WZAUV v Minister for Immigration
[2019] FCCA 1062
•29 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZAUV v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1062 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Protection Visa application by citizen of Pakistan – whether a failure to consider claims – whether a failure to take into account relevant corroborative material – whether jurisdictional error – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.36, 474, 476 Tribunals Amalgamation Act 2015 (Cth), s.3, sch.2 |
| Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 J Gray, Lawyers’ Latin. A Vade-Mecum (London: Robert Hale Limited, 2002) |
| Applicant: | WZAUV |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 333 OF 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 23 April 2015 |
| Date of Last Submission: | 23 April 2015 |
| Delivered at: | Perth |
| Delivered on: | 29 April 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Estrin |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the Respondents: | Mr P Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the name of the second respondent be amended to read “Administrative Appeals Tribunal”.
That a writ of certiorari issue quashing the decision of the second respondent made on 18 September 2014.
That a writ of mandamus issue requiring the second respondent to re-hear the application for review made by the applicant on 27 February 2014 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 333 OF 2014
| WZAUV |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively), to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the Minister for Immigration and Border Protection (“Minister”) to refuse the applicant a Protection (Class XA) visa (“Protection Visa”).
Background to the Judicial Review Application
The background to the Judicial Review Application is as follows:
a)the applicant is a citizen of Pakistani born on 25 June 1984 in Pakistan: CB 12-13;
b)the applicant arrived in Australia on 23 January 2011 on a student (subclass 572) visa: CB 14-15;
c)on 31 August 2012 the applicant departed Australia to visit his family in Pakistan. He returned to Australia on 9 October 2012 to complete his studies: CB 144;
d)on 12 November 2012 the applicant applied for the Protection Visa: CB 98;
e)the applicant completed the requirements for an Advanced Diploma of Engineering (Oil and Gas) at the Central Institute of Technology in Perth on 14 December 2012: CB 128;
f)in his Protection Visa application the applicant:
i)claimed a fear of persecution for reasons of race, religion, nationality, membership of a particular social group and political opinion: CB 34;
ii)attached various newspaper and online blog snippets in relation to the political and security situation in Pakistan: CB 29-85;
iii)attached various copies of documents relating to the applicant: CB 85-96;
g)on 11 July 2013 the Delegate interviewed the applicant: CB 144 and 146;
h)on 4 February 2014, the Delegate refused to grant the applicant the Protection Visa: CB 139-142;
i)on 27 February 2014 the applicant applied to the Tribunal for review of the Delegate’s Decision: CB 175-180;
j)on 8 August 2014 the Tribunal invited the applicant to a hearing before the Tribunal held on 17 September 2014 (“Tribunal Hearing”) to give evidence and present arguments relating to the issues arising on his Protection Visa application: CB 193-194;
k)on 17 September 2014 the applicant attended the Tribunal Hearing and gave evidence and presented arguments in support of the Protection Visa application: CB 204-206 and 208; and
l)on 18 September 2014 the Tribunal Decision affirmed the Delegate’s Decision to refuse to grant the applicant the Protection Visa: CB 207 and 216.
Tribunal Decision
In the Tribunal Decision at CB 208-216 the Tribunal referred to the following material:
a)the Procedures Advice Manual No. 3 Complementary Protection Guidelines and Refugee Law Guidelines (“PAM 3 Guidelines”): CB 209 at [11];
b)Department of Foreign Affairs and Trade (“DFAT”) Country information: CB 209 at [11]; and
c)materials provided by the applicant including:
i)an undated detailed written statement: CB 27-39; and
ii)various attachments and extracts from media and human rights organisations reports: CB 40-85.
The Tribunal:
a)accepted that the applicant was a citizen of Pakistan who does not a have a right to enter or reside in another country and who ordinarily resided in Pakistan: CB 214 at [34];
b)highlighted various aspects of the applicant’s evidence as implausible, including:
i)choosing to have a continued association with persons the applicant viewed as dangerous due to their links with the Taliban and drug trafficking after stating that he left his employment with the Pakistan Society because they were dangerous: CB 214 at [38];
ii)the claim that the Taliban had a continued interest in him after 18 months abroad in order to obtain keys to his premises so that they could appear to be legally authorised to access the premises: CB 214 at [39];
iii)the Taliban agreeing to allow him to go home to spend time with his family after agreeing to hand over the keys: CB 214 at [40];
iv)the Taliban offering him a cut in their drug trafficking profits in exchange for his cooperation: CB 214 at [40]; and
v)the Taliban releasing him when he asked to return to Australia to complete his studies through the influence of a particular person (whom the Court will call “Person R1”): CB 214-215 at [40].
The Tribunal concluded that:
a)aspects of the applicant’s evidence were implausible and the applicant was not a credible witness, and therefore it rejected each and every material particular of his claim: CB 215 at [41];
b)on the basis of the adverse credibility findings it did not accept:
i)that the applicant had any contact with the Taliban and that the Taliban had demanded money and keys from him: CB 215 at [42];
ii)that the Taliban operated a drug trafficking operation from the applicant’s business premises: CB 215 at [42];
iii)that the Taliban offered the applicant a cut in the drug trafficking operation in exchange for his silence and cooperation: CB 215 at [42];
iv)that the Taliban threatened the applicant with death if he approached authorities for assistance: CB 215 at [42];
v)that the Taliban would seek to harm the applicant upon his return to Pakistan for escaping: CB 215 at [42];
vi)that three particular people, namely Person R1, and two others (whom the Court will call “Person U1” and “Person Z1” respectively) exist: CB 215 at [43];
vii)that the applicant was taken into custody by the police, or people posing as police: CB 215 at [43]; and
viii)that the applicant was beaten and accused of drug trafficking by the police: CB 215 at [43];
c)the fear expressed to be held by the applicant in respect of returning to Pakistan is not genuinely held and well-founded in respect of each of the grounds of the Refugees Convention: CB 215 at [44];
d)the applicant was not a person to whom Australia has protection obligations under the Refugees Convention as set out in s.36(2)(a) of the Migration Act: CB 215 at [45];
e)the applicant did not meet the alternative complementary protection criteria set out in s.36(2)(aa) of the Migration Act: CB 215 at [46]; and
f)cumulatively, the applicant had not provided genuine or truthful claims, and that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there was a real risk he will suffer significant harm: CB 215 at [47].
The Tribunal affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 216.
Grounds of the Judicial Review Application
The three grounds of review as set out in the Judicial Review Application are set out in full below: ground 1 is at [10], ground 2 is at [31], and ground 3 is at [36].
With the Judicial Review Application the applicant also filed an affidavit (“Applicant’s Affidavit”) annexing the Tribunal Decision and a two page excerpt of a transcript from the Tribunal Hearing (“Tribunal Transcript Excerpt”).
Consideration
Jurisdictional error required
The Tribunal Decision may be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An error may constitute a jurisdictional error where the Tribunal identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material, in a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or failing to exercise, authority or powers given to the Tribunal under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 (“Yusuf”) at [82] per McHugh, Gummow and Hayne JJ.
Ground 1
Ground 1 of the Judicial Review Application is as follows:
1. The Second Respondent's decision was affected by jurisdictional error in that the Second Respondent failed to consider claims squarely raised by the Applicant and/or clearly advanced in the materials for the purposes of s.36(2)(a) of the Migration Act 1958 (Cth) ('the Act').
Particulars
a) The Applicant raised, inter alia, the following claims:
i. his fear of persecution for reasons of his membership of a particular social group, namely Pakistani Muslim youths; and
ii. his fear of persecution for reasons of his nationality as a Pakistani.
b) The Second Respondent mischaracterised these claims as having been provided by the Applicant for the purposes of “background information” only and failed to consider them.
Applicant’s submissions
In relation to the nature of his claims the applicant submitted that:
a)he had squarely raised claims before the Tribunal that he feared persecution by reasons of:
i)his nationality as a Pakistani; and
ii)his membership of a particular social group, namely Pakistani Muslim youths;
(‘First Claim” and “Second Claim” respectively, and “Two Claims” collectively)
b)expressed the Two Claims in his statement at CB 34 that:
As a citizen of Pakistan Muslim, who fled the country Pakistan in fear of persecution, I fall under the category of a refugee defined by the 1951 United Nations Convention relating to the status of refugees as amended by the 1967 Protocol. The following facts stated herein would explain in detail the reasons why I fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
When Taleban was attacked in Afghanistan most of the Taleban and Al-Qaeda terrorists moved into Pakistan through North West Frontier Province and presently infiltrated all around Pakistan making it difficult for the Pakistani Muslims especially the Pakistani Muslim youths.
c)at the outset of the Tribunal Hearing, the Tribunal sought to clarify a number of mandatory considerations before it by asking the applicant to confirm that he would abandon the Two Claims, and explained this practice at CB 209 at [13] and [15] as follows:
13. As to his claims, I asked a few clarifying question relating to matters he had mentioned in his statement where it was not clear if the matters were provided by way of background or whether the matters related to his claims. In this regard, the applicant had mentioned that the Taliban had infiltrated Pakistan and this was a concern to Muslims such as himself, but he confirmed this information was provided by way of background. The applicant also confirmed that information in his statement regarding neighbourhood youths forcing his brother to train with the Taliban had been provided for my background information but no claims relating to him arose from this information.
15. …. In the course of the hearing I took the applicant through a similar summary of his claims thereby confirming with him that I had correctly understood his evidence of these matters.
d)despite the difficulties in communicating freely in English raised by the applicant: CB 208 at [3]-[7], the Tribunal engaged in a dialogue with the applicant (without the use of an interpreter) in an attempt to erode the Two Claims and to steer the applicant towards the claims as the Tribunal understood them;
e)the Tribunal Transcript Excerpt annexed to the Applicant’s Affidavit reveals no consent by the applicant to abandon either of the Two Claims;
f)at no stage of the review process did the applicant agree to abandon either of the Two Claims; and
g)by categorising the Two Claims as extraneous considerations, the Tribunal erroneously relieved itself of the duty of engaging in an “active intellectual process” in the sense discussed in Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage & the Arts [2011] FCAFC 59.
In relation to the relevant legal principles the applicant submitted that:
a)considerations can be classified as obligatory (or mandatory), available, or extraneous: NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277; (2003) 22 ALJR 1263; (2003) 198 ALR 179; (2003) ATPR 41-940 at [20] per Gleeson CJ.
b)in order for Ground 1 to be made out, the following must be demonstrated:
i)the Two Claims not considered must be ones which the Tribunal was bound to take into account, that is they must be mandatory considerations; and
ii)the failure to take into account these mandatory considerations must have materially affected the Tribunal Decision being challenged,
see Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299 (“Peko-Wallsend”), CLR at 40 per Mason J; SZUCG v Minister for Immigration & Border Protection & Anor [2015] FCCA 566 at [36] per Judge Lloyd-Jones;
c)in Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 (“MZYTS”) at [32] per Kenny, Griffiths and Mortimer J, the Full Court of the Federal Court said that:
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. Relevantly, and almost uniformly for the tribunal (putting complementary protection to one side), the criterion is the one set out in s 36(2)(a) of the Migration Act, which picks up Art 1 of the Refugees Convention.
d)given that the applicant did not abandon either of the Two Claims which were not considered, they were clearly within the scope and subject matter of s.36(2)(a) of the Migration Act and should therefore be considered mandatory, and it follows that the first limb of the test in Peko-Wallsend is met.
In relation to whether the failure to consider the Two Claims materially affected the Tribunal Decision the applicant submitted that:
a)whether the mandatory consideration “materially affected the outcome of the decision” depends on whether the applicant has been “deprived of the possibility of a successful outcome by the … [administrative decision-maker’s] failure to observe the requirements of the statute”: SZSRY v Minister for Immigration & Anor [2013] FCCA 1284 at [76] per Judge Driver;
b)the Tribunal’s failure to deal with the Two Claims deprived the applicant of the possibility of a finding that he faced persecution as a member of a particular social group (namely, Pakistani Muslim youths) or for reasons of his nationality (as a Pakistani national);
c)the Tribunal’s findings on the applicant’s claims, other than the Two Claims, were based solely on findings of adverse credibility;
d)the Two Claims not considered survive any adverse credit findings made by the Tribunal as they relate to immutable characteristics and country conditions in Pakistan, and no “findings of greater generality”, in the sense discussed in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“Applicant WAEE”), were made by the Tribunal which could be said to have subsumed the claims not considered, and it follows that the second limb of the test in Peko-Wallsend is also met.
Minister’s submissions
The Minister, having set out what the Minister said were the claims the applicant said he was raising, and that the applicant was asserting that the Tribunal had mis-characterised and failed to consider, submitted that:
a)it may be accepted that in reviewing the Delegate’s Decision refusing to grant the Protection Visa the Tribunal was obliged to consider the claims made by the applicant to be a refugee under the Refugees Convention, and the integers of those claims in order to determine whether the applicant meets the criterion for a Protection Visa under s.36(2)(a) of the Migration Act: Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 (“Htun”) at [42] per Allsop J (with whom at [1] Spender J agreed); W396/01 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 103; [2002] FCA 455; (2002) 68 ALD 69 at [31]-[38] per Black CJ, Wilcox and Moore JJ; SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80; (2003) 76 ALD 625 at [29] per Madgwick and Conti JJ;
b)the First Claim does not give rise per se to a claim of fear of persecution by reason of the applicant's nationality as a Pakistani or by reason of his membership of a particular social group comprising Pakistani Muslim youths, and nor does the Second Claim give rise to such claims;
c)the applicant had stated in the First Claim that his claims based upon all five Refugees Convention reasons would be explained "in detail" by "[t]he following facts stated herein", and the sentence quoted must be considered in the context of the remainder of the applicant's statement;
d)the applicant's reference to the "following facts stated herein" is a reference to all of the facts subsequently set out in page 7 of his statement and through to the end of page 10 of his statement: at CB 34-37. The single sentence quoted cannot be looked at in isolation and used as the foundation of a submission that the applicant squarely raised claims to fear persecution for reasons of his nationality as a Pakistani and by reason of his membership of a particular social group constituted by Pakistani Muslim youths simply as a result of the Taliban's infiltration "all around Pakistan";
e)it is apparent from the further matters set out by the applicant at pages 7-10 of the applicant's statement: CB 34-37, that his claims to fear persecution for all five Refugees Convention reasons was as a result of his ownership of an interior design business in a major city in Pakistan (“the City”), and his claimed interactions as the owner of that business with a group of militants and police officers between May 2010 and January 2011, and between September and October 2012;
f)for the reasons which the Tribunal gave at CB 214-215 at [36]-[43] the Tribunal rejected as implausible, and did not accept, the applicant's claims regarding the Taliban and the police, and his claims regarding Persons U1, Z1 and R1;
g)the Tribunal concluded at CB 215 at [44] that the fear expressed by the applicant in respect of returning to Pakistan was not genuinely held and was thus not well-founded, and reached this conclusion in relation to each of the grounds of the Refugees Convention;
h)the Tribunal clearly did consider the First Claim and the other four Refugees Convention reasons, but as the Tribunal did not accept the various factual claims made in support of the applicant's claimed fear of persecution on all five Refugees Convention grounds (the "following facts stated herein"), and therefore that his fear of returning to Pakistan was not genuinely held and not well-founded (in relation to all five Refugees Convention reasons), it was satisfied that the applicant was not a person to whom Australia owes protection obligations under s.36(2)(a) of the Migration Act: CB 215 at [45];
i)the applicant's evidence at the Tribunal Hearing as set out in the Tribunal Transcript Excerpt clearly demonstrates that the applicant was not making claims on the basis of the matters set out in the Second Claim;
j)the Tribunal raised the First Claim with the applicant and asked him whether anything flowed from that or whether it was "just part of the background that you wanted me to be aware of?" The applicant responded that "it's about background" and that it was "close[ly] related to me because it was related to my brother." The applicant further stated that his brother was not encountering any further problems (his brother had settled in a foreign country: see statement at page 9: CB 36), and that he didn't go back "because I wasn't actually facing the same kind of pressure from the group of people that my brother faced, I had a different problem, but definitely closely related to the same group of people";
k)the reference to the applicant having a different problem to his brother is clearly a reference to the problems the applicant subsequently set out in his statement involving a group of militants or Taliban and the police which flowed from his ownership of the interior design business in the City and the alleged use of his business premises for drug dealing, which claims were considered by the Tribunal but rejected;
l)that the applicant was not making the Two Claims separately to have a well-founded fear of persecution on the basis of his nationality or by reason of his being a member of the particular social group of Pakistani Muslim youths, solely on the basis of the statements in that particular sentence in his statement, is then further made clear by the exchanges between the applicant and the Tribunal that follow that particular sentence as set out in the Tribunal Transcript Excerpt, which matters were by way of background;
m)the applicant said he "was [having] to give the background that where actually it started and how it's affecting me": Tribunal Transcript Excerpt, second page; and
n)there is no basis for the applicant's contentions that the applicant had difficulties in communicating freely in English and that the Tribunal engaged in a dialogue with the applicant "in an attempt to erode his actual claims and to steer him towards the claims as the Tribunal understood them": Applicant’s Outline of Submissions at [25].
Consideration of ground 1
The applicant’s contention is that the Tribunal failed to consider claims raised by the applicant that he feared persecution due to his:
a)nationality as a Pakistani Muslim; and
b)membership of a particular social group, namely Pakistani Muslim youths.
In MZYTS at [32] per Kenny, Griffiths and Mortimer JJ the Full Court of the Federal Court summarised the Tribunal’s task in relation to the consideration of mandatory claims in terms set out at [12(c)] above, and at [34] per Kenny, Griffiths and Mortimer JJ said that:
… 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 further at [62] per Kenny, Griffiths and Mortimer JJ said that:
A failure to consider the claim advanced by a visa applicant is plainly and uncontroversially a failure to perform the statutory task imposed on the Tribunal.
A Full Court of the Federal Court also articulated the relevant legal principles regarding the requirement for the Tribunal to deal with an applicant’s claims in Htun at [42] per Allsop J (with whom at [1] Spender J agreed), as follows:
The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration … It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act … make it clear that the Tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant.
The applicant states twice that he is a Pakistani Muslim and that the infiltration of the Taliban and Al-Qaeda all around Pakistan has made it difficult for the Pakistani Muslims, and especially the Pakistani Muslim youths: CB 34.
In relation to his claims as a Pakistani national the applicant further states at CB 37 that:
As a Pakistani national, realising the dangerous situation our countrymen are facing at present, I do not want to be a part of the illegal, criminal and dangerous actions committed by the Taliban militants and the police officers.
In relation to the applicant’s submission regarding his membership of a particular social group, namely Pakistani Muslim youths, the applicant states that he was concerned about his younger brother who was a student and had started to face problems among the local youths who were involved in military training with terrorist groups and who wanted his younger brother to train with them: CB 34.
The Tribunal set out the events the applicant claimed gave rise to his fear of returning to Pakistan in the Tribunal Decision as follows:
a)the applicant expressed his claims in the context of the Refugees Convention that he feared being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion: CB 210 at [16]; and
b)the applicant further claimed that:
i)he worked as an accountant between 2007 and 2009 for the Pakistan Society and it was there he met Persons U1 and Z1: CB 210 at [17];
ii)he found Persons U1 and Z1 to be dangerous people as they were rehabilitated drug addicts who knew how the Taliban smuggled drugs into Pakistan, and for this reason left his employment with the Pakistan Society: CB 210 at [17];
iii)he set up a business of interior design in 2010 and paid a wage to a partner, Person R1, to work with him: CB 210 at [17];
iv)he contacted Persons U1 and Z1 to source labourers for the business: CB 210 at [17];
v)in May 2010 the Pakistani Taliban approached the applicant and demanded he pay 100,000 rupees: CB 210 at [17];
vi)he did not seek assistance from the Pakistani authorities as the Pakistani Taliban threatened to kill him if he did: CB 210 at [17];
vii)he discussed the demand with Person R1 and found out that Person R1 already knew about the demand and suggested that the applicant become involved with dealing drugs with the Taliban to make some money, and that Persons U1 and Z1 were also involved with the taliban. The applicant argued with Person R1 that he did not want to be involved in drug trafficking, but paid the money demanded to the Taliban: CB 210-211 at [17];
viii)in August 2010 the Taliban came to the home of the applicant demanding more money and keys to this business and he told them he only rented the business premises but they still continued to harass him for the keys: CB 211 at [17];
ix)in late 2010 he stopped trading in his business and stopped paying rent for the premises: CB 211 at [17};
x)he was in Australia some 18 months before returning to Pakistan in September 2012 for his sister’s wedding: CB 211 at [17];
xi)in the second week of September 2012 people purporting to be police took the applicant into custody overnight and beat and accused him of being a drug trafficker. The next day the police and Taliban returned and demanded the keys to the business premises to which the applicant replied he would hand them over after he spent time with his family: CB 211 at [17];
xii)he was taken to his business premises only to discover that Person R1 and drugs were present there: CB 211 at [17];
xiii)the Taliban offered a cut of the profits from the drug trafficking if he remained silent and the applicant said he would return to Australia to complete his studies and the Taliban agreed to release him: CB 211 ay [17];
xiv)he feared the Taliban because if he returned they would kill him for escaping them: CB 211 at [17]; and
xv)he did not wish to be involved in drug trafficking and would be forced to do so if he returned to Pakistan, and he feared for his life: CB 211 at [17].
The Tribunal made findings in relation to the credibility of the applicant and rejected all the applicant’s evidence in relation to his claims regarding his business, the Taliban and drug trafficking: CB 214-215 at [36]-[43], and concluded that in respect of each of the grounds of the Refugees Convention that the applicant did not have a well-founded fear of returning back to Pakistan and therefore did not satisfy the criterion set out in s.36(2)(a) of the Migration Act.
The Tribunal Decision begins with an explanation as to why the applicant ultimately gave evidence in English rather than Urdu: CB 208 at [3]-[6], and a conclusion that the Tribunal did not have any “concerns that the applicant and the Tribunal were communicating with complete clarity”: CB 208 at [7]. It is fair to observe that the Minister’s submissions to this Court also asked the Court to adopt a literal interpretation of selected parts of the applicant’s evidence: see, for example, [14(i)-(m)] above. The Court begins with this observation because on a proper and nuanced consideration of the Tribunal Transcript Excerpt the applicant’s evidence in English might, without intending the applicant any disrespect, be considered conversationally adequate, but in critical respects is neither a model of clarity nor a basis for the literal interpretation the Minister urges in respect of parts thereof. Two examples will suffice (quoted verbatim, including what are seemingly false ellipses):
Member: You mention that … you were concerned about your family members as the political situation in Pakistan was getting out of proportion following the invasion of Iraq and the movement of terrorists from the North-West Frontier Province throughout Pakistan. You also mention that certain youths were involved in military training and started to force your brother to take up military training with them. Do you remember setting out those concerns in your claims?
Applicant: Yes.
Member: I don’t know what you then make from them - was there anything that flows from that that you’d like to draw to my attention or is that just part of the background that you wanted me to be aware of?
Applicant: Yes, it’s about background and it’s like close related to me as because it was related to my brother.
(Tribunal Transcript Excerpt, first page)
Member: … I’m proceeding on the basis that your claims are in relation to your business …
Applicant: Yes.
Member: … and the contact you had – you say you had – with the Taliban then …
Applicant: Yes.
Member: and the information you have given me about the infiltration of the Taliban throughout Pakistan …
Applicant: Yes.
Member: … is by way of background and you don’t have any particular fears arising out of those events now. Is that accurate?
Applicant: Yeah, I can’t say it’s accurate because there actual thing relates … it started from there, so I was having to give the background that where actually it started and how it’s affecting me.
(Tribunal Transcript Excerpt, second page).
The Court observes that if the applicant’s ultimate response in each of the above examples is read (and particularly if it is read aloud) it is obvious that they are far from examples of communications “with complete clarity”: CB 208 at [7]. That is important because it goes to whether the Tribunal understood the Two Claims: MZYTS at [34] per Kenny, Griffiths and Mortimer JJ, and, ultimately, whether the Tribunal considered the Two Claims: MZYTS at [62] per Kenny, Griffiths and Mortimer JJ; Htun at [42] per Allsop J.
In relation to the first example at [23] above (from the Tribunal Transcript Excerpt, first page) it is not apparent whether in the applicant’s ultimate response the applicant’s “Yes” is in response to the Tribunal’s question as to whether:
a)anything flows from the Two Claims that the applicant would like to draw to the Tribunal’s attention; or
b)it is just part of the background that the applicant wanted the Tribunal to be aware of,
or both of the above.
Further, in relation to the first example at [23] above from the Tribunal Transcript Excerpt, first page) a proper and nuanced consideration of the applicant’s ultimate response would:
a)recognise that the two parts of the response might be contradictory, in that they were, firstly, “background”, but, secondly, personal to the applicant, that is “close[ly] related to me”, and that it might be necessary to resolve that contradiction before determining whether these matters were claims or background, because, in the Court’s view, the fact that they were matters personal or “close[ly] related” to the applicant made them more than mere background, and therefore claims that ought to have been considered by the Tribunal; or
b)either further or alternatively, have to consider the possibility that the applicant was making the Two Claims, and that it was necessary to set out the matters referred to both as background and as part of each of the Two Claims, because they were, firstly, “background”, but, secondly, as matters personal to the applicant, that is “close[ly] related to me”, part of each of the Two Claims, and therefore claims that ought to have been considered by the Tribunal.
In relation to the second example at [23] above (from the Tribunal Transcript Excerpt, second page) it is evident that the Tribunal recognised certain factual allegations in relation to the applicant’s alleged contact with the Taliban and the Taliban’s alleged infiltration of Pakistan, and sought the applicant’s concurrence to characterise those matters as “background” and not claims. But the applicant did not agree with the Tribunal’s attempt to characterise them as background: he specifically said that “I can’t say it’s accurate”. Otherwise, the applicant’s ultimate response in the second example is beset by the same type of issues as are identified at [26] above.
The Two Claims are also capable of consideration independent of the claims made with respect to the applicant’s business and the adverse credibility findings in relation thereto by the Tribunal. Those findings, in this case, are not findings of greater generality in the sense described in Applicant WAEE which would preclude consideration of the Two Claims. Because the Two Claims transcend the subject matter of the Tribunal’s credibility findings the Tribunal was still obliged to consider the Two Claims, and it failed to do so.
In the Minister’s submissions some emphasis was placed on the fact that the applicant referred to his having a “different problem” to his brother, and that that problem related to his business, whereas it would appear that his brother’s problems related to an attempt to force him into some kind of terrorist training with the Taliban (or a related local organisation). The fact that the applicant and his brother had different problems with the same group does not assist in determining whether the Tribunal actually dealt with the Two Claims. It is entirely conceivable that those different problems might arise because of a person’s nationality or because of their youth (or their religious affiliation which also appears to be a factor in relation to the Two Claims, albeit one not specifically relied upon by the applicant) in a country which it has been claimed has been infiltrated by a large armed insurgent group such as the Taliban. It would seem entirely rational, for example, for the local members of an insurgency to seek to utilise a business person as a front for money making or laundering activities (such as drug dealing) and to seek to utilise a student as a foot soldier. In this case, to simply say that there are different problems, is insufficient to relieve the Tribunal of the obligation to consider the Two Claims.
In the Court’s view the Two Claims were put before the Tribunal: see [23] and [25]-[29] above, but were not addressed in circumstances where the Tribunal was under a mandatory obligation to do so. Ground 1 of the Judicial Review Application is therefore made out, and establishes jurisdictional error in the Tribunal Decision.
Ground 2
Ground 2 of the Judicial Review Application is as follows:
2. The Second Respondent's decision was affected by jurisdictional error in that the Second Respondent failed to consider claims squarely raised by the Applicant and/or clearly advanced in the materials for the purposes of s.36(2)(aa) of the Act.
Particulars
a) The Applicant raised, inter alia, the claim that he fears harm and / or mistreatment as a result of the threat caused by the infiltration of the Taliban and other non-state actors in Pakistan.
b) The Second Respondent mischaracterised this claim as having been provided by the Applicant for the purposes of “background information” only and failed to consider it.
Applicant’s submissions
The applicant:
a)relied on the submissions in relation to ground 1 as set out at [11]-[13] above making the necessary alterations (the applicant’s submissions use the Latin phrase “mutatis mutandis” which means “making the necessary alterations”: J Gray, Lawyers’ Latin. A Vade-Mecum (London: Robert Hale Limited, 2002), page 93); and
b)at hearing the applicant’s solicitor made a further submission regarding the issue of complementary protection, submitting that if it was accepted by the Tribunal that the applicant’s business existed then this may have been a relevant consideration to one of the exceptions to complementary protection in s.36(2B)(c) of the Migration Act, and that the Tribunal did not undertake this analysis in the Tribunal Decision.
Minister’s submissions
The Minister submitted that:
a)in relation to the applicant's protection claims under s.36(2)(aa) of the Migration Act, the Tribunal stated at CB 215 at [47] that for the reasons it had set out above it had reached the view that the applicant had not provided genuine or truthful claims and, as the Tribunal did not accept any material aspect of those claims, it did not have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there was a real risk that the applicant would suffer significant harm; and
b)for the same reasons as set out above at [14] in relation to ground 1, the Minister submits that ground 2 is also not made out.
Consideration of ground 2
Both parties rely on their submissions in relation to ground 1 for the purposes of their arguments on ground 2. Given the Court’s conclusion with respect to ground 1 it follows that ground 2 of the Judicial Review Application is also made out for the same reasons, and establishes jurisdictional error in the Tribunal Decision.
In relation to the additional submission: see [32(b)] above, made by the applicant at hearing, the Court observes that:
a)the Tribunal had before it country information which pointed to generalised violence in Pakistan and the City at the hands of various terrorist groups: CB 27-85, and it may, therefore, have been arguable that the risk facing the applicant in the City was one of violence not personally directed to him as an individual, but that there was nevertheless a risk of being caught up in violence directed towards people in the City which included the applicant: Migration Act, s.36(2B)(c);
b)the Tribunal ought then to have considered whether the applicant faced a risk of greater harm than that faced by the people of the City generally: Migration Act, s.36(2B)(c);
c)the Tribunal did not raise any concerns with the applicant’s claims that he owned an interior design business which operated from a business premises in the City: CB 211-213 at [18]-[33], and made no adverse findings in relation to whether the applicant owned and operated an interior design business from an office in the City: CB 214-215 at [38]-[43], and the Minister’s submissions on ground 3 concede that “the Tribunal's reasons at CB 214-215 at [38]-[43] in relation to those material particulars show that it did not appear to dispute that the applicant had an interior design business and office in a major city in Pakistan”: see [38(b) and (c)] below;
d)the Tribunal ought therefore to have considered whether the risk faced by the applicant as a business operator was greater than that faced by the population of the City generally, and if so, then whether that risk could be said to be personal to the applicant, but the Tribunal failed to do so; and
e)the failure of the Tribunal to undertake the required consideration establishes jurisdictional error in the Tribunal Decision, and ground 2 of the Judicial Review Application has been made out on the further basis submitted by the applicant at hearing.
Ground 3
Ground 3 of the Judicial Review Application is as follows:
3. The Second Respondent's decision was affected by jurisdictional error because it failed to take into account relevant corroborative documents.
Particulars
a) The Second Respondent was aware of the existence of documents about the Applicant’s business, which, on their face, were relevant as corroborative evidence.
b) The Second Respondent neither considered these documents nor made a proper assessment on their genuineness.
Applicant’s submissions
The applicant submitted that:
a)the Tribunal Decision states at CB 209 at [12]:
Other than having further evidence available regarding the registration of his business in Pakistan and photographs of his office, the applicant told me he had no changes to make to his claims and no further information to provide. I did not require the applicant to provide the documentary evidence or photographs he had mentioned.
b)whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document, and while in some instances, the Tribunal is entitled to “treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption”: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002[2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59; (2003) 73 ALD 1 at [49] per McHugh and Gummow JJ, the current circumstances do not give rise to such an entitlement;
c)the business registration documents and photographs of the applicant’s office were potentially probative and may have affected the outcome of the Tribunal’s findings on credibility. In Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; (2000) 75 ALJR 52; (2000) 176 ALR 219; (2000) 62 ALD 285 at [4] per Gleeson CJ it was said that: “Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive” (see also VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77] per Hill, Sundberg and Stone JJ); and
d)the material proffered by the applicant was the only corroborative documentary and independent evidence available for inspection. An assessment of the probative value of that evidence is undoubtedly a question of fact for the Tribunal and not subject to judicial review, but the Tribunal arrived at its conclusion to “reject each and every material particular of his claims” without viewing the evidence to determine its evidentiary weight: CB 215 at [41]. The Tribunal’s failure to consider the evidence proffered by the applicant is a failure to take into account a relevant consideration. This amounts to a jurisdictional error.
Minister’s submissions
The Minister submitted that:
a)there was no legal error, let alone jurisdictional error, arising from the statement by the Tribunal at CB 209 at [12] that it did not require the applicant to provide the documentary evidence regarding the registration of his business and the photographs of his office that he had offered to make available;
b)while the Tribunal rejected "each and every material particular" of the applicant's claims at CB 215 at [41], the Tribunal Decision at CB 214-215 at [38]-[43] in relation to those material particulars shows that it did not appear to dispute that the applicant had an interior design business and office in a major city in Pakistan, and the Tribunal made reference to "his premises", "the premises" and "his former business premises": CB 214-215 at [39] and [42];
c)further, the matters raised with the applicant by the Tribunal at the Tribunal Hearing at CB 211-213 at [18]-[33] give no indication that the Tribunal had any concerns with the applicant's claims that he owned an interior design business that operated from an office in City;
d)those facts were essentially irrelevant to the Tribunal's rejection of the applicant's claims, and that is why the Tribunal did not require the applicant to produce evidence of the registration of his business or photographs of his office; and
e)the applicant's documents were not corroborative documents that could have assisted the applicant's case.
Consideration of Ground 3
The Tribunal did not require the applicant to provide the documentary evidence or photographs in relation to the applicant’s business premises: CB 209 at [12].
The Tribunal raised with the applicant several concerns in relation to his narrative and implausibility and referred to the Delegate’s Decision regarding the applicant’s credibility: CB 211-213 at [18]-[33]. The Tribunal did not raise with the applicant any disbelief it had with regard to his business premises and its existence.
The Tribunal’s findings in relation to the “material particulars”: CB215 at [41], of the applicant’s evidence that it rejected were clearly set out in the Tribunal Decision: CB 214-215 at [36]-[43] and did not specifically refer to a rejection of the existence of the applicant’s business or business premises. It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons: Applicant WAEE at [46]-[47] per French, Sackville and Healy JJ. In the circumstances of this case, the Tribunal considered that the documentary evidence and photographs were not required as evidence as it did not take issue with the existence of the interior design business or premises and ultimately the existence of the business or its premises was of little importance to the Tribunal’s findings that the applicant’s evidence in relation to his contact with the Taliban, dangerous drug dealers, police and drug trafficking was implausible and fabricated.
For the above reasons the Court is of the view that ground 3 is not made out and does not establish jurisdictional error in the Tribunal Decision.
If, contrary to the Court’s findings at [41] above, the Tribunal did find that the applicant’s business and premises did not exist, then ground 3 would be made out, and would establish jurisdictional error in the Tribunal Decision, for the reasons set out in the applicant’s submissions.
Conclusions and orders
The Court has concluded that:
a)grounds 1 and 2 of the Judicial Review Application have been made out, and establish jurisdictional error in the Tribunal Decision; and
b)ground 3 of the Judicial Review Application has not been made out.
It follows that the applicant is entitled to prerogative relief, and there will be an order for prerogative writs quashing the Tribunal Decision and requiring the Tribunal to rehear the application for review made by the applicant according to law.
The name of the second respondent should be amended to read “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, sch.2.
The Court will hear the parties as to costs.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 29 April 2019
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