AOC16 v Minister for Immigration and Border Protection

Federal Court of Australia|2017-08-22|Before: Mr P, Charlesworth J

The appeal is dismissed.
The appellant is to pay the first respondent's costs, fixed in the sum of $4,000.00. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

CHARLESWORTH J: 1 The appellant is a Sunni Muslim and a citizen of Pakistan. On 19 November 2013, he made an application for a Protection (Class XA) visa under the Migration Act 1958 (Cth). A delegate of the first respondent (Minister) refused the application. The Administrative Appeals Tribunal affirmed the delegate's decision. 2 The appellant applied for a review of the Tribunal's decision to Federal Circuit Court of Australia (FCC). The application was dismissed: AOC16 v Minister for Immigration & Anor [2016] FCCA 2485. This is an appeal from that judgment. 3 For the reasons that follow, the appeal should be dismissed.

BACKGROUND 4 The visa could only be granted if the Minister (or his delegate) was satisfied that the appellant satisfied the prescribed criteria: s 65 of the Act. The criteria for the visa include those prescribed in s 36(2) of the Act. It was necessary for the appellant to satisfy either the criteria in s 36(2)(a) or the criteria in s 36(2)(aa), namely that he is: (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; 5 The references in s 36(2)(a) of the Act to the Refugees Convention and the Refugees Protocol are references respectively to the Convention relating to the Status of Refugees (1951) and the Protocol relating to the State of Refugees (1967). Australia has protection obligations to a person described in Article 1A(2) of the Convention, being a person who: … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. 6 At the time that the appellant made his application for the visa, the meaning of the word "persecution" in Article 1A(2) was affected by s 91R of the Act. It provided: (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct. (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. (3) For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol. 7 The appellant claimed that he would face persecution or suffer significant harm if returned to Pakistan because: (1) he is a former member of the Pakistan Muslim League-Nawaz (the PML-N) who had been actively involved in the Pakistan General Elections in 2013; (2) he had then resigned from the PML-N after he had spoken out publicly about the government's relationship with the Taliban, including in a radio interview; (3) he had received death threats after the radio interview from members of the Taliban who were affiliated with the PML-N; (4) while in hiding he had continued to campaign against PML-N and participated in another radio interview; (5) a radio station was bombed an hour after the second interview went to air and three people were killed; (6) in July 2013 three people on two motorcycles had opened fire on him; (7) prior to the attack the Taliban had attempted to extort money from him; (8) he reported the incident concerning the motorcycles to the police but nothing had been done; (9) he was a businessman in Pakistan; and (10) he was perceived to be a moderate Muslim who had spent time in Australia on business trips. 8 The appellant had travelled to Australia on three other occasions, entering each time as the holder of a short stay business visa. He applied for the protection visa on his fourth visit. 9 The Tribunal found that the appellant had not been truthful in relation to his experiences in Pakistan and his stated fears of returning there. The Tribunal found his evidence to be "vague, inconsistent and lacking in credibility". After detailing the appellant's evidence, the Tribunal said it did not accept that the appellant had been a member of the PML-N, nor that he had been actively involved in the 2013 general elections, nor that he had disagreed with the party's views or publicly spoken out about them. It rejected his claim that he had been threatened. 10 The appellant provided the Tribunal with a First Information Report (FIR) translated into English from Urdu. The FIR was, the appellant claimed, a copy of the report he had made to the police after he was fired at by people on motorcycles. It was, he said, a document that corroborated his claims about the motorcycle attack. The Tribunal referred to country information which suggested that document fraud was endemic in Pakistan and that police there accepted bribes to verify fraudulent reports of that kind. It discussed that information with the appellant, who acknowledged that false FIR's could be obtained in Pakistan but claimed that that did not happen in his region. 11 The Tribunal said (at [62]): Having regard to the country information, and the applicant's inconsistent evidence, the Tribunal finds, the FIR report provided by the applicant in support of his claims is not genuine. The Tribunal does not accept the applicant was attacked on 21 July 2013 by members of the PML-N, or the Taliban, or anyone else seeking to extort money from him or because of his moderate Muslim opinions and pro-Shia comments. The Tribunal finds the applicant fabricated the evidence regarding his conflict with the local leader of the PML-N, his radio interview and the attempted kidnapping in July 2013.

PROCEEDINGS BEFORE THE PRIMARY JUDGE 12 The jurisdiction of the FCC to review a decision of the Tribunal is conferred by s 476(1) of the Act. It equates to that jurisdiction conferred on the High Court under s 75(v) of the Constitution. In order to succeed on the application, it was necessary that the appellant show that the Tribunal's decision was affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, and Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, (2009) 259 ALR 429 at 433 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); see also s 474 of the Act. 13 As explained in Craig v South Australia (1995) 184 CLR 163 at 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ), an administrative tribunal will make a jurisdictional error if it: … falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. 14 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ said of the list in Craig (at [82]): … Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. … 15 In the proceedings before the primary judge, the appellant submitted that the Tribunal had erred by drawing conclusions about the appellant's credit without first assessing documents provided by the appellant that corroborated his claims. After considering the reasons of the Tribunal and the material before it, the learned judge concluded that the Tribunal's findings concerning the appellant's credit were open to it and that, accordingly, no jurisdictional error had been shown.

GROUNDS OF APPEAL 16 The appellant is self-represented. He relies upon two grounds of appeal, expressed as follows: 1. The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claim and ignoring the aspect of persecution and harm in terms of Sec 91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation. 2. The Federal Circuit Court failed to take into consideration that the Tribunal's decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claim. 17 I will assume that the initials "FM" are intended to be a reference to the primary judge. 18 At the hearing of the appeal, the appellant sought to introduce a third ground. He alleged that three days after the Tribunal made its decision there had been an attempt to kidnap his wife and daughter in Pakistan. He submitted that the primary judge should have received additional evidence in respect of that alleged incident. I refused leave to introduce the third ground of appeal. I gave reasons for doing so in the course of the hearing. 19 Counsel for the Minister made the correct observation that the grounds of appeal otherwise advanced in this case do not appear to relate to or engage with the reasons of the primary judge or the Tribunal in any meaningful way. Counsel made the further observation that the grounds are cast in identical terms to those relied upon by another appellant in ADN15 v Minister for Immigration and Border Protection [2016] FCA 810. 20 In relation to Ground 1, Counsel for the Minister did not oppose the Court proceeding on the same basis as it had done in ADN15, namely that the first ground of appeal was to the intended effect that the Tribunal's adverse credit findings were legally unreasonable in the sense described by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. The relevant principles were emphasised more recently by the Full Court in Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 (at [59] - [60]). 59 … the Court's task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory (Li at [66]). It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision's reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision-maker: Li at [66] (Hayne, Kiefel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 90 ALJR 197 at [23]. Nor does it involve the Court remaking the decision according to its own view of reasonableness: Stretton at [8] (Allsop CJ). 60 … there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision-making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an 'outcome focused' conclusion without any specific jurisdictional error being identified: Li at [27]-[28] (French CJ), [72] (Hayne, Kiefel and Bell JJ); Singh at [44]; Stretton at [6] (Allsop CJ). See also Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11] - [12] (Allsop CJ). 21 As to Ground 2, I repeat the comments I made in ADN15 (at [37]) concerning the identical ground raised in that matter: As to the second proposed ground of appeal, the ground raises issues that were not argued before the Federal Circuit Court. An application for leave to introduce the new ground would be bound to fail insofar as it alleges that the Federal Circuit Court 'failed to take into consideration that the Tribunal's decision was unjust'. It formed no part of the jurisdiction of the Federal Circuit Court to determine whether the Tribunal's decision was 'unjust'. If the word 'unjust' is intended as a reference to legal unreasonableness, that ground is already advanced in paragraph 1 of the proposed Notice of Appeal … If the word 'unjust' is intended to incorporate all conceivable jurisdictional errors, the ground is impermissibly broad and 'starkly uninformative': SQMB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 165 at 4 [10], (Finn, Emmett and Bennett JJ). 22 Ground 2 of the present appeal should be rejected for the same reasons. I now turn to consider the merits of Ground 1.

Credibility 23 The appellant's submissions did not identify, or permit the Court to identify, a recognised species of jurisdictional error in the Tribunal's decision-making process. Rather, the complaint is to be understood as "outcome focused" in the sense that the Tribunal's findings, particularly as to the appellant's credibility were not open on the evidence before it. In light of the appellant's submissions, I will proceed on the basis that the appellant also complains that the Tribunal committed jurisdictional error by: (1) making adverse credit findings without first having regard to the FIR; (2) failing to find that the FIR corroborated his claims; and (3) concluding that the FIR was a forged document. 24 An error in the assessment of credibility may constitute a jurisdictional error. In Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, Robertson J said at [78]: It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal's rejection of the entirety of an applicant's evidence and the entirety of the applicant's claim. 25 To similar effect, in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253, Flick J held that a Tribunal's adverse credibility findings "do not shield its decision-making process from scrutiny" (at [31]). His Honour went on to observe that: … an ultimate conclusion founded in part upon adverse findings as to credit may be set aside if the decision-maker has proceeded in a manner which gives rise to a reasonable apprehension of bias. 26 There may be instances in which the failure by a Tribunal to give corroborative evidence any weight when assessing the credibility of a person will constitute jurisdictional error. As Finkelstein J said in SZDGC v Minister for Immigration and Citizenship (2008) 105 ALD 25 (at [23] - [24]): 23 … I take it to be a trite proposition that a decision-maker required to find facts, whether the decision-maker be a judge or an administrative official, must consider the totality of the evidence that bears upon the facts to be found. That requires the decision-maker to consider any direct evidence of the existence of the fact in issue together with any corroborative evidence that bears on that issue. This is nothing more than common sense. There may be circumstances where it is not necessary to pay due regard to corroborative evidence. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49] McHugh and Gummow JJ said 'it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption'. That proposition is no doubt true. But the circumstances for its application will be rare indeed. Even experienced advocates can only point to a handful of cases where a witness' credit has been so badly destroyed in cross-examination that it is possible to make findings of fact based on that evidence alone and simply disregard any corroborative evidence. 24 For example in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 the appellant complained that the tribunal failed to have regard to certain documents because the tribunal was not convinced that the documents could overcome the difficulties that it had with the appellant's evidence. Lee and Moore JJ said at [27]: Such a circumstance may arise where an applicant's claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material: see S20/2002 at [49] per McHugh and Gummow JJ. Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied … it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant's claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant's credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225 at [82]-[85] per McHugh, Gummow and Hayne JJ. 27 As the primary judge correctly observed, the Tribunal found that the FIR was forged by reason of the vagueness of its contents, the inconsistent claims of the appellant in relation to the incident to which it referred, and country information that indicated that documents of that kind were routinely forged. The learned judge concluded (at [25]) that these findings were open to the Tribunal. His Honour continued (at [28]): … the applicant claimed that the Tribunal's adverse credibility findings were not open to it and were made without giving him an opportunity to be heard on those findings. The credibility findings were, in my view, clearly open given the vagueness and inconsistency of many of the applicant's claims. The Tribunal put its concerns to the applicant, as appears from the decision record. At paragraphs 38-39 the Tribunal asked the applicant about his knowledge of the PML-N and his involvement in the May 2013 general election. At paragraph 41 the Tribunal expressed surprise or scepticism that the applicant would take issue with the PML-N's views after having been actively involved in supporting it in the election campaign. At paragraph 42-43 the Tribunal questioned the applicant about the circumstances of the radio interview and expressed scepticism that he would pre-record a message on tape. At paragraphs 56-59 the Tribunal asked the applicant why he had not previously provided the FIR to the delegate and questioned him about the details of the 21 July 2013 attack, putting the inconsistencies in his different accounts to him. The Tribunal noted the applicant did not answer some questions. At paragraph 61 the Tribunal put to the applicant the details of the Department of Foreign Affairs and Trade country information about FIRs. At paragraph 72 the Tribunal questioned the applicant about the threats made by the Taliban and why the applicant had previously travelled to Australia and returned to Pakistan without seeking asylum on those previous visits. 28 That is a correct, although incomplete, list of the Tribunal's stated concerns. The Tribunal expressed other concerns, including the following: 38 … The applicant said he was actively involved in the general election which took place in May 2013. The Tribunal asked [t]he applicant which local PML-N candidate did he support. The applicant could not recall the name and said it was a local business leader. … 40 The applicant said soon after the election the leader of the PML-N, Nawaz Sharif, made a speech which he did not agree with and he started speaking out against the party. The applicant was unable to provide evidence about the nature of the speech or what he took issue with. … 47 The Tribunal asked the applicant if anything happened to the radio station after the interview. The applicant said that nothing happened and it is still broadcasting. The Tribunal referred the applicant to his statement and noted that he made reference to a radio station that was blown up the day after he spoke on air. After further questioning the applicant said that another station was blown up after his interview. … 51 The Tribunal notes that it had to prompt the applicant to recall his evidence at various stages of the hearing. For example the Tribunal asked [t]he applicant if there was any incident which prompted him to speak out in support of the Shia community in Pakistan. The applicant was unable to respond to the Tribunal's question. 29 It has not been shown that the Tribunal's decision, considered as a whole, was affected by legal unreasonableness in the sense explained by the High Court in Li and the Full Court in Eden. The primary judge was correct to conclude that the Tribunal's adverse credibility findings, including its findings in relation to the FIR, were open to it on the evidence. No appealable error is shown.

Section 91R of the Act 30 The complaint that the Tribunal ignored "the aspect of persecution and harm in terms of Sec 91R of the Act" should also be rejected. As Counsel for the Minister correctly submitted, the Tribunal affirmed the delegate's decision because it did not accept the truth of the appellant's claims, including his claim to have a well-founded fear of persecution. Accordingly, no occasion arose for the Tribunal to give consideration to whether the harm allegedly feared by the appellant might be characterised as persecution within the meaning of s 91R. 31 Counsel for the Minister submitted, in the alternative, that s 91R had been repealed at the time of the Tribunal's decision in any event and the Tribunal could not therefore commit jurisdictional error by ignoring or misapplying it. I do not accept that aspect of the Minister's submissions. Section 91R was repealed by Item 12 of Sch 5 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). By reason of the transitional provision contained in Item 28 of Sch 5, the relevant repealing provision did not apply to applications for protection visas made before 16 December 2014. The appellant applied for his visa before that date.

CONCLUSION 32 The appeal should be dismissed with costs fixed in the amount of $4,000.00. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014(Cth)

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