WZAVC v Minister for Immigration
[2017] FCCA 314
•28 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZAVC v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 314 |
| Catchwords: PRACTICE AND PROCEDURE – Adjournment – consideration of factors – further delay, case management and merits of judicial review application. |
| Legislation: Migration Act 1958 (Cth), Pt.7, Div.4, ss.36(2), 91R, 422B, 424AA, 474, 476 Tribunals Amalgamation Act 2015 (Cth), Sch.2, s.3 |
| Cases cited: BAW16 v Minister for Immigration & Anor [2016] FCCA 2830 Minister for Immigration & Border Protection v CZBP [2014] FCAFC 105 Minister for Immigration & Multicultural Affairs v Yusuf & Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 Re Minister for Immigration & Multicultural & Ors; Ex parte Cohen [2001] HCA 10; (2001) 75 ALJR 542; (2001) 177 ALR 473 SZTKV v Minister for Immigration & Border Protection [2014] FCA 903 |
| Applicant: | WZAVC |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 373 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 22 April 2015 |
| Date of Last Submission: | 22 April 2015 |
| Delivered at: | Perth |
| Delivered on: | 28 February 2017 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Mr MW Hawker |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the name of the second respondent be amended to read “Administrative Appeals Tribunal” pursuant to the Tribunals Amalgamation Act 2015 (Cth), Sch 2, s.3.
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 373 OF 2014
| WZAVC |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant filed an application on 24 November 2014 seeking judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the then Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively), made on 30 October 2014. The Tribunal Decision is at Court Book (“CB”) 88-96. The Tribunal affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) made on 19 August 2013 to refuse the applicant a Protection (Class XA) visa (“Protection Visa”). The Delegate’s Decision is at CB 62-67.
Background to the Judicial Review Application
The background to the Judicial Review Application is as follows:
a)the applicant was born on 3 December 1987 in Pakistan: CB 13;
b)the applicant first arrived in Australia on 15 July 2008 as the holder of a sub class 572 student visa (“Student Visa”), and was granted a further Student Visa on 2 November 2010: CB 6 at [24];
c)the applicant departed Australia on 29 November 2010 and travelled to Pakistan returning to Australia on 29 December 2010: CB 7 at [36] and CB 107;
d)on 3 June 2011 the Department issued the applicant with a notice of intent to consider cancellation of his Student Visa (“NOICC”): CB 6 at [32];
e)on 10 June 2011 the applicant attended an interview with the Department to provide submissions as to why his Student Visa should not be cancelled: CB 7 at [34];
f)on 10 June 2011 a delegate cancelled the Student Visa: CB 7 at [35];
g)on 13 June 2011 the applicant applied to the Migration Review Tribunal (“MRT”) to review the delegate’s decision of 10 June 2011: CB 7 at [37];
h)the applicant appeared before the MRT on 16 March 2012 to give evidence as to why his Student Visa should not be cancelled: CB 7 at [39];
i)on 23 March 2012 the MRT made a decision affirming the delegate’s decision of 10 June 2011 to cancel the applicant’s Student Visa: CB 1-12;
j)on 15 August 2012 the applicant lodged his Protection Visa application: CB 13-39;
k)the applicant’s claims supporting his Protection Visa application were that:
i)he belongs to a middle class Muslim family in Pakistan and that the area in which he lived “is under effect of militant activities”: CB 31;
ii)he was fearful of returning to Pakistan as he would face harm from “the militant activist who run schools to train Militants and ask to kill innocent people if I will refuse then they will kill me”: CB 33; and
iii)the police and local army are unable to catch the militants and are unable to protect him as “they themselves are helpless to save their lives so how they can save individuals life from them. I don’t trust to them”: CB 34;
l)the Department invited the applicant to attend an interview to provide further evidence in support of the Protection Visa application: CB 56-57;
m)the applicant failed to attend for his interview on 7 May 2013: CB 65;
n)on 19 August 2013 the Delegate’s Decision was to refuse the application for the Protection Visa: CB 58-67;
o)on 23 September 2013 the applicant lodged an application with the Tribunal for review of the Delegate’s Decision: CB 68-73;
p)on 28 July 2014 the Tribunal sent the applicant an invitation to appear to give evidence and present arguments to the Tribunal: CB 76-77;
q)on 5 September 2014 a Tribunal hearing took place and the applicant appeared to give evidence and present arguments: CB 82-85; and
r)on 30 October 2014 the Tribunal Decision (more detail of which is set out immediately below), affirmed the Delegate’s Decision to refuse the application for the Protection Visa.
Tribunal Decision
The Tribunal’s process
The Tribunal Decision sets out the applicant’s initial claims as follows:
a)that the applicant is unable to return to Pakistan because militant groups operate in his area;
b)that there are many attacks by militants and the police and the local army were unable to catch those responsible because they mostly use hand grenades or ‘human bombs’;
c)if the applicant returns to Pakistan he will be forced to join the militant groups, and if he resists they will kill him; and
d)that the police will not be able to help him because they cannot even help themselves, and he does not trust them.
CB 90 at [16]
The Tribunal Decision says that at the Tribunal hearing the applicant made a new claim, not previously detailed in his Protection Visa application, that he was abducted on 2 December 2010 when he returned to Pakistan from Australia: CB 90-91 at [17]. The Tribunal Decision records the details of the new claim as follows:
a)that the applicant was traveling on a motorbike through a local street when a silver car pulled up alongside him and three masked men pointed a gun at his temple and forced him to get into the car;
b)that the men “put a drug under his nose” that made him unconscious and drove him for three to four hours to a remote area and locked him in a room;
c)the next day the applicant was forced back into the car and was again drugged and became unconscious;
d)the applicant was taken to Bakar camp where there were about 25 to 30 people;
e)at Bakar camp the applicant was taken to a room and “the boss” asked him if he came from Australia, and told him to ring his family and demand a sum of money;
f)the applicant said he was not a business man but a student and his family could not afford to pay the money;
g)he was beaten by some men and taken to another room where he was given a disposable plate with food, and where he heard shooting outside;
h)the next day a person asked the applicant if he wanted to escape. He sat next to the person during dinner. He was shown a door in the corner of the room. The door had a lock with six screws which, over the course of the next two nights, they unscrewed, with the applicant using the zipper on his jeans to do so;
i)they could not escape because there were guards standing outside the door, so they waited until the next day at 2 am and escaped with three people;
j)the applicant managed to get to his uncle’s house in Rawalpindi, and his uncle rang his mother and took him home to his town;
k)his mother had already lodged a First Information Report (“FIR”) with the police;
l)the applicant went to the police station and told the police about the Bakar camp, but the police told him that they could not go to Bakar camp and could not help him;
m)his younger brother received some phone calls demanding money and threatening to kill the applicant because he helped two prisoners escape; and
n)the applicant arranged for an airline ticket and returned back to Australia.
CB 91 at [18]-[22].
The applicant provided the Tribunal with a copy of the FIR (in Urdu and in English) purported to have been made by the applicant’s mother on 2 December 2010: CB 91 at [23].
The Tribunal questioned the applicant about a number of matters, including:
a)who abducted him, why he was abducted and what did they want from him, to which he said that he has no enemies and that he did not know who the people were;
b)how the people who abducted him knew he came from Australia, to which the applicant said that he did not know who told them but the whole street knows his family, and even though he had been away from Pakistan since 2008 people remembered who he was because everyone knew his family;
c)when was the first time he feared returning to Pakistan, to which he said his brother received threatening phone calls on 8 December 2010 so he travelled back to Australia;
d)how he obtained the FIR, to which he said that his mother obtained the FIR from the police but they could only get a copy, and that there were no witnesses;
e)how his mother knew about the abduction if there were no witnesses, to which the applicant then said that there were two young boys who told his mother what happened. The Tribunal noted his earlier evidence that there were no witnesses and was surprised that his mother knew the details of his abductions, namely, that he was held up by armed men traveling in a silver car at 8.30 pm; and
f)why he fears that someone will persecute him in the future if he returned to Pakistan (noting that he was abducted in December 2010), to which the applicant said his mother was told that people want to kill him and his brother received threatening telephone calls.
CB 91-92 at [24]-[29].
The Tribunal told the applicant that it found his evidence lacking in credibility. The Tribunal found the delay in the applicant applying for a Protection Visa was a relevant factor in assessing the credibility of his claims. The Tribunal noted that despite being abducted in December 2010, and returning to Australia on 29 December 2010, the applicant did not make a claim for a Protection Visa until August 2012. The Tribunal also noted the applicant did not apply for the Protection Visa until he had exhausted all other options of remaining in Australia. The Tribunal said it would have expected that the applicant would have made an application for a Protection Visa as soon as he returned from Pakistan when his experiences in Pakistan were still fresh in his memory.
CB 92 at [30].
Using the procedure under s.424AA of the Migration Act the Tribunal put to the applicant the following adverse information that would be a reason or part of the reason for affirming the Delegate’s Decision:
a)that it had a copy of the MRT decision regarding the applicant’s Student Visa cancellation, in which he was given an opportunity to provide reasons why his Student Visa should not be cancelled, and at which he did not present any evidence about his purported abduction in Pakistan and only claimed that his family had business problems in Pakistan after his uncle died in October 2010 and there was a dispute about the distribution of money, and that he only provided vague evidence that he did not want to return to Pakistan because he felt the situation was unstable;
b)that the information the applicant gave to the MRT and the Department was relevant because the Tribunal would have expected that he would have provided evidence about the December 2010 abduction if it had in fact occurred and his Student Visa was cancelled and he ran out of options to remain in Australia;
c)the applicant’s inconsistent evidence. The applicant said he understood the information and why it was relevant, and after a short adjournment the applicant said that he was very confused at the time he appeared before the MRT and had family problems and that was why he did not mention the information about his abduction;
d)the applicant’s Protection Visa application made on 15 August 2012, noting that the applicant did not provide any evidence about his abduction in December 2010 in support of his Protection Visa application. The applicant said that he was mentally stressed, he had no family support or lawyer, and did not know what to do;
e)as to why the applicant did not attend the Departmental interview to provide evidence in support of his Protection Visa application. The applicant said that he was unwell and had no work rights, no social life or friends;
f)that according to the applicant’s evidence his brother lived in Perth, was a permanent resident and he could have offered the applicant assistance and support in his claim. The applicant said that his brother was very busy;
g)why his brother was not giving evidence in support of his Protection Visa application, to which the applicant said that his brother recently had a child and was busy. The Tribunal found the applicant’s explanation lacking in credibility and said it would have expected that the applicant’s family in Australia would be in a position to provide evidence in support of the Protection Visa application;
h)that it did not accept evidence by the applicant that he did not apply for a Protection Visa sooner because he did not know that he could, and said his migration history would suggest he was aware of his migration options, and noted that the applicant had been in Australia since 2008, had applied for two student visas, appeared before the MRT and received Departmental correspondence regarding visa options; and
i)questioned the applicant about the FIR provided in support of his evidence, and told the applicant that it had to exercise caution in assessing the weight it would give the FIR. The Tribunal referred the applicant to country information that suggested that false documents were prevalent and were easy to obtain in Pakistan. The applicant said that he could not comment about the FIR as it was obtained by his mother.
CB 92-93 at [31]-[39].
Tribunal’s Findings and Reasons
Beyond accepting basic details of the applicant’s citizenship, home town, passport and travel to Australia the Tribunal did not believe any of the claims made by the applicant or that he genuinely holds a fear of any harm should he return to Pakistan, and found that the applicant had not been truthful in relation to all of his experiences in Pakistan and his fears about returning to Pakistan: CB 94 at [41]-[42].
On a consideration of all the evidence before it, the Tribunal found the claims were not credible. The Tribunal found the applicant’s evidence vague, unconvincing and lacking in credibility for the following reasons:
a)the applicant provided no evidence of his claimed abduction in December 2010 in his original written Protection Visa application;
b)the applicant was unable to provide convincing and credible evidence about the militant group he feared in Pakistan, and said he had no enemies in Pakistan and does not know who the people were who abducted him;
c)that the applicant’s explanation of his abduction was implausible, and did not accept that he was abducted, drugged and escape by unscrewing a locked door with the zipper of his jeans. Consequently, the Tribunal did not accept his family in Pakistan received threatening calls or was told to pay a ransom for his release;
d)the applicant provided inconsistent evidence at the hearing, for example, first claiming there were no witnesses when he was abducted, and subsequently claiming two boys told his mother about his abduction;
e)the delay by the applicant in lodging his Protection Visa application, including that the applicant did not make any claim for asylum after returning to Australia in December 2010 despite his claim that he was abducted, drugged, beaten and managed to escape;
f)the applicant provided no evidence of his fear of persecution to the Department when his Student Visa was cancelled or when he appeared before the MRT in March 2012; and
g)that the applicant lodged his Protection Visa application in August 2012 after he had exhausted all other options of remaining in Australia.
CB 94-95 at [43]-[45].
The Tribunal found that:
a)there was no evidence to support the claim that the applicant will be forced to join the militant group and will be killed if he resists recruitment; and
b)the applicant was not threatened or abducted by a militant group in Pakistan,
and therefore found that the applicant would not face harm from them should he return to Pakistan in the reasonably foreseeable future, and that the applicant’s expressed fear of harm from the militant group should he return to Pakistan was not genuine or well-founded: CB 95 at [46].
The Tribunal having considered the applicant’s claims singularly and cumulatively, was not satisfied the applicant faces a real chance of being targeted for, or experiencing, serious harm of the kind contemplated in s.91R(1)(b) of the Migration Act for a Convention ground, now or in the reasonably foreseeable future, if he returns to Pakistan, and therefore found that the applicant’s fear of persecution on Convention grounds was not well-founded: CB 95 at [47]-[48].
The Tribunal also considered whether the applicant was a person in respect of whom Australia has complimentary protection obligations under s.36(2)(aa) of the Migration Act. The Tribunal found that the applicant left Pakistan legally on a validly issued Pakistani passport with the intention to study abroad, but having regard to its findings of facts in response to specific claims made by the applicant as to the basis on which he claimed to fear harm, and its findings as to his credibility, the Tribunal did not accept there were substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Pakistan there was a real risk he will suffer significant harm: CB 95 at [49]-[50].
The Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under the Convention or the complementary protection criteria: CB 95 at [52]-[53]. The Tribunal therefore affirmed the Delegate’s Decision: CB 96 at [54].
Judicial Review Application
In the Judicial Review Application the applicant alleges the following grounds of review:
1. The tribunal does not review the application based on compassionate circumstances
2. The procedure is too quick. I do not have the and the second chance to provide more evidence
3. The tribunal it is not genuine to my evidence document but the tribunal did not communicate with any authority to confirm evidence documents.
(copied from the Judicial Review Application without amendment).
The applicant did not file any material in accordance with the orders made on 18 February 2015 which permitted the filing of an amended application or any affidavit evidence by 18 March 2015.
At the hearing the applicant made submissions that simply reiterated the grounds of review, and asked for more time to “provide more evidence” because of “financial hardship”. The Court, insofar as those comments might be construed as seeking an adjournment (“Adjournment Application”), refused the Adjournment Application.
Adjournment Application
The Court notes that whether or not an adjournment is granted is a discretionary matter for the Court, and it is a discretion under which the Court is entitled to take into account a broad range of circumstances: Myers v Myers [1969] WAR 19 at 21 per Jackson J; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [9]-[10] per Judge Lucev.
In making the Adjournment Application the applicant did not identify how long a delay he required, but given the volume of migration matters filed in the Perth Registry any further hearing of the Judicial Review Application would have been considerably delayed. The Court also had regard to the fact that:
a)the Protection Visa application was made around three years prior to the hearing; and
b)the applicant had had five months from the time he filed the Judicial Review Application, and two months from the first court date, to obtain material in support of his application and had not done so.
The Adjournment Application was made at the commencement of a hearing that had been listed for two months. The applicant gave no explanation as to why he had waited until the hearing to make the Adjournment Application beyond his general submission that he had had “financial difficulties”. The applicant provided no evidence as to what “financial difficulties” he was having, or why they had prevented him advancing his case. The applicant provided no evidence as to what material would have been, or would have been likely to have been, provided in support of the Judicial Review Application had the Adjournment Application been granted.
The Adjournment Application was, in all the circumstances, devoid of merit. For those reasons the Adjournment Application was refused.
Consideration
The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: 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 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
thereby affecting the Tribunal Decision and resulting in the Tribunal exceeding or failing to exercise the authority or powers given to it under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf & Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Ground 1
The applicant contends that the Tribunal failed to undertake the review on “compassionate circumstances”. This is no more than a plea for impermissible merits review, and must therefore fail. The Court does not have jurisdiction to consider the merits of a Protection Visa application: it can only consider whether the Tribunal exercised its duty to review the Delegate’s Decision in accordance with the Migration Act: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Ground 1 might also be said to be an allegation that the Tribunal did not apply the correct legal test in assessing the Protection Visa application. In this regard, the Tribunal was not required to be compassionate. The Tribunal was required to review the Delegate’s Decision in accordance with the Migration Act. The Tribunal:
a)set out in the Tribunal Decision
i)the relevant criteria for the Protection Visa: CB 89 at [4]-[5];
ii)the complementary protection criteria: CB 89 at [6]; and
iii)the requirement that the Tribunal consider PAM3, being a policy guideline prepared by the Department: CB 89 at [6];
b)applied the criteria and requirement in (a) above to the applicant’s claims: CB 93-95 at [40]-[53];
c)considered all of the claims raised by the applicant and made findings of fact that were open to it: Re Minister for Immigration & Multicultural & Ors; Ex parte Cohen [2001] HCA 10; (2001) 75 ALJR 542; (2001) 177 ALR 473 per McHugh J; and
d)made credibility findings which are findings of fact par excellence: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 at [67] per McHugh J, and although they do not thereby operate as a shield to protect the Tribunal’s decision-making process from scrutiny: Minister for Immigration & Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41 at [78] and [119]-[121] per Robertson J, it is plain enough that in this case the Tribunal knew and understood the principles concerning the assessment of the evidence and materials before it, and carried out its functions in relation thereto in orthodox terms.
In all of the above circumstances, ground 1 does not establish jurisdictional error.
Ground 2
The applicant contends he was denied a “second chance” and the procedure before the Tribunal was “too quick”. The Tribunal is only required to afford the Applicant procedural fairness in accordance with Pt.7, Div.4 of the Migration Act: Migration Act, s.422B. There is no evidence that the applicant sought any adjournment or made any request to provide further material or submissions in support of his claim, so no issue arises as to any refusal by the Tribunal to refuse such requests.
The Tribunal did not fail to provide the applicant with the opportunity to place further material before it, as shown by:
a)the acknowledgment of application dated 24 September 2013 which stated that “if you wish to provide material or written arguments for the tribunal to consider, you should do so as soon as possible”: CB 74-75;
b)the invitation to hearing dated 28 July 2014 which noted that the Tribunal was unable to make a favourable decision on the information before it and invited the applicant to “attach additional information if you have any requests or any new information which you wish the Tribunal to consider”: CB 76-77; and
c)the Tribunal’s compliance with its obligations pursuant to s.424AA of the Migration Act by:
i)orally giving the applicant the particulars of the information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review pursuant to s.424AA(a) of the Migration Act: CB 92-93 at [32]-[33];
ii)confirming with the applicant that he understood the information and why it was relevant pursuant to s.424AA(b)(i) of the Migration Act: CB 92-93 at [33] and
iii)inviting the applicant to comment or respond on the information pursuant to s.424AA(b)(ii) of the Migration Act: CB 93 at [34].
There is no record that the applicant requested the opportunity to provide any further documents either at, or after, the Tribunal hearing. Furthermore, ‘information’ for the purpose of s.424AA of the Migration Act does not include the existence of doubts, inconsistencies or the absence of evidence: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ (“SZBYR”). It “does not encompass the Tribunal’s subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc”: SZBYR at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. The Tribunal was therefore not obliged to put to the applicant the basis of its findings that it was not satisfied that the applicant’s claims were credible.
In the Court’s view, the Tribunal determined the applicant’s Protection Visa application in accordance with the processes prescribed under the Migration Act as it:
a)invited the applicant to appear to give evidence and present arguments: CB 68-73;
b)heard the applicant’s evidence and arguments: CB 82-85; and
c)put adverse information that formed a reason or part of the reason for affirming the Delegate’s Decision to the applicant: CB 92-93 at [31]-[39].
In all the above circumstances, ground 2 does not establish jurisdictional error.
Ground 3
The applicant contends that the Tribunal committed jurisdictional error by failing to inquire as to the authenticity of the FIR.
It was for the applicant to make out his case before the Tribunal and if the Tribunal cannot be satisfied, on the basis of the material presented, that his claims are genuine it does not have a duty to make further inquires: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224; Minister for Immigration & Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151; (2007) 242 ALR 455; (2007) 97 ALD 112; SZJBA v Minister for Immigration & Citizenship [2007] FCA 1592; (2007) 164 FCR 14; (2007) 98 ALD 270.
The Tribunal does not have a general duty to inquire, however, in some circumstances the failure to undertake a simple inquiry as to an obvious and critical fact may constitute a jurisdictional error: SZTKV v Minister for Immigration and Border Protection [2014] FCA 903 (“SZTKV”) at [25] per Siopis J; see also Minister for Immigration & Border Protection v CZBP [2014] FCAFC 105 at [71], [105] and [106] per Gordon, Robertson and Griffiths JJ (“CZBP”) and Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ (“SZIAI”).
In SZTKV the Federal Court held that the Tribunal did not commit jurisdictional error by failing to inquire as to the authenticity of documents supplied by the applicants in that case, where the Tribunal raised those doubts, based on country information about document fraud in Bangladesh. Likewise, in this case, the Tribunal raised its concerns with respect to the FIR, and founded those concerns on country information regarding document fraud in Pakistan. Applications involving analogous circumstances were considered in BAW16 v Minister for Immigration & Anor [2016] FCCA 2830 at [26] per Judge Driver, and SZTPJ v Minister for Immigration & Anor [2015] FCCA 1992 at [77]-[79] per Judge Barnes. It was held in both cases that the Tribunal was under no duty to verify the authenticity of documents provided to it by an applicant.
The Court further notes that:
a)there is no record that the applicant requested the Tribunal to “communicate with any authority to confirm evidence documents”; and
b)there was no useful inquiry that could have been made to the authorities as such inquiry would have either supported or undermined the truth of the documents and that was an outcome already available on the evidence. As such, the inquiry was not so obvious and easy as to result in jurisdictional error: CZBP and SZIAI as cited at [33] above.
In this case the Tribunal was not obliged to verify the Applicant’s documents. Therefore, no jurisdictional error is established by ground 3.
Conclusions and orders
The Court has concluded that the Tribunal Decision was not affected by jurisdictional error in relation to any of the grounds of the Judicial Review Application. There must, therefore, be an order that the Judicial Review Application be dismissed. There will also be an order amending the name of the second respondent to “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), Sch.2, s.3.
The Court will hear the parties as to costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 28 February 2017
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