FEDERAL COURT OF AUSTRALIA

BUS19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1913

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application of 27 June 2019 for leave to appeal be dismissed.

2.    The applicant pay the first respondent’s costs of the application, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

Introduction

1    The applicant seeks leave to appeal against a judgment of the Federal Circuit Court of Australia (hereafter, the “FCCA”). The decision in question concerned an application for judicial review of—that is to say, for prerogative relief directed at—a decision of the second respondent (hereafter, the “AAT”) that affirmed an earlier decision, made by a delegate of the first respondent (hereafter, the “Minister”), to refuse an application that the applicant had made for the grant of a protection visa under the Migration Act 1958 (Cth) (hereafter, the “Act”).

2    Subsections (2)(a) and (2)(aa) of s 36 of the Act collectively prescribe two alternative criteria (amongst others) that an applicant must satisfy in order to qualify for a protection visa. The first, for which s 36(2)(a) provides, is that the applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations (as defined) because the person is a refugee. The second, to which s 36(2)(aa) gives voice, is that the applicant is a non-citizen in Australia who, although not a refugee, is nonetheless a person in respect of whom the Minister is satisfied that Australia has protection obligations on account of there existing substantial grounds for believing that, if removed from Australia, there is a real risk that they will suffer significant harm. The latter are typically referred to as “complementary protection” obligations. “Significant harm” is defined to include arbitrary deprivation of life, subjection to torture, and subjection to cruel or inhuman treatment.

3    The application before the FCCA (hereafter, the “FCCA Application”) was dismissed following a “show cause” hearing conducted pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth). It appears to be common ground—and is, in any event, inarguably the case—that the judgment by which the FCCA Application was dismissed (hereafter, the “FCCA Judgment”) was interlocutory in nature. An appeal from it lies only with the leave of this Court: Federal Court Rules 2011 (Cth), r 35.12.

4    For the reasons that follow, the application for leave to appeal the FCCA Judgment must be dismissed.

Relevant background

5    The applicant is a Shia Muslim and a citizen of Pakistan. He arrived in Australia on 25 December 2014 on a student (subclass 573) visa that was valid until 24 August 2016. He claims to have left Pakistan because, amongst other reasons:

(1)    his ex-wife’s brothers and uncles (who purportedly were involved in political and religious parties) have threatened to kill him because of his having divorced his wife;

(2)    he is at risk of being the target of an honour killing (at the direction of his ex-wife’s family);

(3)    in September 2014, he received threatening calls that he would be killed;

(4)    when the applicant reported to police the threatening phone calls that he received, they were unhelpful;

(5)    he is a Shia Muslim; and

(6)    he feared for his life.

6    On 8 July 2015, he applied to the Minister for a protection visa. On 30 March 2016, the Minister, by his delegate, refused that application (hereafter, the “Delegate’s Decision”). That refusal was the subject of an application dated 5 April 2016 for review by the AAT.

7    In January 2019, the applicant provided documents to the AAT, which included an “[a]mended [s]tatement” and a covering submission from his advisor. The Tribunal described those contentions in its decision in the following terms:

24.     [The applicant] claimed in his statement that he discovered that his wife was having a relationship outside their marriage in March 2012. He claimed that this was the reason his marriage disintegrated. He said a court in Karachi handed down a divorce on 5 September 2013. He claimed his wife’s uncle openly stated in the court that day his intention to seek revenge for the shame caused by the divorce. He claimed his ex-wife’s family invited the fanatical group Sipah-e-Sahaba (SSP) to avenge the divorce on their behalf. He described SSP as being aligned with the (Sunni) Taliban extremist movement in Pakistan, and as being responsible for targeting, killing and torturing Shi’a Muslims in Pakistan. He said that if he returns to Pakistan SSP will take advantage of his Shi’a religious affiliation and kill him. These claims about the SSP did not appear in [the applicant]’s original protection visa application.

25.     In an apparent escalation from original claims to DHA about merely having received threatening telephone calls, [the applicant] claimed in this “Amended statement” that SSP members even confronted him “in the street” and identified themselves as SSP members. He then repeated his previous claims about having received “anonymous” threatening telephone calls. He said that he tried to stay safe in his house and travel to work by different routes day-to-day but added that this “did not work” because SSP members used to follow him as soon as he left his front door. He claimed he once walked to the police followed by two people on a motorcycle and reported “the incident”, the police then having helped him get back home. He said he could not provide all the details to the police, who thus were unable to take any action.

26.     [The applicant] claimed he was once going to his local mosque when he noticed a group of possible SSP members following him, to harm or even kill him. He said he ran into the mosque and was able to return safely home with help from some fellow worshippers.

27.     [The applicant] claimed he decided he had to leave Pakistan. He claimed he engaged an agent to help him get a student visa for Australia. He said he lodged his student visa application on 14 October 2014, the same month, I note, when he ceased working. He claimed the visa was issued on 8 December 2014. As noted, [the applicant] arrived here on 25 December 2014.

8    On 7 March 2019, the AAT invited the applicant to attend a hearing, which was conducted on 3 April 2019. On 17 April 2019, the AAT affirmed the Delegate’s Decision.

9    In doing so, the AAT concluded that the applicant’s claims that he might somehow or to some degree be affected by sectarian conflict in Pakistan were speculative. The AAT accepted that whilst the Sipah-e-Sahaba (hereafter, the “SSP”) still operated in Pakistan, it was not satisfied on the evidence that the applicant faced a real chance of being persecuted by the SSP in the reasonably foreseeable future by reason of his Shia religion and/or his membership of a particular social group. Further, it concluded that his claims about his ex-wife’s family being both illiterate and politically connected were incongruous, and that he gave inconsistent evidence as to who, as between he and his ex-wife, had ended their marriage.

10    The AAT did not consider the applicant to be a truthful witness. It made the following relevant observations:

40.    At the hearing, [the applicant] gave generally inconsistent evidence about when his in-laws brought SSP into the matter, or let them take over. He also gave inconsistent and implausible evidence about how he was able to avoid being killed by SSP, given its notorious record for killing its targets. In addition, when I questioned why the SSP would enter into an arrangement with a Shi’a family to do its bidding in getting rid of a Shi’a in-law, [the applicant] speculated that his uncle, who shouted out in the court that he would engage the SSP to kill him, might simply have dealt with the SSP through some kind of intermediary, the SSP therefore not knowing that they were being paid by a Shi’a to kill a Shi’a. This latter suggestion struck me as being convoluted and far-fetched.

41.     I put to [the applicant] that it seemed implausible that such a successfully murderous group had not been able to kill him after what he described as six to seven months of close surveillance. In reply, [the applicant] said that one day after he came to Australia, his mother arrived home to find “all the doors open” but nothing stolen from the house. He implied that SSP did this, but the claim did not help address my concern as to why SSP had been unable to carry out its alleged mandate against him.

…

44.     I accept that [the applicant] is a divorced Shi’a Muslim from Gulchan Iqbal district in Karachi who worked in that city up till around the time he obtained an Australia student visa. I accept that he is active at his local mosque. His evidence indicates that he is able to access that mosque whenever he wishes. I give some weight to his description of his neighbourhood as one that is mixed and relatively peaceful. I give some weight to his description of close family members going about their day-to-day lives in Karachi. I also give weight to the independent evidence about a substantial decrease in sectarian violence in Karachi and other parts of Pakistan in recent years. It is bald speculation that [the applicant] might somehow or to some degree be affected by sectarian conflict in Pakistan at some time in the future. Although SSP still operates in Pakistan, I am not satisfied on the evidence before me that [the applicant] faces a real chance of being persecuted in that country in the reasonably foreseeable future separately or cumulatively for the reason of his Shi’a “religion” or “membership of a particular social group”.

45.     I find that [the applicant]’s claims about his ex-wife’s family being both illiterate and politically connected are somewhat incongruous. I have not given this incongruity weight on its own; however, I give it some cumulative weight, considering other problems in the evidence in this case. I find that [the applicant] has given inconsistent evidence as to who left whom in his marriage. I consider this inconsistency to be significant enough to leave me unsatisfied his version of events as to why his ex-wife’s family is so homicidally inclined towards him. I find it implausible, in the claimed circumstances, that [the applicant] was not seriously harmed some time between separation and divorce, or in the year after his divorce. When I tried to encourage [the applicant] to speak to this issue, he simply provided inconsistent accounts as to when the SSP was brought or allowed in to follow him and kill him.

46.     Ultimately, [the applicant]’s evidence about SSP entering into an arrangement with a Shi’a family to do its bidding in getting rid of a Shi’a in-law ultimately struck me as being so farfetched as to be fanciful. I do not accept his claims about the police having told him to avoid mentioning the SSP by name in the letter he purportedly submitted to them. I find on the evidence that the whole existence of the SSP in [the applicant]’s claims about the fallout from his separation and divorce are a recent invention. Overall, I do not accept that [the applicant] is a witness of truth. In support of his claims before the Tribunal, he has even said he falsified facts in his “Divorce Deed”. Whether he did that or not, I find that he is such an unreliable witness that I can give no weight at all to the purported letter to the police. I also give no weight to the anecdote about his mother having come back home one day to an open but intact house.

11    The AAT was not satisfied that there were substantial grounds for believing that, if returned to Pakistan, there was a real risk that the applicant would be subjected to relevant persecution or harm. That being so, the AAT concluded that the applicant did not satisfy either of the two criteria for which ss 36(2)(a) and 36(2)(aa) of the Act provide. For that reason, it affirmed the Delegate’s Decision.

THE FCCA APPLICATION

12    In her Honour’s reasons in support of the FCCA Judgment, the primary judge noted (at [4]) as follows:

I explained to the applicant that the role of this Court was very different to that of the Tribunal, and that the only issue before this Court was whether or not the Tribunal’s decision was affected by a mistake that went to its jurisdiction. I explained that if the Tribunal’s findings and conclusions were open to it on the evidence and material before it, then the fact that the applicant may disagree with them was not sufficient without more to demonstrate a mistake on the part of the Tribunal capable of being a jurisdictional error. I also explained the Court has no power to interfere with the Tribunal’s decision unless the Court is satisfied that the decision is affected by a jurisdictional error.

13    Her Honour’s reasons (at [7]) cite, as follows, the two grounds apparently advanced in support of the applicant’s claim for prerogative relief:

The applicant then confirmed that he continued to rely on the grounds of his initiating application. Those grounds are as follows:

“1. Serious threat of persecution from Sipah-e-Sahaba Pakistan an anti shia religiously party working under TTP.

2. Currently in many cities of Pakistan there are protest for missing shia people.”

(Errors in original)

14    I take the above as an accurate summary (if not a verbatim record) of the grounds that the applicant sought to agitate in favour of his claim for prerogative relief. The Minister, by his written submissions, accepts that they were, in fact, the grounds advanced below.

15    The FCCA Judgment was pronounced on 17 June 2019. The primary judge’s reasons contain the following observations:

15.    The Tribunal’s findings, including its adverse credibility findings, would appear to be open to the Tribunal on the evidence and material before it, and for the reasons it gave. They appear to have a logical and probative foundation and are not without an intelligible justification (see ARG 15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

16.    It is well established that a decision maker such as the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

17.    In the circumstances, the applicant’s complaints are more to be understood as a disagreement with the findings and conclusions of the Tribunal thereby inviting merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2001] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

16    The primary judge went on to conclude that neither of the two grounds advanced by the applicant could arguably be substantiated, and that his assertion that the AAT’s decision was the product of jurisdictional error lacked an arguable basis. Her Honour proceeded to exercise the discretion reposed in her by r 44.12 of the Federal Circuit Court Rules 2001 (Cth) and dismissed the application.

Application to this court

17    In support of the present application the applicant read an affidavit dated 26 June 2019, to which he attached a draft notice of appeal and a copy of the FCCA Judgment. The draft notice of appeal contained the following ground upon which he intended to rely in the event that the present application succeeded (errors original):

Serious persecution threats from Sipah-e-Sahaba a banned organization is chasing me.

18    By the present application, the applicant advances three reasons as to why he should be granted leave to appeal, namely (errors original):

1.    Serious persecution threats.

2.    SIPAH-E-SAHABA a banned organization is chasing me.

3.    In my city Karachi total 350 people are missing of my community.

principles governing LEAVE TO APPEAL

19    The considerations relevant to the exercise of the court’s discretion to grant leave to appeal are well-established. They include whether or not an appeal would have any reasonable prospects of success and whether the applicant would suffer substantial injustice if leave were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398-399 (Sheppard, Burchett and Heerey JJ); Iannuzzi v Commissioner of Taxation [2019] FCAFC 39, [3] (Kenny, Jagot and Banks-Smith JJ); and Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the costs of the Cup of Tea Case) [2019] FCAFC 36, [2] (Flick, Reeves and O’Callaghan JJ).

20    It is apparent, then, that the applicant’s success on the present application depends upon his prospects of successfully challenging the primary judge’s decision to summarily dismiss the FCCA Application for want of an arguable case. It is convenient to focus immediate attention upon that issue.

21    Consideration of the merits of the substantive appeal does not require detailed analysis of the grounds upon which it is proposed that the appeal might proceed. It is sufficient that the court form a “reasonably impressionistic” assessment of their prospects: MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478, [38] (Tracey, Perry and Charlesworth JJ).

the merits of the proposed appeal

Nature of the findings complained of

22    The primary judge’s power to dismiss the application before her pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) was conditioned upon her satisfaction that the applicant lacked an arguable case for the relief that he claimed. It was quintessentially discretionary. To establish that its exercise in the present case was in error, the applicant would need to demonstrate that that exercise miscarried in any one or more of the ways famously outlined in House v R (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).

23    The applicant contends that the primary judge was wrong to conclude that he lacked an arguable case for prerogative relief. His immediate challenge is to show why this court should incline to the view that the AAT’s decision was arguably the product of jurisdictional error (and, more accurately, that the primary judge’s discretion miscarried when she acted upon her contrary conclusion).

The FCCA finding that the applicant lacked an arguable case

24    The applicant does not assert (or propose to assert) that the FCCA Judgment was founded upon any wrong principle, nor that the primary judge allowed extraneous matters to guide or affect her, mistook any facts, or failed to take account of some material consideration. Invited to identify any such shortcoming during oral submissions, the applicant—very candidly, if I might say so—conceded that there wasn’t any.

25    Instead, he contends, simply enough, that a return to Pakistan will leave him subjected to relevant risks of persecution or harm. To that end, as the Minister I think rightly contended, he invites a process of merits review that stands well outside the remit of this court.

26    The immediate and fatal flaw in the applicant’s case is that he has not identified any basis upon which this court might conclude that the primary judge’s discretion miscarried; that is to say (as is said above), that he has not identified any wrong principle by which the FCCA Judgment was informed, any extraneous matter that guided or affected it, any mistake of fact by reason of which the discretion miscarried, or any material consideration that went unconsidered. What he says now, distilled to its essence, is that the primary judge was wrong to form the view that the AAT decision was not arguably the product of jurisdictional error. Even if he is right about that, that alone is not sufficient to warrant a finding by this court that her Honour’s discretion to dismiss the matter under r 44.12(1) of the Federal Circuit Court Rules 2001 (Cth) miscarried.

27    In any event—and with respect—the primary judge did not err in concluding as she did. As is apparent from her Honour’s judgment, the case advanced by the applicant does not ascend beyond an invitation to set aside the AAT’s decision on its merits. In her concluding remarks, the primary judge observed (at [22]):

Whilst I make no final decision as to whether or not the Tribunal’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the Tribunal capable of establishing jurisdictional error, and none is apparent on the face of the Tribunal’s decision record. The Tribunal made findings that would appear to be open to it and to which it applied the correct law.

28    Respectfully, her Honour was correct to so conclude. Even if, contrary to what is said above, the correctness of that conclusion were a basis upon which the exercise of her Honour’s discretion under r 44.12(1) of the Federal Circuit Court Rules 2001 (Cth) might be impugned, the conclusion itself was correct. The proposed appeal is, in this respect, without merit.

29    On the question of substantial injustice, it might readily be accepted that the consequences for the applicant of failure on the present application are significant. He will be denied the opportunity to press an application for relief that, were it to succeed, would have obvious consequences for him. That, however, is insufficient to salvage the present application.

30    I consider that the substantive appeal—were leave to be granted—would be destined to fail. The poor prospects that the appeal would have incline strongly against an exercise of the court’s discretion to grant leave; and, for that reason, the present application is refused.

31    The application will therefore be dismissed with costs.

Associate:

Dated:    25 November 2019