SZQIW v Minister for Immigration
[2017] FCCA 2495
•20 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZQIW v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2495 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration and Border Protection not to grant a Protection visa to the Applicant – none of the grounds asserted by the Applicant established – no jurisdictional error or procedural unfairness by Administrative Appeals Tribunal – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 48 Migration Regulations 1994 (Cth) |
| Cases cited: CPE15 v Minister for Immigration [2017] FCA 591 |
| Applicant: | SZQIW |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 398 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 16 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 20 October 2017 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Ms N Blake |
| Solicitors for the Respondents: | Clayton Utz |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 23 February 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 398 of 2016
| SZQIW |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Pakistan aged 32 years, having been born on 1 January 1985.
By Application filed in this Court on 23 February 2016 he seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 25 January 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 2 October 2014 refusing to grant to him a Protection (Class XA) visa (Protection visa).
Background
The Applicant arrived in Australia using his Pakistani passport on 11 January 2010 holding a Visitor (Class TR) (Subclass 676) visa which expired on 11 April 2010. The Applicant applied for a Protection visa on 8 April 2010, which was refused by a Delegate on 11 October 2010, and this refusal was affirmed by the Refugee Review Tribunal on 30 December 2010 and his application for judicial review of that affirmation was dismissed by the Federal Circuit Court on 30 January 2012.
The Applicant then lodged a Partner (Subclass 820) visa application which was refused by a Delegate on 8 November 2012, with that refusal being affirmed by the Migration Review Tribunal on 25 March 2013.
Following the introduction of the complementary protection criterion under s.36(2)(aa) of the Act and the decision of the Full Court of the Federal Court of Australia on 3 July 2013 in SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235, which found that s.48A of the Migration Act 1958 (Cth) (the Act) as it then stood did not prevent a person from making another protection visa application on complementary protection grounds when the earlier application had been determined only on Refugees Convention grounds, the Applicant on 22 April 2014 again applied for a Protection visa.
Claims for Protection
In his Protection visa application the Applicant made the following claims for protection:
a)He was very involved with the Pakistan Muslim League Q Party (PML-Q) during the 2008 election. He was approached by members of the Pakistan People’s Party (PPP) and asked to join that party but he refused and continued his involvement with the PML-Q.
b)In 2008, the PML-Q lost the elections and the PPP formed government. Members of the PPP went to the Applicant's house and sought to harm him. He was not home at the time, but the PPP members harassed his family and took valuable belongings.
c)He was harassed and threatened by PPP cadres who also harassed his family and forcibly took the family’s valuable belongings. He feared that the PPP would physically harm him and continue to harass him and maybe even kill him.
d)He left Pakistan in October 2008 because he feared he would suffer the same fate and he resided and worked in Indonesia until 10 January 2010.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the grounds and criteria for the grant of a protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5]-[7] as follows:
[5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.
[6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.
[7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.
Decision of Delegate
The Applicant attended an interview with the Delegate on 30 September 2014. He there raised an additional claim that most of his former friends and colleagues who had been members with him of the PLM-Q had since defected to the PML-N party and they are “against the Applicant”.
Although the Delegate ought to have confined himself to a consideration of the Applicant’s claims to protection solely under the complementary protection criterion, he considered the claims to protection under both the Refugees Convention criterion and the complementary protection criterion.
However, in the result the Delegate found that it was not credible that the Applicant would be of interest to anyone in Pakistan after an absence of 6 years and that his behaviour in working in Indonesia for a year until his visa there expired, indicated that the Applicant had left Pakistan to work and that he had attempted to remain in Australia for reasons unrelated to a fear of returning to Pakistan.
The Delegate found that the Applicant’s claims for protection had been made for the purpose of remaining in Australia and that those claims were not credible and he was not satisfied that Australia had protection obligations to him under s.36 of the Migration Act 1958 (Cth) and cl.866.221 of Schedule 2 to the Migration Regulations 1994 (Cth).
Decision of Tribunal
The Applicant applied to the Tribunal on 20 October 2014 for a merits review of the Delegate’s decision.
On 25 January 2016 the Applicant appeared before the Tribunal to give evidence and present arguments with the assistance of an interpreter in the Urdu and English languages.
The Tribunal was of the view that its jurisdiction in considering the application for a Protection visa was limited to the complementary protection criterion and not the Refugee Convention criteria in s.36(2)(a) of the Act. The correctness of this view was subsequently confirmed in Minister for Immigration vSZVCH (2016) 244 FCR 366 at 379 [44] per Kenny, Siopis and Besanko JJ and at 398-389 [113]-[114] per Mortimer J.
At [8] – [10] of its Decision Record the Tribunal set out the protection claims of the Applicant. At [14] – [23] it considered and analysed the Applicant’s protection claims and the evidence in support of those claims.
At [15] the Tribunal prefaced its consideration and analysis by recording that, having considered all of the evidence, the Tribunal was not satisfied that the Applicant was a truthful witness but rather that he had manufactured the entirety of his claims to fear harm in Pakistan. In coming to these findings the Tribunal had particular regard to three matters, being:
a)the Applicant’s very little knowledge of the PML-Q’s aims, policies or manifesto. This lack of knowledge was not consistent with the Applicant’s claims to have been involved with that party from 2001 or 2002 until 2007 or 2008. The Tribunal considered this lack of knowledge to be indicative of the Applicant not having any involvement with the PML-Q: see [20] of the Decision Record;
b)the implausibility of anyone in Pakistan having any continuing interest in pursuing the Applicant or his family members because the Applicant had around 2008 refused to join the PML-Q: see [21] of the Decision Record; and
c)the Applicant’s failure to seek assistance from the UNCHR whilst in Indonesia during the period he had worked there from October 2008 until 10 January 2010, and the fact that he left Indonesia because he could not continue to work, was indicative of the Applicant not leaving Pakistan because he had a genuine fear of harm: see [21] of the Decision Record.
In light of its findings, the Tribunal:
a)rejected the Applicant's claims in relation to adverse interest from rival political groups as "not credible and indicative of the fact that his claims have been manufactured": see [22] of the Decision Record;
b)did not accept that the Applicant would seek to be involved in the PML-Q in the future or that there is a real risk he will suffer significant harm from the PPP, PML-N or any other political parties or persons in Pakistan: see [23] of the Decision Record; and
c)held that the Applicant did not satisfy the complementary protection criterion under s.36(2)(aa) of the Act and was not a person in respect of whom Australia had protection obligations: see [24] of the Decision Record.
Grounds of Attack on Tribunal Decision in this Court
The Grounds relied upon by the Applicant in his Application were as follows:
1. The respondents were initially had to assess the applicants matter on compliantly visa assessments, the tribunal did not looked in to the matter of this clause and as such by not exercising the applicable law the order under judicial application has been challenged.
2. The decision made by the respondents has caused miscarriage of justice. As such the applicant has suffered irreversible loss by the decision of the respondents.
3. The order passed by the respondents are not enough to decline the Review application. The respondents have failed to give explanation the grounds of re-assessment on a complimentary protection visa. Hence it calls for a judicial review of the application. On the applicant’s case.
4. Judicial review of the application under migration act be considered as against the law and facts of the applicant’s circumstances.
5. It gives rise to a jurisdictional error as the respondent in their decision erred by not considering g the substantial grounds of necessity and foreseeable consequences of the applicant being removed from Australia to Pakistan, there is a real risk he will suffer and faces significant harm.
6. The applicant falls under the complimentary protection visa which gives rise to the question of law if she was not considered for protection visa. More over the decision has resulted in the grave harm, which the applicant has to undergo.
7. The applicant shall suffer the consequences by way of life threatening situation back in his country of origin as the whole senior has been changed by sending the applicant to him country of origin. The applicant shall be deprived off his basic rights and the applicant has to face the acts of harassments the applicant shall again be open to persecution and threats to his life. The applicant shall be open at risk by the opponents and the authorities back in his country. The applicant will be once again be put to the same situation from where the applicant left the country. The applicant will be deprived of hir basic rights as a citizen, in Pakistan there is no concept of giving protection to his peoples. Pakistan has got worse human rights record. In country like Pakistan there is no concept of any civilized state it has the most cruel legal system in fact in Pakistan there exists no human rights. The recent unrest of Pakistan is available, openly the terrorists are killing the innocents, the present system favours the terrorists.
8. Applicant while under the interview offer was received the applicant was so upset, wether the applicant to appear, the applicant was told that they need the evidence, the applicant has gone under lot of threats, yet the applicant was in state of confusions because the killers are the persecutors do not give you an evidence. It was hard for the applicant to obtain the evidence, when the applicant joined political party the applicant was issued with a card, but the applicant remained with party, it was hard to get the membership card. This is the situation where it was and it is hard to get any evidence this was and is the reason that the applicant appear before the respondents it was not properly understood by the decision maker as the applicant did participate in an interview.
9. Question for the court to decide is whether the written submissions are inferior to the oral submission keeping in view the background of the victims of persecution and significant harm.
10. Applicant faces significant harm based on his efforts and because of the widely known and acknowledged reality that the Taliban are present everywhere in Pakistan.
11. It is unfortunate that the applicant's claim for protection has been refused by the respondents. Although there is enough evidence.
12. Even though it is acknowledged that the harm feared by the applicant amounts to persecution.
13. Even the Country Information which alone warrants the truthfulness and credibility of the applicant's claim. Yet the respondents made a decision against the applicant.
14. The decision of the respondents is based on the premises that a person in applicant's shoes can easily relocate in Pakistan and live a life without harm, persecution and maltreatment.
15. The respondents erred in their knowledge and understanding about Pakistan.
16. The respondent's decision is an opinion of respondent's personal views rather than the decision based on merit, facts and evidence.
17. From political point of view army will never admit that they are losing but as a decision maker one must understand the realities and be rationale in one's decision. Further for applicant as a women and an activist, applicant have been under constant threat.
18. Question of law to be determined is that whether it is an abuse of power to ask the question given what the applicant have gone through, how one can expect documentary list of evidence.
19. The political party of the applicant is under lot of clouds by the authorities, The authorities are looking after the active workers of the applicants party, this is all revenge politics ..
20. All the Country Information and media reports and my background and efforts will lead the applicant in to a miserable death if protection is not given in Australia. [errors in original]
I first observe that these Grounds are lengthy, discursive in nature and appear to overlap each other. On their face they invoke a merits review of the decision of the Tribunal which is not available in this Court. They have clearly been cut and pasted from Grounds appropriate to a female applicant; for example Ground 17 refers to the Applicant as being “a women and an activist”. They fit the description given by Wigney J in SZSUH v Minister for Immigration (2014) 142 ALD 248 at 252 [21] when considering grounds of a similar character:
[21]…they provide virtually no assistance to the court in its attempt to ascertain the nature of the error asserted by the applicant. Nor, at the end of the day to they advance the applicant’s case.
The Applicant in this case also sought to read his affidavit sworn on 23 February 2016 which appears to set out a further twenty six grounds of review, some of which repeat those already appearing in the twenty Grounds of the Application. They are more in the nature of submissions and I indicated to the Applicant that I would take them as such. They also contain references to the Applicant as being a women’s rights activist: see paragraph 23 and the paragraphs numbered 3 and 4 appearing on pages 4 and 5 of the affidavit, where it is respectively said:
3. I am a woman, tired of running and scared to death about myself and my family. I did things on ad hoc basis and initially I was of the opinion that Taliban will be killed by the army and I may not have to apply for protection visa.
4. I can continue to raise awareness regarding the plight of women in Pakistan and can help them while living in Australia.
Nevertheless, the Minister as a model litigant felt able to tease out of the Grounds in the Application and from the Applicant’s affidavit, at a very broad level, the following complaints:
a)misapplication of the law (see Grounds 1, 2, 4, 9, 10, 12, 13, 15, and 18 in the Application);
b)failure to consider the Applicant's claims and evidence (see Grounds 3, 5, 6, 7, 8, 11, 17, 19 and 20 in the Application);
c)unreasonableness or irrationality (see paragraph 4 of the Applicant’s affidavit); and
d)bias (see Ground 16 in the Application).
I was able to discern one further apparent ground from a statement by the Applicant at the hearing and Ground 8 in the Application, to the effect that he was not feeling well on the day of the Tribunal hearing and could not answer the Tribunal member’s questions properly.
Accordingly, I consider below those complaints of the Applicant as identified by the Minister and myself.
Misapplication of the Law
In Ground 1 of the Application the Applicant asserts that the Tribunal erred “…by not exercising the applicable law”.
This complaint fails. The Tribunal was bound to only consider the Applicant’s claims for protection under the complementary protection criterion and the relevant law in this regard was set out at [4] – [7] and [26] – [27] of its Decision Record. Having considered the applicable law and evidence and recorded its findings the Tribunal at [23] of its Decision Record stated that it was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to a receiving country, namely Pakistan, there was a real risk that the Applicant would suffer significant harm, including arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.
In my view the Applicant has failed to establish any jurisdictional error by reason of the Tribunal misapplying the relevant and applicable law relating to his Protection visa application.
Failure to Consider the Applicant’s Claims and Evidence
In Ground 20 of the Application and in paragraph 2.1 of the Applicant’s affidavit (on page 2) he can be taken as asserting that the Tribunal had “…failed to consider the applicant’s claim and the written evidence forwarded to [the Tribunal] was not considered”.
It is a well-established principle that the Tribunal is required to deal with the case raised by the material or evidence before it and where it fails to make a finding on “a substantial, clearly articulated argument relying upon established facts”, that failure can amount to a failure to afford procedural fairness and a constructive failure to exercise jurisdiction: NABE v Minister for Immigration (No. 2) (2004) 144 FCR 1 at 17 [55] per Black CJ, French and Selway JJ (NABE).
To establish that the Tribunal had a duty and was bound to consider a particular unarticulated claim, such a claim must be raised “squarely” on the material available to the Tribunal: NABE at 18-19 [58]. Further, the judgment that the Tribunal has failed to consider a claim not expressly advanced is not to be made lightly: NABE at 22 [68]. In CPE15 v Minister for Immigration [2017] FCA 591 at [40] Mortimer J said:
[40]The kind of argument which must have been articulated by an applicant in order for the Tribunal to exceed its jurisdiction by failing to consider it was described by Griffiths J in SZSSC v Minister for Immigration [2014] 317 ALR 365 as “a substantial and clearly articulated argument”. In other words, the Tribunal as the decision-maker on the merits must have clearly been put on notice by an applicant of a contention, submission or argument the applicant wished to make in support of a decision in her or his favour on the review. Unless the argument has been “clearly articulated”, the Tribunal would not be put on notice. Unless the argument is “substantial”, a reviewing court cannot be confident or sufficiently confident that the Tribunal’s failure to deal with the argument may have affected or been material to the conclusion it reached. Ultimately the argument put by an applicant in these circumstances must be characterised as capable of affecting the formation of the state of satisfaction required by s 65 of the Migration Act. If it is not so capable, then the Tribunal will not exceed or fail to exercise its jurisdiction in not considering such an argument.
In my view the Applicant has failed to identify any claim or relevant evidence that the Tribunal failed to consider. In fact the Applicant did not submit any written evidence beyond the claims raised in his Protection visa application nor did he refer any country information or media reports to the Tribunal. In my view the Decision Record of the Tribunal establishes that the Tribunal did consider the Applicant’s claims as they were put either in writing, to the Delegate or to the Tribunal and it addressed those claims in its Decision Record. Accordingly, this complaint is not made out.
Legal Unreasonableness or Irrationality
The Minister has somewhat generously interpreted Ground 4 in the Application and paragraph 4 on the last page of the Applicant’s affidavit to amount to a complaint of unreasonableness or irrationality on the part of the Tribunal in rejecting his claims, despite there being “enough evidence”, according to the Applicant, to substantiate them. In my view this complaint also fails. The Tribunal’s decision largely turned on its adverse credibility finding in relation to the Applicant’s oral evidence. Those credibility findings appear to me to be based on legally rational grounds and there is nothing “capricious” or “irrational” or “lacking an evident or intelligible justification” in relation to those findings.
Bias
The complaint of bias appears to be raised in Ground 16 in the Application, where it is asserted that the Tribunal’s decision was the result of the Tribunal member’s “personal views” rather than being a decision based on merits, fact and evidence. I interpret this as being a claim of actual bias.
Actual or apprehended bias are matters that go to procedural fairness and the denial of procedural fairness on the part of an administrative decision-maker, such as the Tribunal, may result in jurisdictional error justifying an order that the decision be set aside: Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82 at 91 [17] per Gaudron and Gummow JJ; Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332 at 357 [48].
Actual bias was described by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531-532 [72] as follows:
[72]The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.
A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127 per Burchett J. As the New South Wales Court of Appeal said in South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at 97:
[97] The appellant alleges that the Arbitrator displayed actual, not apprehended, bias. A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be “distinctly made and clearly proved.” Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [36] per von Doussa J. A finding of actual bias should not be made lightly; cogent evidence is needed: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1977] FCA 1488; (1997) 81 FCR 71 at 123 per Wilcox J; a finding of bias is a grave matter: ibid (at 127) per Burchett J.
The test of actual bias in the form of prejudgement requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427 at 437-438 [33] (Wilson).
On the other hand, the test for apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the decision making process: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 [6]. It is an objective test not requiring an assessment of the state of mind of the judge, as is necessary on an enquiry about actual bias: Wilson at 437 [32].
In my opinion there is no basis for any claim by the Applicant that he has suffered from actual bias or that there could be any reasonable apprehension of bias in connection with the Tribunal’s decision.
First, the face of the Tribunal’s Decision Record does not indicate or demonstrate any prejudgment or actual bias or give rise to any reasonable apprehension of bias on the part of the Tribunal member: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
Second, the Decision Record of the Tribunal does not lend any support to a contention that the Tribunal decided the Applicant’s application for merits review otherwise than on the facts and evidence before it and the merits of his claims.
Accordingly, any complaint of bias fails.
Applicant Not Feeling Well at Tribunal Hearing
There is no evidence tendered by the Applicant to the effect that he was not able to meaningfully participate in the Tribunal hearing.
First, the Applicant has not tendered any transcript of the Tribunal hearing to attempt to establish his inability to meaningfully participate in the hearing on 25 January 2016, notwithstanding that by consent order 2 of 18 March 2016 the onus was on on him to tender a transcript of the Tribunal hearing if he wished to rely on such a transcript.
Second, the Decision Record of the Tribunal does not evidence that the Applicant asserted to the Tribunal on 25 January 2016 that he was not able to meaningfully participate in and put his case to the Tribunal. Rather, the Decision Record of the Tribunal evidences that the Applicant was able to meaningfully respond to the Tribunal’s questioning: see in particular [17] – [19] of the Decision Record.
Finally, the Applicant has not tendered any medical evidence to establish that he was disabled from meaningfully participating in the Tribunal hearing.
The Applicant bears the onus of establishing that he was unfit to meaningfully take part in the Tribunal hearing of 25 January 2016: see Flick J in SZMSF v Minister for Immigration [2010] FCA 585 at [17] and Gilmour J in SZMSA v Minister for Immigration [2010] FCA 345 at [32] citing as correct paragraph [108] of the judgment below. In my view, he has failed to do so.
Conclusion
In my view the Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error or procedural unfairness and accordingly his Application filed in this Court is to be dismissed.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 20 October 2017
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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Jurisdiction
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