected the genuineness of the media reports due to the Applicant’s status within the PTI and the availability of fraudulent media reports in Pakistan.[8] On this basis, it then proceeded to reject that the attack had occurred and that the Applicant had reported it to police.[9] Counsel submitted that this is consistent with the reasoning in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALR 630 in that the claim did not need to be separately considered and ruled on as the premise that went before it had been rejected.
[7] Court Book at page 50.
[8] Tribunal reasons at [33].
[9] Tribunal reasons at [35].
It was submitted that the rejection of the Applicant’s claims regarding the March 2012 attack is separate from any conflation of documents by the Tribunal. Further and in any event, it was open for the Tribunal to find that the document entitled “Report 25”[10] was an FIR and was registered, despite what the Applicant now claims. Even if the Court finds that the Tribunal unfairly attributed that document as an FIR, that one misunderstanding is not the sole reason for its credibility finds and so is immaterial to the conclusion it reached.
[10] Court Book at pages 106 to 109 in English, and at page 110 in Urdu.
Finally, in respect of this, the FR submitted that it was open to the Tribunal to find that the Applicant’s accounts of the March 2012attackwere inconsistent and to weigh that in its decision. The inconsistences were not required to be put to the Applicant for his comment.[11]
[11] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26.
EVALUATION OF GROUNDS OF REVIEW
The structure of the Tribunal decision sets out the oral claims and evidence given by the Applicant during the hearing before the Tribunal at [20] to [26]. At [27] of the reasons for decision, the Tribunal reproduced the entirety of a personal statement made in support of the visa application.
In no part of the evidence and claims does the Applicant state or rely on the interview and newspaper reporting being a cause of the approach or attack by Irfan Ahmed and the Wajahat Force in March 2012. The Applicant’s statements evidence was that the approach occurred on 10 March 2012 following his attendance at a public meeting on 9 March 2012 and before the newspaper publications on 11 March 2012, and then the attack which occurred following attendance at a party meeting on 13 March 2012.
At [28] of the reasons for decision, the Tribunal explained the hearing process and the Applicant apparently refused to answer questions and referred to having given evidence previously.
From [29] onwards of the Tribunal’s reasons, the member formulates the issues to be decided and then makes findings.
At [32] of the Tribunal’s reasons, a statement appears that the Applicant:
…claimed that he came to the attention of the Wajahat force in March 2012 after two articles were published outlining his political views.
Notably, the Applicant’s claims relating to fears of harm from Irfan Ahmed because of his political views or PTI membership were factually underpinned to the approach by Irfan Ahmed on 10 March 2012 prior to the newspaper publication and then the attack on 13 March 2012.
The following documents in the Court Book are relevant to the Tribunal’s findings rejecting Applicant’s account of the approach and attack by Irfan Ahmed and associates and subsequent reporting to police.
A document entitled “Report 25” and dated 17 March 2012 at pages 106 to 109 (“the police report”) of the Court Book. This is an English translation of the original police report concerning the 13 March 2012 attack which appears at page 110 of the Court Book and which is recorded in the Urdu language. Relevantly, the translated police report:
·Notes Irfan Ahmed as exiting a car and assaulting the Applicant, but also later refers to “accused people” in plural on six occasions;[12]
·States the report was recorded in the daily diary and was sent to an officer named Syed Ali Reza for further action;[13] and
·Records the Applicant’s claim that a gold necklace was taken from him during the attack.[14]
[12] Court Book at pages 107 and 108.
[13] Court Book pages 108 and 109.
[14] Court Book at page 107.
An untitled document dated 30 March 2012 is provided in the Court Book at pages 112 to 119, which the Applicant explained was a translation of complaint he lodged with the police to follow up the police report dated 17 March 2012 (“the complaint document”). I note that the parties confirmed, in response to a query from my Associate following the hearing, that this document was incomplete as it appeared in the Court Book.
The FR’s solicitors provided a complete copy to the Court by email on 7 July 2023 without objection from the Applicant, which has been marked as Exhibit R-3. The untranslated version of this complaint document in the Urdu language appears in the Court Book at pages 120 to 125.
The complaint document:
·Alleges that the police had not lodged an FIR as follow up to the police report;[15]
·Alleges that the police threatened him with beatings and imprisonment when he attempted follow up on the police report in person at a police station;[16]
·Refers to four people as his attackers,[17] along with multiple references to “accused persons” or “accused people”.[18] It also seeks that the police take action against “respondent No. 2, 3”;[19]
[15] Court Book at page 118.
[16] Court Book at page 119.
[17] Court Book at page 117.
[18] Court Book at page 118 and 119.
[19] Page supplied by solicitor for the FR on 7 July 2023 as was omitted from the Court Book.
An undated personal statement which was provided with the Applicant’s protection visa application lodged 13 August 2012 is in the Court Book at pages 47 to 51. The personal statement is quoted in full in the Tribunal reasons at [27]. The personal statement relevantly addresses the 13 March 2012 attack and the lack of police response under sub-headings “Incident 2” and “1: police”. In particular, it states that on 13 March 2012, a person he recognised as Irfan Ahmed and three other men exited a car which had crossed them and stopped the Applicant’s motorcycle, and references “attackers” in plural.[20] Further, that “nothing was done” after he reported the attack to police and that there was “no action taken against the accused people”.[21]
Grounds 5, 13, 14, 15, 20 and 26 and Applicant’s overarching oral submission
[20] Court Book at page 50.
[21] Court Book at page 50.
By Ground 5, the Applicant asserts jurisdictional error by a failure to understand that “the authorities” were unable or unwilling to protect political or ethnic minorities of which he was a part. In these terms the ground is vague and lacks particularisation.
However, the Applicant’s oral submissions at the hearing provided further context. He stated that he said at the Tribunal hearing that the police were biased and he had been unable to get justice from them in relation to the attack on 13 March 2012, and this demonstrated that they would not provide protection of him. The Applicant contended that the Tribunal did not understand this aspect of his claim for protection.
The FR simply contends that the ground is misguided because, having rejected the Applicant’s claims of harm based on the attack, the Tribunal’s task did not require it to consider this element of the Applicant’s claim. Logically, that would be correct, but only if the Tribunal did not fall into jurisdictional error in respect of the Applicant’s claims based on the 13 March 2012 attack.
Grounds 13, 14, 15, 20 and 26 in one way or another also take issue with the Tribunal’s treatment of the Applicant’s claims relating to the attack on 13 March 2012, threats because of it, and the Applicant’s consequent fear of harm. The grounds intersect with the opening oral submissions made by the Applicant referred to at [17] to [28] of these reasons.
It is sufficiently clear that they involve complaints that:
(a)The Tribunal misunderstood the documents upon which the Applicant relied concerning his attempts to have the police take action against his alleged attackers;
(b)The Tribunal’s misunderstandings led it to form the view that there were inconsistencies in the Applicant’s claims;
(c)Resulted in adverse credit findings about the Applicant’s evidence and claims which were crucial to its dismissal of the application for review; and
(d)Connected to the Tribunal’s misunderstanding or mistake about the documents, the Tribunal failed to check the credibility of documents upon which he relied.
At the hearing before the Court, the Applicant focused on the Tribunal’s alleged misunderstanding about the content of the documents before the Tribunal relating to the attack and the failure to enquire into or have the authenticity of those documents examined. The Applicant contrasted what a prior Tribunal had done when it inquired into the authenticity of photographs of him participating in protests, when that Tribunal was concerned that photos were amenable to forgery or doctoring.
I enquired whether there was evidence before the Court that he had asked the Tribunal member to inquire as to the credibility or authenticity of the documents and suggested how this may be done. The Applicant merely replied that it would be obvious from the recording of the hearing. I observed that there was no transcript or recording of the Tribunal hearing put before the Court, despite having been given opportunity to file a supplementary court book of documents upon which he sought to rely.[22]
[22] Order 3 of the Orders made 21 March 2018.
Regarding the complaint that the Tribunal failed to check the credibility of documents and this failure amounts to a form of jurisdictional error, the FR essentially had two answers. First, there is no general duty on the Tribunal to inquire as to the authenticity of documents and, second, the bases for rejecting the Applicant’s claims for protection based on his PTI membership and political beliefs were not confined to the Tribunal’s conclusion that the documents relied upon were fraudulent. That is, the Tribunal also relied on what it said were inconsistencies in his account of the attack on 13 March 2012.
The High Court judgment in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 is no doubt the leading authority in relation to a Tribunal’s obligation to make inquiry and in the context of a migration review. The following principles can be distilled from the joint judgment of the court:
·Section 424 of the Act gives the Tribunal a discretion to obtain any information it considers relevant for the purpose of conducting its review;[23]
·As applied to the Tribunal, “inquisitorial” does not carry the full meaning of “one whose official duty is to inquire, examine or investigate”, it merely delimits the nature of the Tribunal’s functions; and that core function is to review the decision at first instance;[24]
·The failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it;[25]
·Where no plausible and possible line of inquiry is suggested, it is not necessary to consider and decide whether the Tribunal was under an obligation to make further inquiry;[26]
·A failure to initiate further inquiry could not constitute a departure from common law standards of procedural fairness;[27] and
·Failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review, capable of amounting to jurisdictional error by constructive failure to exercise jurisdiction.[28]
[23] At [17].
[24] At [18].
[25] At [20].
[26] At [23], citing Abebe v The Commonwealth [1999] HCA 14 with approval.
[27] At [24], citing Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 with approval.
[28] At [25].
Even if I assume that the Applicant asked the Tribunal to make inquiry about the authenticity of the documents upon which he relied to establish that he had reported the attack on 13 March 2012 to police who had not acted to prosecute the assailants and that he had brought proceedings to compel that course, the Applicant has not offered anything by way of mode of enquiry that the Tribunal could have made to check or validate the authenticity of the documents.[29] I made particular inquiry about this during the hearing, but he did not provide a meaningful or material reply.
[29] Being the documents in the Court Book at pages 100 to 125 (untranslated and translated).
In view of the principles that I am bound to apply as summarised at [49] of these reasons, the Applicant’s contentions about jurisdictional error by failure to “check the authenticity of his documents” cannot succeed.
The Applicant provided no pathway as to how the documents could be “checked”, and the Tribunal’s function on review did not extend to ascertaining what enquiry was possible, how it might be made, and to whom the inquiry should be made.
However, the above reasoning does not dispose of all components of these grounds as argued or the submissions overall about the Tribunal having a misunderstanding about the claims and evidence concerning the March 2012 attack, which improperly led the Tribunal to rely on so called “inconsistencies” to reject the Applicant’s evidence and claims as credible.
The findings at [31] of the Tribunal’s reasons were favourable to the Applicant. The Tribunal accepted that the Applicant had attended political rallies, was a PTI member and had a political profile before and after he left Pakistan.
Notably, the Applicant did not ever make a claim that the attack in March 2012 was targeted towards him because of publications in newspapers. It is very clear that he claimed that Irfan Ahmed and those connected to the Wajahat Force
had approached him following a public meeting on 10 March 2012 and his attendance at a party meeting on 13 March 2012. Further, that police have done nothing in relation to those who had attacked him.[30]
[30] Court Book at page 609 under heading “conclusion”.
The Tribunal did not accept that the Applicant had been interviewed by a reporter and his views published,[31] and this finding was a matter for the Tribunal alone. However, the finding did not automatically exclude the claims based on fear of harm from Irfan Ahmed and his associates because the claims were not solely reliant on the newspaper publications but the approach on 10 March 2012 and attack on 13 March 2012.
[31] At [35] of Tribunal’s reasons.
The Applicant clearly relied on the attack on 13 March 2012 and the failure of police to take action against the attackers as a basis for protection independently of the newspaper reporting. At [35] of the Tribunal’s reasoning, it found that it did not accept that the Applicant had been targeted by Irfan Ahmed as claimed, but the reasons given for this are illogical and internally inconsistent. While rejecting the claim that the attack occurred, the Tribunal at the same time accepts the police report was indicative that the police did accept his complaint, meaning that the attack had occurred.
Further, there is no reference to be found in the Applicant’s statements or evidence before the Tribunal that he ever said or claimed that Officer Reza refused to accept his complaint. Instead, he consistently claimed that the officer would not act on it.
The Tribunal then proceeded to treat inconsistency about Report No 25 and an FIR as a basis for rejecting the Applicant’s credit. However, as the documents in the Court Book which are highlighted in these reasons at [36] to [40] demonstrate, the Applicant’s claim was consistently that the police would not act on his complaint. That is, “take action” against the attackers.
At [36] of the Tribunal’s reasons, the Tribunal also identified what it said were inconsistencies in the Applicant’s account of the March 2012 attack itself and relied on this to impugn the Applicant’s credit also.
In so far as the Tribunal considered that there was inconsistency about the number of persons who got out of the car or attacked the Applicant, there was no such inconsistency as the relevant parts of the Court Book which have been highlighted show. All accounts given of the attack referred to four people in total exiting the car which intercepted the Applicant during the attack.
Although there is no reference to the gold chain being snatched in his personal statement in support of the protection visa as the Tribunal stated,[32] it is referred to in Report No 25 which the Tribunal relied on to accept that his complaint was accepted and registered. Furthermore, the Tribunal’s reasons at [36] show that the Applicant consistently explained to an earlier Tribunal and this one, why the personal statement did not mention the gold chain being snatched. Namely, that its relevance to his claim for protection based on his political beliefs and affiliations were considered minimal and that he had been advised to focus on the attack rather than the snatching of the gold chain by his previous adviser.
[32] At [36] of the Tribunal reasons.
In my view for the above reasons, the Tribunal’s reliance on these matters at [35] and [36] of its reasons for decision also demonstrate jurisdictional error relating to findings about credit as were discussed in Maan v Minister for Immigration and Border Protection [2017] FCA 906 at [47] to [49].
In addition, it is to be observed that the Tribunal’s reasons at [36] from the sentence beginning “Further” in line 6 is virtually a cut and paste of an earlier decision maker. This provides additional reasoning for concluding that there was jurisdictional error.[33]
[33] CFC16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1003.
To the extent that Ground 20 refers to a failure to understand the basis of the Applicant’s claims for protection based on torture from gangsters and police, it intersects with the grievances which are the subject of basis for protection claimed because of the 10 March 2012 approach and 13 March 2012 attack.
There is demonstrated jurisdictional error by the Tribunal on it approach to credit findings, illogicality and unreasonableness which ultimately shows a misunderstanding or mistake about the Applicant’s claims for protection based on political beliefs and affiliation and this collectively led to a failure by the Tribunal to discharge its function on review.[34] I am satisfied that these errors reached the required materiality threshold because the claimed approach by Irfan Ahmed and subsequent attack all in March 2012, separate from the interview he claimed to have given and newspaper reporting, were relied upon as basis for fear of harm based on his accepted political views.
[34] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) 144 FCR 1; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802.
Grounds 17 and 25
The Applicant framed his submissions about these grounds on the basis that if he were returned to Pakistan, he would not be able to return to his home area because that is where he would face risk of harm due to the attack, gangsters and events in March 2012, for which he was not offered protection by police.
Counsel for the FR submitted that this basis of harm was irrelevant as the Tribunal did not make jurisdictional error in respect of the claims of harm relating to the Irfan Ahmed and Wajahat arising from the approach and attack in March 2012.
However, I have concluded that there was jurisdictional error in the Tribunal’s approach and accordingly it follows that there was a failure by the Tribunal to discharge its statutory function.
OTHER “GROUNDS” AND CONTENTIONS
As I have concluded that the Tribunal did fall into jurisdictional error, it is not strictly necessary to address all other purported grounds of review. However, out of an abundance of caution, I will address those that seem to stand separately and are not otherwise captured by the reasons given above.
Grounds 1, 2 and 21
Ground 1 simply asserts a failure to consider all country information. The FR submitted that the Applicant had not identified the country information that he alleges was not considered.
In his oral submissions about Ground 2, the Applicant submitted that the Tribunal ought to have checked all of the country information and should have evaluated it to understand the law-and-order situation in Pakistan. He contended this was not done, and so the outcome of the Tribunal was not fair, and its position was biased because the member selectively chose what Department of Foreign Affairs and Trade (“DFAT”) country information would be considered and confined consideration to information about document fraud.
Before the Court, the Applicant did not specifically identify country information he says was before the Tribunal and not considered. It is unclear if the Applicant’s contention is confined to non-consideration of media reports he submitted and which are contained in the Court Book at pages 330 to 347, or other parts of the DFAT country information to which the Tribunal did not refer or did not accept.
Grounds 1 and 2 taken alone or together do not establish jurisdictional error as it is well established by uncontroversial legal principle.[35]
[35] NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37], citing WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 [35]; SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 at [21].
Inter-related to or somewhat in common with Grounds 1 and 2, the Applicant’s submissions about Ground 21 were that the Tribunal did not consider his claim for protection based on fear of harm from Taliban. He submitted that his affiliations with the PTI exposed him to risk of harm because the values of the Taliban and PTI are different.
He stated that although the country information relied on by the Tribunal was to the effect that the Taliban did not pose a threat to PTI, political attitudes change. He stated that PTI supporters were assassinated and threatened, but the Tribunal only selectively considered the country information.
The FR submitted that the Tribunal was entitled to prefer the country information it relied on and there was no credible evidence before it to support the Applicant’s claims.
The last five lines of the Tribunal’s reasons at [45] clearly refer to the Tribunal’s engagement with the claim that the Applicant feared harm from the Taliban. Further, they demonstrate that the Tribunal rejected the Applicant’s claims because they were based on speculation that the Taliban would alter its attitude towards non-secular groups, including the PTI.
As Counsel for the FR submitted, there was no evidence or material before the Tribunal probative of the Applicant’s claims either that the values of the Taliban were different or that they may change towards the PTI. In those circumstances, the Applicant’s claims did involve speculation, particularly because the Tribunal was of the view that information from DFAT did not support the claims.
Although legal principle establishes that the assessment of risk in the future involves a predictive exercise about the chance of harm into the future, should the Applicant return to Pakistan, [36] such exercise can only be undertaken based on evidence before the Tribunal.
[36] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114.
The Applicant has not identified any information that supported his claims about risk of harm from the Taliban’s attitude to young and active PTI members then or into the future beyond that which the Tribunal took into account and it cannot be said that an alternate decision maker might have reasonably come to a different conclusion.[37]
[37] MZAPC v Minister for Immigration and Border Protection [2021] HCA 17.
Ground 3
This ground relates to a complaint that the Tribunal did not properly assess the Applicant’s individual claims relating to fear of harm.
The Applicant did not expressly make oral submissions about this ground and, accordingly, I do not address it due to it lacking clarity and meaning. I suspect the ground may relate the asserted errors in relation to the Tribunal’s approach to the claims for protection based on fears of harm from Irfan Ahmed and the Wajahat Force because of the approach and attack in March 2012. If so, the alleged errors are dealt with elsewhere in these reasons.
Ground 4
This ground is not easily understood, but I interpret it to involve two complaints. First, that the Tribunal did not accept the Applicant’s claims; and, second, that the Tribunal did not discuss matters adverse to the Applicant that it intended to take into account.
Although this ground does not identify what the Applicant says was not put to him which should have been, in oral submissions he referred to the Tribunal rejecting the Applicant’s credibility about the attack on 13 March 2012 because of so-called inconsistency in his statements about how many persons had been involved in the attack.[38] He submitted that there was no inconsistency and his story had been consistent all along that there had been four people who got out of the car, being Irfan Ahmed and three others.
[38] Tribunal’s reasons at [36].
While I agree with the FR’s submission that the ground appears to assert failure to afford procedural fairness, it goes beyond that and addresses grievance about the Tribunal’s credibility findings and how they impacted on the conduct of the review and the Tribunal’s function on the review.
I accept that the Tribunal’s obligation to afford procedural fairness is codified in Division 4 of Part 7 of the Act. Further, that the duty to put adverse information to the Applicant so they may respond is limited by the terms of ss 424A(2A) and (3) of the Act.
Counsel for the FR submitted that the Applicant was on notice of the issues that were to be decided because the delegate had already refused his claim for a protection visa, finding that the interview with the journalist and attack in March 2012 had not occurred. Further, and in any event, the Applicant attended the Tribunal hearing at which the member did put adverse information to him for response.[39]
[39] Tribunal reasons at [28], [44], and [45].
In so far as this ground relies on a failure to afford procedural fairness it fails, because the Applicant can be taken to have been on notice of the issues the Tribunal was to consider and decide because of the content of the decision of the delegate.[40]
[40] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [35].
Beyond the procedural fairness contentions which I have rejected, recognising the Applicant is self-represented and not legally trained, I consider it is sufficiently clear that the Applicant also relies on the Tribunal’s reasons at [35] and [36] for the purpose of Ground 4 and asserting that his claims were wrongly rejected. Interpreted as such, he asserts jurisdictional error in connection with the Tribunal’s credit findings or misunderstanding of his claims which is a repetition of other grounds already addressed and concluded in favour of the Applicant.[41]
[41] At [66] of these reasons.
Grounds 6 to 9 inclusive and Ground 19
These grounds all allege that the Tribunal member failed to fairly assess the Applicant’s political activity and party membership, or that they showed bias in their assessment of the same. Examples the Applicant gave included reference to his ongoing PTI membership, his contribution to PTI activities, the Tribunal’s requirement that the Applicant establish that he has a current significant political profile in Pakistan, and the Tribunal’s failure to consider the contemporary political situation in Pakistan.
The FR submitted that a claim of bias cannot be made out by reference to the written decision of the Tribunal, rather the Applicant would need a transcript or some other evidence that the hearing was conducted in a biased fashion. I was referred to the Tribunal reasons at [28], which Counsel said demonstrates that the Tribunal understood its role as a de novo decision maker. The Applicant has not adduced evidence to show bias, but rather his claims in this respect are essentially a disagreement with the Tribunal’s findings.
In assessing claims put to it, the Tribunal is not required to uncritically accept all claims made by the Applicant.[42] The Tribunal’s testing of the Applicant’s evidence concerning his political profile and activities in Pakistan of itself is incapable of sustaining an allegation of bias,[43] nor does the ultimate rejection of the Applicant’s claims.[44] Although the conclusion I have reached at [66] and the reasons at [64] might suggest that the Tribunal did not approach the evaluation of claims with an open mind, it is unnecessary to come to a conclusion about this as other grounds have succeeded.
[42] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265.
[43] SZOAF v Minister for Immigration and Citizenship [2010] FCA 431 at [17].
[44] VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration [2002] FCAFC 286 at [3].
Grounds 10, 11 (second occurring), 12, 18, and 24
These grounds all in some way engage with the Tribunal’s assessment of the Applicant’s claims for protection based on political beliefs and PTI Party membership.
The Applicant contends that the Tribunal overlooked or misunderstood evidence he had produced when it found that he was an ordinary member of the PTI and would not attract adverse attention. Alternatively, he says that Tribunal’s conclusion was illogical.
Although the grounds are expressed in vague terms, I have taken a beneficial approach to understanding the Applicant’s case as he is self-represented, and I have considered the grounds carefully in the context of his oral submissions at the hearing.
In essence, the Applicant’s submissions distil into three propositions. First, that there was evidence before the Tribunal that he had been interviewed by the reporter and his views were publicised; second, that Tribunal’s attitude to his evidence being “fake” was unreasonable and it could have been easily verified to be true; third, that the Tribunal misunderstood the internal processes of the PTI party and the significance of political activity in which the Tribunal accepted he had been engaged.
Propositions one and two are related. There is no doubt that the Tribunal directly engaged with the newspaper interviews as a source with potential to expose the Applicant to harm due to his political views, given its reasons at [33] and [34]. Having engaged with this issue, the Tribunal in effect found that the newspaper articles in evidence had been falsified and gave them little weight.[45] In so finding, the Tribunal inferred that an ordinary member of the party would not be interviewed by a reporter having been absent from the country between January 2011 and March 2012,[46] and relied on DFAT country information about document fraud being endemic in Pakistan.[47]
[45] Last sentence of Tribunal’s reasons at [34].
[46] Tribunal reasons at [33].
[47] Tribunal reasons at [34]
The basis for giving “little weight” to the newspaper articles as supportive of the Applicant’s political profile is stated to be because the Tribunal considered the newspaper articles were falsified, a finding which was based on available DFAT country information. While I would not have easily concluded that the newspaper articles were false on that basis alone, it is not for the Court to make findings of fact.
Further, although the Applicant submitted that his claims about the interview could have been verified, the Tribunal had a discretion about checking the authenticity of the newspaper article. I have reasoned and concluded at [49] to [52] above that no jurisdictional error arose by reason of the Tribunal not checking documents for authenticity. Accordingly, the first two propositions put by the Applicant must fail.
With respect to the third proposition put by the Applicant, I consider that the Tribunal reasons at [46] showed that the member understood that the Applicant in effect claimed to be a young, vocal political activist, like Malala Yousafzai. However, the member rejected those claims as a matter of fact, which it was entitled to do.
On the basis that this was a factual finding open to the Tribunal, it is not capable of establishing jurisdictional error. Although another decision maker may have taken a different view about the nature of the Applicant’s political activism and profile, that alone cannot amount to jurisdictional error.[48]
[48] EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681 at [85]
Ground 22
This ground on its face relates to [27] of the Tribunal’s decision, and asserts error related to the Tribunal rejecting his explanation about mental stress for “inconsistencies” which were relied upon to reject the Applicant’s claims.
However, [27] of the Tribunal decision dated 27 July 2017, which is the subject of this review, says nothing about “inconsistencies” and instead is a reproduction of the Applicant’s personal statement in support of the visa application.
The FR submitted that the Applicant seemed to be referring to an earlier decision of a different Tribunal dated 3 February 2014,[49] which at [37] of the reasons states:
Nor does the Tribunal accept on the information before it that the applicant's depression provides an explanation for the inconsistencies in his evidence.
[49] Court Book at page 420 and order of Judge Hartnett made on 4 February 2015 setting the decision aside at Court Book at page 446
This Court is not reviewing the 3 February 2014 decision and this ground is incomprehensible in so far as it mentions [27] of the decision under review.
Accordingly, this ground is meaningless, has no purpose, is without substance, and must fail. To the extent that the ground accuses the Tribunal which the Court is now reviewing for jurisdictional error of making many inconsistencies, that is addressed separately below in relation to Ground 23.
Ground 23
This ground asserts multiple factual errors and/or inconsistencies comparing findings made by the delegate on the one hand and the Tribunal which conducted the hearing on 23 March 2017 and made the decision under review.
To the extent that there may have been inconsistencies between the two decision makers, this does not assist the Applicant to establish jurisdictional error.
It was entirely open for the Tribunal on review to make findings of fact that were different to those of the delegate because the Tribunal is to conduct a review based on a fresh hearing and make its own findings.[50]
[50] SAAZ v Minister for Immigration [2002] FCA 791.
Furthermore, some asserted inconsistencies appear to be minor typographical or clerical errors, which have no bearing on whether the decision under review involved jurisdictional error or alternatively are immaterial.
The Applicant’s oral submissions at the hearing before me simply took issue with the correctness of findings by the Tribunal based on evidence it preferred. To this extent, the submissions amounted to an invitation to impermissibly undertake merits review.
This ground must fail as it does not fall within any recognised form of jurisdictional error.
Grounds 27 and 28
Each of these grounds relate to asserted error relating to the Tribunal’s approach as to whether the Applicant had satisfied the requirements for complementary protection. There was nothing comprehensible said in oral submissions about these grounds.
The FR submitted that the Tribunal’s complementary protection assessment was based on the same factual findings in respect of the refugee criteria, and it was not required to make any further assessment as it had already rejected the factual premise to the claims about the March 2012 attack and the Applicant’s caste/ethnicity. Counsel submitted that the claim was not overlooked as it is considered in the Tribunal’s reasons at [53].
While I accept that the Tribunal considered whether the Applicant’s claims afforded him protection pursuant to the complementary protection provisions of the Act, because the approach taken in respect of the fears of harm concerning Irfan Ahmed and the Wajahat force were infected by jurisdictional error, that error likely permeates to the assessment of the complementary protection issue.
Grounds 30 and 31
These grounds seem to have the common element of an alleged failure to give a proper or fair hearing, which was conveyed as jurisdictional error by failure to afford natural justice or procedural fairness. They appear to be an alternate framing of earlier grounds concerning procedural fairness and I repeat the reasoning given at [84] to [90] as a basis for rejecting the grounds.
Further, both grounds fail to identify what are the “replete errors” or why the Applicant says he was not afforded natural justice or a fair hearing. This alone is a basis for rejecting the grounds.[51]
[51] NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37], citing WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 [35]; SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 at [21].
Further, informed by the Applicant’s oral submissions at the hearing, he appears to rely on this ground as a generalised catch all complaint.
The ground should fail because it is self-evident that the Applicant was afforded ample opportunity to give evidence and make submissions at the hearing conducted by the Tribunal.
Division 4, Part 7 of the Act has “codified” the obligations of the Tribunal in respect of how it must conduct reviews from decisions made by the FR’s delegate. The Applicant did not make any comprehendible submission about how those obligations were breached.
The documents in the Court Book before me establish that consistent with the requirements of the Act as the Applicant:
(a)received notice inviting him to appear at the hearing in person and the notice was compliant with the requirements of the Act;[52]
(b)The Applicant had more than the required period of notice of the date of the hearing; and
(c)Was on notice of the information the Tribunal would consider and had access to the Tribunal documents, including the issues that would be considered.
[52] Court Book at 581 to 591.
Further, the applicant appeared in person at the hearing with the assistance of an interpreter,[53] and based on the Tribunal’s reasons, he answered some questions declined to give answers to other, as well as putting argument about his claims for protection.
[53] Court Book at pages 591 to 592.
CONCLUSION
The Court has had to construe from extensive and poorly framed grounds of review whether there is any real substance to the Applicant’s asserted jurisdictional error and grievances. This has been a burdensome but necessary task because the Applicant is self-represented.
The FR had ample opportunity to reply to the Applicant’s submissions made during the hearing and I directly raised with Counsel what I understood to be the Applicant’s core contentions framed in terms that could be construed as jurisdictional error concerning the Tribunal’s approach to the claims relating to Irfan Ahmed and the Wajahat Force in March 2012.
I have rejected the submissions made by Counsel for the FR in this respect and relief will be granted by order remitting the review for rehearing before a differently constituted Tribunal.
I certify that the preceding one hundred and twenty-six (126) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 30 October 2023
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