FEDERAL COURT OF AUSTRALIA

CJA16 v Minister for Immigration and Border Protection [2017] FCA 568

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the first respondent’s costs, to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BARKER J:

1    The applicant applies for leave to appeal from orders of the Federal Circuit Court of Australia dismissing his application for judicial review in respect of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the Minister for Immigration and Border Protection not to grant him a protection (Class XA) visa under the Migration Act 1958 (Cth).

2    The applicant is a male citizen of Pakistan and claims to be of Hazara ethnicity and Shia faith. He arrived in Australia on a subclass 600 visitor visa on 3 September 2013.

3    The applicant lodged an application for a protection (Class XA) visa on 1 November 2013. In his application, the applicant claimed to fear harm from the Sipah-e-Sahaba, an extremist group affiliated with the Taliban, and the Taliban on the basis of his ethnicity, religion, alleged arrest at a political rally and subsequent torture, and involvement with the political organisation, Tehrik E Nifaz e Fiqh Jaffaria (TNFJ).

4    The applicant’s protection visa application was refused by a delegate of the Minister on 28 November 2014. On 8 August 2016, the Tribunal affirmed the delegate’s decision under review.

5    The applicant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. On 3 February 2017, at a show cause hearing, the primary judge held that the Tribunal’s decision was not affected by jurisdictional error and dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCCA Rules). See CJA16 v Minister for Immigration & Anor [2017] FCCA 184.

6    The applicant now seeks leave to appeal from the decision of the Federal Circuit Court by an application for leave to appeal filed 16 February 2017.

delegate’s decision

7    As the decision of the primary judge discloses, the applicant attended an interview with the delegate on 30 May 2014, during which the applicant stated that he was of Kashmiri ethnicity, rather than Hazara ethnicity, and that he had not been arrested or blindfolded or attacked as claimed in his statement.

8    The applicant submitted further documents to the delegate at his interview, including the following:

(1)    a statement by the applicant that repeated the claims he made in the document attached to his protection visa application form;

(2)    a letter from the General Secretary of the TNFJ, which stated that the applicant had been an active member of the organisation from 15 January 2008 until 25 August 2013, that the applicant had been attacked several times, and that the applicant’s life was in danger; and

(3)    a police form which detailed claims of the applicant’s house being attacked and the applicant having received threats on his life via telephone calls.

9    The delegate did not find the applicant to be a witness of truth and considered the applicant’s evidence at the interview to be vague and inconsistent. The delegate dismissed the entirety of the applicant’s inconsistent evidence and although accepting the applicant was of Kashmiri ethnicity and Shia Muslim faith, considered that there was not more than a remote chance that the applicant would face persecution on the basis of his religion or ethnicity if he were to return to Pakistan.

10    Accordingly, the delegate refused the applicant’s application on 28 November 2014.

tribunal’s decision

11    The applicant attended a hearing before the Tribunal on 28 July 2016.

12    The Tribunal did not find the applicant to be a truthful or credible witness and identified significant contradictions in the applicant’s submissions to the Department of Immigration and Border Protection and to the Tribunal. The Tribunal further did not accept the applicant’s explanation that he did not speak English well and the friend who assisted him in preparing his statement made mistakes.

13    The Tribunal noted that although the applicant, in his protection visa application, claimed to be of Hazara ethnicity and belong to the minority Shia Hazara sect in Pakistan, it was established in his interview with the delegate and at the hearing before the Tribunal that he was of Kashmiri ethnicity. The applicant said that although his grandparents had come from Kashmir, his family became associated with the Shia Hazara. The Tribunal found that the applicant was clearly not Hazara and there was no credible evidence before it that suggested that he was linked to Hazaras in any way other than through their shared adherence to the Shia faith. The Tribunal added that the applicant fabricated this claim because he believed he would be more likely to obtain protection in Australia if he claimed to be Hazara.

14    At the hearing, the applicant claimed that a bomber attacked a Shia mosque in 2004 while he was standing outside the mosque, but that the attack had not targeted him. The Tribunal noted that the applicant had referred to another bombing incident, in a statement accompanying his protection visa application, during which he claimed the Sipah-e-Sahaba threw a bomb at a local mosque while he was praying, but the bomb did not explode. The applicant said he was referring to the 2004 bombing and that perhaps the person who assisted him to prepare his statement had misunderstood his claims.

15    The Tribunal noted that the applicant said in his written statement to the Department that he became a local leader of the TNFJ, a Shia political organisation, after his release from custody, and he engaged in religious activities, including canvassing door to door and school to school, distributing leaflets and organising meetings among the Shia youth.

16    At the hearing, the applicant told the Tribunal he joined the TNFJ in 2008 and that his activities included calling his friends to attend processions and providing financial assistance to the organisation. He said he was a leader for people of his age. When the Tribunal asked the applicant what he knew about the TNFJ, the applicant responded that the TNFJ was a purely religious organisation, a big group with a long history, and that it had faced political problems in the past. The Tribunal stated that he was unable to provide any further information beyond this. The Tribunal found the applicant’s evidence regarding his membership of the TNFJ vague and unconvincing, and did not accept that he belonged to the group.

17    The Tribunal further noted that, in his protection statement, the applicant said that following the bombing in 2004, he addressed an anti-Taliban and anti-government rally which was attended by thousands of Shia Muslims. The applicant claimed he was arrested at the rally, blindfolded, taken to an unknown place and brutally tortured. He said he was released after his family bribed a police informer.

18    The Tribunal said the applicant told the delegate that he was not arrested, blindfolded or tortured after the rally, but that a few days later, his house was attacked. When the Tribunal raised the inconsistency between his claims in his written statement and in his interview with the delegate, the applicant said the attack on the rally and his home had occurred in 2012 and not 2004, and that he had not been arrested but had been given police protection.

19    The applicant claimed to the Tribunal that in November or December 2012, he attended a rally calling for justice for Shia Muslims and was injured during the course of the rally, when attendees were attacked by ordinary citizens with sticks.

20    The Tribunal said the applicant further claimed that a few days later, six men, purporting to belong to the Taliban, came to the applicant’s home while he was out and fired shots at the house. The Tribunal noted the applicant had previously stated that the attack on his home was carried out by Sipah-e-Sahaba. When the Tribunal raised this with the applicant, the applicant replied they were all Sunni and all the same.

21    The applicant said after the attack on his house, he began to receive threatening telephone calls. When the Tribunal noted that the police report indicated that he had been receiving threatening calls prior to the attack on his home, the applicant said he had received threatening calls after the rally, but the threats got worse after the attack on his home.

22    The applicant said he continued to receive threatening calls after he moved to Gujarnawal and that he did not know of any other Shia who received similar calls. When asked why he had been singled out for this treatment, the applicant told the Tribunal he believed it was because he was an active and prominent member of the community.

23    The applicant told the Tribunal that he had not experienced any significant problems or received any threats in Pakistan prior to the events in 2012. The Tribunal raised with the applicant his claims in his written statement that he had lost many family members due to sectarian violence in the decade before he left Pakistan. The applicant responded that he was referring to other Shias who were killed, but added that his paternal uncle died in the 2004 bombing incident. The Tribunal noted that the applicant did not mention this claim in his written statement or during his interview with the delegate.

24    The Tribunal also noted that the applicant claimed, in his written statement, that the Sipah-e-Sahaba had issued a “fatwa” calling for him to be killed. When asked about this at the hearing, the applicant said he was not aware of a fatwa, but the people who attacked his house and made threatening calls said he should be killed.

25    Later in the hearing, the Tribunal asked the applicant whether he had experienced any other problems before he left Pakistan. The applicant responded that his factory had been attacked twice at about the same time as his house was attacked. He stated that, on the second occasion, the attackers broke in to the factory, damaged things, tied up four workers who were sleeping and stole his cheque book. The applicant said a day later, he received a telephone call from someone claiming responsibility for the attack, who told him they would kill him when they found him. The Tribunal noted that this was the first time the applicant raised this claim and ultimately did not accept that the attacks on his factory occurred.

26    The Tribunal found the applicant’s claim that he was singled out by extremists following the 2012 rally and repeatedly threatened with death implausible. The Tribunal stated there was no credible evidence before it which suggested that the applicant was a prominent or active supporter of Shia rights or that he was outspoken in his criticism of extremists.

27    Having regard to all of the evidence and taking into account the inconsistent and implausible nature of the applicant’s claims, the Tribunal rejected the applicant’s claims for protection in their entirety.

28    The Tribunal did not accept that the applicant had a well-founded fear of persecution for a Convention reason, or that there were substantial grounds to believe that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Pakistan, there would be a real risk that he would face significant harm.

29    For these reasons, the Tribunal concluded that it was not satisfied the applicant was a person in respect of whom Australia had protection obligations under the Refugee Convention and, therefore, the applicant did not satisfy the criteria in s 36(2)(a) or s 36(2)(aa) of the Act.

30    The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

31    The applicant sought judicial review of the Tribunal’s decision in the Federal Circuit Court.

judicial review in the federal circuit court

32    In his application for review of the Tribunal’s decision filed 24 August 2016, the applicant raised the following grounds:

1.    The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.

Particular:

The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.

2.    The Tribunal constructively failed to exercise its jurisdiction;

Particular:

The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated his claims. The decision of the tribunal is the factual decision as it is the common area of the law. There is no evidence of other material to justify the making of the decision.

3.    The Tribunal misconstrued the risk and fear of significant harm as set out in s 36(2A) of the Migration Act 1958.

The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to Pakistan.

33    The Minister sought summary judgment under r 44.12(1)(a) of the FCCA Rules.

34    At the hearing on 3 February 2017, the primary judge explained to the applicant the operation of the FCCA Rules, and invited the applicant to make oral submissions. The applicant expressed concern over the Tribunal’s conclusions on his adverse credibility and the treatment of his evidence, stating that his English was poor and errors of fact made in his initial claims needed to be corrected. He considered that the Tribunal should not have used those corrections against him.

35    In his reasons, the primary judge noted that the applicant was unable to point to any information which required disclosure under s 424A of the Act. The primary judge found the Tribunal complied with its statutory obligation under Division 5 of Part 7 of the Act and that the matter was not one in which the Tribunal’s obligations under s 424A were enlivened.

36    The primary judge also found that the Tribunal complied with s 425 of the Act by providing the applicant with a “real and meaningful” opportunity to participate in the hearing and give evidence in support of his application.

37    In relation to ground 2, the primary judge noted that a failure to consider an item of evidence may constitute jurisdictional error where it is found that: the evidence was overlooked; and the evidence was of some import when regard is had to its cogency and its significance to the decision-maker’s reasoning. The primary judge noted that the applicant bears the onus of proving this.

38    The primary judge stated that, for the most part, the more significant documents and evidence identified by the applicant to be in issue at the hearing were specifically referred to in the Tribunal’s reasons. The primary judge found, at [26]–[27] of his reasons, that the Tribunal reached its conclusions based on all of the evidence, including the corroborative material relied on by the applicant in support of his claims.

39    In relation to ground 3, the primary judge stated that the applicant’s concerns go to the outcome and merits of the Tribunal’s decision. The primary judge said there was no substance in ground 3, and the allegation that the Tribunal misconstrued the risk and fear of significant harm as set out in s 36(2A) of the Act lacked sufficient particularisation. In any event, the primary judge said, the Tribunal did not misconstrue the risk and fear of significant harm to the applicant in circumstances where the Tribunal rejected the applicant’s material claims and considered there was no credible evidence to suggest that the applicant feared significant or serious harm upon his return to Pakistan.

40    The primary judge stated that the applicant, in the course of making his submissions, asserted that he was only given one day notice of the Tribunal hearing. The primary judge found the applicant received the hearing invitation on the day the email was sent, and so was given approximately 40 days’ notice of the Tribunal hearing, which the primary judge considered was more than adequate notice.

41    By an affidavit in support of his application for judicial review dated 22 August 2016, the applicant additionally alleged that the Tribunal decision was unjust and made without taking into account the full gravity of his circumstances and the consequences of the claim. The primary judge considered that the Tribunal’s credibility findings did not disclose any error and were open on the material and evidence before the Tribunal.

42    The primary judge concluded that the applicant was unable to demonstrate any jurisdictional error on the part of the Tribunal and so ordered that the application be dismissed pursuant to r 44.12(1)(a) of the FCCA Rules.

43    The applicant now seeks leave to appeal from the primary judge’s decision.

application in this court

44    By an application for leave to appeal filed in this Court on 16 February 2017, the applicant raised the following grounds of application:

1.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claims and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

2.    The learned Judge dismissed the application without considering the legal and factual errors contained in the decision of AAT.

45    The applicant’s draft notice of appeal contains identical draft grounds of appeal. They appear to have a pro forma drafting style to them that is not actually responsive to the decision appealed from.

46    The Minister filed an outline of submissions on 16 May 2017, in which the Minister submitted that in determining whether to grant leave to appeal from an interlocutory decision, the Court must determine whether:

(1)    in all the circumstances, the primary judge’s decision was attended by sufficient doubt to warrant it being reconsidered by the Full Court; and

(2)    substantial injustice would result if leave were refused, supposing the decision was wrong.

See Decor Corporation Pty Ltd v Dart Industries (1991) 33 FCR 397; [1991] FCA 655.

47    The Minister submitted that the critical question is whether the applicant has demonstrated that he has a reasonably arguable case that the decision is attended by sufficient doubt to warrant its reconsideration on appeal.

48    With respect to the first ground, the Minister contended that the applicant sought to raise a new ground and has failed to provide an adequate explanation as to why he did not raise this ground in the court below.

49    The Minister also argued that ground 1 had “doubtful merit”, referring to the Full Court decision in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158, and is wholly unparticularised and incapable of detailed response. Moreover, the Minister said, a review of the Tribunal’s decision indicates that the ground cannot be made out.

50    With respect to the second ground, the Minister submitted that the applicant had not articulated any basis upon which the primary judge’s decision was incorrect, or any basis upon which the Tribunal may have fallen into jurisdictional error.

51    The Minister submitted that the applicant had failed to demonstrate that he has a reasonably arguable case that the primary judge’s decision is attended by sufficient doubt, and accordingly, leave to appeal should be refused and the application dismissed with costs.

52    At the hearing on 23 May 2017, the applicant failed to attend. This accorded with information contained in an affidavit affirmed by Ms Katherine Garaty on 15 May 2017 and filed on behalf of the first respondent, explaining that the first respondent’s solicitors were informed by the Department that the applicant had departed Australia on 14 May 2017. Ms Garaty states that the Department’s records indicate that the applicant does not hold a visa which would permit his re-entry into Australia.

53    A letter emailed by the solicitors for the first respondent to the applicant at his email address for service in the proceeding advising an order for dismissal of his application, with costs, would be sought in his absence, remained unanswered.

54    In these circumstances, the application should be dismissed for non-attendance pursuant to r 35.33 of the Federal Court Rules 2011 (Cth).

Orders

55    The Court orders:

(1)    The application be dismissed.

(2)    The applicant pay the first respondent’s costs, to be assessed if not agreed.

Associate:

Dated:    24 May 2017