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[2016] FCA 471
Federal Court of Australia
2016-05-06
Siopis J
Original judgment source is linked above.
SIOPIS J: 1 The appellants are a husband, wife and their child. The appellants are citizens of Pakistan and are Sunni Muslims. 2 The appellants applied to the Department of Immigration and Border Protection for protection visas on 24 August 2012 on the grounds that the first and second appellants faced persecution on the basis of their religion if they were to return to Pakistan. A delegate of the first respondent (the Minister) refused to grant the visas on 7 December 2012. 3 The appellants applied to the Refugee Review Tribunal (the Tribunal) for review of the delegate's decision by letter from their migration agent on 23 December 2012.
the tribunal 4 The appellants appeared before the Tribunal on 12 December 2013 to give evidence and present argument. The Tribunal also received evidence in the form of a statutory declaration dated 2 December 2013 from a witness, referred to as "Mr S", called by the appellants. Each of the first and second appellants and Mr S gave oral evidence at the Tribunal hearing. The appellants also produced documents in support of their claim. The appellants were represented by a registered migration agent in relation to the review, and that migration agent attended the Tribunal hearing. 5 Before the Tribunal, the first appellant said that he had worked for a bank in Lahore and, in July 2008, allegations were made that he was complicit in fraudulent conduct committed by another bank employee. He was advised he was under investigation. 6 The first appellant said that because senior management at the bank were Shi'a Muslims, the first appellant and the second appellant converted from the Sunni sect to the Shi'a sect in the hope of receiving favourable treatment in the investigation. Following their conversion to the Shi'a sect, the bank exonerated the first appellant of any wrongdoing. 7 However, said the first appellant, in early 2010, the first and second appellants began to withdraw from the Shi'a community. They first appellant said that, as a result, they began to receive threats coercing them to return to the community. These threats were made by telephone, in person and in writing. In June 2010, said the first appellant, they received a letter from the Shi'a community which threatened that they would all be killed if they did not return to the Shi'a sect, and, in September 2010, the first appellant was almost hit by an approaching car while he was crossing a road. 8 The first appellant said that, in October 2010, both he and the second appellant formally converted back to the Sunni sect. 9 On 10 October 2010, the first appellant said he was attacked in the street by a group of Shi'as. On 18 October 2010, the first and second appellants again received a letter threatening them and their child, the third appellant, with death because of their return to the Sunni sect. 10 The first appellant said he continued to fear harm following his conversion back to the Sunni sect, and that he came to Australia in February 2011 as the holder of a student visa. At the same time as this, his wife, the second appellant, and their child, left Pakistan and stayed temporarily with family in Dubai. The first appellant said that the second and third appellant returned to Pakistan in May 2011, and soon thereafter a group of Shi'as broke into their home and attacked them. As a result, the second and third appellant went into hiding in different places in Pakistan, before coming to Australia in January 2012. 11 The first appellant also said that the first and second appellants complained to the police in Pakistan, but did not receive any assistance beyond First Information Reports being made in relation to the attacks in October 2010 and May 2011. The first appellant said that because of their return to the Sunni sect, the appellants feared that they would suffer harm if they were to return to Pakistan. 12 At the hearing, the Tribunal had concerns about the credibility of the appellants' claims. By letter dated 8 January 2014, issued pursuant to s 424A of the Migration Act 1958 (Cth), the Tribunal invited the first and second appellants to comment on, or respond to, the various concerns about their credibility identified by the Tribunal. On 17 February 2014, the appellants responded to the Tribunal's letter. 13 The Tribunal affirmed the delegate's decision to refuse the protection visa applications. 14 In reaching this decision, the Tribunal found that neither the first or second appellant was a witness of truth. The Tribunal set out the basis for that finding. 15 First, the Tribunal noted a number of inconsistencies between the written statements made by the first appellant and the second appellant in their separate protection visa application forms. 16 Secondly, the Tribunal noted inconsistencies in relation to the first and second appellants' account of their conversion from the Sunni sect to the Shi'a sect in 2008. In particular, the Tribunal found it difficult to accept that the first appellant was unaware of sectarian violence in Pakistan at the time of their conversion to the Shi'a sect, and, consequently, found it difficult to accept the first appellant's claim that he did not perceive any risk in converting. 17 Thirdly, the Tribunal had concerns about the first appellant's claim that he and his family feared serious harm in light of the fact that he left Pakistan on his own in February 2011, leaving his wife and child behind in Pakistan. The Tribunal had difficulty accepting that, given his experiences in Pakistan and the threats made to his family, the first appellant would leave his wife and child behind in Pakistan. 18 Fourthly, the Tribunal had concerns as to the delay in the first appellant applying for a protection visa after he arrived in Australia in February 2011. The Tribunal decided that the first appellant left Pakistan to come to Australia in February 2011 but did not apply for a protection visa until August 2012. This was the case notwithstanding that the first appellant told the Tribunal that, beside his plans to study in Australia, his decision to apply for a student visa was motivated by the difficulties he was having with Shi'as in Pakistan. The Tribunal observed that the first appellant had claimed that prior to leaving Pakistan, he received threats of harm, was nearly run over, and was the victim of an assault by a group of men in October 2010. Further, the appellants claimed that the second appellant was attacked in May 2011. In those circumstances, the Tribunal said that it had "great difficulty" in accepting that the first and second appellants would be genuinely in fear of harm when, in fact, the first appellant made no inquiries in Australia as to how he could remain in Australia until sometime in 2012 after his wife and child had arrived in this country. The Tribunal concluded that the first appellant's inaction, particularly after the attack on his wife in Pakistan in May 2011, was inconsistent with a person genuinely in fear of harm. 19 The Tribunal concluded that, having regard to these matters cumulatively, the first appellant was not a witness of truth, and this conclusion as to his credibility meant the Tribunal found that his account of the events leading to the making of his protection claim was false. The Tribunal also held that the second appellant was not credible and was not a witness of truth. 20 Because of these findings against the first and second appellants, the Tribunal held that it did not believe the claims that the appellants converted to the Shi'a sect, or that they, or members of their family, ever received threats, or that they were ever assaulted by Shi'as. 21 The Tribunal found that there was no credible evidence that the appellants were ever harmed by any person in Pakistan and there was no credible evidence that any person or any group wished to harm them. There was, said the Tribunal, no credible evidence as to why the appellants left Pakistan and why they did not want to return there. 22 The Tribunal also noted that Mr S provided a statutory declaration to the Tribunal and appeared and gave evidence at the hearing before the Tribunal. Mr S claimed that he was a customer of the bank where the first appellant worked in Pakistan, and, in that capacity, that he knew the first appellant. Mr S claimed that he witnessed the October 2010 attack upon the first appellant. The Tribunal was not persuaded that this evidence proved that the account of the events given by the first appellant was true. The Tribunal observed that its concerns about the first and second appellants' credibility was not alleviated by Mr S's evidence, and his evidence did not change the Tribunal's conclusion that the attack did not occur. 23 The Tribunal also gave no weight to documents which the first and second appellants had produced to the Tribunal. The contents of all of the documents purported to corroborate the first and second appellants' claims. The Tribunal referred to country information which indicated that false documents are widely available in Pakistan, which included First Information Reports and newspaper articles. This country information was enclosed with the Tribunal's letter of 8 January 2014, with an invitation to comment, but no comment was made by the appellants in their response of 17 February 2014. The Tribunal said that it had carefully considered the contents of the documents but found that, bearing in mind the prevalence of false documents in Pakistan, the documents did not alleviate concerns as to the first and second appellants' credibility and, therefore, the documents should not be accorded any evidentiary weight. 24 The Tribunal also found that there was no real chance of the appellants suffering serious harm based on any Convention grounds, and that the first and second appellants did not hold a well-founded fear of persecution. 25 Moreover, the Tribunal repeated its adverse findings of credibility when holding that the criteria for complementary protection had not been satisfied. The Tribunal stated that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the appellants' removal from Australia to Pakistan, there would be a real risk of the appellants suffering significant harm. 26 The Tribunal, therefore, affirmed the delegate's decision to refuse to grant protection visas to the appellants.
the federal circuit court 27 The appellants brought an application for judicial review of the Tribunal's decision. 28 At the first hearing of the judicial review application on 29 October 2014, the appellants applied for an adjournment on the basis that they had no legal representation. The primary judge refused the adjournment application, but made orders granting the appellants leave to reopen their case to the extent necessary to apply to amend their application, and to make submissions in support of their amended application. 29 The appellants, with the benefit of legal advice, amended the grounds of review of the originating application. The Federal Circuit Court then considered the amended grounds of review at a second hearing on 17 September 2015. 30 The first amended ground of review complained that the decision of the Tribunal was arbitrary, irrational, illogical and unreasonable. The particulars of this amended ground of review contended that the rejection of Mr S's evidence was illogical and unreasonable and that this comprised jurisdictional error. 31 The second amended ground of review contended that the Tribunal had failed to discharge its core function to review the delegate's decision. The particulars of this amended ground of review, in essence, repeated the complaint about the Tribunal's failure to accept the evidence of Mr S. 32 The third amended ground of review contended that the Tribunal failed to give the hearing required by s 425 of the Migration Act. The particulars of this amended ground of review alleged that there was a failure to put to Mr S, and the first appellant, that the Tribunal might find Mr S's evidence was false. 33 The Federal Circuit Court dismissed the appellants' application for judicial review.
the appeal 34 The appellants, who were unrepresented, filed their notice of appeal in this Court on 6 January 2016. 35 The notice of appeal contained four grounds of appeal: 1. The Respondents made a procedural mistake in not taking into consideration information provided by the applicants. 2. The Respondents made a procedural mistake in not taking into consideration independent evidence brought before them. 3. The Respondents made a procedural mistake in not taking into consideration documentary evidence brought before the Tribunal. 4. The Appellants were not given procedural fairness and were denied natural justice. 36 None of the first three grounds of appeal identify any error of law made by the primary judge. Nor indeed were these complaints raised in the amended grounds of review which were considered by the primary judge. Indeed, the first three of these complaints mirrored the original grounds of review in the originating application before the Federal Circuit Court. These grounds of review were subsequently abandoned when the amendments to the grounds of review in the originating application were made. 37 During the course of oral submissions before the Court, the first appellant did not identify any specific error by the primary judge. Rather, the first appellant complained that the Tribunal had erred in the making of credibility findings against himself and his wife, and in using these findings not to accept the evidence of Mr S. Specifically, the first appellant argued that the adverse credibility findings were based upon an error he had made with a date, and this, he said, was unfair. The first appellant's oral submissions do not warrant the exercise of the power of permitting the appellants to advance, on this appeal, the nominated grounds of review that had not been advanced before the primary judge. Accordingly, the first three specified grounds of appeal fail because they are incompetent. However, I have treated the appellants' oral contentions to constitute submissions that the primary judge erred in dismissing each of the amended grounds of review before the Federal Circuit Court. I will approach the appellants' appeal in that way. 38 Further, as to ground of appeal four, it is unclear what the appellants are referring to when they assert denial of procedural fairness. The oral submissions did not elucidate this complaint. However, insofar as this ground relates to the hearing before the primary judge, the ground of appeal is rejected. The appellants were given every opportunity to put their case to the primary judge. The primary judge permitted the appellants to re-open and rely upon the amended grounds of review at the hearing on 17 September 2015. Insofar as it is a complaint that there was a failure by the Tribunal to accord procedural fairness, there was no specific oral submissions which addressed this issue either. I have, therefore, treated this as a complaint by the appellants of the primary judge's rejection of ground three of the grounds of review. 39 I now address the question of whether the primary judge erred in dismissing the amended grounds of review. 40 The first ground of review alleged by the appellants in their amended originating application was that the Tribunal acted unreasonably and irrationally in finding that there was no credible evidence that the appellants were ever harmed by any person in Pakistan. 41 In support of this claim, before the primary judge, the appellants complained that in rejecting, or giving no weight to, Mr S's evidence, the Tribunal engaged in circular reasoning and thereby acted irrationally. 42 The primary judge rejected the appellants' contention. The primary judge found that it was open to the Tribunal to reject evidence which purported to corroborate the evidence of the first appellant because the Tribunal made adverse credibility findings against the first and second appellants, or their claims, provided the Tribunal had actually considered that corroborative evidence (Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 (SZNSP)). 43 The primary judge observed that, in SZNSP, the Tribunal's adverse credibility findings made against the applicant led the Tribunal to decide not to give any weight to a witness statement that apparently corroborated the applicant's claims. The primary judge went on to say that, in this case, the principle in SZNSP applied with greater force, because, in this case, the Tribunal provided more extensive reasons for not accepting the corroborative evidence than the Tribunal had done in SZNSP. 44 In my view, the primary judge did not err in rejecting the first ground of review. Further, it could not be said that, more generally, the Tribunal's decision was irrational. This is because its decision was based on the credibility findings which the Tribunal made; and because it was open to the Tribunal to make those findings for the detailed reasons which it gave. 45 The second ground of review before the primary judge, alleged that the Tribunal failed to discharge its core function to review the decision of the delegate because it did not have proper regard to the evidence of Mr S. The appellants submitted that the Tribunal failed to have proper regard to the evidence of Mr S because it made an arbitrary finding that his evidence was false "merely because it had credibility concerns" about the evidence of the first and second appellants. 46 The primary judge rejected this ground of review. The primary judge observed that the Tribunal considered the apparently corroborative evidence of Mr S, but held that it did not overcome the concerns the Tribunal had with the credibility of the first and second appellants' evidence. The primary judge held this amounted to a due consideration by the Tribunal of that apparently corroborative evidence, and it was, therefore, reasonably open to the Tribunal to conclude, as it did, that Mr S's evidence was insufficient to cause the Tribunal to overcome its concerns. 47 In my view, for the reasons he gave, the primary judge did not err in rejecting this ground of review. 48 The third ground of review contended that the Tribunal failed to comply with s 425 of the Migration Act because it failed to put to Mr S that his evidence was false, and the Tribunal failed to put to the first appellant that the Tribunal considered Mr S's evidence to be false. 49 The primary judge found that there was no obligation on the Tribunal to put to Mr S that it might find that his evidence was false or may be treated by the Tribunal as false, or to put that to the first appellant. The primary judge observed that the obligation to give an applicant notice of "information" under s 424A of the Migration Act did not extend to notifying a witness or an applicant that it might not accept the witness's evidence. The primary judge observed at [57]: The "information" to which s 424A applies "does not encompass the tribunal's subjective appraisals, thought processes or determinations"; nor "does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps" VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 at [477] (Finn and Stone JJ) quoted with approval by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at 616 ([18]). The meaning of "information" is "related to the existence of evidentiary material or documentation, not the existence of doubts; inconsistencies or the absence of evidence" SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at 616 ([18]). 50 The primary judge also observed that the evidence of Mr S related to the question of whether the first appellant was attacked in October 2010 and that the delegate had not accepted that the first appellant had been attacked as he had claimed. Thus, said the primary judge, the appellants were on notice that the question of whether the attack took place would be an issue before the Tribunal. It followed, said the primary judge, that the appellants were on notice that their claim that the attack took place, and the evidence advanced in support of it, could be rejected. There was, therefore, no obligation on the Tribunal under s 425 of the Migration Act to give the appellants or Mr S notice that Mr S's evidence could be rejected. 51 In my view, for the reasons which he gave, the primary judge did not err in rejecting this ground of review. 52 It follows, that the appellants' appeal is dismissed. The appellants are to pay the first respondent's costs. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.
SZUCJ
Minister for Immigration and Border Protection