MZAPQ v Minister for Immigration
[2016] FCCA 2558
•6 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAPQ v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2558 |
| Catchwords: MIGRATION – Protection (Class XA) visa – Tribunal disbelieving the applicant’s factual basis for his claims – no evidence of a well-founded fear of persecution. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa) |
| Cases cited: Craig v State of South Australia (1995) 184 CLR 163 |
| Applicant: | MZAPQ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2633 of 2014 |
| Judgment of: | Judge Wilson |
| Hearing date: | 6 September 2016 |
| Date of Last Submission: | 6 September 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 6 September 2016 |
REPRESENTATION
| Applicant in person |
| Solicitors for the First Respondent: | Mr B. Hornsby of Sparke Helmore |
ORDERS
The “Administrative Appeals Tribunal” be substituted for the second respondent and the title of the proceeding is amended accordingly.
The application filed 23 December 2014 is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $5,800.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2633 of 2014
| MZAPQ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
Introduction
By application filed 23 December 2014, the applicant has applied
to this Court for judicial review of a decision of the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal
(“the Tribunal”), dated 10 December 2014.[1] The Tribunal affirmed the decision of a delegate appointed by the first respondent, the Minister. The delegate decided not to grant the applicant a Protection (Class XA) visa.[2] In an application of this sort, it is necessary for the applicant to show jurisdictional error. The conventional grounds are considered in such cases as Craig v State of South Australia[3] and Minister for Immigration and Multicultural Affairs v Yusuf.[4]
[1] Court Book filed 13 May 2015 at pp.318-329.
[2] Court Book filed 13 May 2015 at pp.136-148.
[3] (1995) 184 CLR 163.
[4] (2001) 206 CLR 323.
The applicant has contended that the Tribunal erred in finding that he was not to be believed in critical respects. The Minister contended that the applicant failed to identify any jurisdictional error with the result that this application should be dismissed.
In order to understand the points advanced in this case, it is necessary to say a little about the background leading to this application.
Background
The applicant is a citizen of Pakistan who arrived in Australia as the holder of a student visa on 26 March 2012. That visa was valid until
15 March 2013. On 25 February 2013, the applicant applied to the Department of Immigration and Citizenship as it then was
(“the Department”). At the time, the applicant applied for a
Tourist (Subclass 676) visa while onshore. However, his application was refused by the Department on 14 March 2013. According to the Migration Act 1958 (Cth) (“the Act”), the applicant thereafter resided in Australia unlawfully from 16 March 2013 until 10 April 2013 when he applied for a protection visa and was granted a bridging visa.
In support of his contentions that he was entitled to invoke ss.36(2)(a) and 36(2)(aa) of the Act, the applicant made a number of factual assertions. I set them out below, synthesised from the submissions advanced on behalf of the Minister[5] as represented before me by
Mr Hornsby today.
[5] First Respondent’s Written Submissions filed 30 August 2016.
The applicant claimed to be from Lahore in the Punjab province.
He stated that he feared harm from extremist Islamic groups, namely Lashkar-e-Taiba in Pakistan as a result of past incidents. The statement that he provided to the Department dated 8 April 2013, another on
4 June 2013 and the third on 12 June 2013 set out his factual contentions. They can be expressed in the following terms -
a)on 31 March 2011, the applicant rented out the lower floor of his house to a tenant to be used as a Madrassa school;
b)
after becoming suspicious that the premises were being used for illegal activities, the applicant was informed by a student of the school that the school management had strong links to
Lashkar-e-Taiba, to other organisations of a religious nature as well as to a mosque;
c)the applicant issued the tenant with a legal notice to vacate the premises within 15 days, but the tenant remained and the premises were not vacated;
d)
on 24 November 2011 the applicant submitted a complaint to police about the school and, on subsequent investigation,
the premises were searched and found to contain “suspicious maps, articles and bomb jackets”;[6]
e)
On 27 November 2011 the tenant and other armed persons came to the applicant’s residence, so the applicant contended, and shot at the house and his door, causing the applicant and his younger brother serious injury. The applicant said he registered a
first incident report with the police and he subsequently received threatening phone calls; and
f)following those events, the applicant contended that his father sent him to study in Australia. The applicant further contended that his father and brother have both been beaten and threatened by the tenant and his associates following the applicant’s departure from Pakistan.[7]
[6] First Respondent’s Written Submissions filed 30 August 2016 at [5.4].
[7] First Respondent’s Written Submissions filed 30 August 2016 at [5.6].
On 12 November 2013 the applicant appointed a migration agent to represent him before the Department. On 13 November 2013 the applicant attended a protection visa interview with the Department and with his appointed migration agent. Written submissions were provided to the Department on 3 December 2013.[8] The delegate’s decision was given on 17 January 2014, adversely to the applicant.
[8] Court Book filed 13 May 2015 at pp.128-130.
On 7 February 2014 the applicant, through his migration agent, applied to the Tribunal for a review of the delegate’s decision.[9] He was invited to appear at a hearing before the Tribunal, scheduled for
22 October 2014, by invitation dated 20 August 2014.[10] By response dated 21 August 2014, the applicant indicated that he would attend the hearing.[11] On 17 October 2014 the applicant appointed a new migration agent to represent him and on 21 October 2014 the applicant’s migration agent provided written submissions and country information articles to the Tribunal.[12] On 22 October 2014 the applicant sought a postponement of the Tribunal hearing on the basis that he was
unwell, in response to which the Tribunal agreed to postpone the hearing. It invited the applicant to attend a rescheduled hearing on
29 October 2014.[13]
[9] Court Book filed 13 May 2015 at pp.150-155.
[10] Court Book filed 13 May 2015 at pp.163-166.
[11] Court Book filed 13 May 2015 at pp.167-168.
[12] Court Book filed 13 May 2015 at pp.171-287.
[13] Court Book filed 13 May 2015 at pp.297-300.
On 29 October 2014 the applicant appeared at the hearing before the Tribunal with the assistance of an Urdu interpreter and the appointed migration agent. The Tribunal invited the applicant to attend a
further hearing scheduled on 7 November 2014 by invitation dated
30 October 2014,[14] in response to which the applicant duly appeared on 7 November 2014.
[14] Court Book filed 13 May 2015 at pp.307-310.
The decision of the Tribunal
By its decision dated 10 December 2014, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a protection visa. Chief among its reasons in affirming the delegate’s decision and in refusing the protection visa application was the finding made by the Tribunal that the applicant’s claims were inconsistent. The Tribunal also found that much of his evidence was vague and wanting in detail and that aspects of the applicant’s claims were implausible.
The Tribunal indicated that, due to inconsistencies in the applicant’s claims, the documents provided in support of those claims and the vagueness of his evidence, the Tribunal did not accept that the applicant and his brother were shot at, had bricks thrown on them or were injured as a result of letting the premises to militants who notified the police of activities conducted at the premises. The Tribunal found that the applicant’s account of his claims cast doubt about his overall veracity. The Tribunal used expressions that indicated that much of the applicant’s evidence was vague and confused. The Tribunal also indicated that it considered the applicant had engaged in a considerable delay in lodging his protection visa application following his first arrival in Australia, which included a period of unlawfulness, which in and of itself raised a further concern as to whether the applicant had a genuine fear of harm.
The application in this Court
On 23 December 2014 the applicant filed an application in this Court. Registrar Luxton made orders on 1 April 2015 permitting the applicant to file and serve any amended application as well as any further affidavit by 4 September 2015. The applicant did not avail himself of the opportunity to provide further evidence as nothing was filed or served. On 24 August 2016 the applicant filed written submissions in support of his application. Some doubt existed as to whether that document was provided to the Minister.
The applicant before me raised one ground of review with several particulars to it. Those have been addressed as grounds 1(a), 1(b), 1(c) and 1(d). It is necessary to turn to them.
Under ground 1(a) the applicant contended that the Tribunal erred by failing to consider the applicant’s claims or evidence. That was a global contention in which the applicant asserted that each integer of the applicant’s claim was not considered and that the Tribunal failed to take into account the whole of the applicant’s evidence. The applicant raised that assertion in support of his contention that he had a
well-founded fear of persecution. The assertion was broad in the extreme. It failed to descend into any detail of the way in which he cast his case, nor did he identify any “claim” or any “integer” which he said was raised in the material and which he asserted the Tribunal failed to take into account.
The Minister asserted that, in the absence of any particularisation,
such a claim was meaningless and that it merely indicated the applicant’s disagreement with the Tribunal’s conclusions. The applicant appeared before me in person at the hearing that I conducted on
6 September 2016. He went to three paragraphs of the Tribunal’s reasons, paragraphs 27, 28 and 32, each of which, so he contended, indicated that his contentions were raised, but not accepted by the Tribunal. He made those contentions under the broad rubric that the Tribunal failed to take into account the whole of the evidence. To the contrary, it seems to me, the Tribunal did in fact take into account all that the applicant asserted.
The real gravamen of the applicant’s complaint was that the Tribunal made findings adverse to the applicant. In debate before me, I pressed with the applicant what he said the Tribunal did wrong. In particular,
I asked him to tell me what error of law was made to enable him to argue jurisdictional error before this Court. The applicant was unable to identify what the Tribunal did wrong as a matter of law. Instead, he kept coming back to his version of events as to what happened in the facts set out between paragraphs 26 and 32 of the Tribunal’s reasons.
It seemed to me that it was entirely open to the Tribunal to make the findings that it did. Implicit in those findings was the fact that the Tribunal did not accept the version of events as contended for by the applicant. To my mind, such a finding was open and did not admit of jurisdictional error such as to enliven the jurisdiction of this Court to interfere in the findings made by the Tribunal.
Further, to my mind there is merit in the submissions made by
Mr Hornsby to the effect that, in reality, ground 1(a) was a general grievance that the applicant made to the effect that the Tribunal did not accept what he said. The Tribunal was perfectly entitled to reach the findings that it did. The applicant failed to demonstrate the existence of any jurisdictional error with respect to ground 1(a).
Under ground 1(b) the applicant contended that the Tribunal erred by finding that the documents provided by the applicant were fraudulent. Again, that was a factual finding open to the Tribunal. The applicant before me spoke from the Bar table and said that in Pakistan, documentation is produced differently to the way it is done in Australia. He said he filed with the authorities in Australia documents as produced in Pakistan without any alteration thereto. Be that as it may, the applicant is bound by the documents that he produced to the authorities in Australia and he is therefore bound by the consequences of any errors in them, including falsities, or fraudulent assertions embedded in the documents themselves.
As to the applicant’s assertions in respect of the documents,
the applicant was unable to demonstrate to me that an error of law was engaged in by the Tribunal in its findings in respect of the fraudulent nature of the documentation produced. In my view, the finding about the documentation was entirely open. No error was thereby demonstrated. Still less was there any ground for asserting jurisdictional error by the Tribunal.
Under ground 1(c) the applicant asserted that the Tribunal erred by failing to refer to country information. As it happened, the Tribunal did in fact refer to country information regarding Pakistan generally and it did so in paragraph 19 of its reasons. Mr Hornsby submitted that the Tribunal was entitled to choose and assess the available country information as part of its fact-finding function. To that extent,
Mr Hornsby relied on the decision of the Full Court of the
Federal Court of Australia in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs[15] (“NAHI”). I agree. No serious contentions were urged before me by which the holding in NAHI could be impugned or the findings in this case by the Tribunal as to available country information. In my view, ground 1(c) was not made out.
[15] [2004] FCAFC 10.
Under ground 1(d) the applicant contended that the Tribunal erred when considering the complementary protection ground of s.36(2)(aa) of the Act. Mr Hornsby contended that nothing more than a bare assertion was advanced by the applicant that the Tribunal erred in considering the complementary protection criteria. When boiled down, the applicant brought my attention to paragraph 59 of the Tribunal’s reasons. In paragraph 59, the Tribunal expressed its conclusions on factual matters, part of which addressed s.36(2)(a) matters and part of which addressed s.36(2)(aa) matters. When aggregated, the findings in paragraph 59 and those up to and including paragraph 65 of the Tribunal’s reasons, it can reasonably be taken that those findings had the effect of disposing of not only the contentions advanced in respect of s.36(2)(a) but also those in respect of s.36(2)(aa) of the Act.
A fair reading of those paragraphs of the Tribunal’s reasons indicates that due consideration was, in fact, given to issues relating to s.36(2)(aa) of the Act. In reality, the applicant was inviting me to trawl over the whole of the material and thereby engage in a merits review. That is not permitted. Authority of very long standing from the High Court to the Full Court of the Federal Court and down the judicial hierarchy has made that more than clear.
Ultimately, the applicant’s real grievance was that the Tribunal made findings of fact that were contrary to those urged by him. In and of itself, that does not demonstrate jurisdictional error.
Conclusion
No ground has been made out by the applicant and I dismiss this application before this Court.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 4 October 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing