FEDERAL COURT OF AUSTRALIA

BTM15 v Minister for Immigration and Border Protection [2016] FCA 888

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal is dismissed.

2.    The first and second applicants pay the costs of the first respondent, as agreed or assessed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    The applicants seek both an extension of time and leave to appeal from a judgment and orders dated 28 April 2016 of the Federal Circuit Court of Australia (FCCA). The FCCA dismissed the applicants’ judicial review application in respect of a decision dated 11 August 2015 of the Administrative Appeals Tribunal (the Tribunal) relating to their unsuccessful applications for Protection visas.

2    The judicial review application was dismissed under r 44.12(1)(a) of the Federal Circuit Court Rules 2001(Cth) (FCCA rules). The FCCA is empowered under that rule, on an application to show cause, summarily to dismiss a judicial review application if the Court is not satisfied that the applicants have demonstrated an arguable case for the relief they seek. In the circumstances of this case, this required the applicants to satisfy the FCCA that they had an arguable case that the Tribunal had fallen into jurisdictional error in rejecting their Protection visa applications. The first and second applicants are citizens of Pakistan and are married. The third, fourth and fifth applicants are their children, who are aged between 3 and 12 years. They are all citizens of Pakistan and are from Karachi.

3    At the commencement of the hearing, the issue was raised as to whether litigation guardians should be appointed. Having regard to the terms of r 9.61 of the Federal Court of Australia Rules 2011 (Cth) and the fact that the first and second applicants themselves are under no evident legal incapacity and are the parents of the children and the children are secondary applicants, the rule is considered not to apply so as to require the appointment of separate litigation guardians.

Summary of background facts

4    On 25 November 2013, the Department of Immigration and Border Protection (the Department) was asked to provide Protection visas for the five applicants. The first applicant was the primary applicant. He claimed that he operated a successful electronic sales business in Karachi, which exposed him to extortion and robberies. He claimed that one of his sons was kidnapped and that there were other attempted kidnappings of his sons. He claimed that his car was shot at on two separate occasions. At the Departmental interview, the first applicant claimed that his uncle had been killed by the Muttahida Qaumai Movement (MQM).

5    Although the Protection visa applications were refused by the Minister’s delegate, the delegate accepted the first applicant’s claims of having experienced extortion demands, having his car shot at, his young son being kidnapped and also that the first applicant’s uncle had been killed. The delegate did not accept, however, that the robberies had occurred or that his uncle had been killed by the MQM. The delegate did not accept that the applicants’ claims were Convention related. The delegate also considered that the family could safely relocate to another part of Pakistan.

6    On appeal, the Tribunal affirmed the delegate’s decision, albeit on different grounds. In particular, although the Tribunal accepted that there is considerable violence in Karachi and that the first applicant had sought to remove his family from that environment, the Tribunal did not accept the factual claims underpinning the application. In particular, the Tribunal did not accept that the first applicant’s account of his experiences as given during the Tribunal hearing was based on actual experiences; rather, the applicant was attempting to recall a set of claims that had been fabricated for the purposes of the visa applicant. In relation to the three months’ delay from the applicants having obtained visas to travel to the United Kingdom and leaving Pakistan, the Tribunal found that the evidence “indicates an orderly and planned departure from Pakistan, and is not indicative of a family who had been subject to the harm the applicant has claimed”.

7    The Tribunal also stated that the first applicant’s account of the kidnapping and attempted kidnappings of his sons raised further serious doubts as to the credibility of his claims. The Tribunal pointed to inconsistencies in relation to when and how many attempted abductions there were; the first applicant’s significantly evasive and vague evidence as to the kidnapping and attempted kidnappings and his altered evidence during the Tribunal hearing as to the source of the ransom payment. The Tribunal found that aspects of the first applicant’s evidence on these matters were not credible, including the first applicant’s failure to recall the date when his young son had been kidnapped as well as alterations in his evidence as to the source of the ransom money he paid to the kidnappers.

8    In addition, the Tribunal found that there were inconsistencies in the first applicant’s claims relating to the shooting at his car. Finally, the Tribunal found other aspects of the first applicant’s claims to be inconsistent or not credible, including in relation to his claims that his uncle had been shot by the MQM.

9    It is evident that the first applicant provided two documents to the Tribunal, which documents were not available when he was interviewed by the delegate. The first document is one signed by the first applicant and is dated 20 August 2013, which the Tribunal described in [14] of its reasons for decision. The document is addressed to the local police station and is a request for police assistance in arresting the persons who attempted to abduct the first applicant’s elder son.

10    The second document was described by the Tribunal at [15] of its reasons for decision as “a First Information Report, dated 14 April 2015”, which related to an incident which was said to have occurred on 13 December 2014. The translated document stated that four persons had come inside the first applicant’s shop and stolen cash and other items. The statement further added that the articles were insured and that an insurance claim had been lodged.

11    In [38] of its reasons for decision, the Tribunal stated that it did not accept that these documents were genuine or that they contained truthful information. The Tribunal explained why it came to that view. Plainly, therefore, the Tribunal did turn its attention to these documents but concluded, as a matter of fact, that they were not genuine.

12    The Tribunal also considered the applicants’ claims for protection by reference to the complementary protection provisions of the Migration Act 1958 (Cth) (Migration Act), which claims were substantially based on the material which was relied on for the claims relating to refugee status. The Tribunal effectively adopted the same findings of fact. It accepted that the first applicant’s business may be subject to opportunistic crime but found that this would not amount to significant harm for the purposes of s 36(2A) of the Migration Act.

The FCCA proceeding

13    The application for judicial review in the FCCA contained the following three grounds (errors in original):

1.    The Tribunal error by failing to take into account UNHCR report “Beyond Proof” and reach to wrong conclusion in respect of the applicant evidence.

PARTICULARS

Paragraph 36 of the subject decision.

2.    The Tribunal error by not investigating documentary evidence provided to the Tribunal in support of his claim for protection.

PARTICULARS

Paragraph 38 of the subject decision. The Tribunal assumed that the fraudulent documents are freely available in Pakistan. Tribunal failed to put to the applicant the reasons of their assumption. Further the Tribunal could have investigated thoroughly the First Information report provided by the applicant.

3.    The Tribunal failed to investigate claim of persecution in the hands of MQM.

PARTICULARS

Paragraph 49 of the subject decision.

14    In dismissing the application as disclosing no arguable case of jurisdictional error (see BTM15 v Minister for Immigration and Border Protection [2016] FCCA 1002), the primary judge made the following findings in respect of each of the three grounds of review.

15    As to ground 1, his Honour set out [36] of the Tribunal’s statement of decision and reasons which disclosed that the UNHCR report had been taken into account by the Tribunal.

16    As to the second ground, which the primary judge described as “a matter of major concern for the applicant”, the primary judge accepted the Minister’s submission that there was no obvious inquiry that could have been made easily by the Tribunal which might have had a determinative impact and that the issue of the availability of fraudulent documentation in Pakistan had been raised with the first applicant at the Tribunal hearing. Further, having regard to [38] of the Tribunal’s statement of decision and reasons (see [11] above), the primary judge found that the Tribunal had considered the documents provided by the first applicant and had had regard to their contents, with the consequence that no arguable case of error was disclosed.

17    As to the third ground, the primary judge referred to [49] of the Tribunal’s statement of decision and reasons and observed that:

(a)    the MQM claim did not need to be considered because it only arose in the context of relocation, which was a matter which the Tribunal did not need to resolve; and

(b)    in any event, the Tribunal did consider the claim.

The proceedings in this Court

18    As noted above, the applicants sought an extension of time and leave to appeal. The first applicant relied upon his affidavit dated 19 May 2016, in which he deposed that he had attempted on 9 May 2016 to file the appeal papers electronically and was told that there was a “systems error” such that the application could not be processed. He attached a copy of an electronic receipt of lodgement.

19    Notwithstanding the Minister’s submissions, I am prepared to accept that the first applicant has provided an acceptable explanation for the delay in commencing the proceedings. It is well established, however, that the strength of the proposed grounds of appeal is a relevant matter not only for time to be extended but also in connection with a related application for leave to appeal (see respectively Deighton v Telstra Corporation Ltd [1997] FCA 1568 and Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at 398-399).

20    Before addressing the prospects of the proposed appeal and whether there is sufficient doubt in the correctness of the judgment below so as to warrant a review, it is important to note the terms of the following two proposed grounds of appeal (errors in original):

1.    The appellants plead jurisdictional error on the part of the Respondents for not taking into account relevant evidence and taking into account irrelevant evidence;

2.    The appellants plead that they were not heard properly and thereby the Respondents did not follow rules of natural justice, namely the hearing rule.

21    As the Minister pointed out, the two proposed grounds of appeal do not reflect the judicial review grounds run below. Accordingly, leave is required to raise these fresh grounds and the applicants need to demonstrate that it is “expedient in the interests of justice” to allow the fresh grounds to be raised (see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 (VUAX) at [46] and [48] per Kiefel, Weinberg and Stone JJ). The “interests of justice” also require consideration to be given to the strength of the fresh grounds.

22    Directions were made on 23 May 2016 which required the applicants to file and serve a written outline of submissions ten business days before the hearing of their application. They failed to do so.

23    When the application was called for hearing, the first applicant announced his appearance on behalf of himself, his wife and their three children. He submitted that the Court should accept the document dated 20 August 2013 and the First Information Report as genuine and that it was wrong of both the Tribunal and the primary judge not to accept the documents as genuine. He said that he was a genuine person and that the documents he had provided were also genuine.

24    As to the proposed ground relating to natural justice, the first applicant confirmed that this proposed ground related to his complaint that it was wrong of both the Tribunal and the FCCA not to accept his documents as genuine.

Disposition of the application

25    For the following reasons, the application for an extension of time and leave to appeal should be dismissed. There are insufficient prospects of success in respect of either of the two proposed grounds of appeal, even if they were permitted to be raised. (The proposed second ground was clearly a fresh ground which had not been run below, thus the applicants needed to establish that it was in the interests of justice that leave be granted to raise this ground).

26    As to the first proposed ground, it substantially overlaps with ground 2 of the judicial review application below. The primary judge dealt with it in [11] and [12] of his reasons for judgment. His Honour made reference to the way in which the documents were addressed by the Tribunal in [38] of its reasons for decision and the findings of fact which it made in relation to their authenticity. His Honour concluded that the Tribunal had considered the documents on their face and had regard to their contents and that no arguable case of error was disclosed. I respectfully agree. Contrary to the first applicant’s apparent understanding, it is not a matter for this Court to make findings of fact which are inconsistent with those of the Tribunal, nor was that a function of the primary judge. No arguable case is presented by ground 1 of the proposed notice of appeal in relation to the primary judge’s consideration and determination of this issue.

27    As to the second proposed ground of appeal (which, like the first ground, was unparticularised), the first applicant was unable to explain why procedural fairness had been denied other than to state that this effectively was implicit in the Tribunal’s rejection of his claims. He relied upon an affidavit dated 18 July 2016 which he filed on 20 July 2016 and was admitted subject to relevance. This affidavit repeated many of the claims which were presented to the delegate and to the Tribunal. In [8] the first applicant stated that he belonged to a group of people in Pakistan who are constantly targeted by groups having possible links to criminal/terrorist and political establishments and that he had “provided substantial evidence with regard to my and my family’s situation with reference to events that took place in Pakistan which I feel were not given due weight and consideration at both Departmental level and before the Tribunal”.

28    No arguable appealable error has been demonstrated in the primary judge’s rejection of those assertions, which go to matters of fact and are within the province of the Tribunal absent some other at least arguable basis upon which they may judicially be reviewed for jurisdictional error, none of which has been sufficiently identified here. The mere fact that an administrative tribunal rejects a visa applicant’s evidence or claims does not of itself constitute procedural unfairness. The first applicant pointed to no other basis for arguing that he had not received a fair hearing.

29    The first applicant also stated in one of his affidavits that there was bias in the findings that he was not a truthful witness. He said that this bias affected both the delegate and the Tribunal. As noted above, no claim of bias was raised in the Court below, nor do I consider that the claim has a sufficient basis to permit it to be raised now. It is evident that the first applicant and his family are disappointed with the decisions of the delegate, the Tribunal and the primary judge but there is no factual foundation to warrant leave being granted to raise an allegation of bias, either actual or apprehended.

Conclusion

30    For these reasons, the application for an extension of time and leave to appeal should be dismissed and the first and second applicants ordered to pay the costs of the first respondent, as agreed or assessed.

Associate:

Dated:    4 August 2016