SZRVA v Minister for Immigration and Border Protection

Compelling reasons - the decision of the delegate & the Tribunal 10 The question to be resolved by both the delegate and the Tribunal was whether there were "compelling reasons" why the requirement that SZRVA apply for his visa within 28 days of the cessation of his last substantive visa should not apply. That phrase is not defined in either the Migration Act or the Migration Regulations. 11 When addressing a comparable provision in reg 1.20J of the Migration Regulations, the Full Court in Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77, (2005) 141 FCR 285 ("Babicci") provided the following guidance as to the meaning of "compelling circumstances" (at 289): [23] In our opinion the true issue for consideration is whether the MRT asked itself the correct question by proceeding on the basis that "compelling circumstances" were those which "forced or drove" or "compelled" a particular result. [24] There are, as was acknowledged in the debate, shades of differences between the various dictionary definitions of "compelling". But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in reg 1.20J(1) should be waived. 12 The delegate in her Reasons for Decision cited these observations of the Full Court and, after having considered "all of the circumstances relevant to your application", concluded that the circumstances were not "compelling". 13 The Tribunal also cited the observations of the Full Court in Babicci. When forming its own assessment as to whether the now-Appellant had presented "compelling reasons", the Tribunal in its Reasons for Decision stated that it needed "to be satisfied that the applicant and his sponsor are being truthful with it in their evidence as to their relationship and their claims which they state are compelling reasons": at para [83]. 14 The submissions made by the now-Appellant when appearing before the Tribunal, in claiming there were compelling reasons for not applying the Sch 3 criteria, and upon which the questions of credibility raised were largely centred upon: claims to fear harm if he were to be returned to Pakistan; and the genuineness of his relationship with his sponsor. The Tribunal addressed each of these two limbs to the claims being made. 15 The Tribunal summarised the claims as to the fear of harm as follows in its Reasons for Decision: 36. The applicant first said that he had already applied for a protection visa on the basis of the threat there to him and he would not be safe there. 37. As to the risk there in Pakistan, he said that the risk is to him and his family, and the Taliban are everywhere. He said this is in the north side of Pakistan. As to where exactly, he said Swabi. The Tribunal noted from the Form 80 that his parents were in Mardan. He said they moved there for safety but things got better in Swabi so they went back, but things aren't that good there. They have family and land there. 38. He said that he lived in Swabi, and worked as a government employee. He also lived in Peshawar for a time. He worked in Mardan but went there from Swabi. 39. As to whether his wife could go to Pakistan with him, he said that it is not good there, and he doesn't want to put her at risk, and does not want to do that to her. 40. The Tribunal then referred to the RRT decision on his protection claims. It noted that a member of the Tribunal had sat down and talked to him for many hours about his claims of harm in Pakistan and had found that his specific claims were not credible - that is, he was not telling the truth. The Tribunal asked why should it accept that he is telling it the truth now that he will face harm in Pakistan if he were to return. He said it is not that good there and no one will take responsibility for him there. 41. As to whether he could live with his parents, he said they are 'somewhere else' and move around. As to whether he would have a family home to live in, he said that is not safe and is 'finished'. As to what he meant by finished, he said they don't have a house - it was destroyed. 42. As to whether there was anything else he would like to raise, he said that he faces a threat in Pakistan, that he is a graduate and wishes to benefit Australia and give to this country. 16 When assessing the "truthful[ness]" of the now-Appellant and his sponsor, the Tribunal thereafter proceeded to set forth "a number of serious inconsistencies and implausibilities in their evidence" with respect to the genuineness of their relationship. In doing so, the Tribunal separately addressed (at para [84]): "[i]nconsistencies and implausibilities as to [the] proposal of marriage"; an "[i]nconsistency as to attendance at the wedding"; an "[i]nconsistency as to last contact with the sponsor's friend, Sandy"; an "[i]nconsistency as to whether they spent nights together before marriage"; an "[i]nconsistency as to response of sponsor's parents to marriage"; an "[i]nconsistency as to travel outside Sydney"; and an "[i]nconsistency as to Centrelink advice. 17 Having recounted these "inconsistencies and implausibilities", the Tribunal concluded (without alteration): 86. The Tribunal has considered the implausibilities and inconsistencies set out above, as well as the applicant's response to the various inconsistencies and implausibilities between his and his wife's evidence put to him under s359A of the Act, and is not satisfied that either he or the sponsor have been truthful in their evidence. 87. The representative's response does little to satisfactorily explain why there would be such inconsistencies and implausibilities. 88. The Tribunal does not accept as plausible that typographical errors or 'confusion' are responsible for the inconsistencies and implausibilities. Nor does it accept that his wife's 'weak memory' and health conditions, such as her nervous system and heart weakness, are responsible for these inconsistencies and implausibilities. Indeed, there is no medical evidence before the Tribunal to support any of the claims made regarding the sponsor's medical condition or impairments, and in the circumstances the Tribunal is not satisfied on the evidence before it that she has these conditions or impairments. 89. It is significant that there is no plausible explanation given as to why the sponsor claimed at hearing that her parents get on well with the applicant and her now but is now stating that relations are not good at all, arising from the Tribunal's request for a Statutory Declaration from them as to the genuineness of the relationship. 90. It is also significant that there is no plausible explanation given as to why she had not reported her marriage to Centrelink if it was genuine. 91. The Tribunal's thus finds that neither the applicant nor the sponsor are being truthful with it as to their spouse relationship, and that this is, in fact, a contrived spouse relationship for migration purposes. The Tribunal thus concludes that any supporting documentary evidence provided to the Department and Tribunal has also been created or obtained to assist the applicant in establishing this contrived spouse relationship. 92. This conclusion weighs heavily in terms of the Tribunal's consideration of whether there are compelling reasons here. 93. Based on the above findings, the Tribunal must conclude that all of the reasons given by the applicant and his sponsor as to why the applicant could not apply for this visa offshore are also fabrications to assist the applicant in establishing compelling reasons. 94. The Tribunal accepts that, as a Pakistani citizen, the applicant may have to return to Pakistan. However, given its view of his truthfulness, it is not satisfied that any of his specific or general claims to fear harm there are the truth. It is thus not satisfied that he faces a risk of harm should he have to return. In any event, even if he did face harm, it would not be in the context of him returning to make an application for a partner visa on the basis that his relationship with his wife is that of a genuine spouse, and thus would not be found to be compelling. 95. For these reasons, in regards cl.830.211(2)(d)(ii), the Tribunal finds that there are not compelling reasons for not applying the Schedule 3 criteria. Hence the applicant does not satisfy cl.820.211.

Assessments as to credibility & truthfulness of evidence 18 Findings as to credibility are said to be findings of fact par excellence: Re Minister for Immigration and Multicultural Affairs, Ex parte Durairajasingham [2000] HCA 1 at [67], (2000) 58 ALD 609 at 625 per McHugh J; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36], (2016) 253 FCR 496 at 507 to 508 per McKerracher, Griffiths and Rangiah JJ ("CQG15"). 19 But it is equally well-established that "[c]are needs to be taken … to ensure that blanket, reflex or exaggerated adverse credit findings do not take the place of a proper examination of … claims": AZU15 v Minister for Immigration and Border Protection [2016] FCAFC 74 at [11], (2016) 240 FCR 143 at 145 per Allsop CJ, Kenny and Bromwich JJ. Adverse findings as to credit by the Tribunal, accordingly, "do not shield its decision-making processes from scrutiny": SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] per Flick J. 20 Especially in the present statutory context, care needs to be taken to ensure that perceived inconsistencies or embellishments in particular aspects of the evidence given are not impermissibly transformed into a finding that a party has been untruthful as to the claims being made, either in whole or in part. In Abebe v The Commonwealth of Australia [1999] HCA 14, (1999) 197 CLR 510 at 577 to 578 Gummow and Hayne JJ ("Abebe") thus observed: [191] … the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself. But those difficulties are to be confronted by the Tribunal in the execution of its tasks, not by a court that is asked to review the way in which the Tribunal reached its decision. In making findings of fact, the Tribunal is operating in "an inherently imperfect environment" and its task "is not to punish or disadvantage vulnerable people because they have made false or inconsistent statements, or are believed to have done so": Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [73], (2004) 78 ALJR 992 at 1007 per Kirby J (in dissent) ("SGLB"). 21 Provided appropriate care is exercised, findings as to credibility may nevertheless be the subject of judicial scrutiny. In CQG15 [2016] FCAFC 146, (2016) 253 FCR 496 McKerracher, Griffiths and Rangiah JJ summarised some of the base upon which such scrutiny may be undertaken as follows (at 508 to 509): [38] There are several other potential bases upon which credit findings can be challenged. Recitation of the expression that credibility is a matter par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as: (a) failure to afford procedural fairness; (b) reaching a finding without any logical or probative basis; (c) unreasonableness; and/or (d) jurisdictional error as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451. 22 Considerable reservation was expressed during the course of the hearing in this Court as to whether the findings made by the Tribunal as to "inconsistencies and implausibilities" in fact fell within one or other of these grounds of review. Some of the "inconsistencies" seemed to be more, with respect, a matter of quibbling with perhaps understandable divergences in the accounts given by the Appellant and his sponsor. One such example is whether there was truly any unsatisfactory "inconsistency" between the Appellant maintaining that they had last seen their friend "Sandy" a month ago and the sponsor's account that it was "one week ago". Another reason for reservation was the characterisation by the Tribunal of some evidence, namely an inconsistency in the comments provided by the sponsor at the hearing that her parents got on well with the Appellant and a Statutory Declaration to the effect the relations were "not good at all", as providing "no plausible explanation" rather than a simple finding that the explanation could not be accepted given an inconsistency. Other examples were explored during the course of the hearing with Counsel for the Respondent Minister. 23 Notwithstanding such reservations, it has ultimately been concluded that the findings made by the Tribunal were findings open to it on the evidence and expose no reviewable error. Such a conclusion is reached primarily by reason of the care with which the Tribunal exposed for consideration: the differences in the claims being made by the now Appellant and his sponsor; and the "inconsistencies" in not one but many aspects of the facts being explored. Whatever be the prospect that a different Tribunal member may have assessed the claims being made in a different manner, and the prospect that a Judge may express reservations as to the findings made, the task of making findings of fact is a task entrusted to an individual Tribunal member and such findings are to be accepted where they are available to be made on the material then available. 24 The resolution of the Grounds of Appeal in this Court are thus to be approached upon the basis that it was open to the Tribunal to find in its Reasons for Decision: "that neither the applicant nor the sponsor are being truthful with it as to their spouse relationship" (at para [91]); and it was "not satisfied that any of [the Appellant's] specific or general claims to fear harm are the truth" (at para [94]). The observations of Gummow and Hayne JJ in Abebe and those of Kirby J in SGLB apply with greater force with respect to the Tribunal's assessment to the claimed harm the Appellant would face if returned to Pakistan than to its findings as to the genuineness of his claimed relationship. 25 These conclusions, with respect to the credibility findings of the Tribunal, are of relevance to Grounds 2, 4 and 5 of the Notice of Appeal.

The Grounds of Appeal 26 The Notice of Appeal sets forth the following eight purported Grounds of Appeal, namely (without alteration): 1. Substantial injustice would be caused if relief is refused. 2. My claim was undervalued by the Federal Circuit Court and the Administrative Appeals Authority. The FCC and the AAT made an error of law in my case that by concluding that any supporting documentary evidence provided to the Department and Tribunal has been created or obtained assist the applicant in establishing this contrived spouse relationship. Whereas Department is unable to prove any documentary evidence as Bogus or not genuine. 3. The Honourable Judge did not take into account that I was not represented by a lawyer at the hearing with the Federal Circuit Court and also at the time of preparing the application with the Honourable Court. 4. The Tribunal in its decision at paragraph 94 states: 'the applicant may have to return to Pakistan. However, given its view of his truthfulness, it is not satisfied that any of his specific or general claims to fear harm there are the truth. It is thus not satisfied that he faces a risk of harm should he have to return.' 5. The Tribunal fell into jurisdictional error by finding that applicant will not suffer harm if he has to return to Pakistan and applicant faces real risk. The Tribunal and Department fail to consider country profile and real risk which applicant faces if he returns to his home country Pakistan. 6. The Tribunal in its decision in paragraph 95 states: 'in regards to cl. 820.211(2) (d)(ii), the Tribunal finds that there are not compelling reasons for not applying the schedule 3 criteria. Hence the applicant does not satisfy cl.820.211.' The Tribunal denied the applicant procedural fairness and thereby fell into jurisdictional error by failing to consider compelling reasons for not applying the Schedule 3 criteria. 7. The FCC did not consider properly that an error of law has occurred in my case and no relief was given to me in this regards. 8. I appeal against the whole decision of the FCC.

Grounds 1, 7 & 8 27 The Respondent Minister is correct in submitting that Grounds 1, 7 and 8 do not "identify any specific error on the part of the primary Judge and are not proper grounds of appeal". 28 Rule 36.01(2)(c) of the Federal Court Rules 2011 (Cth) ("Federal Court Rules") requires a Notice of Appeal to state "briefly, but specifically, the grounds relied upon in support of the appeal". In SQMB v Minister for Immigration & Multicultural Affairs & Indigenous Affairs, Finn, Emmett and Bennett JJ concluded, when considering O 52 r 13 of the now-repealed Federal Court Rules, that Grounds of Appeal which simply state, for example, that a judge has "erred in fact and law" do not satisfy the requirements imposed by the Rule: [2005] FCAFC 165 at [10]. The objective of r 36.01(2)(c) of the Federal Court Rules is in fact "to direct the attention of the Court and the Respondent to the appeal to alleged appellable errors said to have been committed by the primary Judge and to focus upon the issues sought to be pursued on appeal": Giddings v Australian Information Commissioner [2017] FCAFC 225 at [9] per Collier, Flick and Charlesworth JJ. 29 Grounds 1, 7 and 8 manifestly fall well short of satisfying this objective. 30 Ground 1 is no more than a statement as to the alleged consequence of the Appellant's appeal being unsuccessful; it contains no statement as to the "ground" upon which it is claimed the primary Judge erred. 31 Ground 7 fails to identify the "error of law" said to have been committed by the primary Judge and, accordingly, fails to "specifically" identify "the ground relied upon…". 32 Ground 8 is no more than an identification of the fact that the Appellant states that he is appealing from "the whole" of the decision of the primary Judge. Again, no specific "ground" is identified. 33 Grounds 1, 7 and 8 are thus rejected. 34 The remaining Grounds, namely Grounds 2, 3, 4, 5 and 6 are ill-expressed but nevertheless sufficiently identify the appellable error claimed to have been committed by the primary Judge. Each of those Grounds should be separately considered.

The supporting documentary evidence - Ground 2 35 Before the Department and the Tribunal, the Appellant had relied upon a number of documents, identified in the Tribunal's Reasons for Decision (at paras [8] and [13]). 36 Ground 2 is to be understood as an error on the part of the primary Judge in not concluding that the Tribunal had erred in reaching the assessment it made at paras [91] and [92] of its Reasons for Decision and in making the finding it did at para [93] of those reasons. 37 Before the primary Judge, a like argument to that now raised in Ground 2 of the Notice of Appeal was considered and rejected: SZRVA [2018] FCCA 2169 at [33] to [37]. 38 The crux of the argument sought to be advanced was that the Tribunal had erred in finding that the "supporting documentary evidence" had been "created or obtained to assist the applicant in establishing this contrived spouse relationship" (cf. the Tribunal's Reasons for Decision at para [91]). 39 Curiously, but perhaps by way of oversight, the Appellant makes no challenge to the finding of the Tribunal (at para [91]) that the claimed relationship was "a contrived spouse relationship for migration purposes". Given the extensive list of "inconsistencies and implausibilities" found by the Tribunal with respect to (inter alia) the Appellant's proposal of marriage and a further extensive list of inconsistencies as to those persons who were said to have attended the wedding, the lack of any such challenge to the genuineness of the claimed relationship is perhaps readily understandable. But such curiosities may be left to one side. 40 The focus of Ground 2 is upon the findings made by the Tribunal as to the documents before it. Although the reference by the Tribunal to documents having been "created" is perhaps curious, the "supporting documents" before it included evidence as to (inter alia) a "joint account statement" with AGL. It is perhaps to such documents that the Tribunal was referring when it was referring to "created" documents. But nothing thus turns on the phrase "created or obtained". 41 The primary Judge was correct, with respect, in concluding that no error was exposed in the Tribunal's findings in respect to the "supporting documents": SZRVA [2018] FCCA 2169 at [36] to [37]. The Tribunal was not required to make a separate and independent assessment as to (for example) the credibility of the evidence being given and a separate and independent assessment as to the reliability of the documents relied upon when resolving the more broadly expressed submissions advanced by the Appellant as to the genuineness of his claimed relationship. Nor is there any requirement that one assessment need necessarily precede the making of the other: Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 at [30], (2010) 184 FCR 485 at 491 per North and Lander JJ (Katzmann J agreeing) ("SZNSP"). The present case is not one in which an assessment as to (for example) credit was made and further potentially corroborative evidence simply ignored: cf. SZNSP [2010] FCAFC 50 at [38], (2010) 184 FCR 485 at 492 per North and Lander JJ (Katzmann J agreeing). 42 The Tribunal reached its conclusion as to the genuineness of the claimed relationship by reference to both its adverse assessment as to credibility and its finding that "supporting" documents had been "created or obtained". In doing so, the Tribunal committed no error. Nor did the primary Judge in rejecting a like argument. 43 Ground 2 of the Notice of Appeal is rejected.

The absence of legal representation - Ground 3 44 A fundamental difficulty with Ground 3 is that it proceeds, at least in part, from an assumption that a litigant to a proceeding before the Federal Circuit Court is entitled to legal representation. 45 In a proceeding before the Tribunal, there is no such entitlement: cf. Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265 at [28] to [36], (2000) 101 FCR 20 at 27 to 29 per Sackville, Marshall and Lehane JJ; Commissioner of Taxation v La Rosa [2002] FCA 1036 at [120] to [122], (2002) 50 ATR 450 at 471 to 472 per Nicholson J. Nor is there such an entitlement in a proceeding before the Federal Circuit Court: cf. AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 at [51], (2016) 241 FCR 30 at 53 per Flick, Griffiths and Perry JJ. 46 There are, in any event, at least two further difficulties, namely: the primary Judge was well aware of the fact that the Appellant was unrepresented in the proceeding before him and there is no basis for any argument that the primary Judge "did not take into account that [he] was not represented"; and there is no basis for any submission that the absence of legal representation in the proceeding before the Federal Circuit Court occasioned any procedural unfairness. The reasons for decision of the primary Judge expose a consideration of the grounds upon which the application for judicial review was advanced, that consideration exposing an examination of the arguments that could potentially have been raised irrespective of whether SZRVA was represented or unrepresented. 47 Ground 3 of the Notice of Appeal is rejected.

The claims to fear harm - Grounds 4 & 5 48 Prior to applying for a partner visa, the Appellant had applied in 2011 for a protection visa. 49 The claims made in support of that application were summarised by the Tribunal in its Reasons for Decision at paras [36] to [41]. 50 The finding made by the Tribunal in respect to these claims is set forth at para [94] of its reasons. 51 Before the primary Judge, SZRVA argued that the Tribunal had committed (without alteration) "jurisdictional error by finding that applicant will not suffer harm if he has to return to Pakistan and applicant faces real risk". This submission forms the basis of Ground 5. Ground 4 simply sets out the Tribunal's finding at para [94] of its Reasons for Decision. 52 The primary Judge rejected the argument: SZRVA [2018] FCCA 2169 at [39]. 53 No appellable error is discernible in the rejection of the argument. The finding made by the Tribunal was a finding of fact, being a finding of fact which was open to it - especially given the adverse assessment made by the Tribunal as to SZRVA's credit. It was open to the Tribunal to make the assessment that it did as to the Appellant's "truthfulness" and thereafter to make an adverse assessment as to the claim to fear harm. 54 Grounds 4 and 5 of the Notice of Appeal are thus rejected.

A denial of procedural fairness - Ground 6 55 Before the primary Judge, the now-Appellant also contended that the Tribunal had denied him procedural fairness. But that Judge observed that SZRVA was "unable to identify anything that he felt was unfair in the Tribunal decision or procedure": SZRVA [2018] FCCA 2169 at [41]. The Judge further observed that SZRVA had "not identified any item of evidence not considered, other than the suggestion that there may be an unspecified letter from Centrelink to the Tribunal": SZRVA [2018] FCCA 2169 at [42]. 56 The onus of establishing a denial of procedural fairness, as with other grounds of judicial review, rests with the party claiming the denial: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117. Hill, Sundberg and Stone JJ there observed: [45] … it is trite law that the onus of establishing the factual foundation for a claim of a breach of natural justice or a failure to afford procedural fairness lies on the party alleging the breach… (citations omitted) See also: CED15 v Minister for Immigration and Border Protection [2018] FCA 451 at [36] per Thawley J; CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [38] per Thawley J. 57 On the facts, SZRVA failed before the primary Judge in establishing any denial of procedural fairness. Nor is any denial of procedural fairness evident from the materials now available to this Court. 58 Ground 6 of the Notice of Appeal is rejected.

CONCUSIONS 59 It should finally be noted that the Appellant was identified before the Federal Circuit Court of Australia as SZRVA. Before this Court, the Appellant was identified in the Notice of Appeal and the accompanying affidavit by his name. In order to regularise the proceeding and to avoid potential confusion an order should be made changing the name of the Appellant to SZRVA. 60 None of the available Grounds of Appeal have been made out. 61 The appeal should thus be dismissed. 62 There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1. The name of the Appellant be changed to SZRVA.
2. The appeal is dismissed.
3. The Appellant is to pay the costs of the First Respondent, either as assessed or agreed. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.