AVO15 v Minister for Immigration and Border Protection

delegate's decision 9 According to para [4] of the primary judge's reasons for judgment, the delegate was not satisfied that the applicant had a real chance of being persecuted for a Convention reason and was not satisfied the applicant's fear of persecution was well-founded. The delegate was also not satisfied there were substantial grounds for believing there was a real risk the applicant would suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan. 10 Consequently, the delegate found the applicant did not meet the criteria for the grant of a protection visa under s 36(2)(a) or s 36(2)(aa) of the Act.

tribunal's decision 11 On 24 April 2015 the Tribunal, when it was differently constituted, found that it did not have jurisdiction to review the applicant's application. That decision was subsequently set aside by orders made by consent on 29 June 2015, and the matter was remitted to the Tribunal for redetermination. 12 The applicant was invited to attend a hearing before the newly-constituted Tribunal on 29 January 2016 to give evidence and present arguments. 13 At the hearing, the applicant claimed to fear harm based on his support for the JSQM, as well as harm from his brothers and law enforcement agencies acting on their behalf, due to a case he had filed against his brothers with respect to the division of property following his father's death. 14 In a statutory declaration made on 21 January 2016, the applicant claimed that his brothers had connections with criminal gangs and the Pakistan People Party, and would have informed the police about his political activities, who also harmed him at their behest. 15 The Tribunal expressed concern regarding the applicant's credibility and noted that the applicant failed to mention his fear of harm based on the property dispute with his brothers in his protection visa application. When asked why the applicant did not include those claims in his application, the applicant responded that, at the time of his application, a lawyer advised him to only mention his fear of harm from his support for the JSQM, as the Department would say that the harm related to his dispute with his brothers was not related to political activities. The Tribunal rejected these submissions, stating that it did not believe the applicant would be advised to omit from his application his fear of harm from his brothers for the reasons he claimed to have been given by a lawyer, particularly as the dispute with his brothers was not resolved at the time the application forms were completed. 16 The Tribunal also noted inconsistencies between the applicant's evidence to the Tribunal and the evidence in his statutory declaration with respect to the harm he suffered in Pakistan. 17 The applicant told the Tribunal that he joined a branch of the JSQM in 1998 and was involved in contacting members, collecting funds, attending meetings, and participating in rallies and protests. The applicant claimed the police fired shots at party rallies and that he received threatening telephone calls in late 2011 from people he believed were the police or law enforcement agencies. The applicant said that in August 2012, men from a police agency fired shots at him because of his political activities. 18 The applicant further claimed to the Tribunal that he was in a dispute with his brothers over property to be shared among them after his parents died, and commenced a court case in late 2011 against his brothers seeking what he believed was his rightful share of the property. The applicant said his brothers, as well as a gang and a powerful landlord acting on their behalf, threatened to kill him if he did not stop the court case. The applicant added that he received threatening telephone calls from friends of his brothers who work in the government and that his brothers would pass on information about his political activities to them. 19 The applicant said to the Tribunal that before he went into hiding, a few days after the shooting incident, people from a law enforcement agency raided his house because of his political activities. 20 The Tribunal stated the applicant omitted from his statutory declaration his claims of being threatened by a gang and a powerful landlord if he did not cease court proceedings against his brothers. The Tribunal noted further inconsistencies between the applicant's account of the shooting incident and the harassment he faced from law enforcement agencies in his statutory declaration and his claims before the Tribunal. 21 The Tribunal expressed concern regarding the applicant's credibility and found that the applicant was not a witness of truth. The Tribunal was not satisfied that the applicant was a member of the JSQM and undertook political activities for the party; that he was in a dispute with his brothers and commenced a court case against them; that his brothers or any other person, group or agency ever threatened him with harm; that he received threatening telephone calls in Pakistan; that he was ever watched by members of a criminal organisation; that Pakistani authorities raided his house; that anyone fired shots at him; or that he and his family went into hiding. 22 In reaching these findings, the Tribunal had regard to a psychologist's report dated 25 January 2016, which the applicant submitted at the hearing. The Tribunal noted that the psychologist assessed the applicant as having depressive and anxiety symptoms arising from his immigration status in Australia, but was satisfied that those symptoms were not caused by the events he claimed occurred in Pakistan because his account of the events was false. 23 To corroborate his protection claims, the Tribunal said, the applicant produced documents prior to the hearing, including documents related to the dispute with his brothers, a First Information Report on the August 2012 attack and a certificate from the Secretary General of the JSQM addressing the applicant's involvement in the party. The Tribunal considered that the documents did not overcome or outweigh the Tribunal's concerns regarding the applicant's credibility and accordingly, did not give evidentiary weight to them. 24 The Tribunal also had regard to country information indicating that violence between political parties and related criminal groups had substantially reduced, and inferred that the risk of the applicant suffering serious harm in Karachi because of his ethnicity was remote. 25 The Tribunal accepted that the applicant is of Sindhi ethnicity, but did not believe he was in the JSQM or belonged to a Sindhi nationalist party. The Tribunal found that it had no credible evidence about the applicant's true political views. 26 For these reasons, the Tribunal found that the applicant did not hold a well-founded fear of persecution based on any Convention ground, and further found 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 that he would suffer significant harm. 27 The Tribunal concluded that it was not satisfied the applicant was a person in respect of whom Australia had protection obligations under the Refugee Convention and, therefore, the applicant did not satisfy the criteria in s 36(2)(a) or s 36(2)(aa) of the Act. 28 The Tribunal affirmed the delegate's decision not to grant the applicant a protection visa.

judicial review in the federal circuit court 29 In his application for review of the Tribunal's decision filed 2 March 2016, the applicant raised the following grounds: 1. The Tribunal constructively failed to exercise its jurisdiction; Particular: The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant's credit without first assessing whether the substance of the documents corroborated his claims. 2. The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information. Particular: The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act. 3. The Tribunal had no jurisdiction to make the said decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act. 4. The Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claims were implausible being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters. 5. The Tribunal has failed to investigate the claim, specially the grounds of persecution in Pakistan. Therefore the Tribunal decision dated on 5 February 2016 was a judicial error. 6. Tribunal failed to appropriately deal with the applicant's mental health condition. 30 The primary judge stated in his reasons that, at the commencement of the hearing, the applicant was informed by the Court that the hearing was a show cause hearing pursuant to r 44.12 of the FCCA Rules. The Court explained that, if satisfied there was an arguable case, the matter would be fixed for hearing on another occasion, and if not satisfied there was an arguable case, the applicant's application would be dismissed. 31 The primary judge noted that, at the hearing, the applicant submitted he had given an incorrect answer at para [15] of the Tribunal's reasons due to his psychological condition. The applicant sought to tender updated medical information that was not before the Tribunal, which was refused by the court and marked as an MFI on the basis that it was not relevant and could not establish any jurisdictional error. 32 According to the primary judge, it was apparent that the Tribunal took into account the medical evidence adduced by the applicant in relation to his anxiety and depression, and notwithstanding that evidence, was satisfied the applicant had a meaningful hearing and a real opportunity to present his case. The primary judge stated that the Tribunal did not regard the applicant's medical condition as a satisfactory explanation for the Tribunal's adverse credit findings and concluded that the applicant's submissions in relation to para [15] of the Tribunal's reasons identified no arguable jurisdictional error. 33 The applicant drew the primary judge's attention to para [37] of the Tribunal's reasons and suggested that the location referred to by the Tribunal, being Karachi, was incorrect. The primary judge was not satisfied that the location was incorrect and noted that, even if there was an error in the location identified by the Tribunal, that was an error of fact that was not material to the assessment of the applicant's claims and evidence. 34 The primary judge stated that the applicant further submitted that the First Report he provided to the police had not been properly considered by the Tribunal. The primary judge found that there was no basis for this assertion and noted that the Tribunal referred to the First Report at [28], [38] and [39] of its reasons. 35 As to the applicant's issue with the Tribunal's rejection of documents, the primary judge said it was open to the Tribunal to determine the weight it gave to the applicant's evidence and documents produced by the applicant. 36 The primary judge additionally said it was open to the Tribunal to make the adverse findings it did in relation to the applicant's credit. 37 In relation to ground 1 of the applicant's grounds for review, the primary judge found there was no substance in the proposition that the Tribunal failed to constructively exercise its jurisdiction, as the Tribunal identified the relevant law and properly considered the whole of the applicant's claims and evidence. Consequently, the primary judge said, it was open to the Tribunal to find that the documents the applicant produced should be given no weight in light of the adverse credibility findings. The primary judge concluded that ground 1 failed to make out any arguable jurisdictional error. 38 The primary judge reached the same conclusion with respect to ground 2, stating that the applicant identified no information enlivening any obligation under s 424A of the Act. 39 The primary judge rejected grounds 3 and 4 on the basis that those grounds constituted an impermissible challenge to the adverse findings of the Tribunal. With respect to ground 3, the primary judge stated that the Court has no power to make fresh findings of fact in relation to the applicant's claims. With respect to ground 4, the primary judge said the applicant had a genuine hearing and there was no material before the Court that established any denial of procedural fairness to the applicant. 40 In relation to ground 5, the primary judge found there was no obvious inquiry that the Tribunal was required to pursue in respect of easily ascertainable information. 41 The primary judge further rejected ground 6 as an impermissible challenge to the adverse findings by the Tribunal in relation to the applicant's mental health condition. 42 For the above reasons, the primary judge dismissed the application under r 44.12(1)(a) of the FCCA Rules, noting the principles and caution expressed in Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60]; [2010] HCA 28.

application in this court 43 By an application for leave to appeal from the primary judge's decision filed in this Court on 26 August 2016, the applicant raises the following grounds of application: 1. The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claims 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 learned Judge dismissed the application without considering the legal and factual errors contained in the decision of AAT. 44 The applicant's draft notice of appeal contains similar proposed grounds of appeal: 1. The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claims 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. 45 On 6 April 2017, the Court made orders, by consent of the parties, extending the time for the Minister to file and serve written submissions, in order for the Minister to consider the effect of any outcome of a special leave application, which the High Court, on 12 April 2017, refused: see Minister for Immigration and Border Protection v Singh [2017] HCATrans 107. 46 The Minister filed an outline of submissions on 19 May 2017. In it, the Minister submits that an applicant seeking leave to appeal is required to establish that the decision in question is attended with sufficient doubt to warrant the grant of leave, and that substantial injustice will result from a refusal of leave to appeal. 47 The Minister contends that the two grounds contained in the applicant's draft notice of appeal were not matters raised before the Federal Circuit Court and, as such, the applicant requires leave to raise them in this Court. The Minister opposes the proposed new grounds on the basis that they lack sufficient merit and no explanation has been provided for the failure to raise the grounds in the court below. See Hossam v Minister for Immigration and Border Protection [2016] FCA 1161 at [39]-[44], [46]; VAUX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [48]; [2004] FCAFC 158. 48 As to ground 1, the Minister argues that the applicant has not identified which aspects of s 91R he says were ignored by the Tribunal. The Minister submits the Tribunal correctly identified the law and considered each of the applicant's claims, and so, the Tribunal did not breach its statutory obligation. 49 As to ground 2, the Minister says the Tribunal summarised the applicant's claims as made in his protection visa application, statutory declaration and his evidence to the Tribunal, and identified concerns about the applicant's credibility, including inconsistent evidence produced to the Tribunal. The Minister submits there was no error in the approach taken by the Tribunal in dealing with the claims advanced by the applicant. 50 Additionally, the Minister seeks leave to rely on the affidavit of Mr Dominic Eberl affirmed on 19 May 2017 to deal with a question of the issue of a non-disclosure certificate on 3 July 2015, under s 438(1)(a) of the Act. 51 The Minister notes that on 10 February 2015, the applicant made a request to the Department under the Freedom of Information Act 1982 (Cth) to access his files. The Department's response dated 4 March 2015 is annexed to the affidavit of Mr Eberl, and outlines the Department's decision to release, in part, the documents within the scope of the applicant's request. 52 The Minister says that on 3 July 2015, a delegate of the Minister issued the non-disclosure certificate over documents relating to the applicant. For the reasons stated in paras [10] - [12] of the affidavit of Mr Eberl, a copy of the certificate and documents subject to the certificate were not adduced in evidence before the primary judge. 53 The Minister acknowledges that a copy of the certificate was not provided by the Tribunal to the applicant for comment and this may suggest that the applicant was denied procedural fairness. See MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; Minister for Immigration and Border Protection v Singh [2016] FCAFC 183. The Minister submits that although the applicant has not raised this issue in his draft notice of appeal, it is raised by the Minister now in accordance with his role as a model litigant. 54 In the circumstances of this case, the Minister says the Tribunal's decision is not attended by jurisdictional error on account of this issue. The Minister seeks to distinguish MZAFZ and Singh and says there is no basis to infer from the Tribunal's decision that the Tribunal acted upon the certificate, and further, it is apparent that the documents subject to the certificate were not relevant to, and did not form part of, the Tribunal's reasoning. 55 The Minister submits that, to the extent that some of the documents that were the subject of the certificate were produced to the applicant under his Freedom of Information application, there could be no procedural unfairness in circumstances where the applicant actually had those documents. 56 The Minister concludes by submitting that even if the Court were to find that MZAFZ and Singh were not relevantly distinguishable and leave to appeal should be granted, the Court should nevertheless refuse relief on the appeal on the basis that disclosure of the certificate and/ or the documents could not have made any difference to the outcome of the review. See BEG15 v Minister for Immigration and Border Protection [2016] FCCA 2778 at [67]-[68]. 57 Accordingly, the Minister submits that leave to appeal should be refused. Alternatively, if leave to appeal is granted, the Minister submits the appeal should be dismissed. 58 Prior to the hearing, the applicant did not take the opportunity to file any written submissions in support of his application. 59 On the afternoon before the hearing, however, he contacted the Court requesting an adjournment of the hearing on the basis that he was not well. He provided a medical certificate which baldly stated that he: Is receiving medical treatment and for the period Monday, 22 May 2017 to Wednesday, 24 May 2017 inclusive. He will be unfit to continue his usual occupation. 60 He was advised the hearing would proceed but he could renew his application at the hearing. 61 At the commencement of the hearing, the applicant renewed his request for an adjournment, for one week, explaining that he was unwell and had a temperature, a fever and sinus difficulties, and wished to obtain legal advice. 62 The Court refused an adjournment having regard to the history of the matter: that the applicant had filed materials in support of his application, including a draft notice of appeal; had had the opportunity but, not taken it, to put on written submissions; had had the opportunity to obtain legal advice, but had not made any arrangements in relation to the conduct of the hearing; that the medical certificate did not actually assist in any relevant way being so general as to be nearly meaningless; and that it was in the public interest that the hearing should be finalised. 63 The Court invited the legal representative for the Minister to make oral submissions first so that the applicant could respond orally to those submissions if he wished. 64 The Minister's legal representative dealt with both the proposed grounds of appeal, as set out above, and also dealt in more details with the documents the subject of the nondisclosure certificate. 65 At the conclusion of those submissions, the applicant again requested an adjournment for one week, which the Court again declined. The Court offered the applicant an adjournment for a short period so he could decide whether there were any particular propositions of law that he wished to put before the Court. He declined that opportunity. When the Court indicated it would adjourn and deliver a reserved judgment the next day at 12 noon, he then requested the opportunity to make further submissions. The Court then adjourned the hearing for approximately 40 minutes to 12 noon, to permit the applicant to make those submissions. 66 On the resumption of the hearing, the applicant made submissions to the following effect. 67 The applicant drew attention to a number of paragraphs of the primary judge's decision, including [4], [8], [15] and [21] in which the question of the authenticity of documents given by the applicant to the Tribunal was dealt with, first in the Tribunal, and then by the primary judge. 68 While the applicant before me endeavoured to make his submission in various ways, his central submission was that the Tribunal, in the circumstances, should have taken steps to verify the documents that he relied upon, instead of discounting their authenticity as it did at [45] of the Tribunal's reasons for decision. By inference, the applicant submitted that the decision-making process actually adopted by the Tribunal at [45] constituted an error in law. He considered that, in circumstances where he was "fighting for his life", it was an error by the Tribunal not to seek independently to verify the documents. In reply submissions, the lawyer for the Minister said that the Tribunal's reasons showed that the Tribunal came to the considered decision that there was no need to make any further inquiry having regard to the applicant's lack of credibility and country information. 69 In the course of making his submissions, the applicant also submitted that the Tribunal had even doubted the authenticity of medical reports supplied by him to the Tribunal and made by Australian medical practitioners. In relation to that submission, the Minister's lawyer submitted that the Tribunal had not doubted the authenticity of the relevant psychologist's report, but did not consider that his medical condition prevented the applicant from properly presenting his case in the Tribunal, and so there was no denial of procedural fairness.

consideration 70 For the reasons which follow, in my view, the application should be dismissed. 71 As the Minister submits, ground 1 of the application for leave to appeal appears to raise an entirely new ground not argued before the primary judge. Indeed, the terms of ground 1, referring as it does to the "FM" (Federal Magistrate), suggests that it is a pro forma proposed ground of appeal, not particularly related to the circumstances of the applicant's case. 72 In any event, there is nothing in the reasons of the Tribunal to suggest that it failed to consider the applicant's claims in terms of s 91R of the Act or that the primary judge failed to consider any such argument to that effect. 73 So far as the proposed ground 2 is concerned, this also appears to reflect some very general claim as to the Tribunal's decision being "unjust" without taking into account the circumstances of the claim of the applicant or its consequences. In many ways, that proposed ground reflects much of grounds 3, 4 and 5 of the judicial review application considered by the primary judge, and fairly found by him to lack any substance. 74 In any event, I do not consider that proposed ground 2 has any realistic chances of success in light of the decision of the Tribunal and the reasons of the primary judge, which, in this regard, are not attended by any real doubt. 75 In the circumstances, I do not consider that the decision of the primary judge is attended with sufficient doubt to warrant a grant of leave to appeal. 76 I do not consider that any substantial injustice will result from a refusal of leave to appeal. 77 As set out above, the central submission concerning legal error made by the applicant was to the effect that the Tribunal should independently have, and failed in law in not doing so, embarked on an inquiry into the authenticity of the documents supplied by the applicant to the Tribunal that had a Pakistani origin. At [45] of its reasons, the Tribunal said it did not give any weight to these documents because the Tribunal did not accept the credibility of the applicant and having regard to country information. 78 When read in context, what the Tribunal said at [45] of its reasons is fully supported by the preceding reasons, particularly from [8] to [44]. In those paragraphs the Tribunal dealt with all the major aspects of the applicant's claims as to why he should have protection as a refugee, but by reason of the various inconsistencies in the evidence of the applicant, which it noted, was not prepared to accept him as credible. It particularly found inconsistencies in a document, being a police report, which plainly led the Tribunal not to consider that document to be authentic. 79 The Tribunal also took into account more general country information that suggested documents represented as being official Pakistan government agency documents are not always authentic. 80 In all of those circumstances, the finding by the Tribunal that it would not give weight to the documents relied on by the applicant in light of its credibility findings and country information is unassailable and no jurisdictional error in its decision-making is indicated. 81 So far as the applicant's complaint about even the Australian psychologist's report concerning his anxiety and depression was also treated by the Tribunal as inauthentic, it is plain that the applicant has misconstrued what the Tribunal said. Indeed, at [51] of its reasons, the Tribunal acknowledged that the applicant suffered anxiety and depression, having regard to that report. What the Tribunal did find, however, was that notwithstanding those factors, that it took into account, it considered that he had had a fair hearing and that his evidence was not to be disregarded by reason of that condition. 82 Ultimately, all of the primary judge's findings on the materials before him must be considered not to be attended with any doubt. 83 For these reasons, the application raising these issues should be dismissed. 84 The only remaining question is that raised by the Minister, as the model litigant, concerning the failure of the Minister to provide a copy of the nondisclosure certificate issued under s 438(1)(a) of the Act in respect of certain documents to the applicant in relation to the Tribunal hearing. 85 While the fact of nondisclosure may suggest a breach of procedural fairness, the circumstances in which this occurred showed that no substantive issue arises from nondisclosure in this case. 86 The certificate related to five documents. 87 As to the nondisclosure of two Departmental internal working documents, the Tribunal plainly had no regard to them and, on any view, they can have been of no, or only passing contextual, relevance to the application. See Exh A, folios 31 and 30, in Mr Eberl's affidavit. 88 Two other documents are simply the reverse side of documents actually disclosed under a freedom of information request to the applicant, which had to do with an associated bridging visa. They were of no, or only passing contextual, relevance. 89 The last document, referred to as Exh B, folio 58, in Mr Eberl's affidavit, was simply an outcome notification which resulted in the reconstituted Tribunal hearing. Again, this document is not, by inference or otherwise, referred to in the Tribunal's decision and cannot, on my assessment of it, have been of any relevance to the decision-making of the Tribunal. 90 In these circumstances, the jurisdictional error principles and outcomes disclosed in MZAFZ and Singh have no practical application in this case 91 To the extent that there may have been some technical breach of the disclosure obligations arising under the Act, I do not consider that the applicant lost any opportunity to advance his case by reason thereof. No detriment is shown. No practical injustice is, on any view, identified. See Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40, especially at [57] (Gageler and Gordon JJ). 92 In all of these circumstances, I consider there is no proper basis on which to grant leave to appeal the decision of the primary judge dismissing the application for judicial review in the Federal Circuit Court.

Orders 93 The Court orders: (1) The application for leave to appeal be dismissed. (2) The applicant pay the first respondent's costs, to be assessed if not agreed. I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.