FEDERAL COURT OF AUSTRALIA

AYZ15 v Minister for Immigration and Border Protection [2017] FCA 77

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed with costs.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    This is an appeal from the judgment and orders made by the Federal Circuit Court of Australia (FCCA) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal). The Tribunal had affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the appellant a Protection (Class XA) visa (Visa) under section 36 of the Migration Act 1958 (Cth) (the Act).

2    The appellant, who was unrepresented, filed the following grounds of appeal:

1.    His Honour erred in finding that the Tribunal had not failed to comply with section 424A of the Migration Act 1958.

2.    His Honour should have found that the applicant’s oral evidence to the delegate that “he never suffered physical harm in Pakistan” was not information he gave for the purpose of the application for review.

3.    In the alternative, his Honour erred in finding that the Tribunal did not fail to consider the applicant’s claim based upon him being a Shia Muslim who had Worked for a western non-government organisation diverting youth from recruitment by extremist groups.

4.    His Honour ought to have found that, having rejected [t]he applicant’s credibility and therefore his evidence as to past events in Pakistan, the Tribunal still had more to consider than the possibility of harm “because he is a Shia”.

3    These grounds are essentially the same as those, slightly differently expressed, that were raised before the FCCA.

4    The Minister filed an outline of submissions on 24 October 2016 which set out the background to the appeal and the reasons why the Minister submitted that the appeal should be dismissed.

5    The appellant filed no written submissions and did not appear at the hearing. It is necessary to explain briefly the circumstances leading to the appellant’s non-appearance.

6    The appeal was initially listed for hearing on 31 October 2016. The matter was called, but the appellant did not appear. However, a letter was supplied to the Court on behalf of the appellant signed by Mr S A Khan, Chief Executive Officer of an organisation called “Australian Multicultural Charity” that indicated that the appellant was receiving medical treatment for neck and shoulder injuries sustained during a motor vehicle accident. Over objection from the Minister, I adjourned the hearing for a few days until 2 November 2016. On that date, the appellant appeared and informed the Court that his accident had occurred on 28 September 2016 and that he had been told that it would take eight to ten weeks for him to recover. I then adjourned the hearing to 6 December 2016 to accommodate this recovery period and informed the appellant that no further adjournment would be granted unless sufficient medical evidence had been provided to indicate that it was warranted. The appellant also indicated that he decided to obtain legal advice and I suggested that he take prompt steps to ensure that this could take place.

7    On 6 December 2016 the matter was called, but the appellant failed to appear and I proceeded to hear the case in his absence. As it transpires, on 5 December 2016, Mr Khan had sent a letter to the “Case Officer, Federal Court of Australia” advising that the appellant “is suffering from severe spine and neck injury due to car accident, he has not been able to focus on his case to engage a lawyer”. The letter said that a doctor’s certificate would be sent “tomorrow”. Mr Khan is not a medical practitioner. On 8 December 2016 a medical certificate was received by the Court from Dr Refaat Bishay dated 6 December 2016. It stated that the appellant was “unfit for work from 6 December 2016 to 7 December 2016” and that he was “unfit to attend Court today”.

8    The appellant has not requested that the hearing of the appeal be resumed, or given any indication as to when he would be in a position to attend a hearing. However, I infer from the materials identified above that a resumption of the hearing is what the appellant desires, although it is impossible to say from the present materials when the appellant submits that should take place. The Minister submits that no further accommodation should be granted.

9    In my view, insufficient basis has been provided for any further deferment of consideration or resolution of the appeal. Accordingly, it is appropriate now to proceed to deliver judgment. I have assumed that the appellant presses all of the grounds of appeal set out above.

10    For the reasons that follow, no error has been demonstrated in the decision of the FCCA and the appeal is dismissed.

2.    BACKGROUND

2.1    The Visa application and the decision of the Delegate

11    The appellant is a citizen of Pakistan who arrived in Australia on 13 April 2010 on a student visa granted on 25 March 2010 which was valid until 20 June 2012. On 19 June 2012 he applied for a further student visa, and was granted a bridging visa class A in association with that application. His application for a further student visa was refused and his bridging visa ceased on 28 September 2012. On 25 January 2013 he lodged the current Visa application, and on 20 February 2013 he was granted a bridging visa in association with that application.

12    On 11 July 2013 the Delegate refused to grant the Visa.

2.2    The Tribunal’s decision

13    The appellant applied for a review of the Delegate’s decision. A first hearing took place before the Tribunal on 29 January 2014, after which the decision of the Delegate was affirmed. The appellant sought judicial review of that decision. It appears that the appellant attended the Tribunal on the day after his hearing was scheduled to take place because he mistakenly thought that the hearing was scheduled for that day. The Minister conceded that the Tribunal had acted unreasonably in determining the review in those circumstances and, by consent, the application for review was allowed and the case was remitted to the Tribunal. Nothing in the present appeal turns on these events.

14    The appellant was not represented before the Tribunal in the second hearing, but gave evidence in person with the assistance of an interpreter in the Urdu and English languages.

15    On 11 May 2015 the Tribunal affirmed the Delegate’s decision not to grant the Visa.

16    The appellant’s claims were made in his Visa application forms, his evidence at his interview with the Delegate and his evidence at the Tribunal hearing. He claimed protection on the ground that he suffered and will suffer harm in Pakistan because he is a Shia Muslim.

17    The Tribunal recorded concerns about the credibility of the appellant’s specific protection claims. It drew attention to inconsistencies in the appellant’s version of events. In particular, before the Tribunal the appellant claimed that in 2009 he had worked on a project related to juvenile justice run by a local youth organisation supported by the Pakistan government, the police, other government agencies and a United Nations agency. He claimed that while working on the project he was approached by a man who accused him of giving information to Westerners and of being a Shia Muslim. He claimed that this person and others assisting him had abducted him and taken him to a place where he was held in a room, beaten, sexually maltreated and told to “clean up their mess” which he said meant lick up their excrement from the ground. He was told that these people were from the Lashkhar-e-Jhangvi, an extremist organisation. They told him that he should stop his work, help their group, and become a Sunni. The appellant was held against his will for two weeks and was released only after his father had approached a local mullah and paid money. He suffered serious injuries from his beatings and stayed at home receiving medical treatment for approximately one and a half months after that. After this, he got married and stayed with his wife’s family in Rawalpindi until coming to Australia.

18    The appellant told the Tribunal that he had applied for and obtained a student visa, and left Pakistan in April 2010 to come to Australia. He left Pakistan in fear of the people who had abducted and maltreated him.

19    The Tribunal noted that in contrast to this evidence, in his Visa application forms, the appellant only generally said that he was harassed, beaten up on many occasions by Sunni boys and received threats. He said in his application forms that he left Pakistan because Shias were being killed by Sunnis. He made no mention of being abducted, maltreated and held in captivity for two weeks. In his evidence to the Delegate, the appellant mentioned working on the project related to juvenile justice. However, he said to the Delegate that he never suffered physical harm in Pakistan, only discrimination. He said he was not directly threatened but got into a scuffle with some Sunni boys in the local area while at a coffee shop with some Shia friends. He said that he was not injured.

20    In its conclusions, the Tribunal found that the appellant was not a witness of truth and that the accounts of events that he advanced to the department and before the Tribunal on which his protection claims were based were false. The Tribunal noted that at the hearing before it, the appellant submitted a letter from the youth organisation for which he claimed to have worked in Pakistan. The Tribunal considered the contents of that letter, but considered that its concerns about his credibility remained. The Tribunal put to the appellant that available country information indicated that forgeries were widely available in Pakistan and that if the Tribunal was to disbelieve his evidence then it might not give weight to this document.

21    The Tribunal relevantly concluded, on the question of credibility, as follows:

[26]    … The Tribunal disbelieves claims the applicant has made to the department and the Tribunal that he ever suffered harm in Pakistan.

[27]    The Tribunal disbelieves his claims that he was abducted, maltreated and then threatened by Sunni extremist group; that he was harassed or discriminated against by anybody and that he was involved in fights or was assaulted by anyone in Pakistan. There is no credible evidence before the Tribunal that the applicant suffered harm in Pakistan because of his religion or on any ground. While at stages of his evidence to the Tribunal, the applicant said that he could not find work in Pakistan and broadly claimed that Shias suffer discrimination there is no credible evidence about the applicant’s employment in Pakistan and no credible evidence that he was denied employment or suffered discrimination. There is no credible evidence that any person or group in Pakistan wishes to harm this applicant. There is no credible evidence before the Tribunal as to why the applicant left Pakistan and why he does not want to return there.

[28]    … For the reasons given above, the Tribunal disbelieves the applicant’s claim that he was abducted in Pakistan. The Tribunal now turns to an assessment of the risk of the applicant suffering serious harm in Pakistan because he is a Shia, the only ground on which he claimed to fear harm in Pakistan.

22    The Tribunal then considered the available country information and concluded that while there have been attacks on Shias in Pakistan, when considered in the context of the size of the Shia population and the fact that these attacks occur mainly in certain areas (not Faisalabad in the Punjab Province) the risk of the appellant suffering serious harm because of his religion was remote. In relation to complementary protection, the Tribunal concluded that there was no credible evidence that the appellant was ever harassed, abducted, assaulted, threatened or discriminated against in Pakistan. The Tribunal found that the risk of the appellant suffering significant harm in Pakistan is remote for the same reasons it found that the risk of him suffering serious harm was also remote.

2.3    The decision of the FCCA

23    On 16 October 2015 the appellant filed an application to review the decision of the Tribunal. The grounds of the application were as follows:

1.    The Tribunal failed to comply with the mandatory requirements of section 424A of the Migration Act 1958 (“Act”).

Particulars

Part of the reason for the Tribunal affirming the decision under review was information that, to the delegate, “the applicant actually said he never suffered physical harm in Pakistan”.

The Tribunal did not give the applicant information and invitation [sic] in compliance with the requirements of section 424A of the Act, if at all.

2.    Further or in the alternative, the Tribunal failed to consider whether the applicant had a personal risk of serious or significant harm by reason of him being a Shia Muslim who had worked for a Western non-government organisation diverting youth from recruitment by extremist groups.

24    The appellant was represented by counsel before the FCCA.

25    In relation to the first ground of appeal, the primary judge noted (at [6]), first, that the reasons for refusing the appellant’s application by the Delegate included the following passage:

At interview the applicant said that he had not experienced harm in Pakistan but he referred to the discrimination against Shias by Sunnis as an ongoing, common feature of life in Pakistan. He indicated that he had never been harmed or directly threatened in Pakistan but that Shias there feared being unable to freely celebrate religious events such as Muharram and having to watch their backs.

26    Secondly, the primary judge noted that the appellant’s application for review of the decision of the Tribunal attached a copy of the decision record from the Delegate, which included this passage.

27    Thirdly, the primary judge noted that the transcript of the hearing before the Tribunal did not include a discussion between the Tribunal and the appellant of the evidence that he had given to the Delegate, which is quoted in [25] above.

28    These three matters provided the framework for the argument advanced on behalf of the appellant, which was to the effect that by operation of section 424A of the Act, the Tribunal had failed to provide to the appellant clear particulars of information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review.

29    The primary judge considered this submission in light of the decision of Sundberg J in Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 (Chamnam) and other authorities. The primary judge noted that the obligation under section 424A for the Tribunal to give particulars of information is subject to an exception in subsection 424A(3)(b) in that the requirement to give particulars does not apply to information that the applicant gave to the Tribunal for the purpose of the application for review. The primary judge concluded (at [26]) that this exemption applied to the Tribunal in the present circumstances.

30    In relation to the second ground, the primary judge noted (at [29]) that the Tribunal had rejected the evidence offered by the appellant as the factual basis for his claims. That being so, there was nothing further for the Tribunal to do in order for it to deal with the claims advanced.

3.    THE PRESENT APPEAL

31    Although the appellant did not appear at the hearing, for present purposes I have assumed that he presses all of the grounds set out in his Notice of Appeal.

32    I note at the outset that neither this court nor the FCCA has jurisdiction to decide afresh on the evidence whether the appellant satisfies the criteria for the grant of a protection visa or to grant the appellant a visa. As such, neither court has the capacity to consider the factual merits of the Tribunal’s decision to refuse to grant a protection visa to the appellant. The jurisdiction of the FCCA is limited to considering only whether the Tribunal’s decision to refuse to grant the appellant a visa is lawful under the Act, that is, whether the decision of the Tribunal is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA on an appeal from the Tribunal under section 24 of the Federal Court of Australia Act 1976 (Cth).

33    Grounds one and two of the present appeal should be read together. When so read, they equate in substance to ground one raised before the FCCA. That is how I will treat them in this appeal. Accordingly, the material question is whether the primary judge erred in rejecting the contention that the Tribunal had failed to comply with subsection 424A(1) of the Act.

34    Subsections 424A(1) and (3) relevantly provide:

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

…

(3)    This section does not apply to information:

…

(b)    that the applicant gave for the purpose of the application for review; …

35    Section 424A imposes an obligation upon the Tribunal to give clear particulars of any “information” that it considers would be the reason or part of the reason for affirming a decision under review.

36    The summary of the Tribunal’s reasons, set out above in [17] – [22], and in particular at [14] and [15], demonstrates that part of the reason for the rejection of the appellant’s claims was the inconsistency between his version of events given to the Tribunal as opposed to the version of events given to the Delegate. The primary judge recorded that the Tribunal did not relevantly discuss with the appellant the evidence given by him at the interview conducted by the Delegate.

37    The first question is whether the material to which the Tribunal adverted, can correctly be characterised as “information” within subsection 424A(1)(a). This subject has been considered in a number of cases. In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549 a majority of the Full Court (Finn and Stone JJ) summarised (at [24]) the law as follows (citations omitted):

…

(i)    the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness. … However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice…;

(ii)    the word “information” in s 424A(1) has the same meaning as in s 424… and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal… irrespective of whether it is reliable or has a sound factual basis…; and

(iii)    the word 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, etc…

38    The Court continued:

[25]    In the present matter, the Tribunal made reference to two factual matters each of which involved an omission on the part of the appellant to take a particular course of action. Those matters were that (i) he did not seek assistance from contacts …; and (ii) he did not apply for a protection visa until after he had attended the conference … The Tribunal found “this behaviour of significance”, its significance being that it was “not the behaviour of a person who fears persecution in his country of citizenship”.

[26]    The matters seem obviously to have been referred to because of their perceived relevance to the ultimate question before the Tribunal, hence the significance it attributed to the appellant’s “behaviour”. In our view, the knowledge of that behaviour which the Tribunal derived from what had been provided to it, or done (in the case of the visa application) by, the appellant was properly characterised as information. It was knowledge acquired about circumstances having a particular factual character (i.e. they were circumstances involving in action on the appellant’s part).

39    A plurality of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 approved this understanding of “information”, finding (at [18]) that it “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, etc.”.

40    In the present case, the alleged “information” was the evidence given by the appellant to the Delegate which affirmatively stated that he had not been harmed or directly threatened in Pakistan but that Shias there feared being able freely to celebrate religious events and having to watch their backs (see [25] above).

41    In my view, this amounts to “information” within the section.

42    Equally, this is information that falls within the exception in subsection 424A(3)(b), as the decision record before the Delegate was included within the appellant’s application for a review to the Tribunal. As Sundberg J found in Chamnam at [16]:

… The respondent attached the delegate’s decision (containing the home visit material) to his application to the Tribunal. Cf SZDPY [2006] FCA at [36]. Doubtless the respondent did not rely on the home visit material in the delegate’s decision. Nevertheless he “gave” the Tribunal the delegate’s decision and thus gave it the information contained in the delegate’s reasons. …

43    Accordingly, I respectfully agree with the conclusion reached by the primary judge that the Tribunal was not in breach of its obligations under section 424A of the Act. I dismiss grounds one and two of the appeal.

44    Grounds three and four of the appeal, when read together, equate to ground two of appeal before the primary judge. In effect, they assert that the primary judge ought to have detected the Tribunal’s failure to consider the appellant’s claim that he would be harmed because he is a Shia Muslim who had worked for a Western non-government organisation diverting youths from recruitment by extremist groups.

45    The difficulty with this ground is that the Tribunal made findings that rejected the entire substratum of the appellant’s claims. At [25] and [27] it found:

[25]    Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and the accounts of events he has advanced to the Department and the Tribunal and on which his practical protection claims are based are false. …

…

[27]    … While at stages of his evidence to the Tribunal, the applicant said that he could not find work in Pakistan and broadly claimed that Shias suffer discrimination there is no credible evidence about the applicant’s employment in Pakistan and no credible evidence that he was denied employment or suffered discrimination. There is no credible evidence that any person or group in Pakistan wishes to harm this applicant. There is no credible evidence before the Tribunal as to why the applicant left Pakistan and why he does not want to return there.

46    Having made these findings, it cannot be said that the Tribunal failed to consider the appellant’s claim that he would be harmed because he is a Shia Muslim who had worked for a Western non-government organisation. It is plain from the Tribunal’s reasons that it rejected the entirety of the appellant’s claims that he had worked for a Western non-government organisation. In my opinion, the primary judge was correct to dismiss the equivalent ground of appeal that was before him and I, too, dismiss grounds three and four of this appeal.

4.    DISPOSITION

47    I dismiss the appeal and order that the appellant pay the respondents’ costs.

Associate:

Dated:    10 February 2017