MZZZB v Minister for Immigration
[2018] FCCA 2457
•5 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZZB v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2457 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection (class XA) visa – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592 DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 353 ALR 641 Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 Minister for Immigration and Border Protection v SZRKT [2013] 212 FCR 99 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 Minister for Immigration and Multicultural Affairs v SCAR (2003) 128 FCR 553 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 |
| Applicant: | MZZZB |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1563 of 2016 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 27 April 2018 |
| Date of Last Submission: | 27 April 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 5 September 2018 |
REPRESENTATION
| Counsel for the applicant: | Mr Batrouney |
| Solicitors for the applicant: | Russell Kennedy |
| Counsel for the respondents: | Mr Petrie |
| Solicitors for the respondents: | Australian Government Solicitor |
ORDERS
The application filed on 22 July 2016 and amended on 29 March 2018 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1563 of 2016
| MZZZB |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (“the tribunal”) dated 30 June 2016. In that decision, the tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and
Border Protection (“the Minister”) not to grant the applicant a protection (class XA) visa (“the visa”).
Procedural history
The applicant applied for the visa on 19 October 2012.[1]
[1] Court book pages 9 to 74.
A delegate of the first respondent refused to grant the applicant the visa on 25 February 2013.[2] On 8 March 2013, the applicant made an application for review to the Refugee Review Tribunal, as it then was.[3]
[2] Court book pages 104 to 121.
[3] Court book pages 122 to 127.
The tribunal invited the applicant to a hearing to give evidence and present arguments scheduled for 7 November 2013. The applicant was, at all times, represented by the Refugee and Immigration Legal Centre (“RILC”). RILC filed pre-hearing submissions on the applicant’s behalf prior to the 7 November 2013 hearing, stating:[4]
In May 2009 (the applicant) along with four close friends, were kidnapped by the Taliban and held for ransom in a remote location. Two of his friends were killed in front of them in a brutal fashion. They were rescued in late June of that year by the Pakistan army when they attacked the compound they were being held captive in. Two of the others that survived are also in Australia and have also applied for protection. Their names are (Friend X) and (Friend Y). Both of these individuals are also represented by the Refugee and Immigration Legal Centre…[5]
[4] Court book pages 152 to 185.
[5] Court book page 155.
RILC went on to also say:
(The applicant’s) evidence regarding his kidnapping in May 2009 and the detention that followed is largely consistent with the accounts provided by (Friend Y) and (Friend X).[6]
[6] Court book page 157.
The tribunal affirmed the delegate’s decision on 18 December 2013.[7]
[7] Court book pages 235 to 254.
The applicant sought judicial review of the tribunal’s decision and on
12 June 2014, Judge Whelan remitted the matter back to the tribunal.[8]
[8] Court book pages 255 to 256.
On 2 October 2014, the tribunal constituted by Member Anthony Krohn conducted a hearing into the applicant’s application at which, among other things, Friend Y gave evidence in support of the applicant’s claim relating to an alleged kidnapping which occurred in May 2009.[9]
[9] Court book pages 311 to 314.
At the conclusion of that hearing, Member Krohn requested further information.[10]
[10] Court book page 313.
The applicant was then invited to attend a further hearing before the tribunal differently constituted, by letter dated 4 February 2016.[11] That letter advised that Member Krohn was “no longer available to review your case”[12] and went on to say:
A different Member, Member Rea Hearn-Mackinnon, will complete the review. Your case has been constituted to Member Rea Hearn-MacKinnon and rescheduled for a new hearing. All documents that were previously considered by Member Anthony Krohn have been given to Member Rea Hearn-MacKinnon. This material includes the Department of Immigration and Border Protection file; the audio recording of the hearing you have previously attended and any written submissions or other documentary evidence provided to us.[13]
[11] Court book pages 350 to 351.
[12] Court book page 352.
[13] Court book pages 352 to 353.
On 24 February 2016, the applicant submitted his response to the hearing invitation and indicated that he wanted evidence to be taken from
Friend Y.[14]
[14] Court book pages 356 to 409.
A hearing was conducted on 2 March 2016 before Member
Rea Hearn-MacKinnon. Friend Y was present but did not give any evidence.[15]
[15] Court book pages 413 to 416.
On 18 March 2016, the applicant provided the tribunal with further submissions and evidence, including a mental health report dated
15 March 2016 from his treating psychologist, Mr Monteiro.[16]
[16] Court book pages 432 to 438.
As stated, the applicant was represented by RILC from July 2013. RILC filed the following further evidence and written submissions in support of the applicant’s claims:
a)
a further statutory declaration by the applicant made
13 September 2013;[17]
[17] Court book pages 131 to 145.
b)written submissions dated 31 October 2013 in anticipation of the hearing scheduled for 7 November 2013;[18]
[18] Court book pages 152 to 185.
c)psychologist report from Dr Scott dated 28 October 2013;[19]
[19] Court book pages 187 to 189.
d)
post-hearing written submissions and related information dated
21 November 2013;[20]
[20] Court book pages 210 to 230.
e)
further statutory declaration by the applicant, pre-hearing written submissions and response to hearing invitation form dated
25 September 2014;[21]
f)a further medical report from Dr Scott on 23 September 2014;[22]
g)post-hearing submissions dated 12 December 2014, including further medical information from Dr Scott;[23]
h)by email on 20 March 2015, further articles;[24] and
i)
further pre-hearing submissions dated 25 February 2016 and response to hearing invitation.[25] Included in this submission was correspondence from the applicant’s treating psychologist,
Mr Monteiro dated 15 March 2016[26] and various news articles and reports.[27]
[21] Court book pages 262 to 307.
[22] Court book pages 309 to 310.
[23] Court book pages 326 to 334.
[24] Court book pages 335 to 347.
[25] Court book pages 356 to 439.
[26] Court book page 438.
[27] Court book pages 417 to 429 and court book page 439.
The tribunal delivered its reasons on 30 June 2016 in which it affirmed the decision of the delegate not to grant the applicant the visa.[28]
[28] Court book pages 442 to 455.
On 22 July 2016, the applicant filed the present application seeking judicial review of the tribunal’s decision.[29]
[29] Applicant’s application filed 22 July 2016.
The applicant’s claims
The applicant is a citizen of Pakistan. He was born in 1992 in
Kuza Bandai in the Swat district in Khyber Paktunkhwa in Pakistan. He initially entered Australia on 19 April 2012 on a student visa.[30][30] Court book page 444 at paragraph [12].
The applicant’s parents, two brothers and sister remain living in Swat, but have relocated various times to avoid harm.[31]
[31] Court book page 444 at paragraph [13].
The applicant’s father owns land and property including five shops and a motorcycle factory.[32]
[32] Court book page 444 at paragraph [14].
The applicant claims:
a)he and his father had problems after the Taliban came to power in SWAT in 2007 when they demanded some motorcycles from his father’s factory. His father refused and was beaten by the Taliban. The applicant says that he spoke out against the Taliban at his school in 2008 and was later named on an FM radio station run by the Taliban as a person opposed to the Taliban;[33]
[33] Court book page 444 at paragraph [16].
b)he and four friends were kidnapped by the Taliban in May 2009, tortured and held for 42 days during which time a ransom was sought from his parents;[34]
[34] Court book pages 445 and 446 at paragraphs [20] to [22].
c)whilst being detained following his kidnapping, two of his friends were beheaded in front of the applicant;[35]
[35] Court book page 446 at paragraph [22].
d)the applicant and the remaining two friends were rescued by the army but were then detained for a further 10 days until the army could be satisfied that they were not part of the Taliban;[36]
[36] Court book page 446 at paragraph [22].
e)in July 2009, the applicant and his family relocated to Peshawar for three months and then returned to their home. While they were away, their home and factory had been damaged;[37]
[37] Court book page 447 at paragraph [30].
f)his father was the chairman of a peace committee for his local area and he undertook night patrols to defend the village and provided information to the army against the Taliban;[38]
[38] Court book page 447 at paragraph [32].
g)the applicant also participated in these activities and distributed UNHCR and Red Cross food parcels;[39]
h)the applicant’s father received telephone threats from the Taliban in 2010 and in July 2011, his father received a letter threatening to kill him and his family;[40]
i)after his father received the letter in 2011, his father decided the applicant should leave Pakistan;[41]
j)in September 2012, the Taliban fired on the applicant’s family home injuring his younger brother and this is what prompted him to apply for asylum in Australia;[42]
k)as a result, the applicant fears harm if he were to return to Swat; and
l)the applicant cannot relocate elsewhere within Pakistan, including because:
i)he would not be safe;
ii)he would not be able to support himself; and
iii)importantly, because he would not be able to access the medical care he needs given his mental health issues.
[39] Court book page 448 at paragraph [38].
[40] Court book page 448 at paragraphs [39] to [40].
[41] Court book page 449 at paragraph [42].
[42] Court book page 449 at paragraph [45].
The tribunal’s reasons
Relevantly for the purposes of this application for judicial review, the tribunal accepted that the applicant’s father may have been beaten by the Taliban in 2008 if he did not provide the motorcycles that they had demanded, but noted that the father did not suffer any further harm because he had not provided the motorcycles.[43]
[43] Court book page 445 at paragraph [18].
The tribunal:
a)accepted that the applicant may have spoken against the Taliban in 2008 but did not accept that he had been named on the Taliban’s FM radio station, or if he was, he was not targeted by the Taliban because of anything he said at school;[44]
[44] Court book page 445 at paragraph [19].
b)did not accept that:
i)the applicant was kidnapped by the Taliban in May 2009 and held for 42 days;[45]
[45] Court book page 446 at paragraph [26].
ii)two of the applicant’s friends were beheaded;[46]
[46] Court book page 446 at paragraph [26].
iii)
he was found by the army and then detained for a further
10 days as claimed;[47] or
[47] Court book page 446 at paragraph [26] and page 447 at paragraph [29].
iv)the newspaper report of the alleged kidnapping was genuine;[48]
c)accepted that the applicant and his family moved to Peshawar during the army operation in 2009 and that their home and factory was damaged during the fighting;[49]
d)did not accept that the applicant’s father was the chairman of a local peace committee or a member of a district peace committee, but did acknowledge that as a land and property owner, his father may have had a low level involvement with a peace committee which liaised with the army in Kuza Bandai in 2008 and 2009;[50]
e)accepted that the applicant might have had some low level peripheral involvement with the activities of a peace committee in his locality through his father but did not accept that he was an active and regular member of a night watch or had any direct involvement with the army in relation to reporting Taliban houses;[51]
f)accepted that the applicant may have had some involvement with the distribution of food but noted that he did not claim any harm or fear of harm as a result of this activity;[52]
g)did not accept that the applicant’s father received threats from the Taliban in 2010 and 2011 because of his claimed position with peace committees; however, accepted that it was possible that his father was otherwise threatened by the Taliban, but noted that the father did not appear to have suffered notwithstanding these threats and continues to own property and land and operate a business in the same area;[53]
h)moreover, did not accept that the applicant’s family were moving around between different locations or that they remain in hiding;[54] and
i)did not accept that the applicant’s home was fired upon in 2012 as alleged or that his brother was injured.[55]
[48] Court book page 446 at paragraphs [27] to [28].
[49] Court book page 447 at paragraph [31].
[50] Court book page 447 at paragraph [34] to page 448 at paragraph [35].
[51] Court book page 448 at paragraphs [36] to [37].
[52] Court book page 448 at paragraph [38].
[53] Court book page 449 at paragraph [43].
[54] Court book page 449 at paragraph [44].
[55] Court book page 449 at paragraphs [45] to [46].
The tribunal then considered the current situation in Swat and whether there was risk of future harm. The tribunal concluded that it did not accept that there was a real chance that the applicant would suffer serious harm or a real risk he would suffer significant harm on his return to Swat because of his membership of, or association with a peace committee or because of his father’s chairmanship or membership of a peace committee.[56]
[56] Court book pages 451 at paragraph [59] to 452 at paragraph [60].
Further, the tribunal did not find that the applicant faced a risk of harm because of his father’s wealth or position in the community.[57]
[57] Court book page 452 at paragraph [61].
The tribunal also considered whether the applicant faced a risk of persecution as a result of holding pro-Pakistan government and pro-western government views and rejected this assertion.[58]
[58] Court book page 452 at paragraphs [62] to [64].
The tribunal considered the applicant’s claims relating to religion and did not accept that he faced a real chance of serious or significant harm in Swat because his religious views are contrary to the views of the Taliban.[59]
[59] Court book pages 452 to 453 at paragraph [65].
The tribunal then considered the applicant’s claims relating to his mental health issues. It referred to various correspondence and scripts from
Dr Scott. The tribunal accepted that the applicant may be suffering from post-traumatic stress disorder (“PTSD”), depression and anxiety but did not accept that this was directly related to his experiences with the Taliban.[60]
[60] Court book page 453 at paragraph [66] and [67].
The tribunal also considered the availability of mental health services in Pakistan and was satisfied that the applicant would be able to access mental health treatment and medication in Pakistan. Moreover, the tribunal noted that a lower standard of health care per se does not of itself give rise to persecution or significant harm.[61]
[61] Court book page 454 at paragraphs [69] to [71].
On the basis of these findings, the tribunal found that the applicant did not meet the criteria for the visa either under section 36(2)(a) or under section 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”).[62]
[62] Court book page 455 at paragraphs [72] to [75].
Ground one
The first ground of review in the application filed on 22 July 2016 and amended on 29 March 2018 is:
The decision is affected by jurisdictional error because the Tribunal failed to carry out its core task of evaluating and weighing the evidence or claims before it by reason of its failure to meaningfully consider and/or assess the evidence of (Friend X) and (Friend Y).[63]
[63] Applicant’s amended application filed 29 March 2018 at page 3.
The applicant also sought to rely on the decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 (“MZYTS”) which dealt with whether the tribunal had considered post-hearing submissions made on behalf of the applicant which went to the question of the applicant’s safety if he were to be returned to Zimbabwe. In MZYTS, the tribunal referred to the post-hearing submissions but did not otherwise engage with them or refer to them in any substantive way.
In MZYTS, the court rejected the Minister’s submissions that it should be inferred that the tribunal had simply preferred other evidence to that contained in the post-hearing submissions, rather than conclude that the tribunal had ignored or not considered it. In rejecting this submission, the Federal Court said:
The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned and then some indication as to why preference is given. All of these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.[64]
[64] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431at [50].
Importantly, in MZYTS, the court noted that the proper question was not so much whether the tribunal had failed to consider certain information, but rather whether it had performed its statutory task. The court noted:
The Tribunal’s task on review under s 414 of the Migration Act is to form, for itself and on the material before it, the requisite state of satisfaction under s 65 of the Migration Act in respect of the criterion (or criteria) for a visa in issue before it.[65]
[65] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431at [32].
And further:
Critically to the determination of the issues raised in this appeal, lawful formation of that state of satisfaction (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.[66]
[66] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [34].
The applicant argued that the weighing exercise referred to by the
Full Court’s comments in MZYTS at paragraph 32 above is applicable in this case, but did not occur.
Section 430 of the Act requires that the tribunal provide a written statement of its decision and the reasons for that decision. Relevantly, section 430 requires that the tribunal set out their findings on any material questions of fact and evidence upon which those findings were based.
Whilst conceding that section 430 does not require the tribunal to
“give a line-by-line refutation of evidence”[67], it was argued on behalf of the applicant that where the rejection of evidence is one of the reasons for its decision, the tribunal must set that out as one of its reasons.[68] The applicant argued that the tribunal failed to properly weigh the evidence of the applicant’s friends which corroborated the applicant’s claims to have been kidnapped.
[67] Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 at [102].
[68] Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 at [102].
Counsel for the Minister submitted that the comments of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 where it considered the scope of the obligations imposed by section 430 of the Act were relevant and applicable. In particular, McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) rejected the proposition that the tribunal was required to make a finding on any and every matter of fact that might be said to be objectively material and said:
Section 430… in its terms requires no more than that the tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made…[I]t is not right to read “material” as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision (emphasis in original).[69]
[69] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [68].
The statutory task for the tribunal under section 414 of the Act is to determine whether it was satisfied that the applicant met the criteria for the issue of a protection visa. A material fact in that consideration was whether the kidnapping had occurred.
The tribunal considered and accepted that the evidence of the applicant’s friends corroborated the applicant’s evidence about the kidnapping.
Ultimately, however, and notwithstanding that the applicant had two friends who gave evidence in support of his version of what happened, the tribunal was not satisfied that the kidnapping had occurred having regard to other concerns it had about:
a)the timing of the alleged kidnapping in the context of country information which suggested that by May 2009, the Taliban was “on the run in Swat” and that there was a significant army presence in Swat at that time;[70] and
b)the authenticity of the newspaper articles regarding the alleged kidnapping.[71]
[70] Court book page 446 at paragraph [26].
[71] Court book pages 446 to 447 at paragraph [28].
Contrary to the assertion of the applicant, the tribunal clearly weighed the evidence in relation to the claimed kidnapping. So much is clear from a fair reading of the tribunal’s reasons,[72] all of which led to the tribunal reaching its conclusion.[73]
[72] Court book pages 445 to 447 at paragraphs [20] to [28].
[73] Court book page 447 at paragraph [29].
This assessment is exactly what the tribunal is required to do in undertaking its statutory task.
The applicant also referred this court to the decision of Flick J in Buadromo v Minister for Immigration and Border Protection
[2017] FCA 1592 (“Buadromo”) in which it was found that the Minister had failed to “…give proper, genuine and realistic consideration to the applicant’s representations”[74] because:
the decision of the Assistant Minister…has been made without findings of fact being made in respect to a number of issues which formed part of the decision-making process.[75]
[74] Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592 at [18].
[75] Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592 at [42].
Notwithstanding his ultimate finding in the matter before him, Flick J did sound a cautionary note when his Honour said:
The dividing line between a conclusion that an administrative decision-maker has not given proper or adequate consideration to a particular matter and has thereby failed to discharge the task required by law (on the one hand) and a conclusion that the administrative decision-making function has indeed been discharged but factually miscarried (on the other) is notoriously difficult to define with any precision. A determination as to where that line is to be drawn and where judicial intervention trespasses into impermissible merits review depends upon the facts and circumstances of each individual case. Any conclusion that one case falls on one side of the line and another case on the other side is inevitably a question of judgement – but any individual conclusion must attempt to explain the basis upon which it has been reached. An unexplained conclusion may conceal (albeit unwittingly) a tendency to merely side-step the problem of identifying the permissible limits of judicial scrutiny.
Difficulty in explaining why a particular case falls on one side of the line or another may itself have a tendency to conceal impermissible merits review with the identification of legal error. A mere statement that a matter has not been “properly, genuinely and realistically” taken into account may well be, with respect, no more than the ritual incantation of a phrase and a conclusion rather than a reasoned approach as to why legal error is exposed.[76]
[76] Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592 at [46]-[47].
In the present case, the issue for the tribunal to determine in the performance of its statutory task was whether the applicant satisfied the criteria for a protection visa. Whether the alleged kidnapping occurred was a crucial issue on the path to that determination. In assessing the evidence relevant to this issue, the tribunal acknowledged not only that the applicant’s friends had given evidence in support of his claims, but also noted the nature of that evidence, namely that it was consistent with the evidence given by the applicant. In those circumstances, it was not necessary for the tribunal to go further by outlining what each of the friends had said. It was evident from the tribunal’s reasons that the tribunal understood that the applicant’s friends gave evidence consistent with that given by the applicant.[77]
[77] Court book pages 446 to 447 at paragraph [22].
The tribunal then, quite properly went on to weigh that evidence, namely the evidence of the applicant and his friends on the one hand with the evidence which led it to conclude that it did not accept that the alleged kidnapping had occurred (namely the country information which made the timing of the alleged kidnapping implausible, and the concerns that the tribunal member had about the authenticity of the newspaper articles submitted by the applicant).
I find that the tribunal did engage with the evidence in its totality relating to the alleged kidnapping and made a finding of fact which was open to it. The facts in this case are distinguishable from those in MZYTS and Buadromo.
For each of these reasons, ground one is not made out.
Ground two
The second ground of review is:
The decision is affected by jurisdictional error because the Tribunal dismissed the evidence given by (Friend X) and
(Friend Y) without any logical, rational or probative basis.[78]
[78] Applicant’s amended application filed 29 March 2018 at page 3.
This ground is linked to ground one. For similar reasons, it too is not made out.
A fair reading of the tribunal’s reasons makes it clear that whilst the tribunal understood that the applicant’s friends had given evidence which corroborated the applicant’s claims in relation to the alleged kidnapping, this evidence was not determinative. This is particularly so having regard to the concerns that the tribunal had with the timing of the alleged kidnapping and the veracity of the newspaper article reporting same.
The court in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 summarised the principles which apply to legal unreasonableness as follows:
(1)While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review…the question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae...
(2)Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis …
(3)…
(4)Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error…
(5)A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review…[79]
[79] DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 353 ALR 641 at [30], without the cases referred to therein.
The applicant argued that the tribunal, whilst not expressly rejecting the evidence of Friend X and Friend Y, did so implicitly and this court can have regard to such implicit findings.[80] It was further argued that there was an absence of any logical, rational or probative basis in the tribunal’s reasons for this rejection and this amounted to jurisdictional error.
[80] Stevens v Minister for Immigration and Border Protection [2016] FCA 1280; 153 ALD 346 at [44].
Counsel for the Minister submitted that the tribunal in fact made no finding rejecting the evidence of the applicant’s friends in relation to the alleged kidnapping and therefore it cannot be said that its finding was without any logical, rational or probative basis.
Moreover, it was submitted that there was no obligation on the tribunal to refute each of the applicant’s claims on a line-by-line basis and as such, the tribunal did not need to explain why the evidence of the applicant’s friends was not sufficient to overcome the concerns that the tribunal had about whether the alleged kidnapping occurred.[81]
[81] Re Minister for Immigration and Multicultural Affairs; ex Parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [64]-[65].
In Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 (“Durairajasingham”), McHugh J noted:
Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons. But that said, it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal.[82]
[82] Re Minister for Immigration and Multicultural Affairs; ex Parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [65].
In circumstances where the tribunal was not only aware that the applicant’s friends had given evidence, but was also cognisant of the nature of that evidence (namely that it was consistent with the applicant’s evidence regarding the alleged kidnapping), the tribunal’s failure to expressly reject that evidence does not amount to a jurisdictional error. The tribunal was entitled, as it did, to say that based on country information and what it determined to be a fake news article, it did not accept that the kidnapping had occurred, notwithstanding evidence to the contrary given by the applicant and his friends.
For completeness, I also note that the applicant raised concerns about the fact that the tribunal referred to evidence having been given by Friend X at the hearing on 7 November 2013 whereas no such evidence was in fact given.
The decision record of the initial tribunal hearing dated
18 December 2013 relevantly states:
The Tribunal accepts that the applicant has been broadly consistent in his account of the claimed kidnapping in May 2009. The Tribunal has also heard evidence from (Friend X) in relation to his own application for protection which is currently before the same Tribunal member … and accepts (Friend X)’s evidence to be broadly consistent with the applicant’s evidence in this case. The Tribunal notes that (Friend Y) has given evidence of these same matters in respect of his own application for protection (constituted to a different member of this Tribunal) and also attended the Tribunal hearings of the applicant and (Friend X). While the applicant and his legal representative did not call (Friend Y) to give evidence, they indicated to the Tribunal that (Friend Y) had attended to answer any questions the Tribunal might have of him. The Tribunal accepts that if called, (Friend Y) would have given evidence as to the circumstances of the claimed kidnapping that was broadly consistent with the evidence of the applicant and (Friend X).[83]
[83] Court book pages 239 and 240 at paragraph [20].
The manner in which the tribunal referred to the evidence of Friend X (and the incorrect date as to when Friend Y gave evidence) does not amount to jurisdictional error. The court is required to read the tribunal’s decision fairly in the sense discussed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259. In doing so, it is clear that the tribunal was referring to evidence which was before the initial tribunal in some form and as recorded in its reasons for decision.
A fair reading of the tribunal’s reasons clearly set out how the tribunal reached the decision it did in undertaking its statutory task. It was required to be satisfied that the applicant met the criteria for a protection visa. It was not so satisfied and its reasons for decision clearly articulate how it reached that position. There was no requirement that it make a separate finding of fact regarding the evidence given by the applicant’s friends.
I find that the tribunal dealt with the issue of applicant’s friends’ evidence in a logical and rational manner.
For these reasons, ground two is not made out.
Ground three
The third ground of review is:
The decision is affected by jurisdictional error because the Tribunal overlooked, failed to consider or disregarded a letter from the Applicant’s psychologist, Mr Randolph Monteiro, dated
15 March 2016.[84][84] Applicant’s amended application filed 29 March 2018 at page 3.
There is no dispute that in its reasons, the tribunal did not refer to the letter received from Mr Monteiro dated 15 March 2016. So much is evident on the face of the reasons.
The letter from Mr Monteiro made the following points:
a)the applicant was referred to him in relation to anxiety/depression and PTSD “in the context of threats in Pakistan and refusal of his visa”[85];
b)the applicant has attended three sessions and is continuing psychotherapy on a monthly basis;
c)the applicant made reference to two of his friends having been killed by the Taliban;
d)the applicant becomes distressed at the thought of being deported to Pakistan; and
e)the nature of the psychological interventions have focussed on challenging negative thought processes and some behavioural interventions.[86]
[85] Court book page 438.
[86] Court book page 438.
It was submitted on behalf of the applicant that the letter from
Mr Monteiro was relevant to the tribunal’s consideration in two ways:
a)first, it corroborates the evidence of Dr Scott, to which regard was had about the applicant’s mental health issues; and
b)second, it provides evidence as to the psychotherapy treatment the applicant has been receiving which is relevant to the question of access to suitable treatment if he were to return to Pakistan.
It was argued on behalf of the applicant that in those circumstances, had Mr Monteiro’s letter been considered by the tribunal, it is possible that a different outcome would have resulted.
It is common ground that whether the tribunal is required to consider particular evidence will depend on the circumstances of the case, including but not limited to the cogency of the evidence and the place that material has in the assessment of the applicant’s claims.[87]
[87] Minister for Immigration and Border Protection v SZRKT [2013] 212 FCR 99 at [112] per Robertson J endorsed in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [46]; and [63]-[70].
I agree with the Minister’s submissions that the correspondence from
Mr Monteiro was relevant and probative insofar as it stated that the applicant suffered from PTSD, depression and anxiety.
The tribunal deals with the applicant’s mental health in its decision record.[88] Relevantly, it accepts that the applicant may be suffering from PTSD, depression and anxiety, but does not accept that this is directly related to his experiences with the Taliban.[89] There is nothing in the letter from Mr Monteiro which goes beyond that in the reports to which the tribunal expressly refers in this regard. It was not necessary for the tribunal to expressly refer to the letter from Mr Monteiro given the findings it had made in this regard.
[88] Court book pages 453 to 454 at paragraphs [66] to [71].
[89] Court book page 453 at paragraph [67].
The tribunal also went on to consider the availability and standard of mental health care in Pakistan, acknowledging that the applicant may need to continue treatment on his return. The tribunal dealt with the fact that the quality of mental health services on his return to Pakistan may not be of the same standard as those available in Australia.[90]
[90] Court book page 454 at paragraph [71].
Whilst Mr Monteiro’s letter discusses the care he was receiving in Australia which the tribunal implicitly accepted,[91] it does not provide any evidence as the availability and quality of such care in Pakistan should the applicant return. On this question, the tribunal properly had regard to country information and was satisfied that the applicant would be able to access mental health treatment and medication in Pakistan.[92]
[91] Court book page 454 at paragraph [70].
[92] Court book page 454 at paragraph [70].
This ground is not made out.
Ground four
The fourth ground of review is:
The Tribunal breached s 425 of the Migration Act by failing to give the Applicant a meaningful invitation to appear before it to give evidence and make submissions.[93]
[93] Applicant’s amended application filed 29 March 2018 at page 3.
It is accepted that where an applicant is invited to attend a hearing under section 425, the hearing must be conducted in a fair manner.[94] The invitation to appear at a hearing to present evidence and arguments must not be “a hollow shell or empty gesture”.[95]
[94] Minister for Immigration and Multicultural Affairs v SCAR (2003) 128 FCR 553 at [35] and [37].
[95] Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; 183 ALR 188 at [31], noted with approval in Minister for Immigration and Multicultural Affairs v SCAR (2003) 128 FCR 553 at [33].
It was argued on behalf of the applicant that he was not afforded a meaningful opportunity to appear and present evidence and argument in this case, having regard to the following:
a)the tribunal did not consider all of the evidence before it; in particular, the evidence of the applicant’s friends regarding the alleged kidnapping and the letter from Mr Monteiro; and
b)the applicant indicated that he wished one of his friends to give evidence at the hearing on 2 March 2016 but no such evidence was taken.
In these circumstances, it was submitted that the applicant was denied the opportunity to present arguments about important issues before the tribunal for determination.
In response, it was submitted on behalf of the Minister that the tribunal met its obligation under section 425 of the Act, particularly given that:
a)there were three separate oral hearings conducted at which the applicant had the opportunity to state his case;
b)the applicant provided numerous written submissions in addition to oral submissions at the hearings;
c)the tribunal’s task was to consider the application according to law, not necessarily and without qualification to “consider all of the evidence and submissions that had previously been made”;
d)to the extent that the applicant alleged that his claims were not dealt with according to law, the Minister relied upon the submissions made in response to grounds one to three above; and
e)the applicant’s Friend Y previously gave evidence to the tribunal on 2 October 2014 and there was no evidence that the applicant was precluded from calling further evidence from Friend Y at any other hearing.
The circumstances in this case are somewhat unusual in that there were a number of hearings conducted in this matter and the tribunal member who ultimately determined this matter did not conduct all of the hearings and physically hear all of the evidence and submissions made on behalf of the applicant. However, it is apparent from a fair reading of the tribunal’s reasons that the member did have regard to evidence led by the applicant in previous hearings as well as the numerous submissions filed on the applicant’s behalf.
I have already addressed the issue of the tribunal’s consideration in respect of the evidence of Friend X and Friend Y generally and am not satisfied that the disposition of this evidence amounts to a failure to afford the applicant a hearing under section 425 of the Act.
It was conceded by counsel for the Minister that the applicant indicated that he wanted Friend Y to give evidence again at the hearing before the tribunal in March 2016.[96] The transcript of that hearing was put in evidence before this court and I find that the tribunal did not preclude the applicant from leading any further evidence from Friend Y.[97]
[96] Transcript page 27 at lines 20 to 25.
[97] Transcript page 20 at lines 1 to 23.
The transcript does not suggest that the applicant requested Friend Y to give evidence and that this was rejected. In addition, it is relevant that the applicant was represented at all times, including at the hearing on
2 March 2016 and therefore, had there been something in particular that the applicant wanted Friend Y to say, his legal representative could have made such a request. This did not occur.[98]
[98] Transcript page 27 at lines 36 to 47.
I am satisfied that there has been no breach of section 425 of the Act in relation to evidence from Friend Y or otherwise. In coming to this view, I also note that as stated earlier, the tribunal accepted that the evidence from Friend X and Friend Y was consistent with that of the applicant in relation to the alleged kidnapping.
Having regard to all of these circumstances, I am not satisfied that the applicant was denied an opportunity to give evidence and make submissions to the tribunal or that the invitation to attend a hearing was “a hollow shell or an empty gesture”[99]. The applicant was given numerous opportunities to present his case and he exercised those opportunities. Ultimately, the tribunal in weighing and assessing all of the evidence before it was not satisfied that the applicant met the criteria for the visa. This was a matter for the tribunal and its conclusions were open to it and do not disclose any jurisdictional error.
[99] Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; 183 ALR 188 at [31], noted with approval in Minister for Immigration and Multicultural Affairs v SCAR (2003) 128 FCR 553 at [33].
This ground is not made out.
Conclusion
As none of the applicant’s grounds have been made out, the application should be dismissed with costs.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 5 September 2018
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