MZAPQ v Minister for Immigration and Border Protection

Summary of background facts 5 The background facts are not in dispute. The following summary is drawn primarily from the Tribunal's statement of reasons. 6 The appellant is a citizen of Pakistan. The appellant arrived in Australia in March 2012 as the holder of a student visa and travelling on a valid Pakistani passport. He applied for a protection visa under s 65 of the Migration Act in April 2013. This application was refused by a delegate of the Minister in January 2014. 7 The appellant applied to the Tribunal for review of the delegate's decision and he attended hearings before the Tribunal in October and November 2014, to give evidence and present arguments. He was assisted by an interpreter and his migration agent. He provided a number of documents in support of his claim, as well as written submissions and country information. The Tribunal affirmed the delegate's decision in December 2014 and the appellant applied to the FCCA for judicial review.

The Tribunal decsision 8 The Tribunal summarised the appellant's claims as follows: The [appellant] claimed that under a power of attorney he rented premises belonging to his father to persons who conducted a school where extremists indoctrinated students. It was linked to the Lashkar-e-Taiba[]. When he became aware of this he gave the tenants notice to leave. He also informed the police who sealed the premises and seized items from the premises. The [appellant] claims that the persons who conducted the school have harmed him by shooting at him and his brother and will seriously harm him if he returns as they wish to seek revenge against him for exposing their activities and giving their associated mosque a bad reputation. 9 The Tribunal found that there were aspects of the appellant's account of his claims which were inconsistent; that a lot of his evidence lacked details and was vague; and that aspects of his claims were implausible. The Tribunal doubted the authenticity of the documents that the appellant provided to the Tribunal in support of his claims. 10 The Tribunal examined the appellant's claims in some detail. First, it examined the appellant's account of the alleged shooting outside his home. In particular, the Tribunal noted that, in his application for the protection visa, the appellant had stated that in November 2011 he and his brother were shot at and seriously injured outside their home and taken to hospital. The Tribunal noted that the appellant had initially said that they were taken to hospital by car; then he said that the police came and he thought the police called an ambulance; subsequently he said "the police took them; he could not remember". There were also discrepancies between these statements, his statements about the injuries he and his brother suffered, the date of the incident and the hospital records that he provided. The Tribunal also noted discrepancies between the appellant's account of the incident and a First Information Report (FIR) in relation to the incident. For example, he said he did not know his assailants' names but in fact their names appeared on this FIR. 11 The Tribunal stated that "[d]ue to the discrepancies between the documents provide[d] by the [appellant] and his account and the vagueness of his evidence on many aspects", it did not accept that he and his brother "were fired on or had bricks thrown at them outside their home". Further, it did not accept that "they were injured by persons who had been involved in leasing the premises or anyone else and [gave] no[] weight to the medical reports". The Tribunal added that the appellant's account "casts doubt on his overall credibility". 12 Secondly, the Tribunal considered the appellant's claims about his discovery of the tenants' activities and the involvement of the police. The appellant claimed that he gave the tenants notice to leave when he discovered the type of activities they were conducting at the premises and that they left immediately because they were concerned about police involvement. The appellant also told the Tribunal that they left behind items such as suicide vests, explosives, banners and anti-government literature. The Tribunal found it was implausible that, if the tenants were concerned about police involvement, they would leave behind such things as suicide jackets and explosives, which would evidence their illegal activities. The Tribunal also pointed out inconsistencies in the appellant's account of entering the leased premises and found that these indicated that he was prepared to change his account "in the face of adverse information". 13 Thirdly, the Tribunal considered the appellant's account of court proceedings to recover the bond due to the tenants under the lease. It noted a number of inconsistencies and contradictions in his account of contacting the police about the tenants and in his account of the tenants commencing court proceedings to recover the bond that had been paid in respect of the lease. The Tribunal observed that the appellant was "vague and evasive when asked how they paid the bond back ... and whether they notified the police of the court proceedings and the fact they had paid the bond". The Tribunal found the appellant's account "far-fetched and implausible". It found that the appellant's account of involving the police was contradictory. 14 Fourthly, apart from various other inconsistencies in the appellant's evidence and the documents he provided, the Tribunal also drew attention to the matters that the delegate had outlined in his decision and that the Tribunal in turn raised with the appellant. 15 Fifthly, under the heading "Motivation of the extremists", the Tribunal noted that the appellant's evidence that the extremists "wanted to harm him because of revenge", that the appellant "had given a bad name to their group", and put to the appellant that "Lashkar-e-Taiba would not be concerned about having a bad name as they were a terrorist group and wanted people to fear them". The Tribunal noted the appellant's explanation that the mosque was run by a group that did not acknowledge involvement in terrorist activities, and was concerned about their links to Lashkar-e-Taiba being exposed. 16 Sixthly, the Tribunal held that the appellant's evidence regarding his father's situation and business was "vague and confused", noting, amongst other things, inconsistent evidence about his father being in hiding but attending the mosque that he had attended since he was a child. 17 Seventhly, the Tribunal noted (and apparently accepted) information that general document fraud was prevalent in Pakistan. 18 Finally, the Tribunal noted that there had been a considerable delay in the appellant's lodging of his protection visa application after his arrival in Australia and the appellant's explanation for this delay. In relation to this the Tribunal stated: On 21 February 2013 the [appellant] contacted the Department to seek advice on whether the 'No Further Stay' condition on his current visa could be waived to enable him to apply for another student visa. At that time the [appellant] was advised of the need to give compelling/compassionate reason for applying on shore. The [appellant] told the Tribunal he only discussed his situation over the phone and that was why he did not mention that he had been attacked and his life was in danger if he returned to Pakistan. In the Tribunal's view if he was fearful of returning he would have outlined his fears at his stage. The waiver request was refused. He remained in Australia unlawfully from 16 March 2013 to 10 April 2013 when he applied for a protection visa. This raises a concern as to whether the [appellant] has a genuine fear of harm. 19 The Tribunal concluded that the appellant's claims were "totally lacking in credibility" and did not accept the appellant's account of the events giving rise to his claims. Under the heading "Conclusion", the Tribunal stated: The Tribunal does not accept that the [appellant] rented, under power of attorney, the family premises to persons who conducted a school for extremists linked with Lashkar-e-Taiba or any other extremist group. The Tribunal does not accept that he visited the premises and saw that they had propaganda and weapons and suicide jackets or that he spoke to a student about the school. The Tribunal does not accept that the [appellant's] family gave the tenant notice to leave for this reason and that they immediately left. The Tribunal does not accept that they reported the matter to the police and the police raided the premises and found suicide jackets explosives and other extremist propaganda. The Tribunal does not accept that persons connected with those who rented the premise[s] attacked the [appellant] and his brother, fired on them or that people threw bricks at them or made threatening phone calls. The Tribunal does not accept that they came to the premises at night time or that they spied on the [appellant] and the premises. It does not accept that the [appellant] or his family received threatening phone calls. The Tribunal does not accept that the [appellant's] father was forced to close his business and go into hiding and the Tribunal does not accept that his father was also subsequently targeted by extremist groups. The Tribunal does not accept that the [appellant's] father received threatening letters or that he was the victim of extortion. The Tribunal does not accept that anyone in Pakistan wishes to take revenge against the [appellant] or harm him. The Tribunal does not accept that the [appellant] is regarded as having given the mosque a bad name and that he would suffer serious or significant harm as a result of this. 20 The Tribunal stated that it did not accept that the documents that the appellant had provided in support of his claims were genuine, and it gave them no weight. The Tribunal found that the appellant had fabricated his claims for protection and that he did not have a well-founded fear of persecution on account of his actual or imputed political opinion "as being opposed to extremist Islamic groups". It found that there was no real chance that the appellant would be persecuted in the reasonably foreseeable future on the basis that he was a young Sunni Pashtun male who had studied in Australia, or that there was a real risk that the appellant would suffer significant harm on this basis. 21 The Tribunal concluded that the appellant did not satisfy the criterion set out in s 36(2)(a) or the alternative criterion in s 36(2)(aa) of the Migration Act. Accordingly, the Tribunal affirmed the decision of the delegate not to grant the appellant the protection visa.

The Decision of the FCCA 22 In the FCCA, the appellant's application for judicial review alleged the Tribunal's decision was affected by jurisdictional error on four bases. 23 First, it was said that the Tribunal erred in failing to consider each integer of his claims and/or failed to take account of the whole of the evidence. The primary judge concluded that the Tribunal took into account the matters to which the appellant referred and that in substance the appellant's complaint was that the Tribunal made findings that were adverse to him. The primary judge held that the Tribunal's findings were open to it and did not reveal jurisdictional error. 24 Secondly, it was said that the Tribunal erred in finding that documents that the appellant provided in support of his claim were fraudulent. Again, the primary judge noted that this was a factual finding open to the Tribunal and concluded that no jurisdictional error was demonstrated in its findings in this regard. 25 Thirdly, it was said that the Tribunal erred by failing to refer to country information about the situation in Pakistan with regard to political violence and the influence of terrorism. The primary judge noted that the Tribunal had in fact referred to country information regarding Pakistan. 26 Fourthly, it was said that the Tribunal erred in its consideration of the complementary protection criterion in s 36(2)(aa) of the Migration Act. The primary judge, however, held that due consideration was given by the Tribunal to the issues that related to s 36(2)(aa) of the Migration Act. 27 The primary judge concluded that the appellant had not made out his grounds of review and that he had not demonstrated jurisdictional error on the part of the Tribunal. Accordingly, the primary judge dismissed the appellant's judicial review application.

Grounds of appeal and the parties' submissions 28 The appellant appealed from this judgment. Under the heading "Grounds of appeal" the appellant's notice of appeal stated: 1. The decision of the Federal Circuit Court is affected by jurisdictional error. PARTICULARS a. The Court has failed to consider each integer of the applicant's claim and/or failed to take into account the whole of the evidence in determining whether the feared persecution claimed amounted to persecution and serious harm as per section 91R of the Migration Act. b. The applicant has made a number of claims regarding his claims and has produced documents to support this. The court has rejected these documents on mere speculation that in Pakistan there is availability to a wide range of fraudulent documents and that document fraud is prevalent in Pakistan. This is a generalized conclusion and not based on any information provided by the applicant. If the applicant had provided a specific document and the tribunal had found a defect or something suspicious about the document, the court would be entitled to draw a conclusion. This is not so in this case. The court has erred in that it should have taken into account the fact that the tribunal has access to facilities which assess the authenticity of documents and the tribunal should have verified these documents, rather than speculating and making generalized statements that fraudulent documents are rife in Pakistan. c. The Court has erred in that the tribunal has failed to refer to country information/reports which contain information about the general situation in Pakistan, re political violence and the influence of terrorism and the court should have made such a finding. d. The Court has erred by not accepting that the tribunal had erred when considering s. 36(2)(aa). 29 The grounds of appeal are substantially the same grounds as advanced in support of the judicial review application considered by the primary judge in the FCCA. 30 The appellant filed written submissions dated 9 February 2017 in support of his appeal, which repeated the submissions made to the primary judge. Amongst other things, the appellant contended that his "claims demonstrate that he has a real chance of being persecuted on the grounds of his political opinion in accordance with the legal principles laid down by the High Court in the leading case of Chan" (presumably a reference to Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; 169 CLR 379). Also, in his written submissions, the appellant contended that the Tribunal rejected that the appellant's documents on "mere speculation that in Pakistan there is availability to a wide range of fraudulent documents and that document fraud is prevalent in Pakistan". The appellant submitted that the Tribunal's conclusions in this regard were generalised and not based on any information provided by him. 31 At the hearing in this Court, the appellant stated that the documents he provided to the Tribunal were genuine. He submitted that, if the Tribunal thought they were fakes, then it should have checked them. When asked which documents he said the Tribunal should have checked, the appellant referred to the FIRs and the hospital (or medical) records he had provided to the Tribunal. 32 In his written submissions, the appellant also contested the Tribunal's conclusion concerning the complementary protection provisions of the Migration Act, referring to his fear of harm at the hands of Lakshar-e-Taiba. 33 In written submissions dated 14 February 2017 the Minister maintained that the judgment under appeal was not affected by any appellable error. The Minister maintained this position at the hearing.

Consideration 34 The jurisdiction of the FCCA at first instance, and of this Court on appeal, is controlled by statute: see ss 476 and 476A the Migration Act, read with s 474 of that Act, s 24 of the Federal Court of Australia Act 1976 (Cth), and s 10 of the Federal Circuit Court of Australia Act 1999 (Cth). In the context of the present appeal, the jurisdiction conferred on the FCCA was relevantly exercised when that Court undertook the consideration of whether or not the Tribunal's decision was affected by jurisdictional error, as explained by the authorities: see, for instance, Plaintiff S157/202 v Commonwealth [2003] HCA 2; 211 CLR 476 at [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). The question for this Court on appeal is whether or not the FCCA is shown to have erred in the conclusion it reached in this regard: for example, SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ). 35 When the four ways in which the appellant put his contention that the decision of the Tribunal was affected by jurisdictional error are examined in light of the appellant's submissions, it is clear that the appellant was in fact challenging the Tribunal's evaluation of the evidence and other material before it, and the factual findings made by it as a result. 36 The High Court in Chan 169 CLR 379 held that for a fear of persecution to be well-founded, there must be a "real chance" of persecution: see 389 (Mason CJ), 398 (Dawson J), 407 (Toohey J) and 429 (McHugh J). The appellant did not identify a claim or integer of a claim in support of his assertion that he satisfied this test, which was not addressed by the Tribunal. The proposition that the Tribunal failed to consider his claims or an integer of his claims is not borne out by a fair reading of the Tribunal's statement of reasons. Nor did the appellant identify any failure on the Tribunal's part to consider the evidence before it as a whole or otherwise. 37 The appellant's submission, that the Tribunal failed to consider all the evidence, turned principally on the Tribunal's adverse findings about the authenticity of various documents the appellant provided to the Tribunal and the Tribunal's failure to accept the appellant's evidence. The documents are discussed in the next paragraph. 38 The appellant's submission that the Tribunal failed to consider his claims or evidence amounted to a contention that the Tribunal was wrong in its evaluation of the evidence presented by him; that it should not have made adverse credibility findings against him; and that it should have accepted his account. This submission does not, however, disclose jurisdictional error. As explained to the appellant, it is not for this Court or the FCCA to re-make factual findings or evaluations of evidence. While an adverse credit finding may found a conclusion of jurisdictional error (see, for example, Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99; SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; 233 FCR 451; and CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146), there was no basis shown to attribute jurisdictional error to the credit findings made in the appellant's case. It was open to the Tribunal to decline to accept his evidence, including the authenticity of the documents he provided, as in fact it did. 39 The appellant failed to show that jurisdictional error arose from the Tribunal's findings that documents provided by the appellant in support of his claim were fraudulent. At the hearing of the appeal, the appellant referred the Court to the documents that he had provided to the Tribunal in support of his claims, specifically the FIRs and the medical records. The appellant's point was that simply because document fraud is said to be prevalent in Pakistan did not mean that no document purporting to be from an official source in Pakistan was genuine. This may be accepted. The findings made by the Tribunal in relation to the documents he provided to it were, however, open to it on the evidence and other material before it, as shown in the Tribunal's discussion of the documents and the appellant's evidence, and further supported by the information before the Tribunal about the prevalence of document fraud in Pakistan. As the Minister submitted at the hearing, these documents were specifically considered by the Tribunal in its reasons and discussed with the appellant at the Tribunal hearing, where the Tribunal raised with the appellant the discrepancies between the records and his account of events. The Tribunal's findings substantially arose from its appraisals of the documents and evidence, following these discussions with the appellant, although its findings were supported by the country information about the prevalence of document fraud. For example, in the case of the medical records, it was open to the Tribunal to give them no weight, as it did, in light of the discrepancies between those records and the appellant's account of events, and the vagueness of his evidence. 40 There was no jurisdictional error on the part of the Tribunal in this case, when it relied on its adverse credibility findings, supported by country information about document fraud, to find that the documents provided by the appellant were not genuine. The Tribunal was not obliged in this case to take any further steps to confirm whether or not the documents were genuine, as the appellant at one stage apparently suggested. Amongst other things, there was nothing to indicate that any further inquiry by the Tribunal concerning the authenticity of the documents might have been useful: see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 at [25]-[26]. 41 Further, the appellant's submission that jurisdictional error arose from the Tribunal's failure to consider country information about the situation in Pakistan with regard to political violence and the influence of terrorism also fails. At the hearing, the appellant specifically referred in this context to pages 171 to 181 of the Appeal Book. These pages commenced with an email dated 21 October 2014 from the appellant's migration agent to the Tribunal and included a written submission in support of his case, as well as a number of attachments concerning militant organisations, Pakistan's police, and circumstances in Pakistan more generally. This material does not, however, lead to an inference that there was jurisdictional error in the Tribunal's decision. Rather, examination of this material highlights that, for the reasons it gave, the Tribunal did not accept the appellant's claims and that, having rejected these claims, the attachments to the email had limited relevance. 42 Reference to the Tribunal's reasons shows, moreover, that it did in fact consider some country information relating to Pakistan to the extent that it considered this information relevant, in light of its findings about the credibility of the appellant's account and the falsity of the documents he had provided (see footnotes 3, 5 and 6). There was no jurisdictional error manifest in this case in the Tribunal's selection of the country information it considered relevant. 43 There is also no discernible error in the Tribunal's consideration of the complementary protection criterion in s 36(2)(aa) of the Migration Act. The Tribunal unequivocally rejected the asserted factual basis for a complementary protection claim in its reasons, under the heading "Conclusion". The factual findings that the Tribunal set out at this point made it clear that the appellant could not satisfy the Tribunal that he met the criteria in either s 36(2)(a) or (aa) of the Migration Act. As already indicated, these findings were open to the Tribunal on the evidence and other material before it. The appellant having failed to satisfy the criteria in s 36(2)(a) or (aa), the issue of relocation did not arise. The Tribunal had no need to address this issue and it did not do so. There was no error in this regard, as the appellant apparently suggested at one point in the hearing of the appeal. 44 The appellant also complained about the adverse inference drawn by the Tribunal from the fact he had delayed in making his protection claims; but it was clearly open to the Tribunal to draw such an inference in the circumstances of the case. 45 The appellant has not identified, and I cannot discern, any jurisdictional error in the Tribunal's decision that the primary judge failed to identify. 46 Accordingly, for the reasons stated, the appeal should be dismissed. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.