FEDERAL COURT OF AUSTRALIA

BOQ16 v Minister for Immigration and Border Protection [2017] FCA 1204

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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    The appellant is a citizen of the Islamic Republic of Pakistan who arrived in Australia on 3 March 2012 on a Business Subclass 456 visa. He appeals from the judgment and orders made by the Federal Circuit Court of Australia (FCCA) on 3 March 2017 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal had affirmed the decision of a delegate (delegate) of the first respondent (Minister) not to grant him a Protection (Class XA) Visa (Visa), under s 36 of the Migration Act 1958 (Cth) (Act).

2    In the present proceeding the appellant was not legally represented and made oral submissions, in English, on his own behalf. He relied upon the following grounds of appeal:

1.    The [FCCA] failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant[‘s] claim and ignoring the aspect of persecution and harm in terms of s 91R of the Act. The Tribunal failed to observe the obligation and amounted to a breach of statutory obligation.

2.    The learned Federal [Circuit Court] Judge has dismissed the case without considering the legal errors made by the Tribunal. There was a [first incident report (FIR)] missing and it was a very important piece of evidence, I believe the [Tribunal’s] decision was fundamentally influenced by not receiving that vital evidence.

3    The Minister filed an outline of written submissions in opposition to the appeal, which the appellant read prior to the hearing. No written submission was filed by the appellant.

2.    BACKGROUND

2.1    The Delegate’s Decision

4    The delegate found that the appellant arrived in Australia on 3 March 2012 as the holder of a business visa. He applied for a protection Visa on 2 April 2012. The delegate was not satisfied that the appellant is a person in respect of whom Australia has protection obligations under s 36 of the Act and clause 866.221 of schedule 2 to the Migration Regulations 1994 (Cth). Accordingly, the application for the Visa was refused.

2.2    The Tribunal’s Decision

5    The appellant applied to the Tribunal for a review of the delegate’s decision. He was not legally represented at the hearing, but he gave evidence and made submissions on his own behalf. He was assisted by an interpreter in the Punjabi and English languages.

6    On 31 May 2016 the Tribunal affirmed the decision of the delegate not to grant the Visa.

7    In the appellant’s claim for protection he contends that he is the victim of a long time family disagreement that arose over a land dispute with a rival family. He claims, in summary, that in 1978 his uncle was murdered and his father was accused of revenge murder and jailed for two years. In the 1990's two of his father’s uncles were murdered, and three others were injured, although his father escaped. They had all been targeted by the rival family. Subsequently, all 8 sons of the rival family were arrested and jailed for 5 years from 2001 until 2006. After their release, those sons started to threaten the appellant’s family and between 2006 and 2009 they attacked his family’s business and farm on 5 occasions.

8    On 6 January 2010 the appellant was accused of a criminal offence, and his father had to bribe the police to avoid him being arrested. At that point, the rival family began fighting amongst themselves, and several of their family members were killed. The appellant claims that at some point the rival family began to blame his family for their internal disagreements and they then planned to take revenge on the appellant’s family.

9    The appellant claims that he is the main target of the rival family’s attentions, that he is on their “hit list” and that they planned to kill him. As a result he left Pakistan and came to Australia.

10    The Tribunal records that a number of documents were included within the file of the Department of Immigration and Border Protection (Department) including 4 “first investigation reports” or “FIR”, and three other documents. In making its findings of fact, the Tribunal notes that the appellant provided certain documents in support of the claims going to the dispute between the rival families, including FIRs in respect of incidents between 1974 and 2006. The Tribunal records that it has concerns about accepting these documents as genuine in light of the significant time since the events took place as well as country information which indicates that document fraud is endemic in Pakistan and that it is relatively easy to produce fraudulent police records. Despite these concerns, the Tribunal accepted the appellant’s claims about those past events.

11    The Tribunal indicates that during the hearing it asked the appellant about any recent events involving harm against him or his family by the rival family, to which he replied that there had been a number of incidents on his father’s property between 2006 and 2009, such as burning of crops, but because they could not attribute these to anybody, they were unable to make any police reports. The Tribunal found that it could not find that the rival family had been involved in these incidents because of the absence of supporting evidence, the appellant’s acknowledgement that he cannot prove the involvement of the rival family and the fact that no physical harm was suffered.

12    In [46] the Tribunal refers to evidence given by the appellant that his brother and he were falsely charged in relation to a shooting in 2010 and that no action was taken against them because the details in the charge were incorrect. It found that this incident did not give rise to a real chance or real risk of serious or significant harm to the appellant on the basis that no charges were pressed.

13    The Tribunal refers to the evidence given by the appellant about a further incident involving his younger brother, who was questioned by police following the killing on 5 December 2015 of the nephew of a former government minister. The brother was released without consequence. The appellant claimed that his brother was taken in for questioning because of the influence of the rival family. The Tribunal accepted that the killing took place in December 2015, and that his brother was questioned and released, but found that this did not demonstrate that the appellant faces a real chance or real risk of serious or significant harm as a result.

14    The Tribunal concluded that the criteria for the grant of a protection Visa pursuant to s 36(2)(a) of the Act (namely, that Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees) were not satisfied. In summary, this was because the Tribunal considered that the appellant’s fear of harm arises from a property dispute and revenge for a murder. It found that there was no information before the Tribunal to suggest that the rival family targeted the appellant’s family for any Convention reason.

15    The Tribunal then considered whether the appellant was entitled to the grant of a protection Visa on the basis that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm within the complementary protection criteria set out in s 36(2)(aa) of the Act.

16    It relevantly found in this regard, that whilst it accepted the appellant’s claims relating to incidents of harm committed by members of the rival family in the past, it did not accept on the available evidence that members of the rival family were involved in the burning of crops or other incidents on the appellant’s father’s land between 2006 and 2009, and it was not satisfied there had been any recent incidents against him or his family members that can be attributed to the rival family. The Tribunal noted that the appellant and his family continued to reside at the same address for many years without incident, and that his family have continued to reside at that address since the appellant left Pakistan. He had also travelled outside Pakistan in 2009, 2010 and 2011 prior to coming to Australia in 2012 and on each occasion he returned to Pakistan, which, the Tribunal found, indicates that he did not fear for his safety at that time. Furthermore he was granted a visa which would have entitled him to depart Pakistan and come to Australia at any date from 24 September 2011 but did not leave Pakistan until March 2012, which suggested to the Tribunal that he was not so fearful for his life that he needed to depart Pakistan immediately.

17    The Tribunal also had regard to the information set out in the FIRs and said at [59]:

… Even if the Tribunal were to give the applicant the benefit of any doubts it may have about authenticity and accept these FIRs and documents as genuine and accept the incidents described therein as true, given the sequence of events they describe and the fact that they relate entirely to internal and personal disputes amongst of the [rival family’s relatives] and do not indicate any connection or relevance to the applicant or his family, the Tribunal does not accept that these events support his explanation for the delay in departing Pakistan. Even if the Tribunal were to accept, on the basis of the documents provided, that certain of the [rival family members] were involved in internal and personal disputes amongst each other, the Tribunal is not satisfied on the evidence before it, that this has any connection to him or his family. Therefore the Tribunal is not satisfied there are substantial grounds for believing there is a real risk he will suffer significant harm for this reason.

18    The Tribunal concluded by finding that neither the appellant nor his close family members have suffered any recent harm at the hands of the rival family or any person acting on their behalf. It was also not satisfied that there are substantial grounds for believing that there is a risk that the appellant will suffer future harm. Accordingly it dismissed the application for review.

2.3    The decision of the FCCA

19    On 27 June 2016 the appellant filed an application for review of the decision of the Tribunal, which contained the following grounds (errors in original):

1.    The [Tribunal’s] decision dated 31 May 2016 is affected by jurisdictional error because the [Tribunal] failed to consider all the integers of the applicant’s claim that he would suffer serious harm in Pakistan.

By failing to consider the entirety of the claims and evidence, the [Tribunal] made jurisdictional error of the kind identified in Minister for Immigration and Citizenship v SZRAK [2013] FCA 317.

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 to 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.

3.    The [Tribunal] 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 consequences of it being relied upon, and to invite the applicant to comment upon or respond to that information.

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.

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

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

20    The primary judge records in his reasons that the matter first came before him for a show cause hearing on 7 December 2016. He concluded that save for one issue, there was no substance in the grounds advanced by the appellant. The exception concerned the appellant’s assertion that the Tribunal had overlooked a significant document, namely a FIR that he had submitted to substantiate his claim that a false case had been filed against him by the enemies of his family. The court book available to the primary judge indicated that only four FIRs were in evidence, whereas the appellant claimed that there was a fifth that he had submitted to the Department. The primary judge gave the appellant an opportunity to adduce evidence in relation to the further FIR, which he then did in the form of two affidavits subsequently filed. The incident reported in the further FIR provided by the appellant concerned the occasion in 2010 when he and his brother were falsely charged in relation to a shooting.

21    When the proceedings resumed, Counsel for the Minister cross-examined the appellant. The primary judge considered that there were two issues that required resolution in relation to the point. The first being whether the appellant’s account concerning the alleged missing FIR is to be believed and the second being whether the overlooked document gives rise to a finding of jurisdictional error affecting the decision of the Tribunal. He concluded that the appellant’s account of the alleged missing FIR was not truthful. The primary judge did not accept that the appellant had provided the additional FIR it to the Department prior to the hearing before the Tribunal. Further, the primary judge found that even if the additional documentation had been provided, he was not persuaded that the consequence of the omitted material would result in any jurisdictional error. Two reasons were given for this. First, that it is clear that the additional report was never before the Tribunal. If it had been provided to the Department at all, then the error, if any, lay with the Department for failing to provide the material to the Tribunal. Such an error does not, the primary judge found, give rise to jurisdictional error, citing SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38; (2011) 191 FCR 123. The second is that even if the documents had been before the Tribunal it is doubtful that they would have made any difference. This is because the Tribunal at [46] appeared to accept as a fact that the appellant and his brother were falsely charged. It then reasoned that because no action was taken against the appellant and his brother because the details in the charge were false, no harm followed from it.

22    The primary judge then turned to consider each of the grounds for review advanced by the appellant. He rejected ground 1 on the basis that there were no particulars provided as to any integers of the appellant’s claim that he would face serious harm in Pakistan that the Tribunal had failed to consider. The primary judge found that the Tribunal considered the totality of the appellant’s claims and made findings of fact reasonably open to it on the material and evidence before it. He rejected ground 2 because, in so far as it asserts that the Tribunal gave the documents relied upon by the appellant no weight on the basis of credit findings, it was factually incorrect. Furthermore, the primary judge found that the Tribunal had considered all of the material which was centrally important to its decision-making process.

23    The primary judge rejected ground 3 on the basis that there was no information before the Tribunal which enlivened obligations under s 424A of the Act. He rejected ground 4 because there was nothing in the Tribunal’s reasons to suggest that it had misapplied the relevant test of significant harm as set out in s 36(2A) of the Act.

3.    THE APPEAL

24    I commence my consideration of this appeal with the observation, which is apt for many such appeals, 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 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 the Visas 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 ALJR 1123 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 appeal from the Tribunal under s 24 of the Federal Court of Australia Act 1976 (Cth).

25    Set out at [2] above are the grounds of appeal relied upon by the appellant. In oral submissions the appellant requested that the Tribunal be asked to conduct a further review of the materials. He contended that the Tribunal was in error when it concluded that documents upon which he relied were fraudulently obtained. He submitted that further verification of such documents could readily be obtained, and that he should have an opportunity to do so.

26    It is apparent from the summary of reasons of the Tribunal that is set out in section 2.2 of these reasons that, whilst the Tribunal expressed reservations (based on available Country information) about the authenticity of documents procured from Pakistan because of the prevalence of forgeries, it did not base its conclusions upon the premise that the documents relied upon were forgeries. Rather, the Tribunal’s decision proceeded on the assumption that the documents were authentic but resolved the matter adversely to the appellant on other grounds. Accordingly, the additional point raised by the appellant orally has no substance.

27    I now turn to the specific grounds of appeal that the appellant has advanced.

3.1    Ground 1: failure to consider

28    In ground 1, the appellant contends, in effect, that the primary judge erred in failing to conclude that the Tribunal acted unreasonably by ignoring relevant aspects of persecution and harm that he claimed to have suffered as required pursuant to s 91R of the Act.

29    The Minister submits that this ground was not raised before the primary judge, is broad and formulaic and is not supported by any detail of the failures alleged. Whilst it may be accepted that the ground is not identical to any ground raised before the primary judge, by making allowances for the fact that the appellant is self-represented, one may see that this ground is in substance the same as ground 1 advanced before the primary judge in so far as that ground asserted a failure on the part of the Tribunal to consider all integers of the appellant’s claim that he would face serious harm in Pakistan.

30    However, whilst I would permit this ground to be raised, I find that it is baseless. The Tribunal plainly considered the appellant’s claim in its entirety. The Tribunal did not fail to take into account any additional claim or allegation identified by the appellant either before the primary judge or on appeal. The primary judge found, correctly in my view, that the Tribunal considered the totality of the appellant’s claims and made findings of fact reasonably open to it on the material and evidence before it.

31    Accordingly, ground 1 is not made out and must be dismissed.

3.2    Ground 2: failure to consider FIR

32    In ground 2 the appellant contends, in effect, that the primary judge erred by failing to find that the Tribunal neglected to take into account the missing FIR concerning the 2010 incident, when he and his brother were arrested in relation to an alleged shooting.

33    However, the appellant faces a significant hurdle to the success of this ground in the form of an adverse credit finding made by the primary judge. The primary judge rejected the appellant’s evidence that he had supplied the FIR to the Department or the Tribunal. The primary judge noted that the affidavits filed in support of reliance on the additional document were unhelpful in explaining what happened to the original documents, despite the fact that directions were made requiring an explanation to be given. He noted that this left him with the bare assertion from the appellant that he had provided those documents to the Department. However, there were aspects of the decisions of both the delegate and the Tribunal that tended to gainsay the appellant’s version of events. For instance, in the delegate’s decision 4, not 5, FIR documents are identified. Further, at [7] of its reasons, the Tribunal identifies the FIRs before it, and at [17] the Tribunal states that it showed the appellant the documents that he provided during the course of the Tribunal hearing. The primary judge considered that this begs the question as to why the appellant did not at that point indicate that there was a document missing.

34    These matters provide a rational basis upon which the primary judge could conclude that the appellant’s version of events was not to be believed. On this basis alone, I am satisfied that the appellant’s second ground of appeal must fail.

35    Further, the primary judge correctly observed that even if the additional document had been omitted from consideration, that fact would not have had a material bearing on the outcome of the application. This is because the Tribunal accepted that the 2010 shooting incident as asserted by the appellant did take place. The Tribunal rejected the application for the separate reason that it did not consider that the appellant or any of his close family members suffered recent harm and that it was not satisfied that there were substantial grounds for believing that the appellant would suffer significant harm upon his return to Pakistan. That reasoning is justified and provides a second basis upon which this ground of appeal should fail.

36    Accordingly ground 2 of the appeal must be dismissed.

4.    DISPOSITION

37    The appeal must be dismissed. I order that the appellant pay the first respondent’s costs of the appeal.

Associate:

Dated:    13 October 2017