FEDERAL COURT OF AUSTRALIA

BUF15 v Minister for Immigration and Border Protection [2018] FCA 2050

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The appellant is a citizen of Pakistan. He arrived in Australia in May 2013 on a Visitor (Class FA) Visitor subclass 600 visa issued under the Migration Act 1958 (Cth). Later that year, he applied for a Protection (Class XA) visa. A delegate of the now-titled Minister for Home Affairs refused the application. The delegate’s decision was affirmed by the Administrative Appeals Tribunal and an application for judicial review of the Tribunal’s decision was dismissed by the Federal Circuit Court of Australia (FCC): BUF15 v Minister for Immigration & Anor (No 2) [2017] FCCA 2092. This is an appeal from the judgment of the FCC.

2    For the reasons that follow, the appeal should be dismissed.

THE Tribunal’s Decision

Visa Criteria

3    To be eligible for the grant of the visa, it was necessary that the Minister be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

4    The Refugee Criterion requires that the visa applicant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Article 1A of the Convention provides that Australia owes protection obligations to a person who:

… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

5    The Complementary Protection Criterion requires that the visa applicant is a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations “because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”.

Claims

6    In support of his application, the appellant claimed that he feared harm from Sunni religious groups because of his conversion from Sunni to Shia Islam in 2011. He claimed that a local Sunni leader, referred to here as M, threatened him on a number of occasions and “once or twice” engaged him in “minor fights”. He claimed that in March 2013 a group led by M accosted, detained, beat and tortured him over a period of about five hours. He said that his friends had found him and taken him to hospital where he stayed for about a month. He claimed that after this incident he continued to receive threats from members of the group.

7    The appellant provided the Tribunal with documents including:

(1)    a police first incident report relating to the 2013 assault;

(2)    an affidavit from the appellant’s father stating that the appellant had been targeted because of his religious conversion;

(3)    a hospital discharge form stating that the appellant had been hospitalised between 2 March 2013 and 28 March 2013 together with a statement from a medical officer at the hospital stating that the appellant had been in a critical condition;

(4)    a certificate from a Shia council member supporting the appellant’s claims; and

(5)    a membership card for a local Shia community.

Reasons

8    The Tribunal identified discrepancies in the appellant’s evidence concerning his past employment in Pakistan and the information he had provided in his visa application form. It held that he had fabricated evidence in the course of the hearing in an attempt to overcome the inconsistencies. Although it acknowledged that the appellant’s employment history was not directly relevant to his claims for protection, the Tribunal said that the appellant’s “willingness to fabricate evidence in relation to this employment casts considerable doubts on his overall credibility”.

9    The Tribunal otherwise found the appellant’s evidence concerning his conversion to Shia Islam and the practice of his faith to be vague and unpersuasive. It held that the appellant’s inability to recall at the hearing when he had converted was indicative of the claim having been fabricated. It held that the appellant was unable to adequately expand on his reasons for converting and that he could only give limited information about the differences between Sunni and Shia Islam. The Tribunal did not accept the appellant’s explanations for having no involvement in the Shia community since arriving in Australia.

10    As to the March 2013 assault, the Tribunal found the appellant’s oral evidence on that topic to be inconsistent with his written claims. The Tribunal continued:

26.    …  As indicated above, in his written claims, the applicant stated that in March 2013 he was taken to [M’s] place and tortured and tied up with ropes. He was then left alone and some of his Shia friends located him and took him to the hospital. When asked at the Tribunal hearing about this incident, the applicant could not recall when he was beaten, but thought it was about two months before he came to Australia and it was outside the Jamat where the Sunni group’s meetings are held. The applicant stated that [his] father was telephoned by some Shia friends and the applicant was taken to the hospital in [an] ambulance and his father attended the hospital. When advised during the hearing that his account is different from in his statement, the applicant stated that [M] is normally at that place and is part of the group. In relation to the discrepancies in the applicant’s claims regarding the physical assault, the representative had submitted prior to the hearing that when the attack occurred, the applicant lost consciousness and it is difficult for him to remember exactly what happened and it was his father who later recounted the details of the assault.

27.    The Tribunal does not accept the applicant’s explanation for the inconsistencies in relation to the assault. The Tribunal does not accept that the applicant would be unable to recall whether his father or some Shia friends took him to the hospital.  …

11    The Tribunal then turned to consider the documents provided by the appellant in support of his claims. It did not accept the documents were genuine. It did not accept that any further enquiries in relation to the documents were “warranted or appropriate”. It stated that fraudulent documents were readily available in Pakistan.

12    The Tribunal did not accept that the appellant had converted to Shia Islam, nor that he had ever been subjected to religious or sectarian violence. Accordingly, the Tribunal concluded, the appellant did not satisfy the Refugee Criterion, nor did he satisfy the Complementary Protection Criterion.

proceedings before the FCC

13    In the proceedings before the primary judge the burden was on the appellant to show that the Tribunal’s decision was affected by jurisdictional error: s 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [24] (French CJ, Bell, Keane and Gordon JJ).

14    The appellant was self-represented on his application for judicial review, as on this appeal. He relied on three grounds for judicial review. They were poorly cast.

15    The first ground of review was to the effect that he had “clearly demonstrated” his conversion to Shia Islam.

16    The primary judge said that in support of this ground the appellant had submitted no more than what he told the Tribunal was true. The primary judge summarised the Tribunal’s adverse credibility findings, particularly in relation to the appellant’s claimed conversion to the Shia faith. His Honour said that the adverse credibility findings were “based on rational grounds arrived at on consideration of matters that were logically probative”: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547. The judge concluded:

59.    The adverse credibility findings did not arise from a failure to afford procedural fairness or unreasonableness (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174).

60.    Accordingly Ground 1 is not made out.

17    The second ground of review was to the effect that the Tribunal had erred in identifying inconsistencies in the appellant’s claims concerning the 2013 assault. In his submissions in support of this ground, the appellant told the primary judge that he may have made a mistake in his written claims in respect of this incident. The primary judge held (at [65]) that it was open to the Tribunal to find the accounts of the appellant inconsistent.

18    The third ground of review was to the effect that the Tribunal erroneously concluded that the appellant did not satisfy the Refugee Criterion or the Complementary Protection Criterion. It contended that the appellant clearly explained to the Tribunal the harm he had suffered and repeated the claim that he was hospitalised because of his injuries. The ground further alleged that the Tribunal “has not considered the regular attacks which people of Shia sect is facing at the hands of Sunni terrorists”. The primary judge found there to be no jurisdictional error affecting the Tribunal’s assessment of the appellant’s claims against either criteria.

19    In conclusion, the primary judge said that the grounds for judicial review appeared to be no more a disagreement with the findings and conclusions of the Tribunal and so invited the Court to undertake merits review which it could not undertake: at [75].

THE APPEAL

Grounds

20    The appellant’s grounds of appeal are expressed in four unnumbered paragraphs, extracted here without alteration:

The Honourable Federal Circuit Court Judge erred in law in deciding my application not finding that the Tribunal did not consider that my life was not in danger for my religious belief as a Shia Muslim prior to my departure from Pakistan.

The Honourable Federal Circuit Court Judge erred in law in deciding my application not finding that there was a lack of procedural fairness in the decision of the Refugee Review Tribunal as the Tribunal failed to consider that I am not and will not be in reasonably foreseeable future be at risk of serious harm in Pakistan by religious extremists, the state, or in sectarian violence.

The Honourable Federal Circuit Court Judge erred in … law in deciding not finding that the Tribunal made a procedural mistake that the Tribunal collected information from the applicant and rejected the information without proper assessment and proof. The Tribunal simply rejected the applicant’s claim by saying that the Applicant did not provide a consistent account of circumstances in his matter.

The Honourable Judge erred in law in not finding in respect of each of those claims the Tribunal has set out the evidences that it relied upon in reaching its conclusions that it was not satisfied on each particular claim. Each of those conclusions were reasonably open to the Tribunal on the evidence before the Tribunal.

21    It is appropriate to interpret these grounds generously, having regard to the appellant’s status as a self-represented litigant. However, that does not mean that the Court will analyse the reasons of the Tribunal so as to detect any error of a kind not advanced in argument in the proceedings before the primary judge. As Flick J said in BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095:

10    It should not be left to this Court on appeal to itself review the reasons for decision of the primary Judge and attempt to identify appellable error. Nor should it be left to this Court to itself try to identify a ground of review that may have been available to the Applicant, irrespective of whether it was previously advanced for consideration.

11    In such circumstances, it is considered that the preferable approach that should be pursued is for this Court to review the reasons for decision of the Federal Circuit Court Judge and to determine whether there is any self-evident error as to the manner in which that Court resolved the grounds of review previously advanced for consideration and which it would appear are sought to be re-agitated on appeal. A course which construes Grounds of Appeal which impermissibly seek to repeat arguments directed to the question of whether the Tribunal erred as though they were expressed as an argument that the Federal Circuit Court erred in not accepting like arguments previously advanced is a course which:

•    is commonly pursued in this Court;

•    recognises difficulties confronting unrepresented appellants; and

•    recognises that the Court’s duty is not solely to the unrepresented litigant but ‘entails ensuring that the trial is conducted fairly and in accordance with law’ and a duty to strike a ‘balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties’ (cf. Hamod v New South Wales [2011] NSWCA 375 at [309] to [315] per Beazley JA, Giles and Whealy JJA agreeing; AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 at [39], (2016) 241 FCR 30 at 44 to 46 per Flick, Griffiths and Perry JJ).

In striking that balance, it is necessary to balance compliance with the requirement imposed by r 36.01(2)(c) of the Federal Court Rules 2011 (Cth) to state ‘briefly but specifically, the grounds relied on in support of the appeal’ and the need to ensure that an unrepresented appellant ‘suffers no meaningful disadvantage in the conduct of her or his case because she or he does not have the skills or knowledge of a lawyer’ (MZAGE v Minister for Immigration and Border Protection [2016] FCA 630 at [32] per Mortimer J).

22    To the extent that it is argued on this appeal that the primary judge failed to detect a breach of procedural fairness on the part of the Tribunal, the argument will not be entertained. The grounds for judicial review raised before the primary judge did not allege jurisdictional error of that kind. The allegation that the Tribunal failed to afford the appellant procedural fairness is not properly articulated in any event.

Consideration

23    The complaint in the first paragraph should be rejected.

24    The primary judge was correct to identify no jurisdictional error affecting the Tribunal’s finding that the appellant had not converted from Sunni to Shia Islam. The primary judge properly identified that the Tribunal was entitled to evaluate the genuineness of the appellant’s claimed conversion, including by critically questioning the appellant’s knowledge of doctrines of the Shia faith: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [7] - [I0] (per Jacobson J).

25    The complaint in the second paragraph is expressed in terms alleging a breach of procedural fairness. It is otherwise to the effect that the Tribunal failed to “consider” certain matters. The matters referred to were in fact considered by the Tribunal. This complaint is properly to be regarded as an expression of disagreement with the Tribunal’s conclusion that the appellant did not satisfy the Refugee Criterion or the Complimentary Protection Criterion. On the facts as found by the Tribunal, those conclusions were open to be drawn. The primary judge did not err in rejecting grounds of review asserting the contrary.

26    The third paragraph complains of the Tribunal’s rejection of certain documentary evidence upon which the appellant had relied in support of his claims. This allegation was not raised on the originating application before the primary judge, although it may have been raised in submissions concerning the Tribunal’s adverse credibility findings. The primary judge detected no jurisdictional error of the kind alleged: at [37]. Her Honour did not give reasons for so concluding.

27    For the reasons that follow, the Tribunal did not commit jurisdictional error in the manner in which it dealt with the documents upon which the appellant relied to corroborate his claims.

28    In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1, Gleeson CJ said (at [12]):

… It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.

29    To similar effect, in Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 North and Lander JJ said (at [33]) that it was open to the Tribunal to assess the credit of the respondent, before turning to consider what weight should be given to the corroborative material in light of that assessment. Their Honours continued:

37    Several further observations should be made concerning the type of situation addressed in Applicant S20/2002 77 ALJR 1165; 198 ALR 59. The case does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence.

38    The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. Applicant S20/2002 77 ALJR 1165; 198 ALR 59 does not sanction a practice of disregarding corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence. Consequently, the observation concerning the dicta of McHugh and Gummow JJ at [49] in Applicant S20/2002 77 ALJR 1165; 198 ALR 59 made in SZDGC 105 ALD 25 at [23] is probably misdirected. Those observations addressed the situation where the corroborative evidence was disregarded.

39    On the other hand, it should be remembered that McHugh and Gummow JJ questioned whether the separate consideration of corroborative evidence was a preferable practice. The RRT should normally assess all the evidence together. Otherwise, it might be thought that the corroborative evidence is treated as a lesser category of evidence and that the RRT has not paid sufficient regard to it.

30    In this case, the Tribunal considered the appellant’s oral evidence in relation to his claimed conversion to Shia Islam. It expressed concerns with the appellant’s evidence and credibility. It did not consider the appellant to be a “witness of truth”. The Tribunal then stated that it had had regard to submissions in relation to documents provided by the appellant but it did not accept that the documents were genuine or contained truthful information. The Tribunal relied upon a report by the Department of Foreign Affairs and Trade (DFAT) which indicated that there was a high prevalence of falsified documents in Pakistan.

31    In my view it was open to the Tribunal to consider the documentary evidence in light of the concerns it had expressed as to the appellant’s credibility. It was open to the Tribunal to conclude that the documents were falsified, both by reference to the concerns it had previously expressed about the appellant’s credibility more generally, and by reference to the DFAT report.

32    The third paragraph of the notice of appeal may also be understood as alleging jurisdictional error affecting the Tribunal’s credibility findings more generally. This challenge raised a discrete question in respect of which the parties to this appeal were invited to file further submissions. The question arose from what the Tribunal said at [26] of its reasons, extracted at [10] above.

33    It was not immediately apparent to the Court that the accounts the appellant had given as to the means by which he had travelled to the hospital were necessarily inconsistent. The supplementary submissions of the Minister adequately identified material from which it would be open to the Tribunal to infer that the appellant had indeed given inconsistent accounts on that discrete topic. I am also satisfied that the Tribunal implicitly rejected the appellant’s explanation for the inconsistency, namely that he had been unconscious at the time that he was taken to hospital and so could only retell the accounts given by others. The inconsistency was minor. It was nonetheless open to the Tribunal to have regard to it, together with other inadequacies it had identified in the appellant’s evidence, and so disbelieve his claims.

34    The complaint in the fourth paragraph, interpreted generously, is to the effect that the primary judge erred in concluding that the findings of the Tribunal were open on the materials before it. No appealable error of that kind is established. The reasons of the primary judge disclose an orthodox application of principle to the reasons given for the Tribunal’s decision.

35    It follows that the appeal must be dismissed.

Associate:

Dated:    19 December 2018