Federal Court of Australia

CSM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 40

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

2.    Order 1 not be entered until publication of the revised reasons for judgment.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A    INTRODUCTION AND BACKGROUND

1    This is an appeal from a judgment of the Federal Circuit Court (as it was then known) delivered in October 2019: CSM16 v Minister for Immigration & Anor [2019] FCCA 3122 (primary judgment or J). The primary judge dismissed an application by which the appellants sought to quash and have re-determined in accordance with law a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal’s decision, made in 2016, affirmed the decision of a delegate of the Minister not to grant the appellant a Protection (Class XA) visa.

2    The background and procedural history of this proceeding were set out in the primary judgment (at J [1]–[18]) and can be summarised briefly. The appellant arrived in Australia on a student visa in February 2013, which, the Minister’s representative confirms, imposes no restrictions on travel. The appellant returned to Pakistan in March 2014 and thereafter returned to Australia in April 2014. It was after his return to Australia in April 2014 that he made an application for a protection visa. He claimed that he feared being kidnapped and/or killed by Islamic extremists in Pakistan due to his Shia faith, and the involvement of both he and his father with a Shia group. He further claimed that he and his family were in continual danger as their home was near a Shia mosque, and that his father had been attacked. In November 2014, the appellant attended an interview with a delegate of the Minister, following which the delegate refused to grant the protection visa in February 2015. In March 2015, the appellant applied to the Tribunal for a review of the delegate’s decision (thereafter attending a hearing in September 2016).

3    For reasons that will become apparent, it is unnecessary for me to go into detail as to what occurred before the Tribunal. It suffices to note that in considering the appellant’s claims, the Tribunal accepted that the appellant was a Shia Muslim, but formed adverse views relating to his credit and, for apparently cogent reasons, found that it was not satisfied the appellant had a well-founded fear of persecution if he returned to Pakistan. Nor did the Tribunal find that there were other substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Pakistan, there was a real risk that he would suffer significant harm.

B    THE APPEAL

4    The matter is before me because the primary judge did not find jurisdictional error in the way the Tribunal went about its task. Again, it is unnecessary to go into this in detail, as it is apparent that the status of the two Bridging (Class WA-010) visas given to the appellant have now “ceased” and, accordingly, the appellant is not currently the holder of a valid visa for travel to Australia.

5    On 20 January 2022, shortly before the hearing listed before me today, my Associate received a communication from the appellant. In that correspondence, the appellant informed the Court that he had returned to “my country Pakistan due to the health of my only sister, [as] she was on her death bed”. The appellant explained: “[I] left [the] country for my sister because she needed me in her last moments of life”. He went on to indicate that, “[f]or now the situation in Pakistan is better than before, as you know. Right now [I] am living in some safe places until my [circumstances change].” More specifically, what the evidence reveals is that the appellant voluntarily departed Australia as the holder of a Bridging (Class WA-010) visa and arrived in Pakistan on 4 April 2021.

6    The appeal from the primary judgment relates to a decision refusing a Subclass 866 Protection (Class XA) visa. Clause 866.411 of the Migration Regulations 1994 (Cth) provides that an applicant must be in Australia in order for such a visa to be granted. As noted above, the appellant is not currently in Australia. Even if I was to assume that there was jurisdictional error in this case – and for the reasons explained by the primary judge, such error is not discernible – it would, in any event, be inappropriate to grant relief to require the Tribunal to rehear a matter in circumstances where the appellant is unable to pursue his protection visa application as he is now “offshore”.

7    Although this conclusion is sufficient to render the appeal futile, for the sake of completeness, it is worth identifying and briefly dealing with the grounds advanced in the notice of appeal.

B.1    Proposed Ground 1

8    The first ground of appeal identified in the notice of appeal is in the following terms:

1.    The Hon.judge failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claim and ignoring the aspect of persecution in Pakistan and harm in terms of sec.91R of the Act. The Tribunal failed to observe the obligation amounted to breach of statutory obligation

(Reproduced without alteration).

9    It is clear that the first ground raises an issue with the Tribunal’s decision that was not raised before the primary judge and, therefore, the appellant requires the leave of the Court for the ground to be raised on appeal: Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 (at 516 [19] per Griffiths and Perry JJ). I do not consider leave should be given to raise the ground because it is without substantive merit. First, there is nothing to suggest that the Tribunal’s decision was legally unreasonable. It is plain that, in making the decision, the Tribunal relied on the evidence that had been provided to the Department and the Tribunal, as well as country information, and the Tribunal’s exchanges with the appellant at the hearing.

10    Secondly, contrary to the contention sought to be advanced by the first proposed ground, it is evident that the Tribunal did not ignore persecution in Pakistan with respect to the former s 91R of the Migration Act 1958 (Cth). The Tribunal considered whether the appellant would suffer serious harm in Pakistan and took into account the appellant’s claims and evidence provided to the Tribunal and the Department, as well as country information in relation to that evaluation. However, the Tribunal did not accept that the appellant had given a truthful account of his reasons for seeking protection in Australia, relying on the confusing and inconsistent nature of his evidence. It further concluded, on apparently rational grounds, that it was not satisfied there was a real chance the appellant would suffer serious harm because he was a Shia or because of any future involvement he or his father may have with a Shia group, the Shia community, or the Shia mosque near their home.

B.2    Ground 2

11    The second ground raised in the notice of appeal provides:

2.    The learned Federal judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT.

12    This ground is expressed at such a high level of generality that it is difficult to understand the alleged legal and factual errors in the Tribunal decision which the primary judge is said to have failed to consider. In any event, upon my own unassisted review of the Tribunal’s reasons, there does not seem to me to be any obvious, discernible error of the type which could form a foundation for relief.

B.3    The appellant’s oral submissions

13    Having reviewed the papers in advance of the hearing today, and given my understanding of the likely futility of the appeal, I raised with the appellant at the outset of the appeal whether he wished to adopt a course similar to that adopted in Arafat v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1432 where, in not entirely dissimilar circumstances (although with some differences), I granted leave for an appeal to be discontinued with no order as to costs.

14    My motivation for raising this prospect was that I was of the view that the appellant’s prospects of success on the appeal were, to put it mildly, poor. I therefore thought it appropriate to inform the appellant that he could seek leave to discontinue the proceeding and that my preliminary view (subject to hearing from the Minister) was that I was prepared to allow that to occur with no order as to costs: see Arafat (at [9]). I suggested that such a course may be one that the appellant might consider adopting because it would mean the potential fetter of a further adverse costs order would not be a barrier standing in the way of the appellant making a further visa application. Although I tried to explain this in simple terms, it is perhaps understandable that the appellant did not consider he was in a position to embrace such a course and indicated that he wished me to deal with his appeal. Hence, I then proceeded to hear full argument.

15    During oral submissions, the appellant raised a number of issues, two of which are worth setting out for completeness. The first was that the appellant asserted that there was a bomb blast a few days ago in Lahore where many people were killed and, as a consequence, he currently cannot work or move about freely in Pakistan.

16    The second issue relates to his contention that he had a relationship with a woman in Australia, and the pair had a child who is now approximately two years old. Apparently, the relationship subsequently broke down. Although the appellant had previously communicated with his former partner through her solicitor regarding her request for some assistance with child support, that request has since been withdrawn and it is said that the child, who currently resides in Sydney, has been deprived, through the actions of the mother, from having a relationship with the appellant. The appellant stated that no legal proceedings have been on foot relating to contact with the child, but that he does wish to have contact with his child.

17    These two issues are, however, beyond the nature of my role, which is to determine whether or not there was error in the way in which the primary judge dealt with this matter and which does not extend to a review of the merits. I noted that, if the appellant wishes to make a further application for a visa, it is of course open for him to do so, including, to the extent they are relevant, one which relies on the matters that he explained to me during the course of the hearing today.

C     CONCLUSION

18    Needless to say, as is explained above, my preliminary view of the prospects of success of the appeal were borne out by closer analysis, and the appeal must be dismissed.

19    The Minister seeks an order that the appellant pay the costs of the appeal, and in all the circumstances, there is no reason why costs ought not to follow the event. Accordingly, the appeal is dismissed with costs.

Associate:

Dated:    31 January 2022