AYE16 v Minister for Immigration and Border Protection

DELEGATE'S DECISION 16 The appellant attended an interview with the Department as part of his protection visa application on 3 June 2014. The decision record states that throughout the interview the delegate found the appellant to be "particularly evasive and on numerous occasions the [appellant] provided contradictory statements and information". 17 The delegate stated that the appellant had to be asked several times what year he returned to Pakistan, the number of times he returned and his reasons for returning. The delegate noted that "it was only after the [appellant]'s passport had been examined during the interview, that the [appellant] confirmed that he had returned five times to Pakistan". 18 The delegate raised numerous other credibility issues including with regard to: the appellant's failure to apply for protection immediately on arrival to Australia; his application containing false information regarding friends in Australia; his evidence that the Pakistani police told him to "get lost" despite his having provided information that led to the arrest of members of a renowned terrorist organisation; his description of the event surrounding his father's beating and escape, and the subsequent attack on the appellant's house; the appellant's assertion that the South African police did not take an interest in the threats; and his evidence that Al Qaeda could not find him in South Africa despite leaving a threat letter at his house. 19 According to the delegate's decision record, the appellant was asked during the interview whether he could provide any police or media reports or threat letters in order to substantiate his claims. The delegate stated that the appellant said he did not know he needed evidence and asked how he was supposed to provide evidence given he would need to pay money overseas and did not know how to get the documents to Australia. He then said he did not have any of these documents, except that he could obtain a copy of a police report from Pakistan. 20 On 9 June 2014, the appellant provided a Pakistani police report regarding the kidnapping of his father. The delegate considered Department of Foreign Affairs and Trade country information that fraudulent documentation was relatively available in Pakistan and, coupled with the "contrived" wording on the purported police report, concluded that it was fabricated to support the appellant's claims. 21 Based on finding the appellant was not a "witness of truth" the delegate did not accept the appellant identified members of Al Qaeda to the police, that his father was kidnapped, that Al Qaeda showered his house in bullets, or that Al Qaeda was searching for him in South Africa. 22 The delegate found that the appellant's claims of persecution in the foreseeable future were without substance and accordingly decided the appellant did not meet the s 36(2)(a) or s 36(2)(aa) criteria for a protection visa.

TRIBUNAL'S DECISION 23 The appellant attended a hearing before the Tribunal on 12 January 2016. 24 Subsequently, the Tribunal sent the appellant an invitation to comment letter which outlined what it considered to be changes in the appellant's evidence regarding details of how the appellant claimed to have witnessed the ammunition being delivered, how the appellant knew those delivering the ammunition were from Al Qaeda and whether the appellant was home when the threat letter was delivered in South Africa. 25 The appellant responded to the invitation with a letter dated 2 March 2016 which included an illustration of the layout of his house in Pakistan where he witnessed the ammunition delivery. 26 The Tribunal summarised that appellant's claims as follows: The applicant claims that he has been targeted by al Qaeda since 1996 because he informed the police that some al Qaeda living in the same building had received relatively large deliveries of ammunition which resulted in some men being killed and others detained. He claims that al Qaeda located him in South Africa in 2011 and threatened his life and that he was forced to flee again because there is a large al Qaeda presence in South Africa and his life would have been at risk if he returned. 27 The Tribunal did not accept any of the appellant's claims due to inconsistencies in his evidence and that a number of the claims were "far-fetched and implausible". It stated that there were significant inconsistencies in the appellant's evidence regarding the police raid in 1996. The Tribunal noted that this incident occurred 17 years prior and that the appellant might be suffering from stress, however his inability to give clear and consistent information gave the Tribunal a strong indication that the claims were not true. 28 It also considered the appellant to be evasive in regard to his trips returning to Pakistan, both in his interview with the delegate and before the Tribunal, as he "attempted to minimise the number of times he visited Pakistan during the hearing". 29 The Tribunal did not accept that the appellant observed ammunition being delivered, that this was reported to the police, or any of the claims that flowed from these contentions. It also did not accept that the appellant was of interest to Al Qaeda in Pakistan, or that it located him in South Africa, finding that it was implausible that Al Qaeda would have continued to search for the appellant 15 years after he left. 30 The Tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations or that there was a real risk that he would suffer significant harm in Pakistan or South Africa.

JUDICIAL REVIEW IN THE FEDERAL CIRCUIT COURT 31 The appellant sought judicial review of the Tribunal's decision for the following reasons: 1. I am a citizen of Pakistan and South Africa. I Came to Australia on Visitor Visa. I obtained my Australian Visitor Visa on 24th Nov 2011. 2. I belongs to Sunni Muslim background from [name of town deleted] Pakistan. I left Pakistan for South Africa in 1997. I obtained South African citizenship in Nov 2006 3. Then I applied for Protection visa on 11th Jan 2012 and delegate refused to grant the visa on 8th Oct 2014 4. I applied for a Review of that decision on 28th Oct 2014. Since then I was called for an interview for my application on 12th Jan 2016. 5. I have feared of life threat in South Africa and Pakistan. I am not able to go back. 6. I claimed that in 1996 men who lived observed me in same building that taking delivery of ammunition and this reported to Police who raided the men's room. At that time two of them were killed and 9 people were detained by local police 7. Even after that incident I moved to another place in Lahore and I went to local Police station to seek protection and help from Police. But the refused to do so. 8. My Fathers House back home in Pakistan were also attached by those men's in June 1997 and my father was kidnapped. 9. Then after I obtained the Tourist Visa for South Africa to escape from the whole fear and mess up in Pakistan by Al-Qaeda. Because I was on hit list on Al-Qeada 10. Then after few years I was located By Al-Qeada in South Africa and they tried to threaten me there. I was so Scared and wasn't not able to tell anyone about this. 11. I had fear to life threat from Al-Qeada. Al-Qeada has large networks and connections around the world So thay have strong connections in South Africa and they were able to locate me Because I was in there wanted list. 12. Now my application or Review is refused on 30th March 2016. Now I am applying a review in federal Circuit Court against the decision made by delegate of Minister for Immigration. 13. I have summited my claims to Tribunal and they refused to grant me refugee status in Australia. 14. I need help and protection in Australia So that I cannot go back to Pakistan and South Africa. 15. So now I request to Court to look in to this matter and give me justice on my claims that I have made to Immigration Department. 32 In his reasons dismissing the application, the primary judge stated that the appellant made oral submissions at the hearing and, along with recounting the assertion he had made regarding his claims, stated there "was a lot of debate over my claims of residents in Pakistan… where I lived… people I was having problems with… next to me, and they did not believe in my story, and they spent almost half an hour debating. They said that I'm not telling the truth". 33 With regard to grounds 1-11, the primary judge stated: Grounds 1-11 reassert the claims made before the AAT without asserting any jurisdictional error, and recite uncontroversial factual matters. As no jurisdictional error is alleged, and none is apparent from the recitation of claims and factual matters, grounds 1-11 do not establish any jurisdictional error in the AAT Decision. 34 Similarly, his Honour considered that ground 13 did no more than state a known fact and did not allege or establish jurisdictional error. 35 In dismissing grounds 12, 14 and 15, the primary judge stated that the Court had no jurisdiction to review the delegate's decision, citing s 476(2)(a) and s 476(4) of the Act. Further, his Honour held that it is well established that if the Tribunal's decision is not flawed then it cures defect or irregularity in the delegate's decision, citing Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314; [2005] FCAFC 58; Martinez v Minister for Immigration and Citizenship (2009) 177 FCR 337; [2009] FCA 528 at [20] (Rares J). 36 The primary judge held that these grounds also did not allege a specific jurisdictional error, but noted that in oral submissions the appellant asserted that the Tribunal thought he was lying, which his Honour considered might be interpreted as a claim of bias. His Honour stated that an allegation of bias was serious and must be made distinctly and clearly proven, citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17, and held in this light that there was no evidence that: the Tribunal member had a pre-existing state of mind which disabled her from undertaking, or rendered her unwilling to undertake, any proper assessment of the appellant's credibility: Jia Legeng at [35] and [72] (Gleeson CJ and Gummow J); or upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal member may not have brought an impartial mind to the assessment of the appellant's credibility: Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425 at [27]-[28]; [2001] HCA 28 (Gleeson CJ, Gaudron and Gummow JJ). 37 Further, his Honour stated that no particulars were provided in relation to this claim and cited WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (Gilmour J) in that a failure to particularise a ground of review was a sufficient basis for the ground to be dismissed. 38 His Honour outlined the way in which the Tribunal must consider an applicant's claim, citing Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184; Minister for Immigration and Border Protection v MZYTS & Anor (2013) 230 FCR 431; [2013] FCAFC 114. He stated that it was plain from the Tribunal's decision that it considered the appellant's claims and the evidence and rejected them because of the appellant's lack of credibility. 39 The primary judge held that the Tribunal's conclusions were open to it on the evidence. In this regard it was stated: In particular, the Court notes that it was open to the AAT to form an adverse view of the applicant's credibility given that he had been back to Pakistan five times between 1997 and 2011, including, on the first occasion, for a period of months to complete an educational qualification, and again in 2011 for a period of some months. To return, not only to the country, but to the very city in which the events which led to the applicant claiming to have fled Pakistan in fear of his life, to complete an educational qualification, just three years after those events, and then to return to Pakistan a further four times in the succeeding 11 years, is a factual context in which it is highly likely that the AAT might consider the applicant's claims of a well-founded fear of persecution to be incredible, irrespective of the reasons for his returning to Pakistan. The credibility findings were open to the AAT on the evidence, and are not ones with which, in the circumstances, this Court ought to interfere: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ. The Court notes that the AAT is not required to hold a positive state of disbelief before making credibility findings: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 559 per O'Connor, Branson and Marshall JJ. 40 His Honour stated that, in respect of the appellant expressing disagreement with the findings and conclusions of the Tribunal, he was inviting the Court to engage in merits review which was not its function, citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6. 41 The primary judge then considered s 438 of the Act which contains: (1) This section applies to a document or information if: (a) the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or (b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence. (2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary: (a) must notify the Tribunal in writing that this section applies in relation to the document or information; and (b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information. (3) If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal: (a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and (b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant. (4) If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information. 42 The primary judge stated that the Minister, acting as a model litigant, drew the Court's attention to the s 438 certificate in this matter regarding the disclosure of certain information. His Honour stated that the Minister acknowledged that a copy of the certificate was not provided to the appellant for comment. 43 His Honour then referred to the following cases concerning s 438 certificates: Minister for Immigration and Border Protection v Singh (2016) FCR 305; [2016] FCAFC 183; MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1; [2013] FCA 1081; SZMJM v Minister for Immigration & Anor (No 2) [2017] FCCA 1260; AVO15 v Minister for Immigration and Border Protection [2017] FCA 566. 44 The primary judge held that the documents to which the certificate applied were related to the Departmental submission to the Minister in respect of Ministerial intervention under s 91Q of the Act and the Minister's subsequent statement to Parliament, as referred to at [10] above. 45 His Honour stated: SZMJM (No 2) is plainly distinguishable: in that case there was an assessment by those making a submission to the Minister with respect to intervention by the Minister as to the credibility of the evidence, the substantiation of the claims, and whether there was credible new information which might affect the chances of a successful protection visa application. He held there was nothing of that kind in the documents in question in this matter. 46 Further, the primary judge stated that Singh and MZAFZ did not assist the appellant because the disclosure of the documents or the certificate would not have aided him. His Honour considered that the documents in question were not relevant to the appellant's case. Accordingly, he found there was no jurisdictional error on the basis of s 438. 47 The application for judicial review was dismissed as no jurisdictional error was established.

APPEAL TO THIS COURT 48 The appellant filed a notice of appeal on 12 July 2017 with respect to the whole Federal Circuit Court decision. It contained the following grounds: 1. The Federal Circuit Court judge erred in finding that the grounds 1-11 did not establish any jurisdictional error in the AAT decision and 2. The Federal Circuit judge erred in finding that the grounds 12-14 and 15 did not establish any jurisdictional error in the AAT decision. 49 The appellant did not file any submissions before the Federal Court. At the hearing he made oral submissions. However, none were directed to any appellable error to be found in the judgment under appeal. He repeated submissions concerning the merits of his case and illness he had experienced and some general comments about South Africa. 50 The Minister filed submissions on 9 February 2018. In regard to ground one, the Minister states as follows: 16. The Federal Circuit Court could only grant relief to the appellant if his grounds of application raised jurisdictional error in the Tribunal's decision, and the Court was satisfied that the decision was affected by jurisdiction error on one or more of those grounds: Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 506; [2003] HCA 2 at [76] to [77]. 17. In Craig v South Australia (1995) 184 CLR 163 at 179; [1995] HCA 58 at [14], the High Court stated that an error of law made by an administrative tribunal will be jurisdictional error if the tribunal: '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...'. 18. However, the appellant was not entitled to a general review of the merits of the Tribunal's decision, or his claims for protection more generally, by his application to the Federal Circuit court. 19. In considering Grounds 1-11 of the application, his Honour Judge Lucev stated at [17] (AB401) that: 'Grounds 1-11 reassert the claims made before the AAT without asserting any jurisdictional error, and recite uncontroversial factual matters. As no jurisdictional error is alleged, and none is apparent from the recitation of claims and factual matters, grounds 1-11 do not establish any jurisdictional error in the AAT Decision.' 20. His Honour was clearly correct in concluding that Grounds 1-11 of the application did not establish any jurisdictional error on the part of the Tribunal. No appellable error arises from his Honour's conclusion. 51 In regard to ground two, the Minister submits: 21. Ground 12 of the application below stated: '12. Now my application [f]or Review is refused on 30 March 2016. Now I am applying [for] a review in federal Circuit Court against the decision made by delegate of Minister for Immigration.' 22. At [18] (AB 401-402) Judge Lucev noted that Ground 12 simply indicates that a judical review application was made to the Court following the Tribunal's decision, and that it purported to be against both the delegate's decision and the Tribunal's decision. 23. His Honour correctly concluded that the Court has no jurisdiction to review the delegate's decision, and that in any event, a Tribunal decision that is not flawed will cure any defect or irregularity in the delegate's decision. His Honour therefore concluded at [18] that (to the extent Ground 12 sought to review the delegate's decision) Ground 12 therefore did not establish jurisdictional error in the Tribunal's decision. This conclusion was patently correct. 24. Judge Lucev then stated at [20] that when Ground 14 was read with Ground 15 and that part of Ground 12 which sought to apply in respect of the Tribunal's decision, it could be said that there was an application to have the Court review the Tribunal's decision. However, his Honour noted that no specific jurisdictional error was alleged by these grounds, and his Honour stated that at the hearing the appellant did not identify any legal error, let alone jurisdictional error, except for the assertion that the Tribunal thought that he was lying, which might be interpreted to be a claim of actual or apprehended bias. 25. Judge Lucev concluded at [20] that no particulars were provided in relation to any of these claims, and he held that failure to particularise a ground of review is a sufficient basis for the ground to be dismissed (citing three authorities). No appellable error is disclosed by this aspect of his Honour's reasoning. 26. After referring to several authorities at [21]-[24] as to the obligation on the Tribunal to consider the claims made by an applicant and the integers of those claims, his Honour stated at [25] that it was plain from [4]-[8] of the Tribunal's decision that the Tribunal considered the appellant's claims and the evidence in support of them, and rejected them, principally because of the appellant's lack of credibility. Judge Lucev then found at [25] that the Tribunal's consideration of the appellant's claims was comprehensive, and its findings and conclusions, including as to the appellant's credibility, were open to it on the evidence, and were not findings with which the Court ought to interfere. His Honour's conclusions were correct, as was his Honour's ultimate conclusion at [26] that Grounds 12, 14 and 15 therefore did not establish jurisdictional error on the part of the Tribunal, and do not give rise to any appellable error. 27. His Honour dealt separately with Ground 13 at [19], and held that this ground does no more than state a known fact, and does not allege or establish jurisdictional error in the Tribunal's decision. Again, his Honour's conclusions were correct, and no appellable error arises in relation to this aspect of his Honour's reasons. 52 The Minister also made submissions with regard to bias, stating that the primary judge considered the issue of bias as a result of the appellant's comments and concluded that no ground of bias was made out. Accordingly, the Minister argues that this conclusion was correct and no appellable error was disclosed. 53 Further, the Minister noted that the primary judge held that it was not the Court's function to engage in merits review and it was again submitted that this conclusion was correct. 54 Finally, the Minister made submissions in respect of s 438 of the Act as follows: 30. His Honour noted at [33] that the Minister had drawn the Court's attention to the Certificate issued under s 438 of the Migration Act, and had acknowledged that a copy of the Certificate had not been provided to the appellant. 31. After referring to authorities concerning the failure to provide disclosure of a certificate and submissions made by the Minister (at [34]-[41]), his Honour held at [42]-[43] that SZMJM (No2) was plainly distinguishable, and that Singh and MZAFZ did not assist the appellant because even if the s 438 Certificate and documents had been wholly disclosed, they could not have assisted the appellant in any way. These conclusions were plainly correct and do not raise any appellable error on the part of his Honour. 32. His Honour was therefore correct in concluding at [44] that no jurisdictional error arises in relation to the s 438 Certificate issue. 55 The Minister concludes that the appeal should be dismissed with costs.

CONSIDERATION 56 So far as ground 1 of this appeal is concerned, that the primary judge erred in finding that grounds 1-11 of the judicial review application did not establish any jurisdictional error in the Tribunal decision, that must fail for precisely the reasons given by the primary judge, which are referred to at [33] above. Those paragraphs of the "grounds" contain a narrative and do not allege any fact, matter or thing that could be taken to suggest or disclose some jurisdictional error in the decision making of the Tribunal. Ground 1 fails. 57 So far as ground 2 is concerned, that the primary judge erred in finding that grounds 12-14 and 15 did not establish any jurisdictional error, first I will deal with the part of the ground that relates to the earlier grounds 12 and 14. 58 So far as earlier ground 12 is concerned, the primary judge was plainly right to observe that it was not the function of the Federal Circuit Court to review the delegate's decision. The question was whether or not the Tribunal had committed any jurisdictional error. Ground 12 did not make any such allegation. 59 While earlier ground 13 was not repeated in this Court, it may be said nor did it allege any jurisdictional error, except in the broadest terms possibly relating to what had been stated in grounds 1-11. No jurisdictional error was disclosed. The primary judge was right to say ground 13 did no more than state a known fact and did not allege jurisdictional error. 60 Similarly, ground 14 does not allege any jurisdictional error, merely seeking "help and protection in Australia". 61 For similar reasons, ground 15 did not allege any jurisdictional error either. 62 It is apparent, as the primary judge's reasons suggest, that the appellant was in substance seeking a fresh merits review to second guess the decision made by the Tribunal. No particulars were provided of anything suggestive of jurisdictional error. When one has regard to the decision record of the Tribunal it plainly found the appellant was not to be believed. 63 As the appellant's oral submissions at the hearing indicate, his real concerns remain with the merits of the Tribunal's decision, not the legal correctness of the primary judge's reasons for judgment. 64 It should also be added that it cannot be shown that the primary judge erred in finding that a failure to disclose the s 438 certificate was a jurisdictional error. The certificate related to documents concerning the Departmental submission to the Minister in respect of the earlier Ministerial intervention under s 91Q of the Act, as set out above at [44] and earlier. Nothing in those documents would have aided or been relevant to the decision-making in question. They concerned the intervention question and nothing therein informed the Tribunal's decision, or could have. The primary judge's approach does not reveal jurisdictional error. See AVO15; Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197. 65 For these reasons, there is no relevant appellable error disclosed in the reasons for judgment of the primary judge and the appeal should be dismissed.

CONCLUSIONS & ORDERS 66 For the reasons given above, the Court would order: (1) The appeal be dismissed. (2) The appellant pay the costs of the first respondent, to be assessed if not agreed. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.