FEDERAL COURT OF AUSTRALIA

CTB16 v Minister for Home Affairs [2019] FCA 1895

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

ANDERSON J:

Introduction

1    The appellant, a citizen of Pakistan, appeals from a decision of the Federal Circuit Court of Australia (Circuit Court) dismissing the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the applicant a protection visa.

2    The grounds set out in the appellant’s notice of appeal were unparticularised. To the extent that the appellant raised particular complaints at the hearings before the Circuit Court and this Court about the Tribunal’s decision, those allegations were, for the reasons explained below, without foundation. No jurisdictional error was committed by the Tribunal. The appellant’s appeal to this Court must accordingly be dismissed.

Background

3    The background to the appellant’s arrival in Australia, his claims for protection and his application to the Tribunal were summarised in the reasons of the Circuit Court (CTB16 v Minister for Immigration & Anor [2019] FCCA 1873) as follows:

1.     … The appellant is a citizen of Pakistan. He lived in Malaysia from May 2008 until May 2010. He came to Australia on a student visa in April 2011. His wife joined him in Australia in 2012.

2.    On 14 February 2014, the appellant applied for a protection visa with his wife and child included as dependents, but without claims of their own. The appellant lodged a statutory declaration on 11 March 2015. The appellant attended an interview with a delegate of the Minister on 17 March 2015. On 8 May 2015, the delegate refused the application.

3.    The appellant then sought review by the Tribunal. The appellant did not include his wife and child in that application, as the appellant had separated from his wife at that time. The appellant engaged a migration agent and lawyer on 2 March 2016. The Tribunal conducted a hearing on 3 March 2016, which the appellant attended with his agent and an interpreter. The agent filed post-hearing written submissions on 16 March 2016.

4.    The Tribunal conducted a further hearing on 28 July 2016. The Tribunal received evidence from the appellant's brother, as well as the appellant. Following the hearing, the Tribunal sent the appellant at his registered migration agent's address a letter under s.424A of the Migration Act 1958. The court book shows that letter was sent on 15 August 2016. It gave the appellant until 29 August 2016 to provide a response. No response was forthcoming. The Tribunal made its decision on 30 August 2016.

…

6.    In his protection visa application, the appellant said that his brother had married a woman from a family of Sunni extremists who, after the marriage, started to threaten the appellant's family who were Shias. In his statutory declaration provided to the Department a little over a year later, the appellant said that the brother's wife had threatened the family because she wanted the appellant's brother to obtain a visa for her to come to Australia.

7.    There were various subsidiary claims made in both the original protection visa application and in the statutory declaration. The appellant made additional claims in the interview with the delegate in connection with being a member of MQM [that is, the Muttahida Qaumi Movement] and that he would be killed for drinking alcohol if he returned to Pakistan.

4    It should also be noted that the appellant was represented by a solicitor and migration agent at the time of the Tribunal hearings. The appellant’s representative submitted written submissions to the Tribunal in support of the appellant’s application.

Tribunal’s decision

5    On 30 August 2016, the Tribunal affirmed the decision of the delegate not to grant the appellant a protection visa: 1507268 (Refugee) [2016] AATA 4415 (AAT Reasons).

6    It is apparent from the Tribunal’s reasons that the outcome of the Tribunal’s decision was largely based on the adverse assessment of the appellant’s credibility generally and the credibility of his claims regarding his fear of returning to Pakistan. The Tribunal held that the appellant had embellished aspects of his claims in an attempt to bolster his case: ibid at [62]. The Tribunal’s assessment of the credibility of the appellant and his claims was summarised in the Circuit Court’s reasons as follows:

8.    The Tribunal considered that there were numerous inconsistencies and discrepancies in the appellant's evidence. Particularly, the Tribunal noted that the appellant had said in his protection visa application that his brother's wife was a member of a Sunni extremist organisation whereas in his statutory declaration, he said his brother's wife mistreated his family because she was trying to force the appellant's brother to get her a visa to come to Australia.

…

10.     For this and other reasons, the Tribunal did not accept that the applicant’s claims were credible. The Tribunal did not accept, in particular, that the applicant is a Shia. The Tribunal considered that the applicant’s evidence in this regard was vague and inconsistent. The Tribunal did not accept that the applicant was a member of MQM. The Tribunal also considered various subsidiary claims made by the applicant which it did not accept for reasons which it gave.

7    The Tribunal held that, “[b]ased on the numerous inconsistencies and discrepancies in the [appellant’s] evidence and implausibility of central and significant aspects of his claims”, the appellant was not a witness of truth: AAT Reasons at [49]. The Tribunal also expressed that it held “significant concerns about the credibility of the [appellant’s] claims and the genuineness of his fear” due to his delay in applying for refugee status (he left Pakistan in April 2011 but did not lodge his application for protection until February 2014) and the fact that his wife and child had returned to Pakistan for a family member’s marriage in 2013: ibid at [52]-[54].

8    As a result, the Tribunal’s conclusion as to the appellant’s eligibility for a protection visa was expressed as follows:

67.     Considering the applicant’s claims cumulatively, based on the Tribunal’s findings above, the Tribunal is not satisfied the applicant has a well-founded fear of persecution at the hands of his [family member]’s first wife’s family or people associated with her family, including religious extremists or political assassins, for reasons of his alleged Shia religion or because he signed the second nikkah for his [family member]’s marriage to his second wife and the family may have seen the papers or because a person named [Mr E] or [Mr D] allegedly took his mother’s office and is just sitting there. Nor is the Tribunal satisfied the applicant has a well-founded fear of persecution as a Shia, as a member or supporter of the MQM, as an ethnic Mohajir or as a person who has returned from a western country or a person who consumes alcohol. It is therefore not satisfied the applicant is a person to whom Australia owes protection obligations under the Refugees Convention. This means he does not satisfy the refugee criterion in s.36(2)(a).

…

70.     On the basis of the Tribunal’s earlier findings and reasoning’s that the applicant’s refugee claims are not credible, the Tribunal does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of being returned to Pakistan , there is a real risk that the applicant will suffer significant harm from [Ms B] and her extremist family, extremist or terrorist organisations, people associated with [Ms B]’s family including MQM members or a person named [Mr E] or [Mr D] or anyone else because of the alleged problems he experienced from his [family member]’s first wife and her family, his alleged Shia religion and his alleged membership and support of the MQM.

…

73.     Having regard to the applicant’s claims both individually and cumulatively, the Tribunal is not satisfied on the material before it that the applicant’s life is threatened or that he will be arbitrarily deprived of his life; that the death penalty will be carried out on him; or that he will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

Federal Circuit Court’s decision

9    The appellant sought judicial review of the Tribunal’s decision in the Circuit Court. His grounds of review in that court were as follows (with errors in original):

1.    The Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal to affirm the decision of the delegate of the Minister.

2.    The delegate of the misister failed to consider the applicants claims.

PARTICULARS

(i)    The applicant advised he would be given an opportunity to respond to concerns the member had raised and was not given this opportunity.

(ii)    The applicant was not given natural justice and an error of law has occurred.

10    The judicial review application was heard on 20 June 2019. At the end of the hearing, the Circuit Court delivered ex tempore reasons dismissing the appellant’s application: CTB16 v Minister for Immigration & Anor [2019] FCCA 1873.

11    The Circuit Court held that at [14] that the appellant’s first ground did not amount to a ground of review. It also rejected the appellants’ claim that the Tribunal did not consider his claims: ibid at [16].

12    The particulars of the appellant’s second ground of review alleged breaches of natural justice by the Tribunal. The appellant contended at the hearing before the Circuit Court that he did not receive natural justice because:

(a)    he did not receive from the Tribunal a s 424A letter dated 15 August 2016 (being after the Tribunal hearing and two weeks prior to the Tribunal’s decision); and

(b)    the Tribunal did not delay its decision to the extent that would have permitted it to consider a letter relating to the appellant’s political membership and opinions that the appellant said he received 23 days after the Tribunal’s decision.

13    The Circuit Court held that these complaints did not amount to a breach of natural justice: ibid at [17]-[22]. Both of these complaints were also raised at the hearing before this Court, as discussed further below.

14    The Circuit Court considered the Tribunal’s reasons itself and various parts of the court book and was unable to discern anything that could arguably amount to a jurisdictional error: ibid at [24]. The appellant’s judicial review application was accordingly dismissed.

Appeal to this Court

15    The appellant appealed the decision of the Circuit Court to this Court on 10 July 2019. The grounds specified in the appellant’s notice of appeal were as follows:

1.    the Federal Circuit Court erred in failed to find that the Administrative Appeals Tribunal (the Tribunal) committed jurisdictional error as follows:

a.    the Tribunal misapplied or misinterpreted the law;

b.    the Tribunal failed to properly consider all my claims; and

c.    the Tribunal made a decision that was legally unreasonable.

16    The appeal was heard on 6 November 2019. The Minister was represented by Mr Brown, a solicitor, who contended, broadly, that the appellant’s unparticularised grounds of appeal should be dismissed. The appellant appeared with the assistance of an interpreter. In general terms, the appellant explained to the Court the changes in his personal circumstances since the Tribunal’s decision. He also insisted that he was facing financial issues and that he was fighting hard for his right to stay in Australia. More particularly, the appellant raised the s 424A letter that he said his migration agent had failed to forward onto him, as considered further below.

Consideration

17    The grounds raised in the appellant’s notice of appeal are, by themselves, “general and unparticularised complaint[s] of error” by the Tribunal: EJB17 v Minister for Immigration and Border Protection [2019] FCA 742 at [12] per Farrell J; see also ANL15 v Minister for Immigration and Border Protection [2019] FCA 1365 at [24] per Jackson J. The content of the appellant’s complaints should therefore be informed by the contentions raised by him at the hearings before the Circuit Court and this Court.

Section 424A letter

18    Section 424A of the Migration Act 1958 (Cth) (Act) broadly requires that the Tribunal give to an applicant before the Tribunal particulars of certain information (that has not otherwise been raised orally at a Tribunal hearing) that the Tribunal considers would be the reason for affirming the decision under review and invite the applicant to comment on that information.

19    In this case, the Tribunal conducted hearings on 3 March 2016 and 28 July 2016. After the second hearing, on 15 August 2016, the Tribunal sent a letter addressed to the appellant’s solicitor and migration agent inviting comment on, broadly, certain inconsistencies and discrepancies in the evidence provided by the appellant, his wife and his brother. As explained by the following passage in the AAT Reasons, the Tribunal invited a response by 29 August 2016:

5.    Following the hearing the Tribunal wrote to the applicant on 15 August 2016, in accordance with the requirements of s.424A of the Act, inviting him to comment on or respond to certain information which it considered would, subject to his comments, be reason, or a part of the reason, for affirming the decision under review. The applicant was advised that his comments or response should be received by 29 August 2016 and that if they were not received within the period allowed, the Tribunal may make a decision on the review without taking any further action to obtain his views on the information. The Tribunal did not receive a response from the applicant or a request for an extension of time in which to provide the comments or response by the prescribed date. As such, the Tribunal has proceeded to make a decision without taking any further action to obtain his views on the information[.]

20    The appellant argued in the Circuit Court, and repeated in this Court, that he was not been afforded natural justice because, although his representative had received the s 424A letter, she had not forwarded the letter to him and he had not had an opportunity to respond to the letter.

21    The Circuit Court dismissed this contention as follows:

17.    … The court book contains a s.424A letter dated 15 August 2016 from the Tribunal to the applicant’s agent. That followed the hearing on 28 July 2016. It raised the Tribunal’s concerns and sought the applicant’s response to them. The s.424A letter was faxed to the agent at the fax number specified in the document appointing the agent as the applicant’s representative.

18.     There are a number of communications to and from the Tribunal and the agent via that fax number. It seems to me that there is no proper basis upon which I could conclude that the s.424A letter was not sent to the agent. The s.424A letter set out matters that the Tribunal was concerned about and invited the applicant’s response. Consequently, I am not satisfied that the applicant was not given the opportunity to respond to concerns that the Tribunal had following the hearing.

19.     The second particular to ground 2 in the application is that the applicant was not given natural justice and an error of law has occurred. The applicant said that he did not get natural justice because he did not get the s.424A letter. However, as I have discussed, there is no reason to believe that the letter was not sent to the agent as addressed. If the agent did not provide it to the applicant, that is a matter between the agent and the applicant. It is not indicative of jurisdictional error on the part of the Tribunal.

20.     In relation to natural justice, the applicant said that the s.424A letter asked for a response by 29 August 2016 and the Tribunal made its decision on 30 August 2016. The applicant said that, as a matter of natural justice, he should have been given more time. However, the agent did not ask for more time. The applicant was given two weeks. That appears to me to be reasonable in the circumstances.

22    At the time that the Tribunal’s sent the s 424A letter, s 424A(2)(a) of the Act specified that, where the applicant before the Tribunal was, like the appellant in this case, not in immigration detention, then the letter could be given to that person by one of the methods specified in s 441A of the Act. Section 441A(5)(a) and (d), read together, permitted the Tribunal to send the letter by fax to “the last fax number … provided to the Tribunal by the recipient in connection with the review”.

23    The appellant’s representative, a solicitor and migration agent, had submitted to the Tribunal a form dated 2 March 2016 notifying the Tribunal of her appointment as the appellant’s representative in the case. That form specified, among other things, a fax number at which the representative could be contacted. That same fax number was also included on the letterhead of a letter dated 16 March 2016 sent by the appellant’s representative to the Tribunal that enclosed, amongst other documents, written submissions in support of the appellant’s application in the Tribunal.

24    The fax number specified in these documents is the same fax number set out in the s 424A letter as the means by which the Tribunal transmitted that letter to the appellant’s representative. Where the Tribunal sent the s 424A letter by fax to the authorised recipient for the appellant in compliance with the relevant provisions of the Act, the Tribunal provided a reasonable period—14 days from the date of the s 424A letter—within which the appellant could comment on the information in that letter, and the Tribunal did not receive any request for an extension of time within which to respond, I agree with the conclusion of the Circuit Court that these circumstances did not amount to a denial of natural justice. It may be correct that the appellant’s representative did not raise the letter with the appellant. However, that is, as observed by the Circuit Court, and as contended by the Minister in this Court, a matter between the appellant and his representative. It is not a matter that impugns the valid exercise of jurisdiction by the Tribunal.

Letter relating to appellant’s political opinions

25    The Tribunal held at [61]-[63] of its reasons that it did not accept that the appellant “is or was a member of the MQM or that he actively supported the party or any other political party”.

26    Although the appellant did not raise such a complaint at the hearing before this Court, it is apparent from the reasons of the Circuit Court that the appellant had complained in that court that the Tribunal did not delay its decision to the extent that would have permitted the Tribunal to consider a letter relating to the appellant’s political membership and opinions that the appellant said he received 23 days after the Tribunal’s decision.

27    The Circuit Court’s consideration of that complaint was as follows:

21.     The applicant said that the Tribunal was concerned that the applicant did not have a particular letter relating to his political opinions. The applicant said that he obtained that letter 23 days after the decision was made. The applicant said that, if the decision had been delayed, he could have provided the letter to the Tribunal. That may be so. However, I do not see that these circumstances give rise to a denial of natural justice. The hearing was held over two days, the first being 3 March 2016 and the second being 28 July 2016. The Tribunal sent a s.424A letter on 15 August 2016. It gave the applicant two weeks to provide further information. The applicant did not ask for any extension of time. I do not consider that there was a denial of natural justice in the Tribunal deciding the case on 30 August 2016.

28    As the letter relating to the appellant’s political membership and opinions was obtained by the appellant after the Tribunal’s decision, the letter was evidently not material before the Tribunal. As the letter was not before the Tribunal, it was not included in the Tribunal file that formed part of the appeal book in this Court. The appellant did not raise the letter nor provide a copy at the hearing before this Court. As such, I have not viewed the letter, however I infer from the circumstances that the letter, to the extent it exists, would purport to demonstrate that the appellant was a member of a particular political party, or held certain political interests, in Pakistan that could support the inference of a risk of relevant persecution or harm if he returned to that country.

29    Regardless of the contents of any such letter, it only came into the hands of the appellant after the Tribunal’s decision. There is no suggestion in the Tribunal’s reasons that the appellant raised the possibility of the provision of such documentation to the Tribunal. As noted by the Circuit Court, the appellant had sufficient opportunity to provide such documentation to the Tribunal (or previously to the Department). The appellant applied for the protection visa in February 2014. He appealed to the Tribunal in May 2015. The appellant was invited in January 2016 to attend the hearing before the Tribunal. On each occasion, the appellant was entitled to, but did not, provide any documentation regarding his political affiliations.

Disposition of grounds of appeal

30    As explained, other than the matters considered above, the appellant’s grounds of appeal were unparticularised. Having read and considered the Tribunal’s reasons, I do not discern any basis for concluding, as contended by the appellant’s notice of appeal, that the Tribunal misapplied or misinterpreted the law, failed to properly consider his claims or otherwise made a decision that was legally unreasonable. In my view, the appellant’s grounds of appeal are without foundation.

Conclusion

31    For the above reasons, the appellant’s appeal to this Court will be dismissed. The appellant will pay the Minister’s costs of and incidental to the appeal.

Associate:

Dated:        19 November 2019