SZTGO v Minister for Immigration

[2014] FCCA 2921

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTGO v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2921

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – whether Tribunal did not consider a claim under complementary protection – allegation of apprehension of bias – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 426, 476

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
Minister for Immigration v Maltsin [2005] FCAFC 118
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Applicant: SZTGO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2139 of 2013

Judgment of: Judge Nicholls

Hearing date: 10 July 2014

Date of Last Submission: 10 July 2014

Delivered at: Sydney

Delivered on: 12 December 2014

REPRESENTATION

Solicitor for the Applicant: Mr M Jones of Parish Patience Immigration Lawyers

Solicitor for the Respondents: Mr A Markus of Australian Government Solicitors

ORDERS

1. The application made on 12 September 2013 and amended on 19 May 2014 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $6200.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2139 of 2013

SZTGO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 12 September 2013 and amended on 19 May 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 15 August 2013 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant

Before the Court

1. The evidence before the Court was as follows:

   1)The bundle of relevant documents filed by the Minister (“the Court Book” – “CB”). I note that a supplementary Court Book was also filed by the Minister on 4 July 2014 (“SCB”).

   2)The affidavit of Winnie David of Legal Transcript Pty Ltd made on 12 March 2014 annexing a transcript of part of the Tribunal hearing (“T”). No objection from the Minister.

Background

1. The applicant is a citizen of Pakistan. He arrived in Australia on 28 February 2008 as the holder of a student visa. He applied for a protection visa on 28 October 2011. He was assisted in this application by a registered migration agent and lawyer (CB 1 to CB 38).

2. He claimed to fear harm if he were to return to Pakistan from the Taliban and other terrorist groups. At the time of the application, the sole criterion for the grant of the visa required the relevant decision maker to be satisfied that the applicant, in effect, met the definition of Refugee that was set out in Article 1A(2) of the Refugees Convention.

3. On this basis, the applicant claimed to fear harm for reason of his race as a member of the Bangash tribe, religion, as he was a practicing Shia Muslim, political opinion, as being opposed to the Taliban, and as a member of three particular social groups.

4. The delegate refused the grant of the protection visa on 7 June 2012 (CB 235 to CB 255). The applicant applied for review to the Tribunal on 28 June 2012 (CB 256). The applicant attended a hearing before the Tribunal on 12 June 2013 (CB 347). The Tribunal affirmed the delegate’s decision (CB 533 to CB 563). As appropriate, the Tribunal also considered the applicant’s claims under the criterion at s.36(2)(aa) of the Act ([104] – [105] at CB 556 to CB 557). The Tribunal’s relevant findings and reasons are set out below.

Application Before the Court

1. The grounds of the amended application are as follows:

   “1. The Tribunal fell into jurisdictional error by failing to consider all aspects of the Applicant’s claim under s 36(2A) of the Migration Act 1958.

   Particulars

   The Applicant claimed to have a relationship with an Australian woman of Christian religion and to have an intention to marry her in the future. The Tribunal accepted the genuineness of the relationship as claimed but since the couple did not have firm plans for marriage in the foreseeable future the Tribunal considered that the Applicant could safely return to Pakistan as a ‘single man’. The Tribunal failed to consider whether the suffering caused by the Applicant being unable to marry the Australian woman at some future time could amount to serious harm.

   2. The decision of the Tribunal was affected by apprehended bias.

   Particulars

   The Applicant requested that the Tribunal take oral evidence by telephone from his father and brothers in Pakistan. The Tribunal considered that there were discrepancies and inconsistencies in the Applicant’s evidence relating to his father’s and brother’s activities. Instead of calling them to clarify these matters, the Tribunal formed the view that ‘further [sic] oral evidence from the applicant’s family members in Pakistan could not overcome the significant difficulties which the tribunal has in relation to aspects of the applicant’s oral evidence at the hearing’ (para 83). An informed lay observer may have reasonably apprehended that the Tribunal had a closed mind about what evidence the father and brothers might have given.”

Consideration

1. Ground one asserts that the Tribunal failed to take into account certain aspects of the applicant’s claim. The ground makes reference to s.36(2A) of the Act. This is concerned with the criterion at s.36(2)(aa) of the Act, that is “significant harm”. The particulars, however, make reference to “serious harm” which is relevant to the criterion at s.36(2)(a) of the Act, that is the Refugees Convention.

2. The factual scenario relied on by the applicant, as explained in the particulars, is that he claimed to have had a relationship with an Australian woman of Christian religion, and to have expressed an intention to marry her.

3. The background to the complaint, as stated in the particulars to the ground, is that the Tribunal accepted that the relationship was genuine, but found that the couple did not have plans to marry. In this light the Tribunal found that the applicant could return to Pakistan as a “single man”.

4. The assertion of legal error is said to be revealed because the Tribunal failed to consider whether the suffering caused by the applicant being unable to marry the woman could amount to “serious harm”.

5. Before the Court the applicant submitted that the claim had been made at the hearing with the Tribunal ([22] at CB 538 to [23] at CB 539). The Tribunal reports:

   “[22] The tribunal asked the applicant what he fears in Peshawar. He said that there are many issues. He can be killed there. He continued that he has been living in Australia and they will think that he is a Westerner and moderate. He said that he has a girlfriend in Australia. He wants to marry her. His girlfriend is Christian. In Pakistan they will now think that he is also Christian. The applicant said his girlfriend will not have social freedom in Pakistan. The tribunal established that the applicant's girlfriend is an Australian citizen. She was born in Australia of Chinese parents; she works in child care. The tribunal asked about the relationship. The applicant said they have been going out for three years. They are not engaged to be married. The applicant said that they have plans to marry and they are living together. The tribunal questioned the applicant about the status of the relationship and their current living arrangements. It established that he and his girlfriend are not living together.

   [23] The tribunal asked the applicant whether he knows which Christian denomination his girlfriend belongs to. He said he does not know and added that he does not have much information about it. The tribunal asked whether he has discussed marriage with his girlfriend. He replied that he has. The tribunal sought to establish the nature of those discussions. It asked whether he has spoken to his girlfriend’s family. He said that he has not done so. He has not spoken to his parents about marriage. It asked whether he and his girlfriend have talked about the actual marriage ceremony. The applicant said that they will have a civil ceremony; he would not take his girlfriend to the mosque. The tribunal established that there are no firm plans for marriage at this time. The applicant said that his girlfriend would not have any social freedom in Pakistan. She will have no social life and will not be able to go out. “

6. Following the Tribunal hearing, the applicant submitted a written statement. Relevantly, he stated that (at CB 366):

   “[11] Once my case gets accepted and solved than we plan to get married. We have a plan to open a childcare centre and we both will run it together. As for now I am not in the position to get married due to my financial difficulties. If I had to go back to my country in Pakistan I will lose her which I can’t imagine.

   [12] I cannot take my Nicole back to my country as it will put both our lives in danger as I have already faced harm because of my Bangash-Turi identity. Because she follows Christianity, I fear that Sunni Fundamentalists will target and kill her when they see she has a relationship with me. They also harm me.

   [13] In addition, facing harm from Sunni Islamic fundamentalists, I fear I also will face harm from Shia extremist groups as well for marrying a non-Muslims girl. In addition, my family also may harm me for damaging their honour by marring a Chinese girl who follows Christianity.’

   [14] I fear I can not get state protection because the authorities consider this issue as a domestic family issue and will not protect me. In addition, even if I move to other parts of Pakistan, I will continue to face harm because of the following reasons.

   a. I am Bangash Turi-Shia. Therefore, I can be easily identified and Sunni Islamic fundamentalists will target and kill me because of my religious and ethnic identity.

   b. Sunni Islamic fundamentalists will target me for having a relationship with a Chinese girl who follows Christianity.’

   c. The Sunni Islamic fundamentalists may consider my girl friend as a Hazara due to her Chinese look and may target us.

   d. Not only the Sunni Islamic fundamentalists, but also the Shia extremists will target and kill us for perceived

   
   

   un-Islamic activities.

   e. My family is a known family among our community and I have two brothers who work for the defence. Because my family will harm me and kill me to restore their honour when they know of my relationship with Nicole, they can go to any extent to find out me and harm me.

   f. Therefore, I have problems from Sunni Islamic fundamentalists, Shia extremists and members of my family.”

7. In short, the claim to fear harm was described as being that both the applicant and the young woman would be in “serious danger” from Sunni and Shia fundamentalists, and from the applicant’s family, essentially, because of her Christian religion.

8. Although not clear, I understood the claim of legal error to relate to the likelihood of “serious” harm for the applicant (s.36(2)(a) of the Act) as a result of the opposition to the marriage and “significant harm” for him (s.36(2)(aa) of the Act) because he would suffer psychological and emotional harm as a result of what would happen to her (thus coming within s.36(2A) of the Act relevant to significant harm).

9. The young woman had also made a Statutory Declaration which was given to the Tribunal (CB 469 to CB 470). Relevantly, at [12] (at CB 469) she stated:

   “I have to say that I could not imagine [the applicant] being away from me in going back to his country as I would be lost without him. Also it will be impossible for me to visit him in Pakistan because I am a non Muslim and following Christianity, as Pakistan is a Muslim country and his family is very strict Muslim and won’t accept me as his partner because I am non Muslim.”

10. The applicant submitted that the Tribunal’s summary of the applicant’s statements was “fairly accurate”. However, when it came to consider this matter the Tribunal “reduced” and “simplified” the claim. The Tribunal relevantly stated under the heading of “Consideration of the issues” ([52] at CB 545):

    “Before the tribunal the applicant said that he fears that he will be seriously harmed in Pakistan because of his race as a Turi Bangash, his religion as a Shia Muslim and because of his father’s role and profile as a representative and spokesperson for the Turi Bangash in Peshawar. Late in the tribunal hearing the applicant said that he has an Australian girlfriend who is Christian. He said that he cannot return to Pakistan with her because she would face discrimination and difficulties because of her religion and their relationship would not be accepted by his parents.”

11. In short, with reference to what is set out at [12] – [13] and [16] above, the applicant submitted that the Tribunal’s reference at [52] (at CB 545) does not report the extent of the claim made by the applicant. The submission was that it was an “inaccurate” report.

12. The applicant submitted that, in this light, when the Tribunal came to make its relevant findings and conclusion on this claim it did not address or consider the full extent of the claim.

13. That consideration was said to include the following ([87] at CB 552):

    “On the basis of the applicant’s oral evidence, the statements of the parties and the statements of third persons who have provided statutory declarations the tribunal accepts that the applicant and Nicole Chen are boyfriend and girlfriend. The parties have stated that they have a desire to marry. The tribunal finds that the parties do not intend to marry in the reasonably foreseeable future. If he returns to Pakistan the applicant will do so as a single man. The tribunal is prepared to accept that the applicant’s parents would not be supportive of this relationship. On his evidence the applicant has not made his parents aware of the relationship with Nicole Chen. The tribunal does not accept that the applicant will suffer discrimination which amounts to persecution because of his relationship with a Christian woman either from his family or other members of the community in Peshawar. The tribunal accepts that it may become known that the applicant has studied abroad. Beyond that it does not accept that he will be identified as a being a moderate or Western in his manners or thoughts as he now claims. It does not accept the applicant’s claim made at the hearing that because his girlfriend is Christian it will be assumed that he is also now Christian. The applicant has shown no interest in the Christian faith in Australia. At the hearing he did not know which Christian tradition his girlfriend follows. Finally, as stated there are no firm plans for marriage at this time or in the reasonably foreseeable future. In all of the circumstances the tribunal does not accept that the applicant will be seriously harmed in Pakistan because he is viewed as a being a moderate, Western in his thought or because he is considered by his family or the community to be a Christian.  It finds that there is no real chance that he will be persecuted by his family, the community or indeed by anyone else in Pakistan because of his relationship in Australia with a Christian girl.”

14. The applicant’s criticism of the Tribunal’s analysis was that the Tribunal’s analysis was premised on the assumption that the young woman would not go to live in Pakistan. That is that the applicant would return to Pakistan as a single man, and would not be perceived as a Christian, or being involved with a Christian.

15. The applicant characterised the Tribunal’s approach as “constructing” a “Catch-22” situation. That is, that it considered that the applicant would only be in danger if the young woman (before the Court, the applicant referred to her as “partner” or “fiancée”) were to go with him to Pakistan, while at the same time, acknowledging that the prospective danger arising from her going to Pakistan was one of the reasons why she could not go there.

16. In essence, the assertion of legal error is said to arise from the Tribunal’s failure to consider that if the applicant were “forced” to abandon his relationship with the young woman after leaving Australia, because of threats in Pakistan and family and societal pressure, that this itself could amount to significant harm.

17. Before the Court, the applicant clarified that ground one (in spite of the reference in the particulars to “serious” harm) was concerned only with “significant” harm (as derived from the reference to s.36(2A) of the Act in the ground itself).

18. In this light, the applicant submitted that the Tribunal failed to consider, under the complementary protection criterion, whether the emotional impact caused by the separation, that is the lack of a “life opportunity” to continue the relationship would, of itself, constitute significant harm.

19. The Minister’s response was that, before the Court the applicant had focussed on claims he made to the Tribunal, without taking into account relevant factual findings made by the Tribunal in relation to these claims. Although not submitted as such, I understood the Minister’s argument to be based on the proposition that these factual findings were all reasonably open to the Tribunal on what was before it (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). Further, the Minister disputed the applicant’s presentation before the Court of what those relevant claims were.

20. At the core of the applicant’s case before the Court was the claimed nature of the relationship between the applicant and the young Christian woman. Before the Court, the applicant variously described the relationship as one of the couple being “affianced” to each other (the young woman was the applicant’s fiancée). I understand this term to mean that there existed between them a solemn promise to marry. That is, that there was a firm commitment to, and proposal to marry.

21. That claim was never made by the applicant, or otherwise put to the Tribunal. As can be seen from the material to which the applicant referred the Court (see [12] – [13] and [16] above), the applicant’s evidence to the Tribunal as recorded by the Tribunal, which the applicant did not otherwise dispute before the Court, was that he described the young woman as his “girlfriend” and that, although he “wanted” to marry her, they were “not engaged to be married”. They had “plans” to marry sometime in the future, but the Tribunal ultimately understood from the applicant that they were not living together. While marriage had generally been discussed he had not specifically spoken to her or his family about it. The Tribunal understood from the applicant’s evidence that there were “no firm plans for marriage at this time”.

22. The young woman’s statement, on which the applicant now relied, described the applicant as her “boyfriend” (at [4] at CB 469), that they were “going out on different occasions…” (at [6] at CB 469), and that after his “visa restrictions” are waived, when he can work, and after they have saved money, they “planned” to get married ([11] at CB 469). In the meantime, if he were to return to Pakistan she stated “…it will be impossible for me to visit him…” ([12] at CB 469).

23. In this context, it is also important to note the Tribunal’s concerns as they were reportedly expressed to the applicant at the hearing ([24] at CB 539):

    “The tribunal observed that the applicant has not mentioned his girlfriend previously and did not mention her or the relationship when he was interviewed by the delegate. The tribunal put to him it seems that he has not mentioned his girlfriend even to his adviser at this time because there has been no mention of the relationship in submissions. The tribunal put to the applicant that it may be prepared to accept that he has a girlfriend but it may not be convinced that the relationship is more than that of boyfriend and girlfriend.”

1. I agree with the Minister that there is a difference in the claims made by the applicant (and his girlfriend) before the Tribunal and the extrapolation of the claims as presented before the Court.

2. As set out above, before the Court the applicant argued that the Tribunal proceeded on the assumption that the young woman would not go to live with the applicant in Pakistan. The young woman, on the evidence before the Court, made no such claim. As is clear in her statement, the claim, at its highest, was that she could not go there to “visit” the applicant.

3. This reflects what the Tribunal subsequently found as to the nature of their relationship. The Tribunal accepted they were boyfriend and girlfriend, but that their relationship had not progressed beyond that to the stage where there were any “firm” plans for marriage. Thus, the young woman’s claim was that she could not visit the applicant in Pakistan in the context of being his girlfriend, not that she could not go to live in Pakistan with him as his wife.

4. In short, the Tribunal’s relevant findings on the claims before it were that they were girlfriend and boyfriend, and although they had a desire to marry they did not intend to do so in the foreseeable future. Therefore, the applicant would return to Pakistan as a single man. Further, that the applicant’s parents would not be supportive of the boyfriend/girlfriend relationship. However, they did not know of this relationship.

5. The Tribunal’s findings in this regard were made in the context of addressing the applicant’s decision that he would be harmed if he returned because he would be viewed as a moderate, with a western orientation in his thoughts, and that he would be perceived as a Christian (in large part because of his relationship with a Christian woman in Australia).

6. Later in its analysis the Tribunal returned to this claim, that he would be perceived to be a Christian because of his relationship with an Australian girlfriend who was a Christian, in the context of his claimed membership of particular social groups ([98] at CB 555). The Tribunal found ([98] – [99] at CB 555 to CB 556):

   “[98] At the hearing the applicant stated for the first time that he has an Australian girlfriend. She is Christian. He said that in Pakistan it will be thought that he too is Christian because of the relationship. He also said that his girlfriend would not enjoy social freedom in Pakistan and his father will not accept his relationship with a Christian.

   [99] As stated the tribunal accepts that the applicant has a girlfriend in Australia who is Christian. The tribunal established that marriage has been discussed between them but it has not been raised or discussed with their families. There are no firm plans for marriage at this time. The tribunal accepts that the applicant’s family may not be supportive of a relationship or marriage with a non- Muslim. However, on the basis of the evidence, including the statement of Nicole Chen and the circumstances of the applicant the tribunal does not accept that the applicant’s girlfriend will accompany him to Pakistan as his girlfriend, partner or wife in the reasonably foreseeable future.  It therefore does not accept that there is a real chance that the applicant will be viewed as a Christian or considered to have adopted the Christian faith, by his family or members of the community. It does not accept that he will be harmed by his family for reason of his relationship with a Christian girl. It follows that the tribunal does not accept that there is a real chance that the applicant will be persecuted in Pakistan because he has defied family, tribal and cultural values; that he has defied the family tradition of an arranged marriage; that he faces an honour killing; that he will be forced into marriage. In short the tribunal does not accept that there is a real chance that the applicant will be persecuted if he returns to Pakistan for any reason associated with his relationship with an Australian, Christian girl. Some of the particular social groups identified by the applicant’s representative in his submission of 31 July 2013 are not relevant to the applicant’s actual claims and his circumstances.”

7. In a Statutory Declaration made and submitted to the Tribunal on 3 July 2013 (CB 366 to CB 367), that is after the hearing before the Tribunal (12 June 2013, see CB 347), the applicant, amongst other things, stated what is set out above at [13] ([11] – [13] at CB 366).

8. The applicant submitted that that encapsulated the claim made by him and not considered by the Tribunal. That is, that the girlfriend could not go with him to Pakistan because both their lives would be in danger. It is, in essence, from this that the applicant says the Tribunal’s failure emerges. It did not consider this aspect of the claims.

9. The Tribunal made specific reference to this (and a large volume of other material variously submitted through the applicant’s representative after the hearing) in its decision record (CB 359 to CB 520). It should be noted that there were two Statutory Declarations of that date before the Tribunal (the first is reproduced at CB 366 to CB 367 and the second at CB 369 to CB 370). See, also, the Tribunal’s reference at [38] at CB 542 to [49] at CB 544).

10. In its decision record, the Tribunal makes specific reference to that Statutory Declaration. It summarised what was said ([38] at CB 542 to CB 543):

    “On 3 July 2013 the applicant’s representative provided the following additional material:

    - Statement of the applicant in which he outlines the circumstance in which he met his girlfriend Nicole Chan. He describes the harm he will suffer if he returns to Pakistan because of his relationship with a Christian. He says that he cannot take his girlfriend to Pakistan because it will put both of their lives at risk. He expresses fear that in Pakistan his girlfriend will be targeted by Sunni fundamentalists because of her Christian religion and on account of her relationship with him. 

    - The applicant says that he fears that he will be harmed by Shia extremists for marrying a non-Muslim girl. His family will harm him for damaging their honour because of marriage to a Chinese girl who follows Christianity. He will not get state protection in Pakistan because this problem is considered to be a domestic issue.

    - The applicant again summarises his additional claims that he will face harm in Pakistan for the following reasons:

    - He is Bangash-Turi Shia. He can be easily identified and Sunni Islamic fundamentalists will target and kill him because of his religious and ethnic identity.

    - Sunni Islamic fundamentalists will target him for having a relationship with a Chinese girl who follows Christianity.

    - Sunni Islamic fundamentalists may consider his girlfriend as a Hazara due to her Chinese look and may target them.

    - Not only Sunni Islamic fundamentalists but also the Shia extremists will target and kill them for perceived un-Islamic activities.

    - His family is known among the community and he has two brothers who work for defence. Because his family will harm and kill him to restore their honour when they know of his relationship they can go to any extent to find him and harm him.

    - He will have problems from Sunni Islamic fundamentalists, Shia extremists and members of his family.”

11. Relevantly, and amongst other things, the Tribunal noted that the applicant claimed that he could not take his girlfriend to Pakistan because it would put both their “lives at risk” ([38] at CB 542).

12. In these circumstances it is not open to the applicant to submit that the Tribunal completely ignored the applicant’s claim in this regard. The Tribunal’s summary of his claims was not a verbatim recording of what the applicant said, but a summary that reveals the Tribunal engaged with his claim in this regard. It summarised the essential points in his Statutory Declaration. The Tribunal’s summary, in my view, was a fair and comprehensive summary of the relevant claim.

13. In its analysis at [47] (at CB 544), the Tribunal made specific reference to not only the applicant’s oral evidence to it, but the “statements” submitted by him and his girlfriend. In context, this includes the Statutory Declaration of 3 July 2013, referred to above.

14. As set out above, the applicant made reference to what he described as the “Catch-22” situation created by the Tribunal. I do not accept this is a fair reading of the Tribunal’s analysis.

15. The applicant claimed that they “planned” to marry. The Tribunal accepted this as a statement of a desire to marry, but not of an intention to marry in the reasonably foreseeable future. This finding was reasonably open to the Tribunal on what was before it. On this basis the Tribunal further reasoned that he would return to Pakistan as a single man. This finding, also, was reasonably open to the Tribunal.

16. I appreciate that the applicant’s argument before the Court had some nuance. That is, that the applicant may well return as a single man, but that was because he would be unable to take his girlfriend with him because of the fear of harm to both of them (hence the “Catch-22”).

17. However, some care needs to be taken in understanding the applicant’s claim to the Tribunal. The applicant did not say that they were planning on marrying in the foreseeable future. He made plain, as did his girlfriend, that they were not in a position to get married in the foreseeable future.

18. The thrust of the applicant’s claim, relevant to his ground, was that he wanted to remain in Australia so that he could continue his current relationship which, in the fullness of time, he (and she) hoped would develop to marriage and to jointly run a childcare centre.

19. The Tribunal’s view of the evidence however was, as it concluded at [99] (at CB 555 to CB 556), that the girlfriend would not accompany the applicant to Pakistan in any capacity (“girlfriend, partner or wife”) in the foreseeable future. In context, and on a fair reading, this was found to be the case, not necessarily because of any fear as to what would likely occur to them, but, because of the nature, or “stage” of the relationship. This latter matter has nothing to do with any fear of harm.

20. The view the Tribunal took of the character or stage of the relationship was reasonably open to it on what was before it. The thrust of what the applicant and his girlfriend were putting to the Tribunal was in the context of why the Tribunal should allow him to remain in Australia, not that the relationship was threatened if he were to go to Pakistan. The applicant’s written submission to the Court, that he would be “forced to abandon the relationship after leaving Australia”, was not made to the Tribunal.

21. The submission before the Court, when fairly read, and understood, was based a presumption that the girlfriend would go to Pakistan with him. The claim was not before the Tribunal that she would go, but was on the basis that if she were to go, then they would suffer harm. Hence, the applicant should be permitted to stay in Australia. The Tribunal found as a finding of fact, contrary to that supposition. This was reasonably open to the Tribunal.

22. In all, the applicant’s ground seeks to cavil with that factual finding and the findings informing that finding. No legal error is revealed here.

23. For the sake of completeness, I note, as set out above, that the complaint in the ground was directed to the consideration of the complementary protection criterion. In considering that criterion, the Tribunal had “regard to its findings of fact above…” ([104] at CB 556). The Tribunal was entitled to rely on those findings in its consideration of the criterion at s.36(2)(aa) of the Act without repeating them (SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774). Ground one is not made out.

24. Ground two asserts that the Tribunal’s decision was affected by an apprehension of bias. The particulars direct attention to the applicant’s request to the Tribunal that it take oral evidence by telephone from his father and brothers in Pakistan.

25. The relevant test for apprehension of bias in cases such as this is as follows (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [27] – [28] per Gleeson CJ, Gaudron and Gummow JJ):

    “[27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of ‘a fair-minded lay observer’ when, as is the case with the Tribunal, proceedings are held in private.

    [28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.”

26. In his submissions, the applicant directed attention to his request, by way of his response to the invitation to hearing, that the Tribunal take evidence from three witnesses. These were his father and two brothers (CB 330 to CB 333).

27. The applicant argued that the Tribunal was obliged to give real, meaningful, and genuine consideration to this request (Minister for Immigration v Maltsin [2005] FCAFC 118 at [38]). The applicant’s position was that it did not do so and this was because it had a “closed mind” to the request.

28. The applicant directed attention to [83] (at CB 551):

    “The tribunal has considered the written statements made by the applicant’s father and his brother and acknowledges that the positions of members of the applicant’s family could, in some circumstances place him at increased risk of harm. However for all of the reasons outlined the tribunal does not accept that this has been the case for the applicant. It has relied on the information provided in these statements and did not take oral evidence by phone from the parties in Pakistan. The tribunal has formed the view that further oral evidence from the applicant’s family members in Pakistan could not overcome the significant difficulties which the tribunal has in relation to aspects of the applicant’s oral evidence at the hearing which ultimately have led the tribunal to conclude that he was not a credible witness.”

29. The applicant submitted that this formed the basis to argue that the Tribunal had a closed mind about what evidence may be given. This was said to be as follows. The Tribunal decided that it did not need to hear from these witnesses. The applicant characterised the Tribunal’s reasons as being that there was nothing that the witnesses could say that would change its mind about the applicant’s evidence. The applicant submitted that the lack of any apparent reason for this demonstrated that the well-informed lay observer might reasonably apprehend that the Tribunal had a closed mind.

30. The applicant sought to distinguish between the situation where a Tribunal finds that the witness cannot assist, and in fact the witness can assist, (as in this case, on his submission), and those circumstances where, for example, because of lack of relevant knowledge the witness is not in a position to assist, or further, where it is unnecessary to take further evidence because it relates to evidence the Tribunal has accepted.

31. Before the Court, the applicant noted the summary in his written submissions as being the matters on which the Tribunal’s adverse view of the applicant’s evidence was based ([21] of the applicant’s written submissions):

    “The Tribunal’s view of the Applicant’s credibility was formed largely on the basis of discrepancies between what the Applicant had said and certain assumptions the Tribunal made about the family members’ behaviour. In particular:

    (a) At [61] (CB 547), the Tribunal said that it ‘questioned’ whether his father would have permitted him to go to the travel agent in Peshawar, or make the journey to Islamabad, if he feared for his son’s safety.

    (b) At [65] (CB 547), the Tribunal found it ‘implausible’ that the father would have waited 48 hours until the son had reached Australia before reporting the incident on the road.

    (c) The Tribunal dismissed the Applicant’s claim to have received threatening phone calls because the date he give for the first call was the same day that he was sitting his IELTS test in Islamabad. At [68] (CB 548) the Tribunal noted the Applicant’s claim (see T19.5, and 20.25-29) that the father and other family members had also received threatening phone calls.

    (d) At [72] (CB 549) the Tribunal commented on the brother’s failure to seek protection in Sweden and the father’s actions in ‘permitting or condoning’ his return to Pakistan, which it said ‘supported a finding’ that the brother did not fear for his safety and ‘indicated’ that the father did not fear for the brother’s safety either.

    (e) At [78] (CB 550) the Tribunal found that the fact the father attended the mosque daily meant that he did not confine himself to the house in order to remain safe.”

32. The applicant submitted that his father and brothers could have given evidence relevant to each of these instances. These were matters on which the Tribunal otherwise relied to conclude adversely to the applicant’s credit. Without the witnesses’ evidence, the Tribunal submitted that it may be said it did so in circumstances where each of these matters might be said by the well-informed, fair minded lay observer, not to be “settled”.

33. The starting point for consideration is the request made by the applicant for the Tribunal to take oral evidence from the three witnesses.

34. Section 426(3) of the Act obliges the Tribunal to have regard to the applicant’s wishes, but is not required to obtain the evidence once having had such regard (the applicant says that that regard must be “genuine”).

35. However, that obligation to have regard only arises, as is made plain in s.426(3) of the Act, “if” the applicant take up the option of notifying the Tribunal within 7 days after being notified by the Tribunal in writing, that he wants the Tribunal to take such evidence (s.426(2) of the Act).

36. In the current case, the applicant agreed that he did not give such notification to the Tribunal within 7 days of receiving the Tribunal’s notice (see CB 269 to CB 272 for the invitation dated 24 April 2013, SCB 1 to SCB 10 for attachments, CB 275 response to hearing notice “witnesses TBA” on 3 June 2013, and CB 330 to CB 333 for the notification of the request for the three witnesses made on 11 June 2013).

37. However, he argued that the Tribunal’s invitation was deficient in that it did not clearly give the effect of s.426(2) of the Act to the applicant. That is, the need to make the request for witnesses to be heard within 7 days of notification by the Tribunal. In this regard, the applicant directed attention to the Tribunal’s letter of invitation to hearing, which includes the matter of witnesses and said that there was no “suggestion” of the relevant consequences. Further, that there was only “mere” reference to returning the form within 7 days (see CB 271.8 and SCB 3.8).

38. This letter must be read in context of the attachment that accompanied it. That attachment provided “Information About Tribunal Hearings” (SCB 5).

39. The applicant, in effect, said that the Tribunal’s notification did not comply with the statutory requirement because it did not notify the applicant that he could (s.426(2) of the Act):

    “(2)…within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.”

1. There may well be some strength to the applicant’s argument here. While the letter of invitation to appear before the Tribunal requests (“please”) the return of the “Response to Hearing Invitation” form within 7 days, and while the attached invitation under the heading of “Can I ask the Tribunal to obtain evidence?” makes reference to the possibility (“may”) of requesting the Tribunal to take evidence from a witness, and even further, while the “Response to Hearing Invitation” form makes a similar reference, there is no express, or concise statement in the terms, as set out at s.426(2) of the Act. That is, that the obligation to have regard to the request (s.426(3) of the Act) only arises if the applicant’s request is made within 7 days of his being notified.

2. It may be that such meaning can be derived contextually and holistically, but it is not necessary to consider this question in the current case. This is because the ground pleaded by the applicant is not one alleging any breach of the statutory requirement. Rather, the allegation is one of the apprehension of bias, said to be revealed from what the Tribunal actually did in this case. In this regard, and in any event, the Tribunal did give consideration to the applicant’s request. The gravamen of the complaint is that in so doing, it laid open the apprehension that it did so with a closed mind.

3. It is to that, therefore, that the Court’s consideration must focus. First, I do not agree with the applicant that the Tribunal’s view of the applicant’s credibility was “formed largely” on the basis of, particularly, the matters referred to in his submissions before the Court ([21] of the applicant’s written submissions and see above at [62]).

4. The Tribunal’s analysis must be read contextually and holistically (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). That is, fairly. In relation to the applicant’s claims, other than as they related to his girlfriend and separately to the circumstances of his family members in Pakistan, the Tribunal found that “the applicant was not a truthful or credible witness” ([54] at CB 545). The Tribunal gave reasons for this. This finding was reasonably open to the Tribunal on what was before it. Importantly, before the Court, neither the applicant’s ground nor his submissions sought to impugn this conclusion. The Tribunal explained that it found that the applicant’s evidence ([54] at CB 545):

   “…was internally inconsistent and his accounts of certain key events were unable to be reconciled with other evidence before the tribunal. His responses to the tribunal’s questions about particular events and experiences were often hesitant, uncertain and confused. In addition to this difficulty the tribunal has also considered the applicant’s behaviour in making the decision to return to Pakistan for a five week visit in July 2009 and his activities undertaken whilst there, notwithstanding his claims that he fears and feared that he will be seriously harmed in that country. It has also had regard to the circumstances of the applicant’s brothers in Pakistan and in particular those of his younger brother who returned to Pakistan after undertaking tertiary studies in Sweden.”

5. The Tribunal then proceeded to give details of this in relation to a number of matters raised by the applicant’s factual account of past events ([55] at CB 545 to [74] at CB 549).

6. The Tribunal then considered the situation regarding the applicant’s family members in Pakistan ([75] at CB 550 to [82] at CB 551). In this context, the Tribunal considered the applicant’s request to take evidence from his family members (see [59] above for the Tribunal’s findings at [83] at CB 551).

7. The Tribunal’s reasoning is clear on this point. It considered the family’s written statements. It acknowledged (on a theoretical basis) that their positions may, if the circumstances were such, place the applicant at risk. However, it relied on its reasoning, as expressed earlier in the decision record, to find that what was in those statements did not lead to a finding that the applicant would be at risk. This was because the Tribunal’s earlier expressed findings had the character, as the Tribunal plainly stated, that they presented “significant difficulties” for the Tribunal which led to the adverse credibility findings.

8. On the evidence, it cannot be said that the well-informed lay observer might reasonably apprehend a closed mind. The Tribunal considered the applicant’s request. However, given its adverse conclusion as to the applicant’s credibility, based on his own evidence, it decided not to take the oral evidence from the family because any such evidence would not overcome its significant concerns with the applicant’s own evidence.

9. A closed mind is not revealed simply where the Tribunal has reasoned and formed a conclusion about the applicant’s credibility, and then considers that further evidence could not overcome the finding in relation to his credibility.

10. It is the case that a different Tribunal member may have had a different view of the applicant’s own evidence, or even if it came to the same view, may have decided to further test this view by taking further evidence. However, this Tribunal member, in not doing that, gave reasons probative of, and responsive to, what was before it as to why the member would not accede to the applicant’s request.

11. That reasoning and consideration arises from and is explanatory of the material before the Tribunal. It reveals a mind which engaged with what was before it. In that light, this shows a mind open to persuasion. However, a mind which, ultimately, drew a line at what it considered would not further assist.

12. I agree with the Minister that ground two does not reveal a closed mind, but in the circumstances seeks to challenge the Tribunal’s exercise of its power as to whether to take further evidence from these witnesses. Ground two is not made out.

Conclusion

1. The grounds of the application are not made out. It is appropriate to dismiss the application. I will make an order accordingly.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 12 December 2014